2025 PLP 394 (YLR)

Syed Arshad Ali, J.

Instant appeal arises out of the judgment and decree of the learned trial / Additional District Judge-XIX, Peshawar, dated 08.09.2022, whereby the suit of the plaintiff/respondent for recovery of an amount of Rs.9,10,00,000/- (ninety-one million) was decreed.

2. Facts of the case are that on 20.10.2018, Kachkol Khan, the plaintiff/respondent filed a civil suit for recovery of an amount of Rs. 9,10,00,000/- (ninety-one million) along with 25% profit. The suit was contested by the appellants/defendants denying business relations between the parties, therefore, the learned trial Court from the divergent pleading had framed the following issues and the parties were directed to produce their respective evidence. Issues: i. Whether plaintiff has got a cause of action? ii. Whether this court has got jurisdiction to entertain this suit? iii. Whether the suit is within time? iv. Whether plaintiff has invested Rs.9,10,00,000/- with defendants? v. Whether defendants purchased the suit properties over the said amount and paid profit to plaintiff of the same, from time to time? vi. Whether plaintiff is entitled to recovery of Rs. 9,10,00,000/- along with interest rate at 25%?

3. The essential claim of the plaintiff/respondent in his plaint is that he is an overseas Pakistani remained in Doha Qatar, where he earned money. On the request of defendant No.1 (now deceased), the predecessor of the appellants, the plaintiff had invested huge amount in the property business with him and on the amount which was invested by the appellant, the defendant No.1 had purchased a hotel (Al-Hamra Hotel) and some other property, however, he had executed the deed in his own name instead of the plaintiff. When the plaintiff came back to Pakistan, he demanded the amount from the defendants/appellants and in this regard a local Jirga was also convened but the defendants had refused to pay the said amount. The perusal of the plaint is silent that when and in what manner the amount was invested with the defendants. The defendants in the written statement have denied the business relations.

4. The plaintiff in support of his evidence has produced Hazrat Ali, Clerk, Office of the Sub-Registrar Peshawar, who appeared before the court as PW-1 and produced registered deed bearing No.499 dated 05.02.1986, whereby the defendants had purchased the property and later through subsequent two gift deeds Ex.PW-1/2 and Ex.PW-1/3, executed on 02.11.2011, he had gifted the said property to his two sons/appellants. The other witness Abdul Kabeer Khan, who appeared before the court as PW-2 and stated that the plaintiff had given me a bag consisting of Rs.1,236,000/- (one million two hundred thirty-six thousand) Qatari Riyals to hand over the same to Alam Shah, the defendant. He was a driver by profession at Qatar and he along with one Said Khan went to Alam Shah and handed over the said amount to him. Alam Shah had confirmed the receipt of the said amount in their presence by making a phone call to the plaintiff. In cross-examination a positive suggestion was given to this witness wherein he confirmed that the said amount was given to him in Qatar by the plaintiff in the year 1984. Another positive suggestion was given to this witness that "I only handed over the said amount to Alam Shah and nothing more".

5. Saeed Khan on behalf of the plaintiff appeared before the Court as PW-3. It is his testimony that he along with Abdul Kabeer was at Arafa wherein Kachkol gave Abdul Kabeer a bag for handing over the same to Alam Shah, which contained an amount of Rs. 1,236,0000/- Qatari Riyals. In cross-examination his testimony could not be shattered, rather certain positive suggestion too was given to this witness. Naeem Gul Tahir appeared before the court as PW-4. It was his testimony before the court that he knew both the parties, he was called by Kachkol in the year 1993 in the month of June to accompany him as he wanted to give some money to Alam Shah, thus in his presence at Chowkyadgar the plaintiff had handed over 210 bundle of one lac rupees, total amount of Rs. 2,10,00,0000/- to Alam Shah. In cross-examination this witness has confirmed that Kachkol had paid an amount of Rs.2,10,00,000/- to Alam Shah. Kohat Shah appeared before the Court as PW-5, who was a Jirga member to settle dispute between the plaintiff and defendants and has stated that he being a member of the Jirga had tried to settle dispute between the parties and in the said proceeding, Alam Shah was held liable to pay Rs.1,00,00,000/- (ten million) to Kachkol and a written instrument was prepared on 30.07.2009, which was exhibited as Ex.PW-5/1.

6. Kachkol Khan himself appeared before the court as PW-6 in support of his claim and has narrated the entire story that how and in what manner the amount was handed over to Alam Shah. Alam Shah during the proceeding had died, therefore, his son Zubair appeared before the court as DW-1. He has denied the assertions of the plaintiff and has also denied the ownership of Al-Hamra Hotel and has stated that they are tenant in Alhamra Hotel, however, the property adjacent to said hotel was purchased by his father. He was supported by Muhammad Asif Tanveer, who is the owner of Al-Hamra Hotel and has stated that in the said hotel Shah Alam along with his children were his tenant. Jalil Khan the other witness has also supported the claim of the defendants.

7. The learned trial Court, after evaluating the evidence of the parties, has passed a decree for recovery of Rs.1,236,000/- Qatari Riyals and an amount of Rs.2,10,00,000/- at the rate of value of gold in the year 1993.

8. Both the parties have argued the case and after perusing the available record and hearing the arguments, the following two points are for determination of this Court. i. Whether the plaintiff was able to establish that an amount of Rs.1,236,000/- Qatari Riyals and Rs.2,10,00,000/- was paid to the defendants and then the said amount is outstanding against the defendant? ii. Whether the suit was within time? My findings on both the issues are as following.

9. The perusal of the plaint would show that the claim of the plaintiff is for recovery of Rs. 9,10,00,000/-(ninety-one million). However, the plaint is silent about the detail of the amount and the fact that when the said amount was paid to the defendants. However, the witness produced by the plaintiff regarding the amount which was given to the defendants inspires confidence. As stated above, PW-2 is a witness who has confirmed payment of Rs.1,236,000/- Qatari Riyals to the defendants and this witness was supported by Saeed Khan (PW-3). In cross-examination their testimony that the amount of Rs.1,236,000/- was given to Alam Shah was never challenged, however, they have confirmed that the said amount was paid to Alam Shah, defendant, in Qatar in the year 1984. Similarly, relating to the payment of an amount of Rs.2,10,00,000/- to Alam Shah, defendant (now deceased) was supported by Naeem Gul Tahir (PW-4) and in the cross-examination a positive suggestion was given to this witness that an amount of Rs.2,10,00,000/- was given to the Alam Shah. Indeed it is settled law that facts admitted need not to be established and any positive suggestion given to the witness confirming his testimony amounts to a clear-cut admission. Thus, the findings of the learned trial court that the plaintiff had established an amount of Rs.1,236,000/- Qatari Riyals and Rs.2,10,00,000/- at the rate of value of gold in the year 1993, outstanding against the defendant, are not open to any exception.

10. Moving to the issue of limitation. Indeed it is settled law that the law of limitation cannot be considered merely a formality, but the same is required to be observed and taken into consideration being mandatory in nature. Similarly, it is settled law that the purpose behind law of limitation is to help the vigilant and not the indolent and helping hand could not be extended to a litigant having gone into a deep slumber or having become forgetful of his right. It is provided by section 3 of the Limitation Act, 1908 ("Act") that subject to the provision of sections 4 to 25, every suit instituted, appeal preferred and application made after the period of limitation prescribed therefore shall be dismissed, although limitation has not been set up as a defence. Section 3 of the Act is couched in mandatory form and entails penalty of dismissal of suit if instituted after the period of limitation prescribed in the First Schedule of the Act. It is also settled law that any person may have an enforceable right but if he fails to enforce such a right within time stipulated by law, then such right becomes unenforceable. ("State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others", reported as 2012 SCMR 280, "Ghulam Sarwar v. Amir Hussain and 3 others", reported as 2004 SCMR 944, "Lahore Development Authority v. Mst. Sharifan Bibi and another", reported as PLD 2010 SC 705, "Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen", reported as 2006 SCMR 631). Point of limitation even if not pressed or taken, the Court is under obligation to ensure that the question of limitation is scrutinized, for such question deals with assumption of jurisdiction to grant relief. ("Hakim Muhammad Buta and another v. Habib Ahmad and others", reported as PLD 1985 SC 153). The following two Articles in the First Schedule of the Act may be considered relevant for the present controversy, which are reproduced as under: Description Period of limitation Time from which period begins to run 1 2 3

61. For money payable to the plaintiff for money paid for the defendant. Three years When the money is paid

62. For money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use. Three years When the money is received.

11. In both cases, the limitation starts from the time when the money is either paid or the money is received and the period of limitation for the said purpose is three years. The assertions of the plaintiff's evidence are very clear that an amount of Rs.1,236,000/- Qatari Riyals was given to the defendant in the year 1984, whereas an amount of Rs. 2,10,00,000/- was given to the defendant in the year 1993. The said amount was demanded for the last time through a Jirga which was conducted in the year 2009, whereas the suit was brought before the court in the year 2018, which is obviously beyond the period of limitation.

12. Despite the fact that the said amount is due against the defendants/appellants, however, in view of the clear bar provided under section 3 of the Act no decree could be passed in favour of the plaintiff against defendants/appellants. The learned trial Court, in my humble view, has incorrectly dealt with the period of limitation from the date when the same was demanded through the office of Home Department of the province. Therefore, the suit filed by the plaintiff against the present appellants must fail on the point of limitation.

13. Resultantly, this appeal is allowed, the impugned judgment and decree dated 08.09.2022 is set aside and as a consequence thereof, the suit of the plaintiff against the present appellants is dismissed on the point of limitation. MQ/99/P Appeal allowed.