1972 PLP 129 (SCMR)

SALAHUDDIN AHMED, J.‑This petition for leave is from the order of a Division Bench of the High Court of Sind & Baluchistan, allowing the Letters Patent Appeal of respondent No. 1 and remanding the case to the trial Court fur trying certain issues. On 25‑6‑1955, the petitioner entered into an agreement with the respondent No. 1 inter alia, for the construction by the latter of low tension double feeder 50 K. W. 4:10 volts sub‑station for a lump sum of Rs. 1,65,0v'

0. According to the terms of the agree ment the petitioner was to obtain the permission of the relevant authorities for crossing the Railway lines and Rohri Canal and also to secure the necessary site for the location of the sub‑station. The respondent started the work in pursuance of the agreement but stopped it on 30‑4‑1956 because of the failure on the part of the petitioner to obtain the aforesaid permission and the site. On 7‑8‑1956 the respondent submitted his bill amounting to Rs.66,721 to the petitioner for the work done by the former. On 3‑9‑1956 the petitioner by letter Exh.7 asked the respondent to hand over the materials in his possession to the petitioner. On 10‑6‑1959 respondent No. 1 gave a notice of demand for the amount due. On 10‑8‑1959 respondent No. 1 filed a suit against Col. F. S. Wahiduddin as the Managing Director of Fakir Textile Mills Limited, and against M/s. Fakir Textile Mills Limited for the recovery of Rs. 66,721 together with interests from 6‑8‑1955. On 7‑10‑1959 the respondent applied for amendment of the plaint on the ground that through oversight the description of defendant No. 2 was given in' the plaint as Fakir Textile Mills Limited instead of Fakir Spinning Mills Limited and as the name of the said concern was changed from time to time, it was expedient to make Fakir Spinning Mills Limited also, a party. This is evident from the affidavit of respondent a copy of which has been produced before us and is kept on record. On 9‑11‑1959 there being no objection the amendment was allowed. The trial Court dismissed the suit as barred by limitation on the ground that as the period of limitation started to run from 30‑4‑1956, when the work was stopped by respondent No. 1, the plaint filed on 10‑8‑1959 was barred by time under Article 56 of the Limitation Act. Respondent No. 1 thereupon filed a Letters Patent Appeal which was allowed by a Division Bench of the High Court. On 16‑7‑1968 Col. F: S. Wahiduddin died and his legal representatives, respondents Nos. 3 to 9 were brought on record on the application of respondent No.

1. The learned Judges of the Division Bench held that the case fell under Article 115 i.e. Compensation for breach of Contract and the date when the cause of action arose to respondent No. 1 was either 7‑8‑1956 which according to paragraph 10 of the plaint was the date when the cause of action finally accrued or on 3rd September 1956 when the said letter (Exh. 7) was alleged to have been written by the petitioner to respondent No. 1. 1 he Division Bench accordingly held that the suit was filed within time and the case was remanded to the learned Single Judge for trial on certain issues. In our opinion the learned Judge of the Division Bench was right in applying Article 115 of the Limitation Act. We do not agree with the contention of the petitioner that inasmuch as the petitioner was impleaded on 9‑11‑1959 the suit against the petitioner is barred by limitation. We have already observed that as a matter of fact it was not a case of impleading a new party but was one of amendment regarding the description of the party who was already there. This petition is accordingly dismissed. Leave refused.