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P L D 2009 Lahore 52

 

Before Mian Saqib Nisar and Khawaja Farooq Saeed, JJ

 

PAKISTAN INDUSTRIAL AND COMMERCIAL LEASING LTD. through Authorised

Manager Recovery—Appellant

 

Versus

 

HAQ KNITWEAR (PVT.) LTD. through Chief Executive and 2 others—Respondents

R.F.A. No.361 of 2007, heard on 13th October, 2008.

Shehzada Mazhar for Appellant.

Respondent No.2 (in person).

Date of hearing: 13th October, 2008.

JUDGMENT

 

MIAN SAQIB NISAR, J.—The suit for the recovery brought by the appellant against the respondent on 11-3-2002, has been dismissed by the learned Banking Court vide judgment and decree dated 6-8-2007, on the ground of limitation.

2. Learned counsel for the appellant states that in the backdrop of the previous suit instituted by the appellant against the respondents, the appellant was entitled to the benefit of section 14 of the Limitation Act. He has narrated that the respondents of the case availed a lease financing from the appellant, through an agreement dated 18-6-1995 and the last payment due on account of the rental of the leased machinery, etc. was of 1-6-1998. However they only paid rent till 2-2-1997, whereafter, a default was committed; in discharge of their obligation, the respondents pledged certain certificates of investment with the appellant on 7-7-1998, but even this could not settle the debt, resultantly, the, appellant on 10-9-1998 filed a suit for the recovery of the balance amount of the lease money. This suit was dismissed by the learned Banking Court on 15-6-1999, on the score of having not been instituted by an authorized person on behalf of the appellant. The appellant instead of filing a Regular First Appeal, challenged this judgment and decree through a Writ Petition filed on 7-7-1999, which after its admission, was dismissed on 24-2-2001 for the score that alternate appropriate remedy available to the appellant under the law, had not been availed. Subsequently, the appellant filed the fresh suit for the recovery on 11-3-2002, which has been dismissed by the learned Banking Court vide judgment and decree dated 6-8-2007, as being barred by time.

3. Mr. Shehzad Mazhar, learned counsel for the appellant argues that in the facts and Circumstances of the case, the time consumed by the appellant in perusing the previous suit and the writ petition, should be excluded under section 14 of the Limitation Act, especially such time during which the Writ Petition remained pending. However, when questioned, if any application under section 14 of the Limitation Act, mentioning the exact dates in this behalf, was moved by the appellant, along with the suit, the answer is in the negative; the same is the reply with regard the query, if the averments in the plaint about the exclusion of the limitation as required by under Order VII, Rule 6, C.P.C. were made.

4. Heard. While enacting the Limitation Act 1908, the legislature in its wisdom has fixed the period of limitation for a particular action. The structure of the law is founded upon the legal maxims, that delay defeats equity, time and tide wait for none and law helps the vigilant not the indolent. Besides, the bar of limitation in the adversarial litigations creates valuable right in favour of the other party. It is for such reason that according to section 3 of the Act, subject toy sections 4 to 25, even if the bar of limitation has not been set out as a defence, it is the duty of the Court to reject the claim, which is beyond the time prescribed for an action by the said law. However, where a claim is out of limitation and the claimant seek the exclusion in terms of section 14 of the Act, he has to bring his case squarely within the purview and mischief of the noted section, which provision must be strictly construed and applied and the following conditions must co-exist and be. fulfilled:–

(a) that the plaintiff has been prosecuting another civil proceeding against the defendant;

(b) that he has been proceedings it with due diligence;

(c) that this proceeding is founded upon the same cause of action;

(d) that it is prosecuted in good faith; and

(e) that it does not bear fruit, because the Court is unable to entertain it due to defect of jurisdiction and other cause of a like nature.

5. The plaintiff of the case, asking for the benefit of the noted section, must move an independent and a separate application along with plaint, with full particulars about the exact dates of institution of the earlier civil proceedings in original or appeal, and its termination and the cause on account of which the claim was dismissed/rejected; furthermore, affirming and establishing from the contents of the said application, that the conditions mentioned above have been met; if the requisite application is not made, the Court shall not be empowered to exclude the time on the basis of section 14. As admittedly this exercise has not been undertaken by it, therefore, on this score alone, the appellant was/is not entitled for the exclusion of the time in computing the limitation for its second suit. Besides the above, we are of the view that the earlier suit filed by the appellant was not dismissed on account of some defect of jurisdiction or the cause of a like nature on account of which, the Court was unable to entertain it, rather it was dismissed by the learned Banking Court, for having not been filed by the appellant through an authorized person, thus not covering the matter under section 14.

6. In addition to the above, the appellant is also not entitled to the exclusion of time under section ibid, because according to the provisions of order VII Rule 6, C.P.C, where a .suit is admittedly instituted after expiration of the prescribed period of limitation, the plaint should show the ground upon which, the exemption from the limitation is claimed. If such exemption is not asked for in the plaint, the suit of the plaintiff shall be hit by the rule that no one can be allowed to plead and prove his case beyond the scope of his pleadings, therefore, in such circumstances, the plaint shall be liable to be rejected under Order VII, Rule 11, C.P.C, as being barred by time.

7. On account of vital lapses mentioned above and not making out or bringing its case within the purview of section 14 of the Limitation Act and Order VII Rule 6 C.P.C, we find that the appellant’s appeal can be simply dismissed on this score alone without going into the question, if the time consumed by the appellant in pursuing the writ petition (which is the civil proceedings) should be excluded in terms of section 14, as it was dismissed for the adequacy of other remedy, which should be equated with the defect of jurisdiction or the cause of the like nature.

8. The last submission of the appellant’s counsel that as the leased machinery had not been returned by the respondents therefore, it was a continuing cause of action attracting section 23 of the Limitation Act, suffice it to say that when the appellant earlier filed the suit for the recovery of rental, the cause of action in its favour had fully matured for both the reliefs and if permitted under the Lease Contract, it could competently ask for the recovery of the machinery as well, but this was not done. Anyhow, leaving apart the effect of Order II, Rule 2, C.P.C, in this situation, the cause of action in favour of the appellant had finalized for all intents and purposes at the time of its first suit, and it never continued thereafter. We, therefore, find no merits in this appeal, which is hereby dismissed.

M.B.A./P-16/L        Appeal dismissed.

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