Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

High Court Appeal No.234 of 2008

Date	Order with Signature of Judge

For hearing of main case :

19.10.2018 : Mr. Umar Hayat Sandhu, Advocate for the appellant.

Respondent called absent.

…………

This appeal has been filed against the judgment and decree passed on 22.05.2008 in Suit No.201 of 2005 whereby the said Suit filed by the appellant against the respondent for recovery of Rs.13,464,739.00 was dismissed as being barred by limitation. The relevant portion of the impugned judgment wherein findings with regard to the limitation for filing of the Suit were given reads as under :

“The last bill as per contents of the plaint was sent on 13.07.2002 to the defendant as such even the said rent contained in this letter was recoverable within one year from 13.07.2002 when the alleged bill was sent by the plaintiff to the defendant, in view of Article 110 of the Limitation Act, the present suit has been filed on 26.04.2004, when the limitation to file the present suit was (!) already expired on 12.07.2003, in view of Article 110 of the Limitation Act and nowhere in the plaint, the plaintiff had assigned any plausible and cogent reason in support of filing of suit after the expiry of limitation period. It is a settled principle of law that when period of limitation is expired, a very valuable right has been (!) accrued in favour of the opposite party, which could not be snatched leniently or liberally. In the present case no application for condonation of delay in filing of the suit has been filed by the plaintiff, in view of section 5 of the Limitation Act though at the very initial stage of presentation of the suit, office of this court raised such objection and learned counsel for the plaintiff was heard at length by this court vide order dated 30.08.2004 as such the suit of the plaintiff has become hopelessly time barred.”

2. It is contended by learned counsel for the appellant that limitation for filing the Suit was three (03) years under Article 110 of the Limitation Act, 1908, and not one (01) year as held by the learned Single Judge and as such it has been erroneously held that the appellant’s Suit was barred by limitation. We agree with the learned counsel for the appellant that the limitation for recovery of arrears of rent was three (03) years under Article 110 ibid. As observed in the impugned judgment, the last bill demanding the then total outstanding amount, including all arrears, was issued on 13.07.2002, and the Suit was instituted on 26.04.2004. Therefore, the Suit was wrongly dismissed.

3. In addition to the above, we have noticed that the first bill was issued on 13.10.1993 and since rent for the first year as well as for subsequent years was not paid by the respondent, all subsequent bills were issued by the appellant on regular / yearly basis demanding rent for the current year as well as arrears for preceding years. Thus, the arrears of rent kept on increasing on yearly basis and the same were added by the appellant in all subsequent bills / demands sent to the respondent. In this manner the demand in respect of arrears of rent was reiterated by the appellant on yearly basis through every subsequent bill. It may be noted that all such subsequent bills were issued by the appellant before the expiration of limitation in respect of the outstanding / arrears of rent. The above clearly shows that the default in payment of rent and arrears thereof alleged by the appellant was a continuing breach / wrong in terms of Section 23 of the Limitation Act, 1908. Perusal of the impugned judgment shows that the dates of all the bills issued and sent by the appellant to the respondent demanding rent and the arrears thereof were not only noticed by the learned single Judge, but were also recorded in the impugned judgment, however, the above aspect was not appreciated by him while dismissing the Suit.

4. Before parting with this case, it may be observed that delay, if any, in filing a Suit cannot be condoned under Section 5 of the Limitation Act, 1908, and no such application can be filed if a Suit is barred by limitation. Therefore, the observation to this effect in the impugned judgment is untenable.

5. Record shows that notice for today’s date of hearing was sent by the office on 11.10.2018 to learned counsel for the respondent, however, he has chosen to remain absent and there is no intimation from him.

6. In view of the above, the impugned judgment and decree are set aside and the matter is remanded to the learned Single Judge for decision of the Suit afresh strictly in accordance with law. The appeal is allowed in the above terms with costs.

J U D G E

*HCA 234-08/19.10.2018/Short Orders DB/Court Work/E*

*Azeem PS*