IN THE HIGH COURT OF SINDH
AT LARKANA
CivilR. A. S-18of 2021 : Zaheer Abbas Shahani vs.
P.O Sindh and others.
For the Applicant : Mr. Ghayoor Abbas Shahani, Advocate
For the Respondents : Mr. Abdul Hamid Bhurgri, Additional
Advocate General Sindh.
Date of hearing : 21.02.2022.
Date of order : 21.02.2022
ORDER
Agha Faisal, J.The applicant filed a suit for recovery for contractual dues against official respondents before the Court of learned Senior Civil Judge-I, Larkana, however, the plaint therein was rejected under Order VII Rule 11 CPC. The appeal there against was also dismissed, hence, this revision. It is appropriate to reproduce the findings of the learned trial court hereinbelow:
“Through this order I intend to dispose an application under Order VII Rule 11 CPC read with section 151 CPC filed by learned DDA for defendants for rejection of plaint. Notice of this application was given to the plaintiff whereon learned counsel for plaintiff filed written objections alongwith counter affidavit of plaintiff which were taken on record.
Learned DDA argued that suit of the plaintiff is barred under articles 56, 62 and 63 of the Limitation Act. He further argued that burden of proving the claim always lies upon the plaintiff but plaintiff has not filed any relevant document in support of his case which shows that claim of plaintiff is false and fabricated. He further submitted that plaintiff neither filed any MB of work nor any completion order issued by the competent authority, hence claim of plaintiff has no value in the eyes of law. He further argued that it is settled law that Civil Litigation is based upon documentary proof but plaintiff miserably failed to produce any single document in support of his claim. He further prayed that suit of plaintiff is not maintainable, hence same may be rejected under Order VII Rule 11 CPC.
On the other hand learned counsel for plaintiff while opposing instant application submitted that instant application is not maintainable and has been misconceived. He further argued that defendants No.3 and 4 in their written statement admitted the claim of plaintiff but the due amount could not be paid to the plaintiff due to non-availability of budget, he further argued that defendants have even appended a letter written to the defendant No.2 by the defendant No.3 regarding claim of plaintiff which further proves that claim of plaintiff is false or fabricated. He further submitted that suit of plaintiff is not based by any law hence instant application may be dismissed being meritless.
Heard the arguments and perused the record. Plaintiff has filed suit for recovery which is in fact based on contractual obligation as according to plaint, he was awarded twelve different contracts in October, 2014 by the defendants for supplying some material and vehicles which was completed by the plaintiff in 2014. In Para No.12 of the plaint, plaintiff
mentioned that cause of action accrued to him in the year 2014 when defendants refused topay the amount which means time for limitation started to run in the year 2014. Since the recovery has been sought on the basis of contractual obligation hence Article 113 of the Limitation Act shall apply in present matter which provides three years of limitation to file which starts to run cither from the date fixed for performance or when no such date is fixed then fromthe time when plaintiff had notice that performance has been refused. Plaintiff himself mentioned in Para No.12 that defendants refused to pay the amount in the year 2014 which means time started to run against him in the year 2014 and he filed present suit on 30.06.2020 after lapse of more than five years which is way beyond the limitation period provided for filing such suit. The defendants No. 3 & 4 though admitted claim of plaintiff in their written statement but they also stated in reply of prayer clause (a) that claim amount cannot be paid from current budget being six years older.
In view of above discussion the suit of plaint is hit by Article 113 of the Limitation Act, 1908 hence plaint is hereby rejected under Order VII Rule 11 CPC.”
2. The said findings were maintained by the learned Appellate Court and it was recorded that any claim whatsoever stood vitiated by limitation in any event.
3. Learned counsel for the applicant submits that plaint before the learned trial Court specifically pleaded approval/renewal of cause of action in May, 2020 and in addition thereto the same had also been duly admitted by the respondents in the written statement filed and the documents filed along therewith, wherein it was stated that the same could not be paid out of the current budget of the respondents. Learned Additional Advocate General supports the findings of the Courts below and submits that no interference is warranted there in.
4. Heard and perused. It issettled law that the question of whether a suit was likely to succeed or not was irrespective of whether or not the plaint ought to have been rejected[1]. It is often seen that while a plaint could not have been rejected, however, a suit was dismissed eventually for a host of reasons. The evolution of law with respect to rejection of plaints was chronologically catalogued in the Florida Builders case[2] wherein the august Supreme Court demarcated the anvil upon which the decisions in such matters ought to be rested. A Division Bench of this court has held in the Rana Imran case[3] that in the instance of controversial questions of fact and / or law, the provisions of Order VII rule 11 CPC would not be attracted and the proper course for the court, in such cases, was to frame the relevant issue/s and decide the same on merit in the light of evidence and in accordance with the law.
5. The respective courts observed that the rejection of the plaint was merited as the suit appeared thereto to be barred by law. The import of the word appear has been considered in the Florida Builders case[4] and the Supreme Court has deciphered the legislative intent to mean that if prima facie the court considered that it appears from the statements in the plaint that the suit was barred, then it should be terminated forthwith. The plaint states that the cause of action accrued / renewed in May 2020, hence, no manifest limitation issue was apparent. Whether the said contention succeeds at trial or otherwise is a decision that could only be made upon conclusion of the trial.
6. The impugned order/s specifically mentions the written statement filed by the official respondents, paragraph 9 whereof categorically states as follows:
“That the contents of Para No.9 that outstanding dues / 6 years old liabilities amount cannot be paid from current budget and other side in this position matter of the plaintiff regarding payment has already been moved to the department with request for releasing of outstanding amount in favour of plaintiff (attached as Annexure-A).”
In the attached letter, dated 24.07.2020, a request has been made for additional funds in this regard. It is considered illustrative to reproduce the letter hereinbelow:
“Subject: REQUEST FOR DEMAND OF ADDITIONAL FUNDS
The application for additional funds under the Head of Account 0-122-Irrigation 042203 Canal for the payment of out standing amount of Mr. Zaheer Abbas Shahani, Government Contractor, the work was carried out by him during the year 2014-15 for amounting to the tune of Rs.4.959 Million.
It is requested that may kindly move the matter to higher ups for arranging the funds to the tune of Rs.4.959 Million, so that this office may be able to make payment to the concerned contractor.”
7. The impugned order of the trial court duly took the written statement into consideration and recorded the contention of the defendants therebefore that admittedly the claim of the plaintiff could not be paid due to non availability of budget. However, despite taking the same into consideration, the learned court proceeded to reject the plaint and did not subject the lis to regular trial. This approach of the learned trial court appears to have been erroneous and the same appears not to have been remedied by the appellate court.
8. In view of the statement made in the plaint itself, the suit did not appear to be time barred. The written statement and the documentation filed therewith also suggested similarly. While there could be occasion to frame an issue with regard to limitation, no cause appears to have arisen to simply non suit the applicant. It is the considered opinion of this court that the orders impugned were incongruent with the principles illumined by the august Supreme Court in Florida Builders and were fraught with material irregularity. The discretion conferred upon the subordinate fora appears not to have been exercised judiciously or in accordance with the sound principles of law.[5]
9. In view of the foregoing, the order of the learned trial Court and that of the learned Appellate Court cannot be sustained and the same are hereby set aside. The Order VII rule 11 CPC application before the Court of Senior Civil Judge-I, Larkana is hereby dismissed.
10. This revision application is allowed in terms herein.The learned trial court is directed to proceed with the matter expeditiously after framing the issues and recording of evidence. The office is directed to communicate copies hereof directly to the learned trial court and the learned appellate court for compliance.
JUDGE
[1]Al Meezan Investment Management Company Limited & Others vs. WAPDA First Sukuk Company Limited & Others reported as PLD 2017 Supreme Court 1.
[2]Haji Abdul Karim & Others vs. Florida Builders (Private) Limited reported as PLD 2012 Supreme Court 247.
[3]Per Muhammad Ali Mazhar J. in Rana Imran & Another vs. Fahad Noor Khan & Others reported as 2011 YLR 1473.
[4]Haji Abdul Karim & Others vs. Florida Builders (Private) Limited reported as PLD 2012 Supreme Court 247.
[5]2007 SCMR 938; 2007 SCMR 933; 2007 SCMR 621.