IN THE HIGH COURT OF SINDH
AT LARKANA
CivilAppeal S-02of 2020 : S.S.G.C Ltd. vs.
Riaz Ahmed Abro
For the Applicant : Mr. Bashir Ahmed Dargahi, Advocate
Date of hearing : 11.02.2022.
Date of order : 11.02.2022
ORDER
Agha Faisal, J.(1). Deferred. (2). Granted; subject to all just exceptions. (3).The appellant has impugned the order dated 02.03.2020, whereby the learned Sessions Judge, Jacobabad was pleased to reject the plaint of the appellant under Order VII Rule 11 CPC. It is considered illustrative to reproduce the operation findings here-in-below:
“I have carefully heard and considered the arguments advanced by learned counsel for the parties and perused the material available on the record, which shows that admittedly, prior to this the defendant Riaz Ahmed filed F.C Suit No.30/2013 on 06.09.2013 against the plaintiff and others, which after due trial was dismissed vide Judgment dated 29.11.2014 by the Court of learned Ist Senior Civil Judge, Jacobabad and learned counsel for the plaintiff further admitted in written objection against leave to defendant the suit and so also during course of arguments that after dismissal of FC Suit No.30/2013, the plaintiff filed FC Suit No.49/2017 (new) and 106/20116 (old) against the defendant, for recovery of said outstanding amount which was dismissed for non prosecution. Admittedly, after dismissal of the FC Suit No.30/2013 (filed by defendant), the plaintiff has filed the present summary suit after delay of about five years and no explanation of such delay has been furnished by the plaintiff in this suit or by learned counsel for the plaintiff during course of arguments, and on the contrary learned counsel for the plaintiff has argued that this suit is filed by the Government, hence it is governed by Article 149 of Limitation Act, which provided limitation of 60 years. Apparently, this summary suit is filed by Sui-Southern Gas Company (SSGC), which is Public Limited Company incorporated under Company Ordinance 1984 and not by Government. Section 79 of Civil Procedure Code provides the mechanism of filing suits by or against the Government, which is reproduced as under:
Section 79. CPC, deals with the circumstances as to how suits by or against the Government can be filed, which provides that in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be.
a) In the case of a suit by or against the Federal Government.
b) In the case of a suit by or against a Provincial Government, the Province.
7/. Here in this case, the suit has been filed by Sui Southern Gas Company (SSGC), and not by Federal Government or Provincial Government, therefore, provisions of Article 149 of Limitation Act are not applicable in this case. This case has been filed for recovery of amount of Rs.43,55,900/-, u/s. of Gas Theft & Recovery Act, 2016, and Section 6 & 7 provided summary procedure for disposal of the cases, hence in my humble view this suit is governed by Article-64-A of Limitation Act, which provides limitation of 03 years for filing of summary suits from the date when the debts become payable. In this suit, the plaintiff in his plaint has concealed the real fact that the plaintiff filed suit for recovery of said amount against the defendant which was dismissed for non prosecution by the Court of learned IInd Senior Civil Judge, Jacobabad on 07.04.2017, which shows that the plaintiff has not approached this Court with clean hands. Moreover, as per contents of plaint of this summary suit the cause of action accrued to the plaintiff to file this suit firstly on 04.03.2013, when the defendant filed the suit and lastly on 29.11.2014 when said suit of the defendant was dismissed by the Court of learned Ist Senior Civil Judge, Jacobabad as stated above in para No.6. Therefore, limitation starts from said date when right to sue accrued to the plaintiff, but the plaintiff filed this second summary suit on 21.11.2019, after delay of about 05 years, which in my humbly view is hopelessly time bared, therefore, by exercising powers U/O VII Rule 11 CPC, the plaint of this summary suit stands rejected with no order as to costs.”
2. Learned counsel does not controvert the findings contained in the impugned order, however, rests his appeal on the contention that the plaint ought not to have been rejected on mere technicalities and on the contrary ought to have been decided on merits.
3. Heard and perused. Admittedly, the underlying suit was barred by res judicata and limitation. These are substantial constituents of the law and cannot be disregarded as casually as sought by the appellant. The principles of res judicata are enshrined in the law, statutory as well as common, and it would be inconceivable to consider the entire jurisprudence in such regard otiose. It is imperative to denote at this juncture that it was never the appellant's case that the proceedings were not marred by res judicata.
4. It is the considered opinion of the Court that the prescriptions of limitation are not mere technicalities and disregard thereof would render entire law of limitation redundant[1]. It has been maintained by the Superior Courts consistently that it is incumbent upon the Courts to first determine whether the proceedings filed there before were within time and the Courts are mandated to conduct such an exercise regardless of whether or not an objection has been taken in such regard[2]. It has been maintained by the honorable Supreme Court[3] that each day of delay had to be explained and that in the absence thereof the proceedings ought not to be entertained. In the present facts and circumstances the delay could obviously not be justified.
5. Learned counsel remained unable to identify any infirmity with the impugned order, hence, could not set forth any case for admission of the present appeal. Accordingly, instant Civil Appeal is dismissed in limine.
JUDGE