IN THE HIGH COURT OF SINDH

AT LARKANA

CivilR. A. S-19of 2021 : Zaheer Abbas Shahani vs.

P.O Sindh &Others

For the Applicant : Mr. Ghayoor Abbas Shahani, Advocate

For the Respondent s : 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.

2. Briefly stated, the applicant filed a suit for recovery and contractual dues against official respondents before the Court of learned 1st-Senior Civil Judge Larkana, however, the plaint therein was rejected under Order VII Rule 11 CPC. The plaint read that the cause of action was recurring and initially arose within three years, however,the learned trial court was pleased to undertake an appraisal of some underlying documentation and summarily conclude that the cause of action accruedprior than pleaded, hence, rejected the plaint. The said findings were maintained by the learned Appellate Court and it was recorded that any claim whatsoever was hit by limitation.

3. Learned counsel for the applicant submits that plaint before the learned trial Court specifically pleaded approval/renewal of cause of action within limitation and in any event the claim had also been duly admitted by the respondents in their written statement and the documents filed therewith; whereby the liability of the applicant had been admitted, however, 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 therein.

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 within limitation, 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 Written Statement filed by the official respondents categorically accepts the completion of work and states that the outstanding amount cannot be paid from the current budget[5]. The respondents go further and sympathize with the applicant and state that the matter has been escalated for release of additional funds[6]. The two letters accompanying the written statement, pages 95 and 97 herein, corroborate the aforementioned.

7. The impugned order of the trial court duly took the written statement into consideration and recorded the contention of the defendants there before 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.[7]

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.

[7]2007 SCMR 938; 2007 SCMR 933; 2007 SCMR 621.