2010 MLD 1333
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
SIRAJUDDIN ---Petitioner
Versus
Haji MUHAMMAD ZARIF and 3 others ---Respondents
Civil Rev ision No.518 of 2007, decided on 26th April, 2010.
Civil Procedure Code (V of 1908) ---
----O. VII, R.2 ---Limitation Act (IX of 1908), Art.52 ---Suit for recovery of amount ---
Limitation ---Suit filed by the plaintiff had concurrently been dismissed by the Trial Court and
Appellate Court ---Plaintiff had asserted that he supplied goods in question to the defendants
in year 1993, while he filed suit for recovery of amount of said goods in year 2004 ---Suit
which under Art.52 of Limitation Act, 1908 was to be filed within three years, was barred by
eight years ---Plaintiff though had asserted that he made efforts, approached the defendants
and other notables for recovery of amount due, but he failed to prove the same ---Despite his
general assertion he failed to specify the efforts made by him and other circumstances on
account of which he was unable to approach the court in time --Suit was surely filed beyond
provided period and the plaintiff had failed to establish grounds on basis of which such delay
could be condoned ---Courts below in circumstances, had rightly concluded that suit was not
maintainable ---Plaintiff who otherwise had himself destroyed his own case by taking
contradictory pleas, had failed to make out any case in his favour ---Plaintiff having fai led to
establish any ground on basis of which interference could be made in impugned orders,
revision petition filed by the plaintiff was dismissed, in circumstances.
Petitioner in person.
Respondents called absent.
Date of hearing: 3rd Novemb er, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Through instant petition the petitioner sought setting
aside of impugned judgments made on 20 -6-2007 by Civil Judge -V, Quetta and 24 -9-2007
made by Additional District Judge -I, Quetta, being aggr ieved of both the orders on grounds
that the courts below failed to consider the factual aspect of the case. He being admittedly
supplier of fruit to Commission Agents at Quetta, while supplied the consignment to the
respondents. Further, he spent his time in persuading the respondents, while notables of the
market also intervened and assured him about payment. He was rather threatened and
harassed by the respondent, due to which he approached the Authorities and spent his time
thereon. Moreover, the docume nts placed on record were also not considered by the trial
Court. He prayed for setting aside of orders of both the courts thereby decreeing the suit in
his favour.
Appellant has been heard, while counsel for the respondents has submitted his arguments in
writing.
As per record the petitioner/plaintiff filed a suit for recovery of an amount of Rs.438,000 on
account of supply of 1460 crates of fine grapes, each weighing 16 -Kg, while the
respondents/defendants agreed to pay the costs at the rate of Rs .300 per crate, amounting to
Rs.438,000, during the year, 1993. On completion of consignment he made demand for
payment of amount, but the respondents/defendants made denial and refused to pay the
outstanding amount, while started threatening him. Despite repeated demands, they failed to
pay the outstanding amount and instead of delivering the actual receipts handed him forged
receipts showing low rates therein. Afterwards refused to pay the amount and torn out the
receipts. Legal notice was also issued, he tried to lodge F.I.R., but due to influence of the
respondents/defendants he remained unsuccessful in same respect. Even his legal notice
issued under provisions of Qanun -e-Shahadat Order was also not replied by the
respondents/defendants. He prayed for r ecovery of the suit amount.
Respondents/defendants strongly denied the contention raised by the petitioner/plaintiff. They
denied existence of any sort of business relation and transaction between them and the
petitioner/plaintiff, who according to the m, only wanted to harass and blackmail them. The
complaints and applications made to the Authorities by the petitioner/plaintiff were also
dismissed being frivolous. They objected on maintainability of the suit being time -barred, as
the petitioner/plaintif f claimed recovery of amount pertaining to year, 1993, while the suit has
been filed in year, 2004. Further, court -fee paid is deficit, while suit is bad for non -joinder of
parties.
Out of pleadings of the parties issues were framed, both the parties p roduced evidence, on
completion of the same, the trial court decided the case through judgment made on 20 -6-
2007, thereby 2 dismissed the suit being not proved by the petitioner/plaintiff. The appeal
filed by him was decided by the Appellate Court through order made on 24 -9-2007, holding
therein that the judgment of trial court based on reasons, while no illegality and irregularity is
found in the same, thus upheld the order. The petitioner/plaintiff still feeling aggrieved
preferred present petition seekin g setting aside of both the orders thereby decreeing the suit in
his favour.
Along with the petition the petitioner has filed an application under Order 33, C.P.C. for
allowing petitioner to file the revision as pauper and exempt him from payment of re quired
court -fee. It is apparent from record that the plaintiff/petitioner was allowed to sue as pauper
by the trial Court through order made on 15 -6-2006. The appeal was also filed with request to
sue as pauper. Now along with instant petition same reques t has been made. Though during
course of arguments this objection has been raised that the petitioner/plaintiff has concealed
his actual financial status, because he owned house at Kharootabad and his sons are doing
business. But it is to be noted that whi le filing his written statement no such contention was
raised by them. Rather during pendency of trial they never tried to prove the contrary, even
after passing of order, dated 15 -6-2006, nor they filed any application for review or recalling
of the order . Apart from the same as per Article 12 Schedule -I of Court Fees Act the required
court -fee to be paid on application for revision of an appellate decree, will be the fee leviable
on a memorandum of appeal. In present case the order of trial court made on 15-6-2006 has
attained finality, while on memo of appeal court -fees amounting to Rs.2 has been affixed, as
such the required court -fee on present petition will also to be valuing Rs.2. The petitioner has
affixed court -fee valuing Rs.12 on of the petition. In the circumstances the relevant provision
is proviso of Rule 2 of Order XLIV, C.P.C. which states as under:
"Provided that, if the applicant was allowed to sue or appeal 'as a pauper in the court from
whose decree the appeal is preferred no further i nquiry in respect of the pauperism shall be
necessary, unless the Appellate Court sees cause to direct such inquiry."
The Appellate Court in present case made no direction for inquiry in same respect, while no
objection was ever raised from other side, therefore, at the stage of revision there is no
occasion to interfere in the findings of the trial Court to this extent.
Now coming on merits of the case, as per petitioner/plaintiff both the courts below
misappreciated the evidence and facts, while circumstances are not considered properly.
Moreover, the documents placed on record are ignored by both the courts. While in rebuttal
the respondents supported the impugned judgments and pointed out the contradictions present
in plea taken by the petitione r/plaintiff. As per petitioner/plaintiff the alleged transaction was
made in year, 1993, while the amount alleged was also in respect of the transaction held in
year, 1993. The suit for recovery was filed in year, 2004. Article 52 of Limitation Act is
relevant, whereof provided period for filing a suit for recovery of money, rather price of
goods sold and delivered, where no fixed period of credit is agreed upon, is three years, from
the date of delivery of goods. As per his own showing he supplied goods to the
respondents/defendants in years, 1993, while he surely filed suit after lapse of eleven years,
thus the suit was barred by eight years. Though the petitioner/plaintiff has asserted that he
made efforts, approached the defendants and other notables for recovery of amount due, but
failed. Despite his general assertion he failed to specify the efforts made by him and other
circumstances due to which he was unable to approach the Court in time. The suit was surely
filed beyond provided period, while there are also no grounds, established by the
petitioner/plaintiff, on basis of which such delay can be condoned. The suit was not
maintainable. Both the courts come to the right conclusion.
It is further to be noted that in the plaint the petitioner/plainti ff has raised plea that he
dispatched 1460 crates of grapes at the rate of Rs.300 each to the defendants, who despite
demand failed to pay the costs. Contrary to the same in present petition it is his contention
that as per Act of 1991 and Rules of 1995 th e defendants were bound to charge only 5% of
commission on the sale of fruits, but in violation of the same they charged the commission at
the rate of 10%. As such since 27 -8-1994 and onwards the respondents dishonestly charged
the commission in excess rat e which comes to Rs.4,38,000. Absolutely contradictory plea has
been taken, thereby he himself destroyed his own case.
The learned trial as well as appellate Courts rightly asseesed the material present on record
and comes to the right conclusion that the petitioner/plaintiff has failed to prove his suit,
which is otherwise filed beyond provided period. The petitioner has completely failed to
make out any case in his favour, he has failed to establish any ground on basis of which
interference can be mad e in impugned orders. Revision petition is hereby dismissed being
without merits.
No order as to costs.
H.B.T./63/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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