' SYED JAMSHED ALI, J.---The order, dated 17-12-2002 of the learned Civil Judge, 1st Class, Pattoki has been assailed in this appeal whereby plaint in the suit for recovery of Rs,92,09,083.90 filed by the appellant against the two respondents herein, was rejected on the ground of bar Of limitation. On 11-10-1997, the appellant filed a suit for recovery of the aforesaid amount against two respondents, employees of the appellant, on the ground that they were responsible of shortage misappropriation of the wheat and the Bardana procured for the wheat season 1987. In para.8 of the plaint, it was averred that in February, 1988, the Inspection Team had pointed out defalcation of huge quantity of wheat stocks at Pattoki Railway Station, Reservoir No,2. A Board of the officers was constituted to determine the shortage and the said Board pointed out huge shortage of wheat and A-Class gunny bags. In para.12 of the plaint, it was stated that defendant/respondent No,1, vide his affidavit dated 22-2-1988, undertook to deposit the money. Shortage of wheat and Bardana was reported vide interim Audit Report of 1988. The final Audit Report, dated 10-9-1994 also established the defalcation of the wheat and the gunny bags. In para.16 of the plaint it was averred that on 11- 12-1992, notices were addressed to the two respondents for deposit of amounts of Rs,18,65,086.90 and Rs,21,51,345.30, respectively. The total amount comes to Rs,40,16,431.20. Besides the said amount, an amount of Rs,51,92,652 was also claimed as mark-up for the period from April, 1987 to September, 1997.
2. The respondents contested the suit and filed written statement. They also filed an application for rejection of the plaint on the ground of limitation which was dismissed vide order dated 3-2-1999.
However, a fresh application under Order VII, rule 11, C.P.C. Was filed by the respondents on 16-6- 1999. The learned trial Court, while referring to the contents of the plaint, reached the conclusion that Article 48 of the Limitation Act, 1908 governed the suit and it was, therefore, barred by time.
Accordingly, the plaint was rejected.
3. The learned counsel was heard and the record examined. He contends that question of limitation was a mixed question of law and fact and the plaint could not have been summarily rejected. He also relied upon paragraphs 17 and 19 of the plaint to contend that cause of action to file the suit had arisen on the basis of the report of the General Manager (Field) dated 9-1-1995 and thus the suit filed on 11-10-1997 was within time. Reliance was placed on Irshad Ali v. Sajjad Ali and 4 others PLD 1995 SC 629. In the alternative, he makes a request that the case be adjourned to enable him to move an application under Order VII, rule 6, C.P.C. For claiming exemption from limitation. He further submits that acquiescence and consent of the two respondents had the effect of extending limitation.
4. We have considered the submissions made by the learned counsel for the appellant. At the very outset, we may refer to Ahsan Ali and others v. District Judge and others PLD 1969 SC 167 to say that there was no waiver of the question of limitation. Therefore, the contention that acquiescence and consent extended limitation has not impressed us. A perusal of the plaint leaves no manner of doubt that initially the appellant knew of the defalcation of the wheat and Bardana in 1988 when the Board was constituted, and the interim Audit Reports were submitted. Thereafter on 11-11-1992, notices for the deposit of specific amounts, claimed in the suit were addressed to the two respondents. Even from the final Audit Report dated '10-9-1994, the suit filed on 11-10-1997 was beyond the period of three years prescribed under Article 48 of the Limitation Act, 1908. The judgment cited by the learned counsel for the appellant has been examined. In the said case, the learned two Courts had rejected the plaint on the ground that the partnership was dissolved and the suit for rendition of accounts was filed beyond prescribed period of limitation. This Court interfered on the ground that the dissolution of partnership was a disputed question of fact as according to the plaintiff, the partnership had never been dissolved. The judgment of this Court was upheld by the Honourable Supreme Court of Pakistan. The question of limitation may be a mixed question of law and fact only when a factual controversy is raised. In this case, according to the averments made in the plaint, the suit was beyond limitation prescribed by Article 48 of the Limitation Act.
5. We are not inclined to grant the request of the learned counsel for the appellant to adjourn the case to enable him to make an application seeking exemption from limitation for the simple reason that the ground to claim exemption from limitation should have been given in the plaint as required by rule 6, Order VII of the Code of Civil Procedure.
6. This appeal is dismissed accordingly.