1. ' NADEEM AZHAR SIDDIQI, J.--- The plaintiff has filed this suit for recovery of damages on the ground that on 2-5-2003 at evening times the defendant No,2 employee of defendant No,1, while driving motor vehicle being Registration No,CC-6454, owned by defendant No,1, hit the . Plaintiff at Chaudhary Khalique-uz-Zaman Road, near Askari Apartments, Clifton, Karachi. The incident was reported to Police Station Frere by the defendant No,2. It was alleged that on account of such accident the plaintiff suffered multiple injuries causing permanent disablement.
2. ' The defendant No,3 which is a insurance company has filed application under Order VII, Rule 11, C.P.C. On the ground that the suit is barred under Article 22 of the Limitation Act, 1908, which provides a limitation of one year for filing suit from the date when injury is committed.
3. ' The plaintiff has filed her counter-affidavit. In para.4 of her counter-affidavit she submitted that she remained in touch with the defendants all the time but they failed to respond despite due acknowledgment as proved from the documents and claimed that she is entitled to the benefit of section 19 of the Limitation Act and prayed that application under. Order VII, Rule 11, C.P.C. Be dismissed with costs.
4. ' Mr. Mazhar Lari, learned counsel for defendant No,3 contended that the suit is barred by Article 22 of the Limitation Act, 1908. He submits that the limitation for filing such suit is one year. He further submits that according to the plaint the injury was caused on 2-5-2003 whereas the suit was filed on 14-9-2004. He further submits that even if letter, dated 2-9-2003 addressed by the defendant No,1 to the husband of the plaintiff is treated as acknowledgment the suit is time-barred. He hascontended that the letters and notices which were sent to the defendants and not replied or responded do not amount to acknowledgment.
5. ' On the other hand Mr. Arshad Jamal Siddiqui, learned counsel for the plaintiff, contended that the suit is within time. He submits that through her various correspondence the plaintiff remain in touch with the defendants and defendant No,1 vide letter, dated 2-9-2003 acknowledged his liability and that letter is deemed to be an acknowledgment under section 19 of the Limitation Act, 1908. He further submits that since various letters addressed by the plaintiff to the defendants were not replied by the defendants the silence on the part of the defendants constitute acknowledgment.
6. He refer para.12 of the plaint to show that suit is not time-barred and that from time to time the cause of action was accrued to the plaintiff and finally the cause of action was accrued on 14-7- 2004 when the legal notice was served upon the defendant No,3 who failed to reply the same.
7. The settled principles for deciding the application under Order VII, Rule 11, C.P.C. Are that only contents of the plaint have to be seen A and the contents of the plaint are taken to be true and that the plaint can be rejected on the basis of facts disclosed in the plaint. Keeping in view the guidelines available for rejection of plaint I have examined the plaint. The plaintiff in para.12 of the plaint stated as under:-- "That the cause of action arose to the plaintiff against the defendants firstly on 2-5-2003 when the Vehicle No,CC-6454, owned by the defendant No,1 and driven by the defendant No,2, hit the plaintiff which resulted lifetime disablement to her, on 6-5-2003 when the incident was reported to Frere Police Station under Report No,31, on each and every occasion when the plaintiff was operated, inspected and medicated in the different hospitals, expenses of which were borne by defendants Nos.1 and 3, when defendants Nos.1 and 3 stopped providing medical facilities to her on 19-8-2003, when she preferred appeal to the defendant No,1 which was replied to her on 2-9-2003, on each and every occasions when the defendant No,3 was approached under the directions of the defendant No,1 but he failed to act positively, on each and every occasion when notices were issued to all the defendants duly acknowledged by them but not responded from their side and lastly on 14-7-2004 when the legal notice dated 13-7-2004 was duly acknowledged by the defendant No,3 but he failed to comply/reply within the time provided therein and the same is continuing till filing of the present suit."
8. ' In this para. The plaintiff has pleaded that firstly cause of actionwas arose on 2-5-2003 when the Vehicle No,CC-6454 owned by defendant No,1 and driven by defendant No,2 hit the plaintiff and further pleaded that lastly the cause of action accrued on 14-7-2004 when the legal notice dated 13-7-2004 was acknowledged. The learned counsel submits that for the purpose of deciding application under Order VII, Rule 11, C.P.C. The contents of the plaint were to be accepted on their face value and that the limitation is a mixed question of law and facts and without affording opportunities to the parties to lead evidence the plaint cannot be straightaway rejected. In the present suit the last acknowledgment in writing was dated 2-9-2003. The notices which were served or received by the defendants and not replied cannot be equated with an acknowledgment in terms of section 19 of the Limitation Act, 1908. The very opening word of section 19 indicate that an acknowledgment to be valid must relate to the time when the right was still enforceable and that the acknowledgment must be in writing. The learned counsel for the plaintiff relied upon the case of M/s. M.G. Kadir & Co. v. Abdul Latif PLD 1970 Kar.
708. In that case the Court has held that an acknowledgment may be sufficient to save an action from the bar of limitation even if it is accompanied by refusal to pay or is coupled with the claim of set of. The acknowledgment in the reported case was in writing. The principal laid down in the case is not applicable to the facts of the present case. The other judgment cited by the learned counsel for the plaintiff is from Indian jurisdiction is Jainarain v. Governor-General of India AIR (38) 1951 Calcutta 462. Again in this judgment the letter dated 12-3-1945 was under consideration and in that context the Court has held that it is not necessary that there should be a specific and direct acknowledgment of the particular liability which is sought to be enforced but if there is an admission of facts of which liability in question is a necessary consequences, there would be an acknowledgment within the meaning of section 19. On the other hand the learned counsel for the defendants relied upon the case of Muhammad Saman v. Abdul Malik Khan PLD 1991 SC 524 in which it was held that acknowledgment of the liability in respect of such property or right has necessary to be made in writing signed by the party against whom such property or right is claimed.
9. In the present case injury to the plaintiff was caused on 2-5-2003 and by letter; dated 2-9-2003 the defendant No,1 acknowledged the accident by asking the plaintiff to provide doctor's certificate and informing her that the case is being processed by the insurance company. The suit was filed on 14-9-2004 even after one year from the date of acknowledgment.
10. ' The learned counsel for the plaintiff is correct in submitting that the limitation is a mixed question of law and facts and is not determinablewithout enquiry into the facts. But, in this case in terms of clause 12 of the plaint the facts are not disputed and the plaintiff failed to show that after 2-9-2003 how the limitation was extended as there is no further acknowledgment in writing after 2-9-2003. In another case reported as Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 it has been held as under:- "(6) It follows that where a question of limitation is not a mixed question of law and fact or where limitation is apparent on the face of the record, a waiver by the parties would not relieve the Court itself of its duty under section 3 of the Limitation Act and a waiver by the Court of the question of - limitation is not contemplated. This Court had in Ahsan Ali v. District Judge clearly laid down that it was duty of the Court to notice the point of limitation, whether the plea of limitation was raised or not and that waiver of the question of limitation is not permissible, even where the period of limitation is prescribed by special or local law."
11. In this case also the bar of limitation is apparent on the face of the record and no enquiry is required in this regard and it is the duty of the Court to examine the point of limitation even if the point was not raised and that waiver of the question of limitation is not permissible. In this case the plaintiff has totally failed to show that affer 2-9-2003 there was any acknowledgment in writing.
12. Article 22 of the Limitation Act is also clear and there is no dispute with regard to its applicability in this suit.
13. ' I, therefore, allow the application under Order VII, rule 11, C.P.C. And reject the plaint with no order as to costs.
14. Plaint rejected.