' AKHTAR ZAMAN MALGHANI, J.---This Regular First Appeal is directed against the judgment and decree dated 1-7-2003 passed by Senior Civil Judge I, Quetta whereby suit filed by the appellant was dismissed on the point of limitation.
2. Briefly stated, facts of the case are that the plaintiff-Bank instituted a suit for recovery of Rs,80,08,087 with 20% liquidated damages and cost of suit against the predecessor-in-interest of the respondents i,e, Jalib Saeed with the averments that Jalib Saeed was posted in foreign exchange department of plaintiff-Bank City Branch who during tenure of his service committed fraud and misappropriation of Rs,80,08,087 for which an F.I.R. Being No,6 of 1997 was registered and after investigation he was sent for trial. It was further averred that ultimately he was convicted vide judgment dated 30-9-1998.
3. After registration of suit notices were issued to Jalib Saeed who in response thereof submitted an application under Order 7, Rule 11, C.P.C. For rejection of plaint being barred by time. The learned Senior Civil Judge after hearing the arguments allowed the application and dismissed the suit on point of limitation vide judgment and decree dated 1-7-2003.
4. We have heard the learned counsel for the appellant as well as learned counsel for the respondent. The learned counsel for the appellant vehemently contended that the suit was not barred by time as Articles 120 and 135 of the Limitation Act were attracted under the facts and circumstances of the instant suit. He further contended that Article 90 relied upon by the learned trial Court for dismissing the suit was not attracted in the instant case. According to him the point of limitation being mixed question of law and fact could not have been decided without recording evidence, as such; the learned trial Court acted illegally by dismissing the suit without affording opportunity of leading evidence to the appellant.
' On the other hand the learned counsel for the respondent vehemently contended that Articles 120 and 135 were not attracted in the instant case as Article 120 being residuary Article is applicable only in those cases where no specific limitation has been provided, whereas; in the instant case Article 90 was attracted. He further contended that Article 135 was also not applicable because it was not a suit for possession of mortgaged property by a mortgagee but according to averments in the plaint the suit was filed against Jalib Saeed being agent of the plaintiff-Bank. He further argued that under Article 90 the period of limitation is to be reckoned from the date of knowledge and according to plaintiff's own showing they came to know about the fraud and misappropriation allegedly committed by Jalib Saeed on 8-10-1997, on which date F.I.R. Was lodged against him, therefore, the suit was hopelessly barred by time on the face of it and the learned Senior Civil Judge rightly dismissed the same as it did not require any further evidence. He further contended that prior to filing of the instant suit the appellant also filed suit for recovery of same amount before the Banking Judge which was returned to the appellant on 21-11-1998, even if the time is reckoned from that date the suit was barred by time.
5. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the impugned judgment as well as original record of trial Court. It may be seen that the appellant filed suit for recovery of Rs,80,08,087 with 20% liquidated damages and cost of suit against Jalib Saeed on the averments that he misappropriated the said amount during his service with the bank as incharge of foreign exchange department and according to para. No,2 of the plaint such fraud came to the knowledge of bank on 8-10-1997 whereupon a case vide F.I.R.
No,6 of 1997 was got registered with F.I.A. Authorities. Thus; it is not disputed that the fraud allegedly committed by Jalib Saeed came to the knowledge of the plaintiff-Bank on 8-10-1997 thus; the time would reckon from that date being the date of A knowledge, however, question arises which Article of Limitation Act would be attracted in the peculiar facts and circumstances of the instant case.
According to the learned counsel for the appellant Articles 120 and 135 were attracted in the instant case. Bare reading of Article 135 which is applicable in the suits filed by mortgagee for possession of immovable property mortgaged in a Court other than a High Court, shows that the same was not attracted in the peculiar facts and circumstances of the instant case as the suit was not filed for possession of immovable B property mortgaged but it was suit for recovery of money allegedly misappropriated by Jalib. Similarly Article 120 has also no relevancy being a residuary Article and applicable only to such suits which are not covered by a specific Article. The learned trial Judge dismissed the suit of the appellant by applying Article 90 of the Limitation Act which is applicable to suits filed by principal against the agent for neglect or misconduct and not governed by Articles 88 and 89. Admittedly Jalib Saeed was serving as incharge of foreign exchange branch with the plaintiff-Bank during course whereof he is alleged to have committed fraud and misappropriated money, therefore, he was an agent of the plaintiff-Bank has been performing duties assigned to him. As such; Article 90 was attracted in the instant case. In this regard I am fortified by the judgment reported in 1987 M LD 594 wherein it was observed as under:--- "Mr. Mansoorul Arfin, learned counsel has contended that the defendant No,4 for purpose of the suit should be treated as an agent of the bank and as the claim is based upon fraud the period of limitation shall be governed by Article 90 or 95. The learned counsel has referred to Benaras Bank v.
Ram Prashad 124 IC 180 where it was held that where the customer of a bank in collusion with a clerk employed in the bank, fraudulently withdrew sums of money from the Bank in excess of what he could lawfully withdraw, and the Bank instituted a suit against the customer and the employee to recover the excess amount withdrawn, the suit was governed insofar as employee's case was concerned by Article 90 and as regards the customer, the Article applicable was Article 48 or Article 95.
' This authority seems to be relevant to the present situation. Considering the defendant No,4 to be an agent of the plaintiff for performing the duties assigned to him, Article 90 will apply and the suit against him is within time.
' Even otherwise as the claim is based on fraud committed by defendant No,4 Article 95 may apply and the period of limitation will be computed from the date of the knowledge of fraud. Even from this point of view this suit is within time."
Article 90 provides limitation of three years which is to be reckoned from the date when neglect or misconduct becomes known to the plaintiff. According to the contents of plaint the fraud and misappropriation by Jalib Saeed came to the knowledge of bank on 8-10-1997 in consequence whereof an F.I.R. Was got registered with the FIA authorities, therefore, the time would start from that date. The suit should have been instituted on or before 7-10-2000 whereas instant suit has been filed on 4-4-2003 which was clearly barred by time. It is also not disputed that earlier the suit was filed before the Banking Judge, Quetta for the recovery of same amount on the similarly averments which suit was returned by the learned Banking Judge on 21-11-1998, copy whereof has been appended along with the memo. Of appeal. Even the time is computed from that date the suit having been filed after 20-11-2001 was not filed within time provided under Article 90 of the Limitation Act, 1908.
' As far as contention of the learned counsel with regard to non-proving opportunity for leading evidence, suffice to observe that on account of admitted documents appended with the plaint the suit on the face of it was barred by time and Order VII, Rule 11, C.P.C. Provide ample powers to the trial Court to reject the plaint where suit appears from the statement in the plaint to be barred by any law. In the instant suit the plaintiff himself in para No,2 of the plaint had shown his knowledge from a specific date, and the suit was clearly barred by time, therefore, there was no need of further enquiry in the case. In this regard we are fortified by the judgment reported in 1991 M LD 1312 wherein it was observed as under:-- "None of the above authorities advance the plea of the applicant in any manner whatsoever and on the contrary the cases of Shah Noor Studios v. W.Z. Studios 1980 CLC 433 and Abdul Jabbar v.
Muhammad Latif 1986 CLC 603 have affirmed the settled rule of law that while rejecting the plaint under Order VII, Rule 11, C.P.C. The Court has to consider only the averments made in the plaint and the documents filed therewith and nothing else should be looked into. The defendant for the sake of arguments must be taken to admit the allegations of the plaintiff as true in manner and form.
The plaint should be rejected if the Court comes to the conclusion that even if the allegations which are made in the plaint were proved to be correct, the plaintiff will not be entitled to get the relief, but the Court cannot consider either the pleadings of the defendant nor any material outside the plaint for rejection thereof.
' Likewise in the judgment reported in PLD 1985 SC 153 it was observed as under:--- "The words of section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall, subject to the provision of sections 4 to 25 of that Act, be dismissed although limitation has not been set up as a defence. If from the statement in the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII, Rule 11, C.P.C. The law, therefore, does not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the Court itself. There is a chain of authorities, and a detailed discussion of the same is not necessary, to lay down that limitation being a matter of statute and the provisions being mandatory, it cannot be waived and even if waived can be taken up by the party waiving it and by the Courts themselves. In Sitharama v. Krishnaswami (ILR 38 Mad.
374), where the defendants had pleaded the bar of limitation but the trial Court had held that they having admitted their liability for the amount in resisting the plaintiff's application in a previous suit, were estopped on general principles of law and equity from pleading that the suit was barred by limitation. It was ruled that the defendants were not estopped and it was observed that 'the bar of limitation cannot be waived, and suits and other proceedings must be dismissed if brought after the prescribed period of limitation' and that 'the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions nor recognized by it."
' For the foregoing reasons, we are of the considered view that the learned trial Court rightly dismissed the suit being barred by time warranting no interference by us, as such; appeal is dismissed with no order as to costs.