ANWAR ZAHEER JAMALI, J.--- This appeal. Is directed against the order dated 20.8.2005 passed by this learned Single Judge of this Court, whereby plaint in the suit instituted by the appellant company, was rejected under Order VII, Rule 11 C.P.C. On the sole ground that the suit of the appellant was barred by limitation.
2. In a nutshell, relevant facts of the cases are that on 24.11.2004 the appellant had brought a suit that on 24.11.2004 the appellant had brought a suit for the recovery .Of Rs. 17,45,323/- with mark-up against the respondents, basing their claim, on the letter dated 16.6.2001 issued by respondent No. 1, appointing them to place television advertising of their products "Baby Master Diapers"; subsequent advertisements got televised by them on behalf of respondent No. 1; its payments made by, them to the electronic media as per details given in the plaint and the documents attached thereto; and refusal of respondents to make payment of such outstanding claim of the appellant company.
3. The learned Single Judge while passing the impugned order examined the averments made in the plaint in the context of the claim of the appellant only against the respondents No. 1 and 2 and came to the conclusion that it was governed by Article 56 of the Limitation Act, providing three (3) years period of limitation from the date when the work was done, therefore, the suit having been filed beyond three years period from the date of last work done by the appellant on behalf of the respondents No. 1 and 2 on 9.10.2001, was time barred.
4. Ms. Naheed A. Shahid learned counsel for the appellant making detailed reference to the averments made in the plaint, vehemently contended that the conclusion recorded by the learned Single Judge, ordering rejection of plaint in the suit is based on entirely wrong premises, therefore, it is liable to be set aside. Elaborating her contention she made following further submissions:-
(a) From the averments of the plaint, which are deemed to be correct for examining the question of rejection of plaint under Order VII, Rule 11 C.P.C., suit for recovery instituted by the appellant was within time.
(b) As .Per the contents of the plaint it was a debatable issue whether the suit of the appellant was governed by Article 56 of the Limitation Act or by Article 120 of the Limitation Act or any other Article of the Limitation Act applicable to the facts of the present case.
(c) A reference to the bunch of documents available with the plaint, also referred in the pleadings, makes it abundantly clear that the question of limitation involved in the suit was a mixed questions of law and fact, which could not have been decided in a summary manner by the learned Single Judge by having recourse the provision of Order VII, Rule 11, CPC.
(d) The claim of the appellant in the suit was out come of the payments made by them on behalf of the respondent No. 1 as per details given in the letter, Annexure E/1 showing the dates of payments as 13.12.2001, 25.1.2002 and 17.5.2002 and, therefore,' the period of limitation was to be computed from the, dates when such amount has become due and payable by the respondents.
(e) Even if, not conceding to this position, it is presumed that the claim of the appellant against respondents No. 1 and 2 was time barred, still plaint in the suit could not have been rejected, as such legal impediment was not available to the claim of the appellant against respondent No. 3, particularly with reference to their letter dated 14.2.2002, which was a clear acknowledgment of liability in terms of Section 19 of the Limitation Act.
(f) The case of the appellant against the respondent was that of an agent against the principal for recovery of sum due, therefore, the period of limitation was to be computed from the date of refusal of such payment.
5. On the other hand, Mr. Khalid Javed learned counsel for the respondents No. 1 and 2 has strongly supported instituted by the appellant was governed by Article 5.6 of the Limitation Act which provides three years period of limitation for filling of such suit, which is to be computed from the date, when the work is done. For this purpose, he made reference to the contents of para. 9 of the plaint to show that dates of invoices/bills forming the basis of alleged claim of the appellant. Were beyond three years from the date of institution of the suit. However, he was unable to give any satisfactory reply to the query made by the Court that even if, for the arguments sake, the suit instituted by the appellant was governed by Article 56 of the Limitation Act, as regards their claim against respondents No. 1 and 2, how the plaint in the suit could be rejected against respondent No. 3 also, who had acknowledged the liability of the suit money in terms of their letter dated 14.2.2002.
He also did not dispute that for examining the question of rejection of plaint as a whole and the presumption of correctness is to be attached to the averments made in the plaint.
6. We have carefully. Considered the submissions made by the learned counsel and perused the case record. Which. Shows that in-the plaint, the appellant have unfolded all the relevant details of their claim against the respondents and have also placed on record relevant correspondence forming basis of their claim against them. The submissions made on behalf of the appellant, as noted above have much force inasmuch as the cause of action for filing of they instant suit has accrued to the appellant when they have made payments to the concerned agency of electronic media, on behalf of respondents No. 1 and 2, as evident from the contents of the statement of account Annexure to the memo. Of appeal. To say the least the question of limitation involved in.
The case was thus a mixed question of law and fact which could only be decided by the Court.
After recording of evidence. Besides, by now it is well-Settled law that, the' plaint in a Suit cannot be rejected in part, therefore.. In. View of the claim of the appellant against the respondent No 3. Which totally skipped the: sight of the learned Single. Judge .While passing the impugned order, the plaint in the' suit could not. Have, been rejected, as ordered by the learned Single Judge. Even the question whether the instant' suit against the respondents, in the giving facts and circumstances- of the case, was governed by Article. 56 of the Limitation Act or some other Article of the Limitation Act was a debatable issue and proper adjudication in' this context was only possible after recording of evidence-.
7. . This being the position,- the impugned order dated 20.8.2005 is not sustainable in law..
8. Foregoing are the reasons for our short order passed today,. Whereby this appeal was allowed and the impugned order dated 20.8.2005 was set aside.
HCA accepted