1. ARSHAD NOOR KHAN. J. --- By this order I intend to dispose of C.M.A. No. 4848/2007, filed under Order VII, Rule 11, C.P.C., for rejection of the plaint.
2. The facts leading rise to the present application, in brief, are that the plaintiff filed suit for recovery of damages to the tune of Rs. 80,000,000/-, stating therein that he entered into an agreement with defendant No. 1, who is a stock broker/agent member in the Stock Exchange, for sale and purchase of shares and paid cash amounting to Rs. 4,03,000/-, Rs. ,10,000/-, Rs. 10,000/-, Rs. 1,00,000/- and Rs.
3. 25,000/- on various dates, mentioned in the plaint and further cash of Rs. 1,58,000/- in December, 1987, for sale and purchase of shares of different companies and the defendant, though purchased the shares of the companies in 1986, but did not pay any profit or even the capital amount to him which compelled the plaintiff to file suit for recovery, being Suit No. 409/1990 in the Court of Senior Civil Judge, Karachi, which litigation went upto the Hon'ble Supreme Court and finally the Hon'ble Supreme Court decided the /is on 25.11.2005. It is further stated in the plaint that the plaintiff because of such illegal unwarranted and baseless attitude and conduct of the defendant, sustained mental and physical agony as well as financial loss, besides the division in his family and sustaining cancer by his were because of such mental torture, as such the plaintiff filed suit for damages against defendant No. 1, as stated above.
4. The notice of the suit has been served on the defendant, who filed written statement as well as the present application under Order VII, Rule 11, C.P.C. For rejection of the plaint on the ground that the suit, as framed and filed, is not maintainable as the plaintiff has intentionally omitted the claim of damages in his earlier Suit No. 409/1990 (new No. 1757/1996), as such the suit is barred under Order II, Rule 2, C.P.C. As well as the suit is also hit under Article 25 of the Limitation Act.
5. The plaintiff filed objections to the application, filed by defendant No. 1, denying the assertions of the defendant that the suit is barred under Order II, Rule 2, C.P.C. And under Article 25 of the Limitation Act. I, therefore, heard Mr. Muhammad Ayub Khan, learned counsel for the plaintiff, Mr. Sajid Latif, learned counsel for the defendant.
6. Learned counsel for the defendant vehemently contended that the plaintiff omitted his claim of damages in the suit filed by him though the said claim was available at the time of filing of that suit, which was omitted by hint intentionally and that the suit is barred under Article 25 of the Limitation Act, as such the suit is barred under Order VII, Rule 11, C.P.C. In support of his contentions, he has relied upon the case reported in PLD 1970 Karachi 770 and 2003 M LD 22.
7. Learned counsel for the plaintiff, while controverting the arguments advanced by learned counsel for defendant No. 1, has vehemently contended that the present suit has been filed for recovery of damages against defendant No. 1 because of mental and physical agony sustained by him because of illegal and unwanted attitude and conduct of' defendant No. 1 and finally the plaintiff has succeeded before the Hon'ble Supreme Court therefore, the suit has been based on the claim of damages, which the plaintiff sustained during the course of pendency of the litigation for a longer period of two decades, as such the suit is not barred under Order II, Rule 2, C.P.C. And that the suit is also not barred under Article 25 of the Limitation Act.
8. There could be no cavil to the proposition that the plaint could only be rejected, in case, if the plaint does not disclose cause of action and the suit is barred by any law or the plaintiff failed to pay the requisite Court-fees in spite of the direction of the Court and for the said purpose the Court has to look into the averments contained in the plaint. A perusal of the contents of the plaint shows that defendant No. 1 and usurped the capital amount as well as the profit earned by the plaintiff through him, which resulted him in heavy financial loss and mental and physical agony to the plaintiff, which resulted in filing of the civil suit by the plaintiff in the year 1987, which finally was decided by the Hon'ble Supreme Court in Constitution Petition No. 721/2003 on 28.11.2005, which took about two decades, as such the suit filed by the plaintiff to based on recovery of damages for fraudulent act of defendant, loss of his business, profits, shock, humiliation, physical agony, distress, harassm ent, mental torture, disgrace, loss of expectation of life, loss of amenities of life, discontinuation of relationship between the family members, loss of valuable times, loss of health/energy and loss reputation including honour and dignity, which cannot be calculated in terms of money and for the said losses the plaintiff has estimated his suit to the tune of Rs.
9. 80,000,000/-. Admittedly, the suit been filed after the end of the litigation in between the parties, as such it could not said that the claim of the damages because of the litigation was available to the plaintiff at the time of filing of the main suit before the learned Senior Civil Judge, as such it could not be said that the plaintiff willfully, intentionally and deliberately and relinquished the part of his claim because the present suit is the outcome of the final decision of the /is in between the parties.
10. In my humble opinion the claim of damages as estimated by the plaintiff in paras 7 and 11 of his plaint, were not available to him at the time of filing the main suit, as such the provisions of under Order II, Rule 2, C.P.C. Are not attracted to the circumstances of the present case.
11. The contention of the learned counsel for the defendant that the suit is barred under Article 25 of the Limitation Act is also not available to him for the reason that the limitation to file the suit for compensation for libel/slunder is provided one year. In case if Article 25 of the Limitation Act is applied, then too the suit in any way could not be termed to be barred under Article 25 of the Limitation Act as the suit for damages has been filed by the plaintiff after the judgment of the Hon'ble Supreme Court on 28.11.2005 and the suit has been filed within one year from the date of passing the judgment by the Hon'ble Supreme Court on 21.11.2006, which is within one year from the date of decision by the. Hon'ble Supreme Court, as such in my humble view the suit filed by the plaintiff, in any way is not barred under any Article of the Limitation Act. The case-law relieved upon by the learned counsel for the plaintiff in my humble opinion are distinguishable from the circumstances of the present case and are inapplicable.
12. For all the afore-said reasons I do not find any merit in the present application which is hereby dismissed. Cost to abide the final event. .