1. ' MRS. QAISER IQBAL, J.--- This second appeal is outcome of the impugned judgment dated 14-2- 2007 passed by the learned IInd Additional District Judge, Hyderabad, Sindh, in Civil Appeal No,171 of 2003 whereby the findings of the trial Court in Suit No,32 of 2000 were maintained.
2. ' The controversy pertains to the facts that the respondent had filed suit for the recovery against Mehran Sugar Mills Limited on the basis of the Notification under section 3 of the Agricultural Produce Markets Act, 1939, dated 10-22-(?)-1987 inviting objections and suggestions for control over the purchase and sale of agricultural produce, the market area was notified for the purpose of Act 1939 for Taluka Tando Allahyar and an officer was authorized to collect the fee, its validity was challenged by the appellant in C.P.D-880 of 1984, petition was disposed of, Market Committee was directed to make fresh payment on the basis of calculation of fee from the date of constitution of Market Committee. The appellant through a Notice dated 26-11-1998 informed the respondent that they were running the sugar mills within the notified area of the Market Committee, applied for licence, which was issued in the year 1998, the respondent called upon the petitioner to deposit the market fee in terms of notice under section 19 and rule 20 dated 29-12-1998. The appellant requested the respondent to review the demand under Letter dated 10-2-1999, they admitted Rs,3,83,613.55 were payable. The respondent demanded the market fee in the sum of Rs,25,00,000 for the year commencing from 1988 to 1999, which was not paid and the suit for recovery was filed against the appellant.
3. ' The respondent in the written statement admitted the factum of issuance of the notification, demand made for the payment of market fee, notices issued and final refusal on behalf of the appellant to pay the market fee. It is also averred that the respondent through letter dated 29-12- 1998 purportedly levied the fee at the rate of 50 paisa/100 kilogram leviable for the services, but the services were not provided by Tando Allahyar Market Committee, therefore, they were not liable to pay the fees as prayed.
4. ' Learned counsel for the respondent has contended that the Market Committee, Tando Allahyar through the dictates of the Market Committee, claimed arrears of market fee from Mehran Sugar Mills for the period of 25 years for crushing season commencing from 1983. The decree of the trial Court depicts that for crushing season market fee in the sum of Rs,3,65,00,000 was levied from the year 1983 to the year 1996 and from the year 1996 to the year 2008 a sum of Rs,3,27,00,000 was payable, total amounting to Rs,6,92,00,000. This factum can be verified from the office of the Cane Commissioner and Annual Reports of Mehran Sugar Mills, Tando Allahyar, circulated through Karachi Stock Exchange to their shareholders whereas the learned counsel for the appellant has vehemently stressed that demand for payment of market fee was illegal as the requisite rules have not been followed by the Market Committee. It is urged that the course below have seriously erred in law by holding that the respondent is entitled to recover fees at the rate of 50 paisa/100 kilogram from the appellant on the basis of purported Notifications issued by the Government of Sindh in the absence of any bye-laws and the claim of the respondent as set up in the plaint is not covered by Article 19 of the Limitation Act. The object and scope of the above subject relates to the admission of an existing liability and jurial relationship of debtor and creditor. A mere acknowledgment of the liability must be made before the expiry of the period of limitation prescribed for the suit. . ' It is next asserted that an acknowledgment within the meaning of section 19 must be one which is of a present subsisting liability and payment should be taken out of the statute of the limitation on the ground an acknowledgment, the language of the debtor must amount to an unequivocal admission of subsisting debt.
5. ' It is next urged that in C.P.D-880 of 1984, the appellant had not admitted the liability to pay market fee with effect from November, 1983, it was subject to fresh demand by the respondent, therefore, subsequent demands through various notices and the refusal would not expand the canvass vis- a-vis Ex.55, letter of the appellant produced by P.W. Fazil. Ahmed Junejo will not surpass the limitation extended to the claim. The test of acknowledgment of the liability made in writing signed by the party against whom the right is claimed prior to the expiry of limitation. When an acknowledgement is made after expiry of period of limitation, it does not help to extend the limitation by computation of the period already lapsed. The learned trial Court has computed the market fee from 5-11-1993 by virtue of letter Exh.55.
6. ' Learned counsel for the respondent has contended that the issue has been raised in second appeal by the appellant which could not be allowed to be raised as the concurrent findings of the two courts below would not be interfered with unless such findings fall within the exceptional clauses and the High Court will not be obliged to reappraise the evidence, however, if the High Court proceeds to set aside the concurrent findings of the two courts below or accepts or rejects the appellate Court's judgment in second appeal jurisdiction of High Court is limited to the extent of the interference on a question of law and not on facts. In support of the above contention, reliance has been placed on the following case-laws:--- ' (1) Al Noor Fertilizer Industries Limited v. Province of Sindh and others 2008 YLR 1299, (2) Pakistan Flour Mills Association v. Government of Sindh and others 2003 SCM R 162, (3) Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCM R 1304 and (4) Mst. Haleeman and 4 others v Abdul Shakoor Khan 2007 CLC 589 (Lahore).
7. ' The suit was filed before the Court of first instance for the recovery by the respondent against the appellant in the year 2000. In any view of the matter, the period of limitation for filing of suit for recovery would commence from the year 1996 onwards, therefore, counsel for the parties were directed to file a statement depicting the market fee payable by the appellant commencing from 1996 to the month of June 2008 vide Order dated 3-9-2008 whereby a sum of Rs,3,27,00,000 are payable by the appellant whereas the statement filed by the learned counsel for the appellant with effect from 1st July 1996 to. June 2008 submitted for admission of the appellant's liability in the sum of Rs,2,58,49,440 is payable by the appellant on the basis of the total sugarcane produce, ninety per cent sugarcane purchased from within municipal limits, the amount was calculated on the Market Committee Fee at Rs,5/metric ton.
8. ' I am conscious of the fact that a legal issue, which was raised before the trial Court, if has not been adhered to in terms of the position emerging from the statute, the concurrent findings could be interfered with as factual controversy is not in issue. In the impugned judgment, the issue of limitation was not fully appreciated in terms of law as there seems to be no qualified statement on behalf of the appellant in the other lis arising out of the Notification issued by the respondent No,1 for imposition/levy of fee. This factum cannot be overlooked at this juncture as the same is going to determine the liability of the appellant arising out of the non-performance of their duty for payment of fee under the purported Notifications issued by the respondent No, 1.
9. 'In view of the above, the impugned judgment requires interference, which is hereby modified to the extent that the appellant shall be liable to pay the outstanding arrears of market fee from the.
10. Year 1996 onwards up to the month of June, 2008 in the sum of Rs,3,27,00,000 to the respondent, within two months hereof.
11. ' In view whit has been discussed above and with the modification in the impugned judgment this second appeal stands disposed of accordingly so also C.M.A.1301 of 2007.