' MUHAMMAD MUJIBULLAH SIDDIQUI, J.---The plaintiff filed suit for recovery of Rs,72,22,949. The defendants Nos.1 and 2 filed written statement wherein several preliminary objections were taken which inter alia contained, the objection that the plaint is liable to be returned under Order VII, Rule 10, C.P.C. For presentation before the Court of competent jurisdiction at Rawalpindi and that the plaintiff's claim for recovery is barred by time and therefore, the suit is liable to be dismissed. Along with the written-statement an application under Order VII, Rule 10, C.P.C. Was also submitted being C.M.A. No,4481 of 2002. Subsequently, the plaintiff submitted an application under Order VI, rule 17, C.P.C., being C.M.A. No, 3745 of 2003 seeking various amendments in the plaint. It is stated in the application under. Order VI, Rule 17, C.P.C., that due to oversight and inadvertence, the Agency Agreement, dated 9-8-1982 and the relevant facts could not be incorporated in the plaint. The following amendments have been sought in the plaint:-
(I) After paragraph 3, the following Paragraph 4 be added:- "(4) that the said agreement, dated 1st August, 1994 was terminated by letter, dated 6-8-1996 w.e.f, 30th September, 1996.
' Copy of the said letter is enclosed herewith and marked as Annexure PP/1.
(II) That paras 4 and 5 be substituted and recast by para. 5 as under:--
(5) That the plaintiff and the defendant mutually agreed in meeting duly attended by Mr. Mazhar Jamil and Mr. Sajid Saleem, the then Managing Director and Director respectively of the defendant held at Karachi on 5th August, 1996 to act under the existing Agency Agreement, dated 9-8-1982 which was jointly executed and signed by the plaintiff appointing the defendants as sole. Agent for Pakistan to carry out all Armed Forces Pharmaceutical Business and thereby said Agency Agreement remained operative and in force for, all purposes as extended from time to time during the period ending 31st December, 2000 and acted upon by the plaintiff and the defendants throughout. Copy of the said Agency Agreement and the minutes of the meeting are filed and marked as Annexure PP/2 & PP/3.
(III) That Para.6 of the Plaint be recast as under:--
(6) That defendants ultimately and with great difficulty voluntarily agreed vide their letter No,UPL/17/99, dated 24th September, 1999 to pay an amount of Rs,6.6 Million to the plaintiffs against the invoices as per detail given below:-- Invoice Date Amount 632445 20-10-1998 1,694,200.00 632714 18-11-1998 5,420.00 632715 18-11-1998 70,420.00 632989 22-12-1998 1,694,200.00 633002 24-12-1998 151,624.00 633003 24-12-1998 72,686.00 630812 11-03-1998 2,810,129.00 632924 10-12-1998 135,153.00 6,633,414.00 Less received on Balance receivable19-12-1999 1,600,000.00 5,033,414.00 ' Copy of the said letter admitting the payment and said Invoices are enclosed herewith and marked as Annexure P/3 & PP/4 to PP/II respectively.
(IV) That after Para.7, the following paras. 8 to 14 of Para.8 be added and paras 8 to -14 of the Plaint be renumbered as Paras 9 to 15.
(8) That, however, the defendants continued to receive the products of the plaintiff under the said Agency Agreement and lastly paid Rs,1,600,000 against the Invoice No,632989, dated 22-12-1998 by cheque, dated 9th December, 1999 at Karachi enclosed with their letter No,UPL/17/99, dated 9th December, 1999 leaving the balance of Rs,5,033,414. Copy of the letter, dated 9-12-1999 with photocopy of cheques is enclosed herewith and marked as Annexure PP/12.
(v) That after figure 12-11-1999 in line 4 of amended para.14, the following be added:- "and lastly paid Rs,1,600,000 on 9th December, 1999".
2. On 9-5-2003 a learned Single Judge of this Court directed the learned Advocates for the parties to address arguments on the preliminary issue pertaining to the limitation.
3. With the consent of learned Advocates for the parties, arguments have been heard on the preliminary issue on the point of limitation, second preliminary issue pertaining to the territorial jurisdiction of this Court along with application under Order VII, Rule 10, C.P.C. Submitted by the defendants and application under Order VI, Rule 17, C.P.C. Submitted by the plaintiff.
4. By this consolidated order I intend to dispose of all the three matters,
5. First, I will take up the issue pertaining to the limitation. Mr. Muhammad Akram Shaikh, learned counsel for the defendant has given the brief history of the business relations between the parties.
He has stated that an Agency Agreement was executed between the parties on 9-8-1982, Annexure D/1 with the written statement, whereby the plaintiff appointed defendant No,1 as sole agent for Pakistan to carry out all armed forces pharmaceutical business. The initial Agency Agreement was valid up to 31-12-1985 which was extended from time to time and was terminated with effect from 31st December, 2000. Under this agreement the supply was meant for the whole of Pakistan but, the delivery was to be made in the office of Director General Procurement (Army) at Rawalpindi. This Agency Agreement was restricted to the supplies for armed forces only
6. Another agreement was executed between the parties on 1-8-1994 at Karachi which had no nexus with the Agency Agreement executed in the year, 1982 and referred to above. The second agreement was for supplies for the territory of Karachi, details whereof is given in the schedule to the second agreement Annexure D/2 with the written-statement. This agreement expired in the year, 1996.
7. After narration of the above facts, Mr. Muhammad Akram Shaikh, drew my attention to para.3 of the plaint which contains that the agreement, dated 1st August, 1994 was executed for the supply of the products of plaintiff to Director-General, Department of Procurement PGDP (Army). He proceeded on to argue that according to averments in the plaint the cause of action accrued to the plaintiff under the sale agreement executed in the year, 1994 which was terminated in the year, 1996 and for such cause of action, if the period of limitation is computed from the date of termination of the agreement i.e, 30th September, 1996, the period of limitation shall expire on 29th September, 1999, while the present suit has been filed on 7-2-2002 and therefore, the suit is hopelessly time-barred and is liable to be dismissed.
8. On the other hand, Mr. Talmiz Burney, learned counsel for the plaintiff referred to Para.6 of the plaint and submitted that the cause of action in this case arose on the basis of admission contained in the letter, dated 24 September, 1999, Annexure P/3 with the plaint. He contended that all the invoices referred to in this letter pertain to the supplies made to the PGDP (Army) and relate to the years 1998 and 1999, which were under the Agency Agreement executed in the year, 1982 which was extended up to 31st December, 2000. Mr. Burney contended that the cause of action accrued on the basis of admission contained in the letter, dated 24th September, 1999, therefore, the suit filed on 7-2-2002 is within time. He frankly stated that the references made to the agreement executed in the year, 1994 which pertained to the supplies in the territory of Karachi are irrelevant and uncalled for. He categorically stated that no claim emanates from the Agency Agreement executed in the year, 1994 and the entire claim is based on the supplies made under the 1982 Agency Agreement and admission contained in the letter, dated 24th September, 1999.
9. I have carefully considered the contentions raised by the learned advocates for the parties and have gone through the plaint as well as the documents on record produced by the parties. I am persuaded to agree with the submission of Mr. Talzim Burney that in para.6 of the plaint reference has been made to the admission on the part of defendants contained in the letter, dated 24th September, 1999, which specifically refers to the supplies made to PGDP (Army). The plaintiff has not claimed any amount in pursuance of second agreement, dated 1st August, A 1994 and therefore, the question of computing the period of limitation from the date of expiry of the said agreement in the year, 1996 does not arise. The contention raised on behalf of defendants that suit is barred by time and, is therefore, liable to be dismissed under section 3 of the Limitation Act, is without substance and is hereby repelled. The preliminary issue on the plaint of limitation is decided as above.
10. This brings me to the second preliminary objection as well as C.M.A. No,4481 of 2002, whereby it has been contended that the plaint is liable to be returned for presentation at proper forum, at Rawalpindi.
11. Mr. Talzim Burney pointed out that by virtue of the provisions contained in section 120 and Order XLIX, R.3, C.P.C., the provisions contained in section 20 which deals with the institution of suit within the local limits of the Court and applicability of Order VII, Rule 10, C.P.C. Have been excluded. He submitted that the objection to the, territorial jurisdiction of this Court has been raised with reference the provisions contained in section 20 of the Code of Civil Procedure and Order. VII, Rule 10, C.P.C., therefore. Both the provisions are not applicable to the High Court exercising its original civil jurisdiction.
12. Mr. Muhammad Akram Shaikh, learned counsel for the defendant has frankly conceded that he is not disputing to the jurisdiction vested in the High Court to proceed with the case. Consequently, the second preliminary objection to the territorial jurisdiction of this Court is overruled and the application under Order VII, Rule 10, C.P.C. Stands dismissed.
13. The third issue pertains to the application under Order VI, Rule 17 C.P.C., whereby several amendments have been sought in the plaint.
14. Mr. Talmiz Burney contended that due to inadvertence references have been made to the agreement, dated 1st August, 1994 which are not relevant and certain necessary facts could not find place in the plaint. He submitted that for proper appreciation of facts, the amendments sought are necessary. He maintained that no new case is sought to be inserted and no new cause of action is being introduced with the amendments sought and no prejudice shall be caused to the defendants if the amendments are allowed.
15. On the other hand, Mr. Muhammad Akram Shaikh, learned counsel for the defendants submitted that with the amendments sought the plaintiff is attempting to change the entire complexion of the suit. He has very frankly stated that the Courts are always liberal in allowing the amendments and instances are not wanting, when the amendments have been allowed at the stage of hearing of appeal before the Hon'ble Supreme Court. However, no such amendments should be allowed whereby the entire complexion of the suit is changed. He opposed the grant of amendments sought.
16. I have very carefully considered the contentions raised by the learned Advocates for the parties and have perused the averments made in the plaints. I am of the opinion that, no claim in this suit is based on the agreement executed in the year, 1994 and all the references to such agreement are totally irrelevant. As already held the claim is based on the supply in pursuance of the Agency Agreement executed in the year, 1982 and the cause of action is based on the admission made by the defendant in the letter, dated 24th September, 1999.
17. In the above circumstances, I am of the opinion that, by virtue of the power vested in Court under Order VI, Rule 16, C.P.C., certain unnecessary paras in the plaint are required to be struck off.
The plaintiff is therefore, directed to strike off paras. Nos. 3, 4 and 5 from the plaint which contain unnecessary facts the amendments sought by adding para.8, is allowed which should be inserted as para.4 in the plaint. Amendment sought by recasting of para.6 is allowed and should be inserted as para. 3 in the plaint. Consequently, the existing para. 6 shall stand deleted. The amendment sought in para.14 of the plaint is allowed. Rest of the amendments sought are irrelevant and are not allowed.
' With the insertion of amendments as above, and striking off, of the pleadings, the plaint shall be in conformity with the provisions contained under Order VI, Rule 2, C.P.C. With the amendments allowed the complexion of the suit shall not be changed as no new cause of action is allowed to be inserted in the plaint and the amendments allowed shall not prejudice the defendants in any manner.
18. The plaintiff should file the amended plaint in accordance with the directions as above, within 15 days and a copy of the amended plaint shall be supplied to the defendants who may file the amended written-statement within a period of one month of receiving the copy of amended plaint.
19. The application under Order VI, Rule 17, C.P.C., stands disposed of accordingly.