' HAFIZ ABDUL REHMAN ANSARI, J.---Through the instant civil revision under section 115, C.P.C., petitioner Muhammad Sadiq Abid son of Fazal Deen seeks setting aside of the order, dated 24-11- 2009, passed by the learned Additional District Judge, Khanewal, through which he dismissed the application filed the petitioner under Order VII, Rule 11, C.P.C.
2. Brief facts of the case are that respondent Khalid Mehmood son of Chaudhry Muhammad Hafeez filed a suit against the petitioner for recovery of Rs,12,00,000 under Order XXXVII, rules 1 and 2, C.P.C.
On the basis of Cheque bearing No,001233, dated 10-12-2005 which had been dishonored on presentation to the concerned Bank. The petitioner filed an application for leave to defend before the trial Court/Additional District Judge, Khahewal, which was allowed. Then the defendant- petitioner filed written statement and thereafter the defendant-petitioner submitted an application under Order VII, Rule 11, C.P.C. Before the trial Court which was replied by the plaintiff-respondent.
The learned trial Court vide order, dated 24-11-2009 dismissed the said application of the petitioner.
3. The learned counsel for the petitioner submits that the suit was time-barred; the question of limitation on the basis of which application was filed was a mixed question of law and facts. The learned trial Court without framing the issue and recording evidence of the parties straightaway dismissed the application of the petitioner and committed illegality and irregularity which caused miscarriage of justice. Further submitted that prior to the present suit against the petitioner- defendant the plaintiff has got registered a case F.I.R. No,41, dated 20-1-2006 for an offence under section 489-F, P.P.C. At Police Station Jahanian, which was cancelled. Later on the plaintiff again got registered another F.I.R. No,33, dated 3-2-2006 for the same offence of section 489-F, P.P.C. At Police Station Saddar, Khanewal which was also cancelled. The petitioner-defendant got entered Rept No,11, dated 12-12-2002 in respect of the misplacing of his cheque book. Argued that recovery suit under Order XXXVII, rules 1 and 2, C.P.C. Was to be filed within three years starting from the date of issuance of the cheque. Submitted that the cheque in dispute was allegedly issued on 11-12-2005 and the present suit was filed on 11-1272008 which was clearly time barred. On that ground he filed an application under Order VII, rule 11 C.P.C. The suit being time barred the plaint should have been rejected under Order VII, rule 11, C.P.C. Made reliance on the case reported as Najma Sugar Mils Limited, Mirpurkhas v. Messrs Mega Trading Company through its Chief Executive 2008 M LD 114 = 2008 CLD 1616 and Muhammad Farooq and others v. Abbas Lakadwala and others (2003 CLC 1879 Karachi). Learned counsel for the petitioner vehemently argued that the trial Court should have farmed issues in the light of contents of the application filed by the petitioner and the reply filed by the plaintiff and after recording the evidence it should have been decided as there were some disputed questions of facts, and the question of Limitation was a mixed question of law and fact which could be adjudicated after recording the evidence.
4. The learned counsel for the respondent vehemently supported the impugi.4 order passed by the learned trial Court. Argued that the suit filed by the respondent-plaintiff was within time. The limitation will commence from the date on which the cheque was dishonoured. Contended that under Article 64 of the Limitation Act, the Limitation would run from the date when the cheque was dishonoured which is 22-12-2005 and the suit was filed by the plaintiff on 11-12-2008 and it was very much within time prescribed in Article 65-A of the Limitation Act, 1908. Contended that on 7-12- 2008 there was holiday, next three days i.e, 8-12-2008 to 10-12-2008 being Eid-ul-Azha holidays so on opening day of the Court on 11-12-2008 the suit was filed. Reliance is placed on the cases reported as Najma Sugar Mills Limited, Mirpukhas v. Messrs Mega Trading Company through its Chief Executive 208 MLD 114 = 2008 CLD 1616 and Muhammad Farooq and others v. Abbas Lakadwala and others 2003 CLC 1879 Karachi). Further contends that the petitioner did not take objection with regard to limitation in the written statement. Later on in the application under Order VII, rule 11, C.P.C. The petitioner-defendant raised this plea that the suit is time-barred.
5. I have heard both the parties at length and perused the record. The question of limitation in this case is a mixed question of law and facts as twice F.I.Rs, were got registered by the plaintiff- respondent against the petitioner-defendant with regard to the cheque in dispute. Both the F.I.Rs, were cancelled. When the cheque was presented for encashment and when it was dishonored, these facts also need recording of evidence to prove the same. Although it is correct that in the written statement the petitioner-defendant did not take the plea of limitation, but the question of law can be raised at any time in the proceedings. The petitioner-defendant's filing of application under Order VII, rule 11, C.P.C. Solely on the ground that the suit is time barred, these circumstances and facts of the case reveal that this question of limitation is mixed question of law and facts. It was appropriate and advisable if it was decided after recording of evidence of the parties. The trial Court should have framed the issues in the light of the pleadings of the parties and have asked the parties to produce their respective evidence and after that it should have decided the application under Order VII, rule 11, C . P. C .
6. In the light of the above discussion, this civil revision is allowed, the order, dated 24-11-2009 passed by the learned trial Court is set aside and the trial Court is directed to frame the preliminary issue on the point of limitation and after recording the evidence of both the parties decide the application of the petitioner-defendant under Order VII, rule 11, C.P.C. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.