' SARDAR SHAUKAT HAYAT, J.--- The petitioner in the instant constitutional petition, has assailed the judgment and order of learned Additional District Judge-III, Swabi, whereby, on acceptance of revision petition filed by respondent, the plaint was rejected under Order VII, Rule 11, C.P.C.
2. Brief facts of the case are that petitioner/plaintiff filed a suit against respondent No,1 in the trial Court for specific performance of the contract in terms that respondent/defendant is bound to pay the petitioner Rs,167,751, the value of the tobacco with mark-up from 17-3-2003. Respondent No, 1/defendant was put on notice, who on appearance filed an application in the trial Court under Order VII, Rule 11, C.P.C. For rejection of the plaint, being time-barred. The learned trial Court after hearing the parties dismissed the application of the respondent No,1/defendant. Aggrieved therefrom, he filed revision petition before the revisional court, which was allowed vide judgment and order dated 16-4-2008 by the learned Additional District Judge-III, Swabi and the plaint of the petitioner/plaintiff was rejected under Order VII, Rule 11, C.P.C., hence the writ petition in hand.
3. Learned counsel for the petitioner argued that the impugned judgment and order is against the law and facts, hence liable to be set aside. That cause of action accrued to the petitioner/plaintiff when respondent No,1/defendant gave a receipt to the effect that the petitioner shall start payment in the month of August, 2003 and again in presence of Jirga the respondent No,1 again sought 20 days time but after expiry of such period on refusal of payment by defendant the petitioner/plaintiff filed the suit for specific performance. He further contended that limitation is a mixed question of law and fact, which requires proper evidence to determine limitation.
4. As against that learned counsel for respondent No, 1/defendant contended that the suit of petitioner/plaintiff is time-barred and supported the impugned judgment and order of learned revisional court.
5. We have heard the arguments of learned counsel for the parties and perused the available record.
6. From perusal of the record, it reveals that the petitioner/plaintiff filed a suit on 14-9-2006 for specific performance on the basis of a receipt dated 17-3-2003 against respondent No,1/defendant on the ground that petitioner sold the respondent No,1, 60 bundles of tobacco at the rate of Rs,29 per Kg., total amount whereof comes to Rs,167,751, whereby the respondent No, 1/defendant promised to pay the said amount to petitioner/plaintiff from August, 2003. That in spite of the promise, the respondent No,1/defendant delayed the payment. Plaintiff repeatedly kept on demanding the said amount, when in the end of August, 2006, respondent No,1/defendant in presence of Jirga, which was constituted for the purpose requested for 20 days more time to make the entire payment. When the payment was not made to the petitioner/plaintiff even on the expiry of such period, he sued the respondent No,1/defendant for specific performance regarding the payment of the said amount along with mark-up since 17-3-2003 and also for recovery of the amount as damages.
7. On appearance before the court, the defendant filed an application for rejection of plaint under Order VII, Rule 11, C.P.C. Mainly on the ground of cause of action and limitation, however, learned counsel for respondent Na.1/defendant at the time of arguing the case mainly stressed that suit of the plaintiff is time-barred as it was filed by the petitioner/plaintiff after lapse of three years, in September, 2006, while the delivery of goods as per averment of plaint was made on 18-3-2003.
8. The stance of learned counsel for petitioner is that as per plaint the delivery of goods was made in March, 2003, but the payment was to be made from August, 2003 and on delaying the payment till end of August, 2006, the respondent No, 1/defendant requested for some more time in presence of Jirga members and promised to make the payment after 20 days and that the suit filed by the petitioner/plaintiff is within three years, being not hit by limitation.
9. The question of limitation is a mixed question of law and fact. In factual controversy, the determination of limitation requires evidence to be adduced by both the parties. It will not be safe and in the interest of justice to decide this issue without giving opportunity to the parties to adduce their evidence in this regard. Besides, also it is the cherished goal of law to decide the cases on merits instead of technicalities.
10. In view of the above, we allow the writ petition in hand and set aside the impugned judgment and order dated 16-4-2008 of learned Additional District Judge-III, Swabi while the order of the learned trial Court dated 7-2-2008 is restored. The matter in hand is remanded back to the learned trial Court to proceed with the entire case on merits/by deciding all the relevant issues arising out of divergent pleadings in accordance with law.