' SHAHID WAHEED, J.---The defendant, Khalid Pervez Ramay, has brought this petition under Section 115, CPC to seek revision of the order dated 11.12.2008 passed by the learned Addl. District Judge, Burewala whereby his application under Order 7, Rule 11, CPC for rejection of plaint was dismissed.
2.The respondents-plaintiffs through a summary suit under Order XXXVII, Rule 2, CPC sued the petitioner-defendant for recovery of Rs. 1,500,000/- on the basis of negotiable instruments, that is, two cheques and one pronote. Initially this suit was decreed vide ex parte judgment and decree dated 3.3.2003. Later on, the petitioner filed an application under Order XXXVII, Rule 4, CPC for setting aside the said ex parte judgment and decree dated 3.3.2003. This application was contested by the respondents. On divergent pleadings the learned Trial Court framed issues and ultimately on its analysis of evidence vide order dated 31.1.2008, accepted the application, set aside the ex parte judgment and decree dated 3.3.2003; and allowed the petitioner to defend the suit subject to furnishing of surety bond equivalent to Rs. 1,500,000/-. After getting leave of the Court the petitioner contested the suit by filing a written statement. He also filed an application under Order VII, Rule 11, CPC for rejection of the plaint on the ground of limitation. This application was resisted by the respondents-plaintiffs. The learned Trial Court vide order dated 11.12.2008 dismissed the said application and held that the question of limitation would be determined after framing of issues and recording evidence.
3.The question involved in this petition is as to whether the plaint of the summary suit filed by the respondents could be rejected under Order VII, Rule 11, CPC on the ground of limitation. In order to find out the answer to the said question, it is necessary to appraise the grounds urged by the petitioner's counsel in support of application for rejection of plaint.
4.The grounds urged by the petitioner's counsel for rejection of plaint were twofold Firstly, it was urged that the respondents on 28.11.2002 had tiled a summary suit on the basis of two cheques, that is, (i) cheque dated 24.7.1994; and (ii) cheque dated 2.11.1999; that the first cheque, on its presentation before the Bank for encashment, was referred to drawer vide slip dated 1.8.1994 whereas the second cheque stood dishonoured and was returned by the Bank through slip dated 22.12.2002 with the remarks that it was out of date; and, thus the claim of the respondents by virtue of Article 64- A of the Limitation Act, 1908 read with Section 84(2) of the Negotiable Instrument Act, 1881 had become time-barred. In view of the order to be proposed in this petition, I am not touching merits of this ground. However, it would go without saying that even if it is held that this ground holds water, the application under Order VII, Rule 11, CPC could not be accepted for the reason that there was another negotiable instrument i.e. promissory note on the basis of which suit was filed; and, that the plaint could not be rejected piecemeal as the concept of the partial rejection is inapplicable to the provisions of Order VII, Rule 11, CPC, it would have its limited application in regard to the provisions of Order VI, Rule 16, CPC. There could be partial striking out of pleadings but not rejection of plaint. Partial acceptance or rejection of plaint is always considered as improper exercise of jurisdiction. In this regard reference may be made to the cases of (Sree Rajah) Venkata Rangiah Appa Rao Bahadur and another v. Secretary of State and others (AIR 1931 Madras 175), Masood Ahmad and another v. Mathra Datt & Co. and others (AIR 1936 Lah. 1021), Feroze Din and another v. Master Muhammad Sher Khan (1979 CLC 742), Moinuddin Paracha and 6 others v.
Sirajuddin Paracha and 23 others (1993 CLC 1606), Valuegold Limited and 2 others v. United Bank Limited (PLD 1999 Karachi 1), EFU General Insurance Company Ltd. v. Zahidjee Textile Mills Ltd. (2005 CLC 848) and Ata Ullah and 6 others v. Sana Ullah and 5 others (PLD 2009 Karachi 38).
5. The other grouse was about the claim made by the respondents on the basis of promissory note dated 25.2.1994. The petitioner's brief was that this claim was also time-barred. This aspect of the matter has two dimensions. The petitioner's counsel argued that the alleged pronote was shown to be executed on 25.2.1994; that it was also shown to be payable on demand; that according to Article 73 of the Limitation Act, 1908 the suit could be filed within a period of three years from the date of execution of the alleged promissory note; and, thus the suit filed by the respondents on 28.11.2002 was barred by time. The other facet of the alleged promissory note was that on its reverse an additional note had been written whereby the amount was payable in three years and in three equal installments; and. that the first instalment was stated to be payable in the month of March, 1998. Learned counsel for the petitioner contended that although the said additional note was fake yet the same did not extend any help to the respondents. According to him on the alleged default of first instalment the promissory note became matured; and from the date of default i.e. March, 1998 the suit as per Article 75 of the Limitation. Act, 1908 could be filed within a period of three years but the same was filed beyond the said period, that is, on 28.11.2002.
I am afraid each of the separate parts of the arguments canvassed by the petitioner's counsel is not persuasive. The petitioner's two pronged attack on the respondents' claim arising out of promissory note being mutually exclusive made the question of limitation as mixed question of law and facts. Such question is always resolved after recording evidence and thus the learned Trial Court rightly framed issue to this effect and called upon the parties to adduce evidence in support of their respective claims.
6. Before parting I deem it appropriate to observe here that the applicability of Article 75 of the Limitation Act, 1908 depends upon the terms of the promissory note and the nature of the claim or the character of the suit brought in terms of the promissory note. Article 75 of the Limitation Act, 1908 is applicable to those suits which are filed on a promissory note or bond payable by installments which provides that if default be made in payment of one or more installments, the whole shall be due whereas Article 74 of the Limitation Act, 1908 is applicable where it is simply stipulated in a promissory note that the amount borrowed thereunder shall be paid back within a period of certain years and the entire amount was divided into a number of installments. This view finds support from the cases of Pancham v. Ansar Hussain (AIR 1925 Oudh 502), Mt. Gaura v. Ram Charan (AIR 1927 Oudh 539) and Arjun Sahai v. Pitamber Das and others (AIR 1963 All. 278).
However, this is not the stage to determine which provision of the Limitation Act, 1908 would apply to the facts of the case on hands. Applicability of the relevant Article of the Limitation Act, 1908 depends upon the examination of the terms of the negotiable instruments; the nature of claim or character of the suit. The said issues are issues of facts which are required to be proved through evidence. The learned Trial Court has yet to record evidence and thus this Court is not in a position to express any opinion with respect to afore-stated issues; and, the question of limitation. It is, however, expected that the learned Trial Court after recording evidence shall determine the question of limitation as per relevant Article or provisions of the Limitation Act, 1908.
7. In the sequel, answer to the question, under discussion, is in the negative and resultantly this petition being bereft of any merit is dismissed with no order as to costs. Parties are directed to appear before the learned Trial Court on 11.2.2015.