MUHAMMAD AMEER BHA TTI, J. This appeal under Section 15 of the Defamation Ordinance, 2002 has been preferred to impugn the vires of judgment dated 23.05.201 1, handed down by the learned trial Court/Addl. District Judge, Lahore, to the effect that the plaint instituted by the appellant was beyond the limitation period, necessitating rejection thereof.
2. Succinctly , the appellant instituted a suit for compensatory damages to the tune of Rs.25,00,000/- under Defamation Ordinance, 2002. Following the service of process, the respondent turned up before the court and filed an application under Order VII Rule 11 C.P.C., for rejection of plaint on the premis e that the complaint was barred by limitation. Pursuant thereto, the plaintif f/appellant filed reply and resisted the application. The learned trial Court while accepting the application under Order VII Rule 11 C.P.C., declared filing of suit barred by limitation and rejected the plaint.
3. Learned counsel for the appellant contends that the question of limitation is a mixed question of fact and law which can only be decided after recording evidence of the parties but the learned trial court, in utter disregard of the settled principles laid down by the Hon'ble Superior Courts, without providing opportunity to the parties to lead evidence in order to establish that his suit was within the limitation period, rejected the plaint. To substantiate his contention, the learned counsel placed reliance on Muhammad Asif and others vs. State Life Insurance Corporation of Pakistan through Chairman and another ( 2018 CLD 239 ).
4. On the other hand, learned counsel for the respondent vehemently opposed the argument put forth by learned counsel for the appellant to maintain that the question of limitation rests on the circumstances explained in the plaint, inasmuch as it has two-fold implications; and being a pure question of law, at times, it becomes mixed question of fact and law particularly when disputed facts in regard to reckoning of limitation from the acquisition of knowledge or origin of the cause of action from a specific date, need probe by recording evidence. It was next urged that where the suit, on the face of it, depicts to be beyond the limitation period from the bare perusal of plaint, like the one in hand, it was liable to fall apart as has been envisaged by Order VII rule 11 C.P.C. However , should the plaintif f aver some facts involving factum of knowledge, which need to be proved by means of evidence, the court may regard it as a mixed question of fact and law, and provide opportunity to the parties to lead evidence accordingly .
5. To elaborate her arguments, it was next submitted that the appellant issued notice, as was required under Section 8 of the Defamation Ordinance, 2002, on 16.04.2009, which was replied on 09.06.2009 by the defendant/respondent; while the suit was instituted on 16.11.2009, therefore, it was patently beyond the prescribed limitation period of six months even if it was to take effect from the date of such notice. She added that since the appellant filed the suit after expiry of more than seven months from the date of commencement of limitation period, there was no justifiable reason to bring the suit within the limitation through recording of evidence, as it was explicitly barred by law; hence, the learned trial Court has not committed any illegality or irregularity .
6. Further contends that the appellant sent the notice to assert that the defamation was occasioned in May, 2006 by the respondent as is reflecting in Para 24 of the plaint, without assigning good cause for filing the suit beyond the time limitation. Suffice it to say that according to the averments of the plaint, his cause of action commenced from May, 2006 which establishes that he had the knowledge of alleged defamatory remarks since May, 2006 but failed to assign any reasonable ground to explain as to why he filed this suit beyond the limitation period. She emphatically argued that it is settled law that no evidence beyond the pleadings was permissible; and for this reason, inter alia, there was no valid explanation to permit the appellant to lead any evidence so as to meet with the objection with regard to the limitation by leading any evidence. Reliance was placed on Agha Syed Mushtaque Ali Shah vs. Mst. Bibi Gul Jan and others ( 2016 SCMR 910 ).
7. We have heard learned counsel for the parties and gone through the record of the case.
8. From the perusal of record it transpires that the appellant had issued mandatory notice before filing the suit, as a pre-requisite, under Section 8 of the Defamation Ordinance, 2002. Such a mandatory notice did not contain information viz-a-viz the specific date of appellant' s knowledge about the defam atory remarks, its source, the precise contents of defamatory remarks and explicit monetary claim, as a result of the alleged defamatory version, if any, in order to sue the respondent. The rational underlying the notice is to provide information with respect to the alleged action, infringement brought about by its recipient and quantum of claim/damages. Mere dispatching the notice in a mechanical manner without disclosure of all the essential ingredients as underlined here-in-above, would not suffice as it could not be a true demonstration of the objective comp liance of the constant principle underlying law nor can it serve the purpose in a beneficial manner . The foremost purpose to serve the notice was to facilitate the recipient to reconsider his/her remarks for withdrawal / abandonment thereof, and thereby to avail such opportunity for settlement of the dispute, if so advised, without recourse to the trouble and cost of litigation.
9. Filing of suit within period of six months after publication of defamatory matter came to the notice or knowledge of a person so defamed is clear and obvious from section 12 of the Defamation Ordinance, 2002. Bare reading of plaint and the notice issued to the defendant manifestly reveal that the appellant got the knowledge of the alleged defamatory remarks at least at the time of issuing of notice which was dispatched to the recipient on 16.04.2009 whereas the suit was filed on 16.11.2009. Hence, we are in no manner of doubt that the suit was filed beyond the period of limitation. We have also noticed that the appellant has not alleged any good cause to rationalize the delay on his part nor did he seek the relief for condoning the delay by rendering explanation as to why he took such time, eventually to its efflux by limitation, which precluded him from having recourse to the legal remedy . Therefore, we can safely hold that recording of evidence is not mandatory when the averments of the plaint are silent regarding the factum of suit being barred by limitatio n and recording of evidence cannot be permitted when the plaint did not disclose any disputed question of fact for application of mixed question of fact and law nor was there any factual controversy as to the limitation period, to be set at rest in the suit. In Muhammad Khan' s Case (2008 SCMR 913) the august Supreme Court has already held that: "Evidently the suit was filed beyond the period of limitation prescribed under Article 113 of the Limitation Act it must be stated that the fact of limitation is evident from the averments made in the plaint itself. In such circumstances, the trial Court was not required to frame issue and record evidence. The argumen t advanced by learned counsel for the petitioners is absolutely misconceived and not tenable
10. Foregoing in view, it is held that, in this case, the question of limitation was a purely that of law indeed and not that of fact. We are unable to accept the argument of learned counsel for the appellant that the question of limitation is always a mixed question of fact and law. It varies according to the circumstances averred in the plaint.
If a bare reading of plaint does not give rise to any such factual probe and no disputed question of facts regarding a precise date of acquisition of knowledge exists nor is there any explanation for its filing with delay forthcoming on the record, in such eventuality there is no need to frame issue and record evidence, and it is liable to be considered as a pure question of law. Needless to say that the disputed facts in respect of date of knowledge may call for recording of evidence as mixed question of fact and law. But in the case under consideration, there is no disputed fact as such requiring the recording of evidence as opposed to the eventuality , discussed above, which might lead to the determination of the question of limitation after recording evidence. It is also settled law that no evidence beyond the scope of pleadings is permissible to bring on record even if some has been led by a party , the Court shall exclude and ignore such evidence from consideration.
11. Following the settled principle of law, we are of the view that the appellant did not aver any disputed questions of facts in his plaint concerning the institu tion of suit beyond the limitation period, therefore, being a pure question of law, the suit of the plaintif f was barred by limitation and the plaint was liable to be rejected under Order VII Rule 11 C.P.C., which power has rightly been exercised by the learned trial court so that the parties should not undergo the rigors of the trial when the fate of the case is tangibly perceptible.
12. It is settled principle of law that none of the parties is allowed to adduce evidence in support of a contention beyond the pleadings. In this regard, we are fortified from the ratio laid down by Hon'ble Supreme Court in Muhammad V aqoob vs. Mst. Sardaran Bibi and others ( PLD 2020 SC 338 ) wherein it was held: "It is settled law that a party is not allowed to improve its case beyond what was originally setup in the pleadings".
In Moiz Abbas vs. Mrs. Latifa and others ( 2019 SCMR 74 ) it was ruled out that:- "These improvements are clearly beyond the pleadings and constitute and attempt to improve the case of the respondents as a afterthought. Such course of action is not permitted by law .
Suits involving sales based on oral agreements are more susceptible to improvements made by parties in the evidence and pleadings in order to succeed.
Even otherwise, it is settled law that no amount of evidence can be considered on a plea of fact which was not raised in the pleadings by the parties".
In Combined Investment (Pvt.) Ltd. vs. Wali Bhai and others (PLD 2016 SC 730), the Hon'ble Supreme Court concluded that:- "Where the principle of estoppel is pressed into service on the basis of some admit ted/undisputed facts of the case, a party is bound by his pleadings and conduct. Hence, at any later stage, he canno t turn around to wriggle out from the consequence of such admission and conduct of submitting to the jurisdiction of such authority".
Same view was set out in Muhammad Iqbal vs. Mehboob Alam (2015 SCMR 21), the relevant extract is as under:- "It is also settled law that no litigant can be allowed to build and prove his case beyond the scope of his pleadings".
The Hon'ble Supreme Court of Pakistan further elaborated this view in Sardar Muhammad Naseem Khan vs. Returning Of ficer, PP-12 and others ( 2015 SCMR 1698 ) as under:- "The importance of the pleadings and its legal value and significance can be evaluated and gauged from the fact that it is primarily on the basis thereupon that the issues are framed; though the pleadings by themselves are not the evidence of the case, the parties to a litigation have to lead the evidence strictly in line and in consonance thereof to prove their respective pleas. In other words, a party is bound by the averments made in its pleadings and is also precluded from leading evidence except precisely in terms thereof. A party cannot travel beyond the scope of its pleadings. It may be pertinent to mention here, that even if some evidence has been led by a party , which is beyond the scope of its pleadings, the Court shall exclude and ignore such evidence from consideration".
In Abrar Ahmed and another vs. Irshad Ahmed ( PLD 2014 SC 331 ), it was observed as under:- "And in such a situation, they under the law are precluded to assail the validity of the gift on that account, because no one can be allowed to set out a new case beyond the scope of his pleadings".
The subject matter was also taken up by Hon'ble Supreme Court of Pakistan in Messrs Essa Engineering Company Pvt. Ltd. and another vs. Pakistan Telecommunication Company Limited and another (2014 SCMR 922 = 2014 CLD 625 ) wherein it was observed that:- "As noted above pleadings of the parties are the benchmark of their respective claims on which issues are drawn and evidence is led which is restricted to the issues struck between the parties alone and not beyond them. If any evidence beyond the purview of issues does come on record, no party can on such evidence set up altogether a new case and press the same for getting relief merely on the basis of an out of context evidence. The rule enunciated by the Indian Supreme Court in the above cited case has no relevance to the case of plaintiff as the subject matter of machinery and raw material was never an issue nor it could be said that it was the ground which both parties understood to be in issue in the case. Going on such premises will be highly detrimental and to the grave prejudice of the defendant as it cannot be taken by surprise".
In Wasi-ud-Din vs. Fakhra Akhter and 4 others ( 2011 SCMR 1550 ) it was laid down as under:- "However , these pleas were neither taken in the pleadings of the appellant nor is there any credible proof of such assertion. These bald statements, therefore, cannot be relied upon for the purpose of holding that Razia Khatoon had any independent resources sufficient to enable her to purchase the properties in dispute".
In the case of Abdul Haque and others vs. Shaukat Ali and 2 others (2003 SCMR 74), same view was taken by Hon'ble Supreme Court on the subject matter . The relevant extract is as under:- "The evidence led by the predecessor -in-interest of respondents beyond the scope of the pleading was not permissible".
13. So far as the question of limitation, a mixed question of law and fact and the period of limitation would be a pure question of law, is concerned, Hon'ble Supreme Court of Pakistan elaborately dealt with the same, some of which is discussed here-under .
In Jan Muhammad and others vs. Mst. Sakina Bibi and others (PLD 2017 SC 158), Hon'ble Supreme Court of Pakistan held as under:- "This Court has the discretion to grant leave at the time of hearing an appeal in which leave has been granted on a different point(s) and to consider such point of law, including for instance the question of inherent jurisdiction, undoubtedly being a pure question of law; even if not earlier taken up in any procee dings including those before the Supreme Court. This could very well apply to the point of limitation too where such plea was not dependent upon any factual determination. However , those cases which require a factual foundation and adjudication for the purposes of settling a legal issue cannot be said to be pure questions of law and the same cannot be allowed to be raised before this Court for the first time".
It was further held in Mrs, Akram Yaseen and others vs, Asif Yaseen and others ( 2013 SCMR 1099 ) as under:- "Even if we very favourably consider as from which date the limitation will run for filing of civil suit than it will be from the date of the judgment of the learned Lahore High Court dated 4-6-1998 although we are of the definite view that time for filing civil suit will start running from 12-11-1987 when the Appellate Court allowed the appeal of the respondent. Even if the date of the judgment of the learned High Court is considered, the last date the civil suit could have been filed was 3-6-2004 and this suit was filed on 22-7-2005 which is much beyond the period of limitation and therefore the learned High Court has rightly held that the application under Order VII, Rule 11, C.P.C. had to be accepted".
In the case of Muhammad Khan vs, Muhammad Amin through L,Rs, and others (2008 SCMR 913) it was observed as under:- "The plaint in the suits were admittedly filed on 5-1-2004. Evidently the suit was filed beyond the period of limitation prescribed under Article 113 of the Limitation Act it must be stated that the fact of limitation is evident from the averments made in the plaint itself. In such circumstances, the trial Court was not required to frame issue and record evidence. The argument advanced by learned counsel for the petitioners is absolutely misconceived and not tenable. There is no infirmity or illegality in the judgment delivered by the High Court. It warrants no interference."
In this regard we are also fortified from the dictum laid down by Hon'ble Supr eme Court in case reported as Muhammad Ilyas and others vs, Khadim Hussain and others (2006 SCMR 1761 ), the relevant extract is reproduced as under:- "It is worth-mentioning that the objection of limitation was never raised before the learned trial and appellate Courts but on the contrary it was introduced at revisional stage and no reason whatsoev er could be given for this laxity .
We are conscious of the fact that the question of limitation being a question of law can be raised at any moment but it must not be lost sight of that initially it should have been incorporated in the pleadings. A careful perusal of the written statements is indicative of the fact that no objection whatsoever was raised qua limitation which was never pressed into service and no issue was got framed which, in our considered view, amounts to waiver . It is worth- mentioning that no cross-appeal was filed on the point of limitation by the petitioners. In this regard reference can be made to case Atta Hussain Khan v . Muhammad Siddique Khan 1979 SCMR 630 ."
In Nazar Gul vs, Islam and 3 others ( 1998 SCMR 1223 ) it was held as under:- "Suit brought by him was, thus patently time-barred and it was rightly so held by the learned Judge of the High Court. Since the bar of limitation was apparent from the contents of the plaint itself, the learned Judge rightly dismissed the suit on the ground of limitation instead of remanding the case to the Courts below".
In Hakim Muhammad Buta and another vs, Habib Ahmad and others (PLD 1985 SC 153) it was articulated as under:- "The law, therefore, does not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the Court itself. There is a chain of authority , and a detailed discussion of the same is not necessary , to lay down that limitation being a matter of statute and the provisions being mandatory , it cannot be waived and even if waived can be taken up by the party waiving it and by the Courts themselves.
Where, therefore, the application is on the face of it barred by limitation, it is the duty of the Court to dismiss it summarily and there is no occasion for calling upon the judgment debtor to show cause why it should not be admitted. Where, however , the question of limitation depends on a question of fact which cannot be determined without taking evidence, the position would certainly be different."
The question of limitation may be one of fact or of law, if former the Court is not bound to go into it unless raised by the parties, and if latter the court is as a general rule bound to raise and decide it, although not raised by the parties.
If the plea of limitation in a particular case is a mixed question of law and fact, that it will be highly improper to allow the plea to be raised.
Where the question of limitation is not a mixed question of law and fact or where limitation is apparent on the face of the record, a waiver by the parties would not relieve the Court itself of its duty under section 3 of the Limitation Act and a waiver by the Court of the question of limitation is not contemplated".
Same view was pronounced in Shahid Israr vs, Mst, Maryam Bibi (PLD 2009 Lahore 119). The relevant extracts are re-produced as under:- However , still the point has been argued before me and deeming it to be a pure question of law, because the admitted facts are available on record i.e. about the execution of the sale deed on 13-8-1999 and its registration dated 26-8-1999 and the filing of the suit on 3-12-1999.
Suffice it to say that according to section 47 ibid, a registered document shall operate from the time from which the same commence to operate, if no registration thereof had been required or made and not from the time of its registration.
This provision, however , in no manner , shall regulate of circumscribe the period of limitation as prescribed by section 30 of the Punjab Pre-emption Act, 1991, which is a very explicit provision of law and is independent in its application".
In Muhammad Akram vs. Aurangzeb and another 1989 CLC 1405 (Lahore) it was held as under:- "In section 3 of the Limitation Act, legisl ature has expressly declared that whether the defence of limitation be pleaded or not, the Courts, whether of first instance or of appeal, are bound to give effect to the law .
It is also well-settled that a plea of limitation like a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. Plea of limitation as a pure question of law unless it involved the taking of fresh evidence, can be allow ed to be raised as a matter of right at any stage of proceedings even in the court of law resort".
14. Hence, we have no hesitation to declare the judgment passed by the learned trial Court, being consistent with law and facts, does not warrant interference by this court.
15. For what has been discussed above, this appeal having no force is hereby dismissed. No order as to costs.