SHAKIL AHMAD, J. This is a regular first appeal filed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 to impugn ex parte judgment & decree dated 22.09.2016 passed by learned Judge Banking Court-I, Multan, whereby suit filed by Zarai Taraqiati Bank Ltd.
(appellant herein) against Afzal Shah (respondent herein) was dismissed.
2. Necessary facts relevant for the decision of instant appeal, precisely are that appellant filed a suit for recovery of Rs.3,73,462/- along with mark up, cost of funds, costs of suit and other charges till the realization of amount, against respondent, on the ground that respondent requested for grant of agricultural loan amounting to Rs.1,89,240/- for the purchase of pesticides and seeds etc. which was granted under loan case No.101856 and the expiry date of the same was fixed as 07.01.1993. As per contents of the plaint, respondent availed of the facility, however, did not repay the amount of loan along with agreed mark-up in time and an amount to the tune of Rs.3,73,462/- became outstanding against him as on 30.06.2006 and the same was not paid despite repeated demands, hence the suit. Despite service, respondent did not appear before the trial Court and he was proceeded against ex parte on 28.03.2016 and after hearing ex parte arguments, learned Judge Banking Court-I, Multan dismissed the suit on the ground that suit was filed beyond the period of limitation, hence this appeal.
3. None entered appearance on behalf of respondent despite publication of proclamation in daily Nawa-i-Waqt, therefore, he was proceeded against ex parte vide order dated 11.02.2020.
4. Heard learned counsel for the appellant. Record perused.
5. Learned counsel for the appellant remained unable to controvert the fact that finance facility was availed by respondent as back in the year 1992 that was finally sanctioned under loan case No.101856 and expiry date of the said facility was 07.01.1993, whereas suit was filed on 25.07.2014, as such the same was filed beyond the period of limitation inasmuch under Article 132, Part VIII of the first schedule of the Limitation Act, 1908, suit for the recovery was to be filed within a period of twelve years from the date when outstanding amount became payable on the expiry date of finance facility which as per documents annexed with the plaint was 07.01.1993. Admittedly, loan was obtained by respondent against the mortgage of landed property, therefore, suit to enforce payment of money charged upon immovable property was to be filed within the period of limitation as provided under Article 132, Part VIII of the first schedule of the Limitation Act, 1908.
Keeping in view of the contents of plaint, suit was to be instituted by the appellant within a period of twelve years from the date when the amount became due. As per contents of plaint, expiry date of finance facility was 07.01.1993 and suit, therefore, was to be filed till the year 2005 in view of the period of limitation provided under Article 132 ibid, whereas, suit was filed on 28.07.2014. The suit, therefore, was filed beyond the period of limitation. As per provisions of Order VII Rule 6 of CPC, where a suit is instituted after the expiration of the period prescribed by law of limitation, the plaint shall show the ground upon which exemption in view of the grounds as enumerated in Sections 6 to 20 of the Limitation Act, 1908 is claimed. From plain reading of the plaint, it transpires that appellant has not at all narrated the grounds upon which exemption from the period of limitation under section 19 or 20 of the Limitation Act, 1908 could be sought. Where a suit filed by a party apparently is barred by period of limitation and the case is covered under any of the exceptions as contemplated under the provisions of sections 12 to 20 of the Limitation Act, 1908, the party filing suit has to specifically plead the circumstances under which exemption and in turn fresh point of limitation, has been claimed. In case a party fails to specifically mention those facts in the plaint, there is no need for the court to have framed the issue on the point of limitation and to require a party to adduce evidence to establish the same owing to yet another established principle of law that where a party fails to plead a fact in pleadings it cannot be allowed to prove the same through evidence. Reliance in this regard may safely be placed on case reported as "Saddaruddin (since deceased) through LRs v. Sultan Khan (since deceased) through LRs and others" (2021 SCMR 642), wherein it was laid down by Hon'ble Apex Court that parties were required to lead evidence in consonance with their pleadings and no evidence could be laid or looked into in support of plea which had not been taken in the pleadings. Admittedly, in the instant case, even no effort whatsoever, either before the learned trial court or before this Court, has been made by the appellant to seek necessary amendment in the plaint. Where a suit has been filed after the period of limitation prescribed therefor by the first schedule of the Limitation Act, 1908, same is liable to be dismissed under section 3 of the Limitation Act, 1908. As per dictates of section 3 of Limitation Act, 1908, every suit instituted after the period of limitation prescribed therefor by the first schedule, was to be dismissed even if limitation was not set up as defence. Under the provisions of section 3 of the Limitation Act, 1908, trial court is under bounden duty to take notice of question of limitation for the simple reason that the provisions of section 3 are couched in a mandatory form empowering the court before whom suit has been filed, to dismiss the same if it is found not brought before the court within the time prescribed by the first schedule of the Limitation Act, 1908. It is by now settled principle of law that limitation is not mere technicality and once period of limitation expires, right is accrued in favour of contesting party by operation of law and the same cannot be ignored lightly.
Reliance in this regard may safely be placed on case reported as "Asad Ali and 9 others v. The Bank of Punjab and others" (PLD 2020 Supreme Court 736), wherein following dicta was laid down by august Supreme Court of Pakistan:- "10. ... It is settled law that limitation is not a mere technicality (or a hyper technicality as it had been termed by the Tribunal). Once limitation expires, a right accrues in favour of the other side by operation of law which cannot lightly be taken away."
Learned trial court, thus, rightly proceeded to dismiss the suit being barred by time.
6. So far as submission of learned counsel for the appellant that period of limitation for filing the suit, in fact was to be computed from a fresh point of limitation when respondent by depositing an amount to the tune of Rs.17,000/- consciously acknowledged his liability in respect of suit amount, is concerned, same as hinted in the preceding paragraph does not find support either from the contents of the plaint or from the documents annexed therewith. It has never been the case of appellant, as per contents of the plaint, that respondent in fact deposited certain amount in the year 2003 by tacitly acknowledging his liability and in turn accruing fresh period of limitation to appellant to file the suit from the date when any amount was shown to be deposited by the respondent under the provisions of sections 19 and 20 of the Limitation Act, 1908. Learned counsel for the appellant upon query by us, remained unable to either refer to or produce any document showing acknowledgment in writing by the respondent in terms of sections 19 and 20 of the Limitation Act, 1908. At one hand, there was no specific stance taken by the appellant in the plaint qua deposit of any amount by the respondent before the expiry of period of limitation and on the other, no tangible material/document was available on the record to establish acknowledgment of payment by the respondent either in writing, in his handwriting or in the writing signed by him while making any payment against the outstanding amount. Even otherwise, in order to invoke the provisions of section 19 of the Limitation Act, 1908, the condition precedent, that such acknowledgment ought to have been made within the period of limitation prescribed for a claim sought to be enforced, was to be fulfilled in the first place. Similarly, as per provisions of section 20 of the Limitation Act, 1908, any credit entry in the account constituting an acknowledgment of payment must have been in the handwriting or in writing signed by the person making the payment, so as to bring the case either within the purview of section 19 or section 20 of the Limitation Act, 1908, whereby acknowledgment of payment was to be made in the handwriting or in a writing signed by the person making the payment within the period of limitation. Fresh period of limitation would only start when firstly payment/acknowledgment has been made before the expiry of period of limitation and secondly the same is in the handwriting and signed by the party against whom any right is claimed. Learned counsel for the appellant, however, failed to point out or refer any document showing payment of Rs.17,000/- in the handwriting or even signed by respondent. Learned trial court rightly proceeded to non-suit the appellant by holding the suit filed by appellant being barred by the period of limitation. Nothing either tangible or plausible could have been hinted by learned counsel for appellant to convince us to take any exception to the impugned judgment which has been validly passed by learned Judge Banking Court after going through the whole material available on the record.
7. The upshot of the above discussion is that appeal in hand is devoid of any force, therefore, the same is dismissed. No order as to costs.