1. ' This suit for recovery of a sum of Rs.54,737.07 is filed by the plaintiff against the defendant on the allegations that the defendants have failed to pay the above amount which is the balance due on account of supply of scientific apparatus and laboratory instruments.
2. ' The plaintiff supplied various scientific apparatus and laboratory instruments to various Science Department of Islamia College, Karachi, amounting to Rs.94,737.07 between the period from 7-10- 1961 to 30-9-1963. The then management of the Islamia College made payment of only Rs.40,000 and a balance of Rs.54,737.07 is still outstanding against them. The present suit was filed by the plaintiff on 20th October, 1970, against Islamia Education Society, its Governing Body and the Islamia Science College. During the pendency of the suit, on 1st April, 1972, Martial Law Regulation 118 was promulgated and as a result thereof Islamia Science College, vested in the Provincial Government of Sind from 1st day of September 1972. On 28-3-1977 the Province of Sind applied to be impleaded as a party through Secretary, Education, in the above suit which was allowed and they were made defendant No.3 in the suit. After being impleaded as a party in the suit, the province of Sind (Defendant No.3) filed written statement in the case for himself as well as on behalf of Islamia Science College in which several legal pleas were raised as to the competency of the suit and the jurisdiction of this Court.
3. ' The following issues were adopted by the Court on 4th October, 1980:- "(1) Whether defendants are responsible for pre-nationalized purchases? If so, what is its effect?
(2) Is the suit barred by limitation?
(3) Is the suit bad for misjoinder and non-joinder of proper parties?"
4. ' On the above issues on behalf of the plaintiff one Mohammad Khan Desh Mukh, has been examined as Exh.6 who has produced documents Exhs. 6/1 to 6/3. The defendants have not led any evidence in the case. It is quite clear from the issues framed in the suit that the claim of the plaintiff on merit is not disputed but the liability to pay is contested only on legal grounds. The issues as framed place burden of proof on defendants. Out of the 3 issues framed in the suit the learned A.A.-G. has addressed on issues 1 and 2 only and did not press issue 3. Issue No.3 is accordingly dropped. I may also mention here that the learned counsel for the plaintiff at the hearing of the suit conceded that there is no material to support the claim of the plaintiff against defendants 1-A and 1-B in the suit and accordingly he dropped the claim against these defendants. The present claim in the suit is, therefore, only against defendants 2 and 3.
5. ' ISSUE NO. 2-- I will first take up this issue which relates to the plea of limitation. It is contended by the learned Additional Advocate-General that the last supply of the instruments was made by the plaintiff on 30th September, 1963, as stated in paragraph 3 of the plaint and, therefore, the suit should have been filed within- 3 years of that date. It is accordingly contended that the suit filed_ on 20th October, 1970 is hopelessly beyond time. The above two dates are not disputed but the plaintiff has pleaded extension of limitation in paragraph 6 of their plaint as follows:- "6. That the first payment of Rs.25,000 was received on or about 30-9-1963 and a further sum of Rs.10,000 was received on or about 4-11-1965 and thereafter the defendant No.2 by their letter dated 21-10-1967 admitted their liability to the extent of Rs.59,737.07 but failed to pay on the ground 'that due to present financial stringency we are not in a position to arrange payment of your outstanding bills'. A photostat copy of the letter is enclosed herewith and marked "C". The defendants also paid a further sum of Rs.5,000 vide Cheque No.CA 259969, dated 22-4-1969 by way of part payment. In the events that have happened a sum of Rs.54,737.07 is due and payable to the plaintiffs by the defendants for the goods supplied. In any case, the plaintiffs supplied the scientific apparatus, laboratory instruments to the various Science Departments of the defendants and they are using and enjoying the benefits the same. The defendants are bound to make the payments in respect thereof."
6. ' In reply to the above averments of plaintiff the defendants Nos.2 and 3 in their written statement have made general denial and failed to controvert the specific allegation regarding part payment and acknow ledgement of liability by defendant No.2 to pay the amount. In his evidence before the Court the plaintiff's witness repeated the stand of plaintiff regarding part payments made by defendant No.2 and produced a copy of the statement of account Exh.6/1 which coroborated the oral statement of witness. The palintiff has also produced in evidence a photo copy of the letter dated 21st October, 1967, addressed to the Chairman of plaintiff by the Principal of defendant 2 wherein an admission of liability is made with regard to the outstanding sum of Rs.54,737.07. Both these documents were produced in evidence without any objection by the defendant. From the evidence on record it appears that the first part payment of Rs.25,000 was made by defendant 2 on 30th September, 1963. The second part payment of Rs.10,000 was made on 8-11-1965 and the last part payment of Rs.5,000 was made on 22-4-1969. This last part payment of Rs.5,000 made on 22-4-1969, appears to have been disputed on behalf of the defendants as in the evidence a suggestion was made to the plaintiff's witness to the effect that no cheque was delivered to the plaintiff on 22-4-1969 but this suggestion was denied. The learned Additional Advocate-General contended before me that even if this payment which is shown to have been made on 22-4-1969 is held to be proved it is beyond 3 years of the last payment of Rs.10,000 which was made on 8-11- 1965 and, therefore, it could not revive a further period of limitation in favour of the plaintiff for filing of the suit. This argument of the learned Additional Advocate-General, however, overlooks Exh.6/3 which was addressed to the Chairman of the plaintiff by defendant No.2 on 21st October, 1967 admitting the liability to plaintiff in the sum of Rs.59,737.07. This letter was produced in evidence with the consent of the learned Additional Advocate-General. Under sections 20 and 19 of the Limitation Act, a part payment by a debtor towards the debt due or an admission of liability to the debt on his part, within the period of limitation revives a further period of limitation prescribed for institution of such legal proceedings from the date of such part payment or acknowledgement. It is true that in the present case the last supply was made to the defendant on 9-4-1963 but on account of the part payments made on 30th September, 1963, 8-11-1965, the period of limitation prescribed for filing of the suit was revived. After 8-11-1965, the defendant No.2 again admitted their liability on 21st October, 1967 to thy, amount due to plaintiff which revived a further period of limitation in favour of plaintiff.The last part payment made on 22-4-1969 once again had the effect of reviving the period of limitation for 3 years from that date. Therefore, the suit as instituted on 20th October, 1970, is within time.
7. ' ISSUE No.1.-- The learned counsel for the plaintiff contends that the scientific instruments were supplied at the request of defendant No.2 namely Islamia Science College between the years 1961 to 1963 whereas the defendant No.2 was nationalized under M.L.R. 118 on 1st April, 1972. I is contended by the learned counsel that paragraphs 9 and 10 of M.L.R. 118 as it originally promulgated provided that any contract made by the owner or manager of any privately managed college which vested in Provincial or Central Government as the case may be under M.L.R. 118 shall in so far such contract relates to the Management of such College or School be deemed to have been made by the Central or Provincial Government as the case may be. It is further contended that original paragraph 10 in the Regulation provided that all rights, properties assets, liabilities, debts and obligations incurred by the owner or Manager of any privately managed college which is vested in the Central or Provincial Government under the Regulation shall, in so far as they relate to the Management of such college, school, be the rights, properties, assets, liabilities, debts and obligations of the Central or Provincial Government as the case may be. It is, therefore, contended that both under paragraphs 9 and 10 after vesting of defendant No.2 in defedant No.3 the liability for payment of the above dues also devolved on defendant No.3. On the other hand the learned Additional Advocate-General contend- that although in the original M.L.R. 118 the liability of the owner or the Manager and the contract made by them, in so far they related to the Management of such college became the liability of the Provincial Government, but in the case of province of Sind, M.L.R. 118 was amended by Ordinance 13 of 1972 which omitted completely paragraph 9 of the M.L.R. 118 besides omitting the words liability, debts and obligations" in paragraph 10 of the aforesaid Regulation. It is accordingly contended by the learned Additional Advocate-General, that as a result of these omissions the liability for the claim in suit did not devolve on defendant 3. After carefully examining the .arguments of the learned counsel for the parties and going through the provisions of M.L.R. 118 I find that M.L.R. 118 was promulgated on 1st of April, 1972, and it came into effect immediately as is evident from paragraph 1 of this Regulation. It is A true that under paragraph 4 of this Regulation, the vesting of the privately managed college together with all properties attached to them was to come into effect from 1st September, 1972, but there is nothing in the Regulation to show that until such vesting had taken place other provisions of the Regulations did not apply. Apart from this fact the suit as constituted is neither against the owner nor against the . manager of the college but is against the institution itself. It is quite clear from the plaint as it is framed and the evidence in the case that the liability for the amount claimed in the suit was incurred by defendant 2 itself. It is true that on 3rd August, 1972, the original M.L.R. 1181 in its application to the province of Sind was amended by a Provincia a Ordinance 13 of 1972, whereby paragraph 9 was completely omitted and the words "liability, debts and obligations" appearing in paragraph 10 were omitted but these omissions did not have the effect of absolving the Provincial Government from the liabilities incurred by the institution itself before the date of promulgation of M.L.R.
118. The defendants have not be able to establish that the amount claimed by the plaintiff are in the nature of liabilities incurred by the owner or manager of the institution. In .this view of the matter it is not necessary to examine here the contention of the learned counsel for the plaintiff that the omission of paragraphs 9 and 10 of M.L.R. 13 of 1972 is not retrospective in its operation. The claim of the plaintiff has not been contested on merits and there is sufficient evidence on record to show that the instruments were supplied to defendant No.2 between the period from 1961-63 amounting to Rs.94,737.07 out of which until filing of the suit the plaintiff were paid only a sum of Rs.40,000 leaving-a balance of Rs.54,737.07. I, therefore, hold that the plaintiff is entitled to a decree against defendants 2 and 3 in the sum of Rs.54,737.07. The plaintiff's claim in the suit is accordingly decreed but interest will be payable from the date of decree as the suit has not been contested by the defendants on merits. Plaintiff will also be entitled to the costs of the suit.