1. This application under Order VII, Rule 11, C.P.C., has been filed by defendant No.4 for rejection of the plaint as against them on the ground that the suit is barred by limitation.
2. The present suit was filed by the plaintiff against defendants Nos. 1, 2 and 3, for recovery of Rs.5,50,000 (Rupees five lacs, fifty thousand only) for loss of cargo. Defendant No.1 are the owners of the Ship. During the pendency of the suit, an application was filed for joining defendant No.4 as a party on the ground that defendant No.4 has taken over the properties and assets of defendant No.1, according to certain advertisement published in the newspaper. The application was allowed.
3. Amended plaint was filed and consequently, notice was served on defendant No.4 who seeks rejection of the plaint against them on the ground of limitation as they have been joined as defendants after twenty years of accrual of cause of action. The learned counsel for defendant No.4 has relied on section 22, subsection (1) of the Limitation Act, 1908, which provides that where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was made a party. Subsection (2) of the said section provides that nothing in subsection (1) shall apply to a case where a party is added or substituted owing to an assignmentor devolution of any interest during the pendency of a suit and has contended that inasmuch as the property and assets -of the defendant No.1 have been taken over by defendant No.4, - they cannot be said to have been assigned to the said defendant or to have devolved on them. It is, therefore, contended that subsection (2) of section 22 will not be attracted in the circumstances of this case. The learned counsel for defendant NOA relying on Article 31 of the Limitation Act, 1908, has therefore, urged that the suit being against a carrier for compensation for non-delivery of goods, could-be filed only within one year from the date when the goods ought to have been delivered. The suit being barred by limitation on the face of it, the plaint should be rejected.
4. It was next contended that if the interests of Defendant No.1, have devolved on defendant No.4, the plaintiff should have prayed for substitution of defendant No.1, by defendant No.4, and not for joining defendant No.4, as a separate party.
5. On the other hand, Mr. Saleem Karamally, the learned Advocate for the plaintiff has urged that section 22(2) of the Limitation Act, is applicable to the facts and circumstances of this case.
6. Para. 25 of the plaint which pertains to defendant No.4, the newly added defendant, reads as under:-- "25. That as per public notice it has been established that M/s. Hapag Lloyd A.G. Of Hapage Haus, Ballindamm-25 Post Fach. 102626 2000, Hamburg-1, Federal Republic of Germany, are now operating the vessels and the fleet owned by defendant No.1 and have taken over the entire business interest of defendant No.1 and are appropriating the income and profits of such business accrued from the operation and management of the vessels. In the circumstances the aforesaid party would be interested in contesting the present suit and would also, be answerable in execution of the decree, if one is passed, in the above cited suit as they hold the assets and business of defendant No.1 in their hands according to the aforesaid public notice published in the newspapers. The said party of West Germany is represented in Karachi by their local agents known as M/s. Delta Shipping, having their offices at Building No.1-B, State Life Square, I.I. Chundrigar Road, Karachi."
7. The allegations of the plaintiff as contained in the above para. That defendant No.4 is operating the vessels and the fleets owned by defendant No.1, who have taken over the entire business interests of defendant No.1, and are appropriating income and profits of such business, indicate that all the interests of the Defendant No.1 in the vessels have come to be vested in Defendant No.4. The question whether Defendant No.4, would be liable for the decree that may be passed against the defendant No.1, or whether Defendant No.4, could be held liable by virtue of section 22 of the Limitation Act, because of the taking over of the assets from Defendant No.1, would be a matter of evidence and can be decided only when it is brought on record as to in what manner Defendant No.4 has taken over the assets and properties of Defendant No.l. Defendant No.4 for the time being has not disclosed anything and has not placed material on record in this regard. The plea taken by them is that they are only plying their own vessels on the same routes by taking the liner services of Hansa Lines for Middle East, Pakistan, India and Madascar/Mauritius. In other words, accepting the interpretation of the said defendant placed on the above language, the case of the said defendant is that of the denial of the allegations made by the plaintiff in para. 25 of the plaint. Thus, it is being denied that the said defendant has taken over the assets of the Defendant No.l. On mere reading of the plaint as presented before the Court, it is not possible to reach the conclusion that there has been no devolution of any interest during the pendency of the suit. The accepted principle for the rejection of the plaint is that the Court has to confine itself only to the averments made. In the plaint and has to take the contents thereof to be true and cannot go beyond the same. If on taking the averments made the plaint, it finds the plaint to be barred by law, the Court can reject the plaint, but A cannot do so by resolving the contested facts. If any authority is required on the subject, reference may be made to the case of Monim Bai v. Abdul Sattar NLR 1990 AC 196 decided by a Division Bench of this Court.
8. The learned counsel for the plaintiff has relied on the case of G.I.P. Railway v. Mahadeo Ram Badridas AIR 1926 All. 585 where the act of taking over of the property by the Government has been equivated with the devolution of the interest on the Government. The averments made in the plaint against defendant No.4, prima facie attract the ' provisions of section 22(2) of the Limitation Act. It will be only after recording the evidence that conclusive finding can be given with regard to the question whether in fact any interest in the assets of defendant No.1 has been assigned to or has devolved on defendant No.4.
9. The other contention raised by the learned Advocate for defendant No. 4 that the said defendant ought to have been substituted is also devoid of any force. Since the devolution of the assets of defendant No.1, is being denied by defendant No.4, it has been rightly added as a party. Had the said defendant admitted the. Assignment or devolution of the interest of defendant No.1, to or upon itself, it would have been substituted for the said defendant. It may, further be pointed out that this submission of the learned counsel negates and cuts across the first submission.
10. This application is, therefore, dismissed with no order as to cost.