1. ' The defendants have filed application under Order 7, Rule 11, C.P.C., for rejection of the plaint on the two-fold grounds:-
(1) The suit is barred by time.
(2) The suit is barred by section 11 of the Code of Civil Procedure.
2. ' Briefly, the facts are that the plaintiff had earlier filed these suits for recovery of charges for use and occupation of the Hard & Foreshore for dismantling of Ship. Suit No,630/83 was filed for recovery of above charges for the period from 17-1-1980 to 16-6-1983, Suit No,127/86 for the period from 17-6-1983 to 16-1-1986, and Suit No,768/88 for the period from 17-1-1986 to 30-6-1988.
3. ' The defendants filed application under Order 7, Rule 11, C.P.C., for rejection of the plaint in all the three suits, which were granted by order dated 23-5-1989, on a technical ground and the plaints were rejected.
4. ' The plaintiff has filed High Court Appeals which are pending.
5. ' The plaintiff has filed the present suit for recovery of the above amounts which were subject- matter of the previous three suits being charges for use and occupation of Hard & Foreshore for the period from 17-1-1980 to 30-6-1988.
6. ' The learned counsel for the defendants has contended that the suit is barred by limitation as according to him the amount claimed could be recovered only within three years, from the date it became due and payable. The learned counsel has relied on Article 39 of the Limitation Act, 1908.
7. ' On the other hand the learned Advocate for the plaintiff has relied on residuary Article 120 which prescribes limitation of six years, as according to him the charges claimed are in the nature of damages and no limitation is specifically prescribed for recovery of such damages. Alternatively, the learned counsel for the plaintiff has relied on the following observations made in order dated 23-5-1989 whereby the plaints in the above three suits were rejected:- "13. Notwithstanding the above, plaintiffs would not be prejudiced materially, since, in spite of failure to secure amendments they would be entitled to institute fresh proceedings on different grounds and bar of limitation may be met by invoking the provisions of section 14 of the Limitation Act, for it is bar, analogous to want of jurisdiction on the basis of which the plaints in these suits are being rejected. Reference on the point, may advantageously, be made to the decisions reported as Kilachand Devechand v. M/s. Md. Allah Bux PLD 1962 Kar.
510. A.FA. Kutubuddowla v. Md. Sadiq PLD 1961 Dacca 264 and Mst. Umerunnisa v. Fateh Ali PLD 1971 Kar.
553. This, though, I say tentatively, because to apply section 14 aforesaid would be a question, pre- eminently, in the domain of the Court which comes to be seized of such lis, if and when it materialises.
14. As a result, the plaint in each of these suits shall stand rejected with a right to the plaintiffs to file a fresh suit, either on the basis of entitlement to claim compensation for use and occupation of land belonging to them or on the basis of a Notification, in the broadest of its connotations, which may be issued now but as regards the latter course of action, a Notification cannot be retroactive and may not cover the claims for the periods passed and gone by."
8. ' Extensive reference has been made in the plaint to the above observations and the same have been relied upon.
9. ' It is, therefore, contended that in computation of the period of limitation, the time during which plaintiff has been prosecuting, with due diligence the aforesaid three suits against the defendants in good faith, as the plaints in the said suits were rejected due to technical reason, which are akin to jurisdictional defect.
10. ' It is further contended that the suit was filed on 16-1-1990 for recovery of the charges for the period ending on 30-6-1988, therefore, the entire claim in the suit cannot be said to be barred by time, even if the contention of the defendants that the limitation period applicable is three years, is accepted.
11. ' Without making any observation with regard to the above contentions of the learned counsel for the plaintiff, which would remain open to be considered at the time of final disposal of the suit, it suffice to say that the entire claim made in the suit, even if the limitation is three years, cannot be said to be barred by time. Therefore, the plaint cannot be rejected.
12. ' So far as the second ground is concerned, it is also devoid of any force. In the former suits the issues have not been heard and finally decided by the Court but on the contrary, the plaints were, rejected under Order 7, Rule 11, C.P.C. Order 7, Rule 13, C.P.C. Provides that the rejection of the plaint on any e of the grounds mentioned in Order 7, Rule 11, shall not of its own force, preclude the plaintiff from presenting the fresh plaint in respect of the same cause of action.
13. ' Consequently, the application is liable to be dismissed.
14. ' The above are the reasons for the short order dated 17-9-1991, whereby the application filed by the defendants was dismissed.