M. HUSSAIN ADIL KHATRI, J.- The suit has been filed by the plaintiff for recovery of Rs. 1,02,000 from the defendant. According to the plaint, the plaintiff used to supply printing inks to the defendant and by 3.2.1987 a sum of Rs.72,0 "had become due and payable by the defendant. The plaintiff kept on demanding the aforesaid amount due but the defendant did not pay. The plaintiff therefore on 27.8.1989 sent a legal notice and in response thereof the defendant- company called upon the representative of the plaintiff-company, admitted the liability and requested it not to go to Court as it would make the payment very soon. The defendant from time to time kept on promising but did not make the payment. On 15.9.1990 the defendant finally refused to pay the amount due. A sum of Rs.30,000 has been claimed by way of damages on account of nonpayment.
2. The defendants have filed this application under Order VII, rule 11, C.P.C, for rejection of the plaint on the ground that it is barred by limitation as according to the plaint and so also the statement of account the lpst entry pertaining to the supply is dated 3.2.1987 and the suit has been filed on 22.10.1990 after the expiry of three years. Mr. Nizam Ahmad the learned counsel for the defendant has relied on Article 52 of the Limitation Act where in for institution of suit for recovery of the price of goods sold and delivered, where no fixed period of credit is agreed upon, the limitation prescribed is three years from the date of the delivery of the goods. The case of the plaintiff as reflected in the plaint is hit by the aforesaid Article. For the goods that were delivered on 3.2.1987, the plaintiff could institute the exit to recover the price of the goods within three years i.e. By2.2.1990. Similarly the cause of action for damages also accrued to the plaintiff when the amount had become payable and it was not paid. The damages claimed in the suit are in the nature of loss of profit that could have been earned by the plaintiff had that amount been paid to him. As such this claim also would go alongwith the claim of money against the defendant. Even otherwise this claim appears to be misplaced. Under these circumstances, the plaint is rejected under Order VII, rule 11, C.P.C.
3. The learned advocate for the plaintiff has conceded that the admission of the liability by the defendant as alleged by the plaintiff in the plaint is not covered by the provisions of section 19 of the Limitation Act, but, however, according to him a person being liable to pay the money, in Islam, cannot refuse to pay the same, and therefore, rejection of the claim of the plaintiff on the ground of limitation would be in conflict with Injunctions of Quran and Sunnah. He has relied on the case of Maqbool Ahmad vs. Govemment of Pakistan reported in 1989 SCM R 2063 wherein the Shariat Appellate Bench of Supreme Court has declared section 28 of the Limitation Act repugnant to injunction of Islam, in so far as the same provided for extinguishment of right in the property at the determination of period prescribed for instituting suit for possession of property. Mr. N.K. Jatoi has contended that the same principle can be applied with regard to other provisions of Limitation Act including Article 52 Mr. Nizam Ahmad learned advocate for the defendant has contended that the rule laid down in the above authority and the declaration given cover only Section 28 of the Limitation Act, and would not extend to the other provisions, of the limitation Act. He has further contended that even if it be so, the judgment will be effective from 31.8.1991 whereas this suit was filed earlier than this date and does not help the plaintiff.
4. In the case of Maqbool Ahmed their Lordships have observed that section 28 of the Limitation Act 1908, affects the substantive rights in improvable property, whereas Article 144 of the said Act is procedural. One of the learned Judges had declared both, the above sections and the article, as repugnant to the Injunctions of Islam, but in the operative part of the Judgment, Section 28 of the Limitation Act only has been held to be repugnant to the Injunctions of Islam, in so far as it provides extinguishment of the right in the property on the determination of the period prescribed for instituting a suit for possession of the property.
5. While refering to the distinctive features of the law of limitation as applicable to immovable and movable properties, and such provisions thereof which take away only the remedy but not the right itself, in juxtaposition of the provision which take away the right itself, their Lordships have further observed that in the case of immovable, where a right to claim possession becomes timebarred, title to the property itself is extinguished by virtue of Section 28 of the Limitation Ad 1908. But in the case of movable property though the right to sue itself is extinguished, yet the title does not cease to east; a debt does not cease to be due, merely because, it cannot be recovered after the expiration of the period of limitation provided for instituting a suit for its recovery. In other words the right subsists although the remedy is no longer available.
6. Their Lordships have further observed with great clarity and unambiguously that no exception cannot be taken to prescription of limitation of time period for enforcement of a right from Islamic point of view.
7. The submission of the learned counsel for the plaintiff is therefore overruled as of no substance.
8. The application is granted and the plaint is hereby rejected under Order VII, Rule 11, C.P.C.