1. Plaintiff has filed this suit for recovery of DM 77,952. Plaintiff claims to be a Private Limited Company and in pursuance to orders received from defendant, a firm based in West Germany made shipment of cotton textile in pursuance of the contract between the parties. Plaintiff claims to have made the following shipments:---
(1) 2160 pieces of Cotton knitted T. Shirts worth DM 14,702.75 shipped under export form No.IFB- 0032549, dated 30-12-1992.
(2) 2000 pieces of cotton ready-made Garments worth DM 11,500 shipped under Export form No.IFB-0035176, dated 18-1-1993 and IFB-0035185, dated 18-2-1993.
(3) 3000 pieces of Cotton ready-made Garments T. Shirts worth DM 17,250 shipped under Export form No.IFB-0035178, dated 26-1-1993.
(4) 2000 pieces of Cotton ready-made Garments T. Shirts worth DM 9000 shipped under Export form No.IFB-0035163, dated 16-3-1993.
(5) 2000 pieces of Cotton ready-made Garment worth DM 14,000 shipped under Export form No.IFB-0036096, dated 12-6-1993.
2. Plaintiff claims the amount of these consignments shipped during the years 1992 and 1993 resting with the final shipment on 12-6-1993 or thereabout. The plaint was presented in this Court on 9-10- 1999 i.e. after a lapse of over six years from the date of shipment of last consignment. In paragraph 12 of the plaint disclosing the cause of action the date of contract is relied upon as 1-1-1992 which is alleged to be the date of contract and no fact disclosing any further cause of action thereafter except the incident of death of the then Chief Executive. Paragraph No.12 is reproduced as under:-- "That the sale proceeds of DM 77,952 in respect of the above referred export consignments is yet payable by the defendants to the plaintiff as such cause of action arose to plaintiff company against defendant on and after 1-1-1992 when the contract was made and subsequently on 16-12- 1997 when the then Chief Executive was expired and taken over charge by the present management and the cause of action is continued till the recovery of the sale proceeds from the defendant firm."
3. Defendants have been served through Courier but remained absent and suit was ordered to proceed ex parte against defendant vide order, dated 2-10-2000. On 14-2-2001 when this suit was fixed for final disposal Mr. Sher Ali Rizvi, Advocate for the plaintiff requested for one weeks' time to file an affidavit confirming the delivery of consignment and the fact of no claim from consignees.
4. On 21-2-2001 further time was sought and the case was adjourned for today i.e. 23-2-2001 and in spite of the case being called repeatedly the plaintiff and their counsel have remained absent and it now 11-25 a.m. when the case is called finally before the Court. Time is over at 11-30 a.m. today being Friday.
5. The suit was filed after a long delay and is apparently time-barred. There is no statement on record about the delivery of the consignment or any claim from the consignee and in spite of three opportunities to the plaintiff no explanation is forthcoming. No cause of action accrues in favour of the plaintiffs against the defendants as a result of the death of the Chief Executive and the plaintiffs on 16-12-1987 as claimed in paragraph No.12 of the plaint. It has been held by the Honourable Supreme Court in the case of East & West Steamship Co. v. Qeenland Insurance Co. PLD 1963 SC 663 as under:- "Even though the defendant-company had failed to appear to contest the suit, it was nevertheless the duty of the Insurance Co. to establish that loss had in fact taken place, that the loss was evaluated in terms of money, and that this had been done 'in such manner as to inspire confidence. There can be no doubt of the duty of the Court to ensure, even when proceeding ex parte, that its decision is in accordance with the facts, which should be ascertained with as much care as is possible in the absence of any contesting party."
6. From the above facts it is apparent that this suit for recovery of the price of the goods shipped and sold filed after over six years of shipment of the consignments is hit by section 3 of the Limitation Act, 1908 reproduced as under-- "Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made after the period of limitation prescribed therefor, by the First Schedule shall be dismissed, although limitation has not been set up as a defence. The period prescribed under the First Schedule for institution of this suit which falls under Article 52 of the said schedule is 3 years."
7. Accordingly Suit No.1439 of 1999 is dismissed with no order as to costs.