IRSHAD HASAN KHAN, C.J.--- Respondent Sheikh Muhammad Sarwar, Assistant Director, Forensic Science Laboratory, Punjab, Lahore was dismissed from service on 12.7.1999 after holding disciplinary proceedings against him on the ground that while looking after the charge of the post of DSP/Deputy Director, Forensic Science Laboratory, he initially marked the questioned document for comparison/examination to Inspector Bashir Ahmad on 4.4.1998, who submitted his report but the respondent did not agree with his opinion and wanted to favour the accused party and also tried to get the sympathies of the Inspector, who did not agree to change his opinion. Therefore, the respondent tore/destroyed the report tendered by the above Inspector and again marked the case to Lady Inspector, Mrs. Pervaiz Aslam for examination, who gave the opinion as desired. The respondent forwarded the same to the concerned quarters vide No. 2577/FSL, dated 21.5.1998 and thus was found guilty of misconduct. His departmental appeal was rejected on 6.11.2000.
Thereafter, he approached the Punjab Service Tribunal which, after perusing the departmental proceedings and re-appraising the evidence record therein, recorded a finding of fact_that the inquiry report adjudging the respondent guilty of misconduct suffersfrom misreading and non- consideration of evidence on the record. It was ruled that no credibility can be attached to it and that subsequent orders of dismissal, passed by the Authority on 12.7.1999 as also upholding of the same by the Additional Inspector General of Police on 6.11.2000 respectively, were passed in a mechanical manner without application of mind.
2. After hearing Mr. Muhammad Anwar Ghuman, learned ASC for the petitioners-,at, some lehgth, we' ari--.Not Satisfied that' any substantial question-of law of public impOttlthee is inkiblved in these proceedings. The controversy raised herein is concluded by a finding of fact recorded by the Service Tribunal which cannot be 'interfered with being bired'On't4roper"MiPtaisal of evidenCe. Thus no interference is called for.
3. Resultantly, the petition is dismissed and leave declined. {{blur pages}} 2002 412 [Karachi rat A Present: VV-ehid .4601-76-E. Bscrmf-i.e DARIR7UR-REHly#Sk Versus`c. -- A r Dr. Syed GAQUR ASKARY Civil Procedure. Code, 1908- --0. XXXVII, R. 3, 4, O.' XXXVIII, R. 2, S:'9 r/w' S. 151-limitationl" Att,4-908, Mt 64-A, S. 3--Sbit for rectiverY.
Of 'certain'ainounf-22d Ex parte deo4e-Cheque diStildlioured With remarks "not -arranged': for"-- Cheque 1W respect of-r6n'i36f a shOp--Codhsel for 'respondent`': taking-. Adjouenments from 'time to ' time-Leave to 'defend2L. Limitation--Suit, dismissal of--Crucial points would, therefore, in the instant ,appeal be: 'whether the suit instituted-by th6' respondent WAS bal-red by time'and whether the'point of limitation as also other-=pleas on'- merits' eculd bel raised' ;y the appellant abSenCe of -specific ord4r. WISSda'tinder'Order )(XXVII, Mite. 3, CPC'. Granting leave to de-ten-or- Nu (dPubt' the 'appetfant/defenclant had approached the Coureto the suit of responalit on the ground that iffWas-timeiarred yet within the meaning of Section-.3 3 'ottfieltiitjtation' Act Abe 'was Under a statutory' obligatioe to cd-nSider the Point,"61bLirtli4ition'itrreSpectiVe of a plea beqr raised br, not in thattitkhatil-The Tirlqt-''Judge` had erronedu formed' an opinion on Ld' point of '''fla.Tt presuming that ti 4P-- defendant/apciellant ttitft have 'Itieen persuading the plaintiff /respOndent ri'Wrri of said cheque but the defendant/apr5e1186t iidelie4ics'ca'voidifiUtb give the Same--NO evidence had come on.recorsbMkTdisclpse,such,A,f4,et,the ill-found presumption of the Trial Court was, therefore, cot permissible under the law--Indeed, there: was no reasonable ground to extend the period of Limitation for filing time-barred suit, the observation f Trial Ourtin this behalf 'cannot be sustained- The suit should have been dismissed as barred b' time--In view of the above Conclusion the question of leave to defend becomes immaterial:- The' provision of Section 3 of Limitation Act are mandatory and supersede any other consideration--Significance of provision of law has extensively .Been.Emphasizeckin-PLO1985 SC: 153 and in number -0f,the -authorities following the same principle--Absence of an order-,Vranting leave to defend the suit would,hot,counter-act te - effect of limitation arKV-shoulcknot make ,B time-barred suit Maintainal?..1*-The authoritios: cited, by . Counset for respondent are Of no assistance to rePOndelq'S,,oese--Notwithstanding- the ;:har:Of mitation,\ik::would not be out of the place-ta;pdint out 'that the Trial Court. Had :failed. :to pass order on .Two -:.Interlocutory applications, before. Pronouncement :of. Judgment-No apecific: order waspassel:Von theepplication. Under Order XXXVII, Rule 3, CPC P.M; the -application under: Section: CPC-Thereafter .. The application ;under Order .XXXVII, Rule 4, CPC also remained YOdecided--This pratice.-:ofjgnorimintarlocutOty apolicatiOns: and not passing any judicial orsir-thereon :cannot be approved this court--Such,,,viewl)hes.,-Alredy been ,Aaken:-byrit his Courtlin PLD 1976 Karachi 1075 which was relied upon and, aftirmed in 1.993 CLC 334--As such, in the process of judicial dispensation the lower Courts- are advised to pass specific orders on all interlocutory applications; at least-such applications shall not be left undecided, while passing final order in the main case--Appeal ailowed:j fl Lft;J' Oil,:10i2IVOlq VOI6U16111 6 b)?61251;?.1(1/ Hi 93:1; riOn moiTstimii lotroq 1tlobliPa.r:os,sks,19)14) kiectliWAWilthnt: Ms. 5640, Advocate. no 51:20: 15'1010i $d,:. , fr9rch#:fprryii9paerm.h.:Kpzim HussainqA4yocate. Ofil lef..,,,i053.1 !Roc, DaucalifieliVirig:A510CAugdati:2001-$.151 brie erivs Olt 91110- btuThci 70r1 b0f:189i 9dT ; f011f1F'71 WAHICkl BUX-J3ROtit Respondent's suit ,for recoVeryipf RS.60001,,filed against appellant ,tIndet,Order. XXXVII, -,CPCivias dcred x parte,by,,learndz.,.11,Additional District,Judge,,Karachi Sokith,:i owl:TS ;1 95 and the-,,tie.Cree: Was drawn ,ort?,26:.a.21995,4 {{blur pages}} which the appellant has assailed in this appeal.
2. The suit is based on cheque issued by the appellant for Rs.6000/- in favour of respondent on'
1.7.1991 drawn on Allied Bank of. Pakistan Limited, Defence Housing Society Branch, Karachi which was presented on 4.7.1991 but it was dishonoured and returned with the remarks not arranged for.
3. It is the case of appellant that the cheque was issued towards the rent in respect of shop rented by the respondent to the appellant and when the cheque was returned the appellant paid the amount in cash to the respondent in the same month i.e. July, 1997. As regards the proceedings of the. Suit the appellant claims that the summons in the suit was received by him on 17.1.1995 without copy of plaint and he immediately appeared before the Court to collect the copy of the plaint and also to obtain time for filing objections which was granted to him. His application for leave to defend filed on 7.2.1995 remained pending as the Advocate for the respondent used to take adjournments from time to time. It is also alleged by him that he moved an application under Section 9, CPC read with 151, CPC praying that the suit be dismissed as the same was time-barred but no order was passed on that application, and the suit was decreed ex parte on the dates afore-mentioned.
4. Ms. Sadaf, learned counsel for appellant vehemently contended that the suit was hopelessly time-barred and the point o limitation was agitated in the Trial Court at the earliest, but it was overlooked. It was argued that even under Section 3 of Limitation Act, which is a mandatory provision, the Court was under legal obligation to consider the point of limitation. Reliance in this regard was placed on 1985 SC 153 (Muhammad Buta v. Habib Ahmed). She further argued that the plea taken by the respondent that on oral request of the appellant the latter was allow extension from time to time and lastly on refusal to make payment the suit was instituted is not substantiated by positive evidence, therefore, such version cannot be accepted as extension of time. The learned counsel for respondent submitted that any plea to be taken by defendant in a suit under Order XXXVII, CPC can only be entertained when leave to defend is granted and since no leave was granted to appellant, he cannot raise any defence at this stage . He relied on Cotton Export of (Pak) Pvt. Ltd. v. Nagina (1993 CLC 2217), S.M. Akil Fikree v. Muhammad Qamaruz Zaman (PLD 1982 Karachi 745) and Muhammad Yousaf v. Abdul Majid (PLD 1993 Lahore 244).
5. Crucial points would, therefore, in the instant appeal be: whether the suit instituted by the respondent was barred by time and whether the point of limitation as also other pleas on merits could be raised by the appellant in absence of specific order passed under Order XXXVII, Rule 3, CPC granting leave to defend. The admitted facts gathered from the record are that the cheque was issued on 1.7.1991 and dishonoured on 4.7.1991 while the plaint was presented 11.12.1994 and notices were issued on 4.1.1995. On 26.1.1995 the appellant appeared in person and moved an adjournment application which was granted and he was directed to file written statement or objections on 7.2.1995. On 7.2.1995 the appellant moved an application under Section 9, CPC and another under Order XXXVII, Rule 3, CPC in which specific plea was taken that the suit was hopelessly time-barred. On 10.4.1995 the advocate for respondent moved an application under Order XXXVII, Rule 2, CPC which was fixed for arguments and thereafter the suit was decided but the application under Section 9, CPC and Order XXXVII, Rule 3, CPC moved by the appellant remained undecided. It would be important to mention here that subsequent application moved by appellant under Order XXXVII, Rule 4, CPC for setting aside decree passed ex parte also remained undecided.
6. The vital question to be answered, essentially, is whether the suit having been filed after a period of 3 years and 5 months of the date on which cheque was issued and/or dishonoured was barred by time or not. The respondent, in his plaint, has offered an explanation in this regard at paras Nos.
5 and 6 in following terms:- "5. That the plaintiff was requested aver and again by the defendant to allow some more time which the plaintiff did on account of cordial relation with him and keeping in view his financial problems.
6. That the promises after promises the defendant has failed and neglected to pay Rs.6000.00 or any part {{blur pages}} thereof to --.The plaintiff despite- Several: telephone ;calks --,- and personal demandsmade,inAhat,behalf."' - '7: In his deposition `recorded' by the Trial Court the respondent took an altogether different, rather conflicting stand by stating that, in fact, when :the- cheque- was dishcitioured, he persuaded the appellant many-times(AdArrange for the'theqUe to be zashed:''or, make payment of th67-areiiatint rocdash which was not -dent andAettly he=3-CbtitaCte&theirdefelitlatit feik deY-St-ibefoietliting Oft14-)suit-H4iextilained in the dettisiii6iiiiiatql-ie digiell4\146S hit:,:tenantr MA the cheque was isstied.164hiiii:',:es rent tdi two stdOd'dishondth-ed.:In the 'end oi debasititin he haS once"-again'.- Stated that he had ipeen'PerSuadfrig'the appellant froM tirtie'to tiniecbut the apbellant i.Efused! Lh ibis way, it appears that 'at 'the trialc)the explanation-for filing belated suit ie -SO:indent-bad been approaching the aPpellant-for making cath'i , . payment as against the dishonoured cheque 'and:there was never 'a request on the part of appellant, much against .What was averred , in the plaint,. To enhance the time of the payrnent of the cheque.
On a cleat Understanding of the facts stated on solemn affirmation at the trial no other conclusiOn could be draWn except that 'the reSpondent at his on level has preferred to institute the suit on 11.12.12994 and there was never a request on behalf of the appepant to postpone the payment of the amount due., Indeed, Cause of action arose in this case firstly on 1..7.1991 when the cheque was issued and then on 4.7.1901 when the cheque was dishonoured. Nothing was produted,in wiiting'to suggest that the payment of cash in plate of cheque VVOS'OromiSed by 'appellant or at his behest time was extended in -respect of PayMent.. The explanation offered by the respondent by entering.
Into the witness-box being wholly inconsistent, rather varying conversely, as against the plea taken in paras 5 and .6 of. The RIA9,,t)sassuch ruled out of consideration. In this regard principle laid down in Binyatneen v. Hakim (1996 SCVII 336) is cited ajYantage". :91.No". ,
8. The evidence of respondent tends,to derpohStrate- that the appellant was in no way responsible Ix,.Thy #01ey-,,,on. The, part of respondent to file the suit and as such the suit filed on , 3116 e,---iain.-101;.1 efir 1 1.1 2A994 was hopelessly barred by time within e rneaning of 0.1 belosTon brie belist {{blur pages}} Article 64-A of the Limitation Act, which prescribes the period of limitation as 3 years from the time when the debt becomes payable.
9. No doubt the appellant/defendant had approached the Court to dismiss the suit of respondent on the ground that it was time-barred, yet within the meaning of Section 3 of the Limitation Act the Court was under a statutory obligation to consider the point of Limitation irrespective of a plea being raised or not in that behalf. The learned Trial Judge had erroneously formed an opinion on a point of fact presuming that the defendant/appellant must have been persuading the plaintiff/respondent for the return of the said cheque but the defendant/appellant had been avoiding to give the same. No evidence had come on record to disclose such a fact, the ill-found presumption of the learned Trial Court was, therefore, not permissible under the law. Indeed, there was no reasonable ground to extend the period of Limitation for filing time-barred suit, the observation of learned Trial Court in this behalf cannot be sustained. The suit should have been dismissed as barred by time.
10. In view of the above conclusion the questions of leave to defend becomes immaterial. The provision of Section 3 of L imitation Act are mandatory and supersede any other consideration.
Significance of provision of law has expansively been emphasized in Muhammad Buta's case (PLD 1985 SC 153) and in number of other authorities following the same principle. Absence of an ing leave to defend the suit would not counter-act the effect of limitation and should not make a time- barred suit maintainable. The authorities cited by learned counsel for respondent are of no assistance to respondent's case.
11 . Notwithstanding the bar of limitation, it would not be out of the place to point out that the learned Trial Court had failed to pass order on two interlocutory applications before pronouncement of judgment. No specific order was passed on the application under `Order XXXVII, Rule' 3, CPC and the application under Section 9, CPC. Thereafter the application under Order XXXVII, Rule 4, CPC also remained -undecided. This practice of ignoring interlocutory applications and not passing any judicial order thereon cannot be approved by this Court. Such view has already been taken by this Court in Ibrahim v: Ismail (PLD 1976 Karachi 1075) which was relied upon and affirmed in Pak Carpet industries Limited v. Government of Sindh (1993 CLC 334). As such, in the process.s of judicial dispensation the lower Courts are advised to pass specific orders on all interlocutory applications; at least such applications shall not be left undecided, while passing final order in the main case.
12. In consequence of the above discussion the appeal is allowed and the judgment and decree passed by the Trial Court are set aside/reserved and the suit is dismissed as barred by time. There shall be no order as costs.