' Respondent's suit for recovery of Rs,6,000 filed against appellant under Order XXXVII, C.P.C. Was decreed ex parte by learned Ilnd Additional District Judge, Karachi, South on 17-9-1995 and the decree was drawn on 26-9-1995, which the appellant has assailed in this appeal.
2. The suit is based on cheque issued by the appellant for Rs,6,000 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, C.P.C. Read with 151, C.P.C. 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 aforementioned.
4. Ms. Sadaf, learned counsel for appellant vehemently contended that the suit was hopelessly time-barred and the point of 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 Muhammad Buta v. Habib Ahmed PLD 1985 SC 153. She further argued that the plea taken by the respondent that on oral request of the appellant the latter was allowed 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, C.P.C. 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 Kar. 745 and Muhammad Yousaf v. Abdul Majid PLD 1993 Lah.
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, C.P.C. Granting leave to defend. The admitted facts gathered from the record are that the cheque was issued on 1-7-1991 and dishonoured 4-7-1991 while the plaint was presented on 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, C.P.C.
And another under Order XXXVII, rule 3, C.P.C. 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 XXXVIII, rule, 2, C.P.C. Which was fixed for arguments and thereafter the suit was decided but the applications under section 9, C.P.C. And Order XXXVII, rule 3, C.P.C. Moved by the appellant remained undecided. It would be important to mention here that subsequent application moved by appellant under Order XXXVII, rule, 4, C.P.C. 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 over 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,6,000 or any part thereof to the plaintiff despite several telephone calls and personal demands made in that 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 dishonoured he persuaded the appellant many times to arrange for the cheque to be cashed or make payment of the amount in cash which was not done and lastly he contacted the defendant few days before filing of the suit.
He explained in the deposition that the appellant was his tenant and the cheque was issued to him as rent for two months, which stood dishonoured. In the end of deposition he has once again stated that he had been persuading the appellant from time to time but the appellant refused. In this way, it appears that at the trial the explanation for filing belated suit is that the respondent had been approaching the appellant for making cash 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 payment of the cheque. On a clear understanding of the facts stated on solemn affirmation at the trial no other conclusion could be drawn except that the respondent at his own level has preferred to institute the suit on 11-12-1994 and there was never a request on behalf of the appellant 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 4-7-1991 when the cheque was dishonoured. Nothing was produced in writing to suggest that the payment of cash in place of cheque was promised 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 plaint is as such ruled out of consideration. In this regard principle laid down in Binyameen v. Hakim 1996 SCM R 336 is cited with advantage.
8. The evidence of respondent tends to demonstrate that the appellant was in no way responsible for the delay on the part of respondent to file the suit and as such the suit filed on 11-12-1994 was hopelessly barred by time within the meaning of Article 64-A of the Limitation Act, which prescribes the period of limitation as 3 years from the time when 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 question of leave to defend becomes immaterial. The provisions of section of Limitation Act are mandatory and supersede any other consideration.
Significance of provision of law has extensively been emphasized in Muhammad Buta's case PLD 1985 SC 153 and in number of other authorities following the same principle. Absence of an order granting leave to defend the suit would not counter-act the effect of limitation and should not make a time- H 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, C.P.C. And the application under section 9, C.P.C. Thereafter, the application under Order XXXVII, rule 4, C.P.C. 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 Kar. 1075 which was relied upon and affirmed in Pak Carpet Industries Limited v. Government of Sindh 1993 CLC 334. As such, in the process of judicial dispensation the lower Court 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.