' MIAN SAQIB NISAR, J.---Appellant's suit for recovery amounting to Rs,2,30,223 was dismissed by the learned trial Judge, vide judgment and decree dated 21-4-1991 by treating issue of limitation as preliminary issue and holding the same against the appellant.
2. Briefly, the facts of the case are that in the month of April, 1977, the appellant/plaintiff negotiated a lease of premises' forming first Floor of 7-Bank Square, Lahore, owned by the respondent/defendant. The area agreed to be taken on lease was 2430 square feet. The rate of rent was agreed to be paid at the rate of Rs,3 per square feet, per mouth, which comes to Rs,7,290 per mensum for the whole area. The rent was to be paid monthly and tenancy was to be terminated on one month's notice of either side. During the negotiation, the respondent/ defendant requested for the payment of an advance rent of the premises for at least three years so as to enable hip to effect necessary repairs and renovation of the premises, and in pursuance of which, the appellant/plaintiff advanced a sum of Rs,2,62,440. This payment was made through cheque dated 27-4-1977, it may be pertinent to state here that, though the lease deed was drafted, but it was not executed. Anyhow, the appellant/plaintiff obtained the possession of the premises on 1-6- 1977. During this period, the Flour Milling Control and Development (Repeal) Ordinance, 1977. The demised premises thus, was no longer required to the appellant/plaintiff, who issued a notice to the respondent/defendant on 12-9-1977 giving him one month's notice of termination of the lease.
In consequence of the above, the respondent/defendant through his representative, took over the possession of the premises on 13-10-1977 by executing a note of acknowledgement.
3. As a result of termination of the lease and vacation of the premises, the appellant/plaintiff became entitled to the refund of the balance amount paid, to the tune of Rs,2,30,223 therefore, the appellant/plaintiff requested the respondent/defendant to return the said amount, but without any success, constraining the appellant/plaintiff to file the suit for recovery. This suit was defended by the respondent/defendant. The following three issues were framed by the learned trial Court:-
(1) Whether the plaintiff-Corporation is entitled to recover sum of Rs,2,30,223 from the defendant?
OPP
(2) Whether the suit is within time? OPP
(3) Whether the plaintiff is estopped by conduct to file the present suit? OPD
(4) Relief.
' However, vide judgment and decree dated 21-4-1991, the learned trial Court, treated the issue No,2 as preliminary issue and by applying the provisions of Article 115 of the Limitation Act, held that the suit filed beyond three years from the date on which, the appellant/plaintiff became entitled to recover the amount, was barred by time.
4. Learned counsel for the appellant contends ' that the findings of the learned trial Court on the above issue, are illegal and erroneous for the reasons that vide letter dated 13-3-1978 (Exh.P.7), the respondent agreed and offered to refund Rs,1,85,189 and this payment was also acknowledged by the respondent through a letter dated 19-8-1978 (Exh.P.14) in the following terms:- "In view of the above clarifications, we suggest that it would be best if we act in terms of our letter of 13th March, 1978. Should you continue to persist in your attitude, we will be constrained to reconsider. Our suggestion and seek to enforce our rights against you for full three (3) years term."
' Thus, it is submitted that as the respondent has acknowledged the payment of the amount vide letter (Exh.P.14), therefore, the period of limitation in view of section 19 of the Limitation Act, was extended for another period of three years. The suit brought on 1st September, 1991, was within limitation, because the limitation of three years expired in the month of August, when the Civil Courts were closed and on the reopening of the Courts, suit was instituted.
5. The learned counsel for the respondent has tried to defend the judgment of the learned trial Court, but has not been able to satisfy if the respondent had not acknowledged the payment of at least an amount of Rs,1,85,189 to the appellant through a letter dated 19-8-1978(Exh.P.14) thus, according to the provisions of section 19 of the Limitation Act, if the debt is acknowledged before the expiry of period of limitation, fresh period of limitation shall be computed from the time, when such acknowledgment vide Exh.P.14 was made and signed by the respondent, therefore, from this point of time, the period of limitation commenced in favour of the appellant and thus, suit was not barred by time to the extent of the amount of Rs,1,85,189, which had been duly acknowledged by the respondent through the said letter. This aspect of the matter and the provisions of law, have been totally ignore by the learned trial Court on account of which, the judgment and decree stands vitiated and liable to be set aside.
In the light of above, this appeal is allowed. The judgment and decree of the learned trial Court is set aside. It may be pertinent to state here that have been given by the trial Court on the other issues, therefore, the case is remanded to the learned trial Court for its decision afresh on the other issues in accordance with law. No order as to cost.