The facts leading to this order are that respondent Messrs Mehran Trading Corporation (hereinafter called as "The Corporation") being a registered contractor with T & T Stores and Workshop Department of Government of Pakistan was supplying goods against orders: During 1983, the Director T & T Stores & Workshop, Karachi (hereinafter called as "The Director"), invited quotations for supply of . 1000 paper rolls. The quotation of The Corporation being the lowest was accepted vide schedule of acceptance dated 6-11-1983 and orders issued for supply. The total quantity of paper rolls in the contract was provided to The Director, who made full payment for the goods in December 1983. The security deposited by The Corporation/supplier was also returned to them.
2. Afterwards somewhere in April, 1984, the payment for the bills submitted by The Corporation to the Director, for supply of some other goods under another contract was withheld on the ground that the paper rolls provided by them under the earlier contract of 1983 were substandard.
3. As the matter could not be sorted out. The Corporation/Contractor filed a suit bearing No,1405 of 1985 in the Court of Senior Civil Judge, Karachi for following relief:- "(1) To declare that the act of defendant No,1, of withholding the payments of different bills of the goods supplied by the plaintiff against different contracts other than the Contract dated 6-11-1983 as mentioned in their letter No,DSW/INV-121/84 dated 13-9-1984 is illegal, void, unlawful and of no legal effect.
(2) To direct the defendants to release the payments of all the withhold bills of the plaintiff as mentioned in their letter No,DSW/INV-121/84 dated 13-9-1984 and make the payments thereof.
(3) To restrain and prohibit the defendants from further withholding the bills of plaintiff, pending at their offices for the goods supplied against contracts other than the contract dated 6-11-1983 as threatened in their letter No, DSW/INV-121/84 dated 16-10-1984.
(4) Any other relief/reliefs this Hon'ble Court may deem fit and proper under the circumstances of the case.
(5) Cost of the suit may also be decreed."
4. The trial Court, on 12-44988, decreed the suit granting prayer for declaration only. Remaining prayers including one for release of the withheld amount were, however, declined. The Appeal bearing No,104 of 1988 filed by the Director was dismissed by the Additional District Judge, Karachi, vide judgment dated 22-12-1988. Revision No,58 of 1989 filed in the High Court was also dismissed on 6-8-1989.
5. The Director agitated the matter through Civil Appeal No,545-K of 1990, before the Hon'ble Supreme Court of Pakistan which set aside all the orders on 10-4-1991 holding that the suit for declaration was not maintainable as the proper remedy in such matters would be a suit for a money decree.
6. When the appeal was still pending before the Hon'ble Supreme Court The Corporation/Contractor filed Suit bearing No,715 of 1989, relating to the same dispute before the Senior Civil Judge Karachi in April, 1989, for following relief:-- "to pass judgment and decree against the defendants and in favour of plaintiff for Rs,76,616.20 inclusive of interest @ 14% from 16-5-1988 till today and further interest @ 14% from the date of filing of the suit till the entire amount is paid by the defendants to the plaintiff".
7. The suit was decreed on 16-7-1991. The appeal against that decision was also dismissed by VIth Additional District Judge Karachi South on 22-2-1994. Both of the decisions have been assailed through present revision application.
8. Mr. Akhlaque Ahmed Siddiqui, the learned Advocate for the applicants being conscious of the fact that Revision Application was filed much beyond the period of 90 days provided by section 115, C.P.0 argued that the requirement of limitation would not apply to present Revision Application as the decisions of the two Courts below were void. According to him, they were void for, the suit having been filed much beyond the period of three years provided by the Limitation Act. Secondly that the respondent/plaintiff omitted to seek relief of the recovery of amount in his earlier suit i,e, Suit No,1405 of 1985, therefore, his subsequent suit was barred under Order II, rule 2, C.P.C.
9. Mr. Umar Qureshi, learned Advocate for the respondent/ plaintiff defended the decisions and also agitated the question of limitation stating that the Revision Application deserves to be dismissed on that score alone as no explanation for delay has been advanced.
10. As regards the factual controversy, it is admitted position that the amount in question related to a contract other than one under which the applicants/The Director had been alleging the goods to be substandard. In fact after supply of the entire goods under that contract total payment for the goods was made to The Corporation. Also its security deposit was refunded to it. In such a situation withholding the amount of the bills relating to another contract was neither legal nor proper.
11. No doubt, the amount was withheld in April, 1984 and the suit for recovery thereof having been filed in April, 1989 was much beyond the period of three years provided by the Limitation, Act but the admitted position is that The Corporation had filed a suit for declaration and mandatory injunction on the same cause of action which was ultimately dismissed by the Hon'ble Supreme Court on 10-4-1991 holding,that the A suit for declaration was not maintainable as the proper remedy in such a matter would be, a suit for a money decree. As mentioned above, the earlier suit filed by the respondent/plaintiff was based on the same cause of action but he could not get the desired result for improper frame and the character of the suit, therefore he is entitled to the benefit of section 14 of the Limitation Act specially when he is not alleged to have not pursued the cause vigilantly.
12. It is true that the subsequent Suit i,e, No,715 of 1989 was filed when appeal filed by the applicants/The Director was still pending before the Hon'ble Supreme Court but for that reason alone section 14 of the Limitation Act is not to be rendered inapplicable. The facts that the suit filed by the respondent/plaintiff which was on the same cause of action and had been pursueded by him vigilantly did not get him the relief for the defect in its frame and character which satisfies all the requirement of section 14 of the Limitation Act. Striking against the respondent/plaintiff for the only reason that his subsequent suit was filed before the dismissal of his earlier suit by the Hon'ble Supreme Court would amount to permitting the technicalities to defeat the entire scheme of the section. The suit which could otherwise succeed is not to be defeated for institution thereof some time before the final verdict in the earlier suit, specially when that suit failed only due to defect in is character and frame and not on merits.
13. As regards the applicability of Order 11, rule 2, C,P.0 that contention too has no substance. In the earlier suit the prayer for issuance of direction to release the amount in question was also made together with the prayer for declaration about illegal withholding of the amount. Thus the relief for recovery of the amount was not omitted in the earlier suit.
14. The filing of the present Revision Application much after the expiry of 90 days provided under section 115 C.P.0 is not disputed and the delay has not been explained as required by the law. The application is, therefore, barred by limitation.
15. The upshot of the above is that the Revision Application is not lc only time-barred but meritless too. The same is dismissed.