PLJ 2008 Karachi 131

Present: Arshad Noor Khan, J.

ABDUL ABID--Plaintiff

versus

SIDDIQUE MOTI and another--Defendants

Civil Suit No. 508 and CM.As. Nos. 4348, 8796 of 2007, decided on 26.8.2008.

Civil Procedure Code, 1908 (V of 1908)--

----O. VII, R. 11--Suit for recovery of damages--Barred by law--Rejection of plaint--Scope--Plaint could only be rejected if it did not disclose cause of action and suit was barred by any law or plaintiff fails to pay requisite court fee in spite of direction of court and for such purpose the court had to look into the averments contained in the plaint.

[P. 133] A

Limitation Act, 1908 (IX of 1908)--

----Art. 25--Civil Procedure Code, 1908 (V of 1908), O. II, R. 2 & O.VII, R.7--Suit for recovery of damages for fraudulent act, loss of business, profits, shock, humiliation, physical agony, distress, harassment, mental torture, disgrace, loss of expectation of life loss of amenities of life, loss of valuable times, loss of health and loss of reputation including honour and dignity--Damages, recovery of--Limitation--Rejection of plaint--Cause of action--Earlier round of litigation between the parties was decided by Supreme Court on 28-11-2005 and suit for recovery of damages was filed by plaintiff on 21-11-2006--Plea raised by defendant was that as plaintiff omitted his claim of damages in the suit filed earlier, therefore, he did not have cause of action for subsequent suit--Validity--Suit was filed after the end of litigation between the parties, as claim of damages was not available to plaintiff at the time of filing of earlier suit--Plaintiff had not wilfully, intentionally and deliberately relinquished the part of his claim because subsequent suit was outcome of final decision of lis between the parties, thus provisions of O. II, R. 2, C.P.C. were not attracted--Suit filed within one year from the date of final decision was within limitation--High Court declined to reject the plaint under O.VII, R. 11 C.P.C.--Application was dismissed in circumstances.

[Pp. 133 & 134] B, C & D

PLD 1970 Kar. 770 and 2003 MLD 22 distinguished.

Mr. Muhammad Ayub Khan, Advocate for Plaintiff (along with Plaintiff present in person).

Mr. Sajid Latif, Advocate for Defendant No. 1.

Date of hearing: 26.8.2008.

Order

By this order I intend to dispose of CM.A. No. 4848/07, filed under Order VII, Rule 11, C.P.C, for rejection of the plaint.

The facts leading rise to the present application, in brief, are that the plaintiff filed suit for recovery of damages to the tune of Rs. 80,000,000 stating therein that he entered into an agreement with Defendant No. 1, who is a stock broker/agent/member in the Stock Exchange, for sale and purchase of shares and paid cash amounting to Rs. 403,000, Rs. 110,000, Rs. 10,000, Rs. 100,000 and Rs. 25,000 on various dates, mentioned in the plaint and further cash of Rs. 158,000 in December, 1987, for sale and purchase of shares of different companies and the defendant, though purchased the shares of the companies in 1986, but did not pay any profit or even the capital amount to him, which compelled the plaintiff to file suit for recovery, being Suit No. 409/1990 in the Court of Senior Civil Judge, Karachi, which litigation went up to the Honourable Supreme Court and finally the Honourable Supreme Court decided the lis on 25-11-2005. It is further stated in the plaint that the plaintiff because of such illegal, unwarranted and baseless attitude and conduct of the defendant, sustained mental and physical agony as well as financial loss, besides the division in his family and sustaining cancer by his wife because of such mental torture, as such the plaintiff filed suit for damages against Defendant No. 1, as stated above.

The notice of the suit has been served on the defendant, who filed written statement as well as the present application under Order VII Rule 11, C.P.C. for rejection of the plaint on the ground that the suit, as framed and filed, is not maintainable as the plaintiff has intentionally omitted the claim of damages in his earlier Suit No. 409/1990 (new No. 1757/1996), as such the suit is barred under Order II Rule 2, C.P.C. as well as the suit is also hit under Article 25 of the Limitation Act.

The plaintiff filed objections to the application, filed by Defendant No. 1, denying the assertions of the defendant that the suit as barred under Order II Rule 2, C.P.C. and under Article 25 of the Limitation Act, I, therefore, heard Mr. Muhammad Ayub Khan, learned counsel for the plaintiff, and Mr. Sajid Latif, learned counsel for the defendant.

Learned counsel for the defendant vehemently contended that the plaintiff omitted his claim of damages in the suit filed by him though the said claim was available at the time of filing of the suit, which was omitted by him intentionally and that the suit is bared under Article 25 of the Limitation Act, as such the suit is barred under Order VII Rule 11, C.P.C. In support of his contentions, he has relied upon the case . reported in PLD 1970 Karachi 770 and 2003 MLD 22.

Learned counsel for the plaintiff, while controverting the arguments advanced by learned counsel for Defendant No. 1, has vehemently contended that the present suit has been filed for recovery of damages against Defendant No. 1 because of mental and physical agony sustained by him because of illegal and unwarranted attitude and conduct of Defendant No. 1 and finally the plaintiff has succeeded before the Honourable Supreme Court, therefore, the suit has been based on the claim of damages, which the plaintiff sustained during the course of pendency of the litigation for a long period of two decades, as such the suit is not barred under Order II Rule 2, C.P.C. and that the suit is also not barred under Article 25 of the Limitation Act.

I have considered the arguments advanced on behalf of the parties and have gone through contents of the plaint as well as relevant law on the subject.

There could be no cavil to the proposition that the plaint could only be rejected, in case, if the plaint does not disclose cause of the action and the suit is barred by any law or the plaintiff failed to pay the requisite court-fees in spite of the direction of the Court and for the said purpose the Court has to look into the averments contained in the plaint. A perusal of the contents of the plaint shows that Defendant No. 1 had usurped the capital amount as well as the profit earned by the plaintiff through him, which resulted him in heavy financial loss and mental and physical agony to the plaintiff, which resulted in filing of the civil suit by the plaintiff in the year 1987, which finally was decided by the Honourable Supreme Court in Constitutional Petition No. 721/2003 on 28-11-2005, which took about two decades, as such the suit filed by the plaintiff is based on recovery of damages for fraudulent act of the defendant, loss of his business, profits, shock, humiliation, physical agony, distress, harassment, mental torture, disgrace, loss of expectation of life, loss of amenities of life, discontinuation of relationship between the family members, loss of valuable times, loss of health/energy and loss of reputation including honour and dignity, which cannot be calculated in terms of money and for the said losses the plaintiff has estimated his suit to the tune of Rs. 80,000,000. Admittedly, the suit been filed after the end of litigation in between the parties, as such it could not be said that the claim of the damages because of the litigation was available to the plaintiff at the time of filing of the main suit before the learned Senior Civil Judge, as such it could not be said that the plaintiff wilfully, intentionally and deliberately and relinquished the part of his claim because the present suit is the outcome of the final decision of the lis in between the parties. In my humble opinion the claim of damages as estimated by the plaintiff in Paras 7 and 11 of his plaint, were not available to him at the time of filing the main suit, as such the provisions of under Order II Rule 2, C.P.C. are not attracted to the circumstances of the present case.

The contention of the learned counsel for the defendant that the suit is barred under Article 25 of the Limitation Act is also not available to him for the reason that the limitation to file the suit for compensation for libels/slander is provided one year. In case if Article 25 of the Limitation Act is applied, then too the suit in any way could not be termed to be barred under Article 25 of the Limitation Act as the suit for damages has been filed by the plaintiff after the judgment of the Honourable Supreme Court on 28-11-2005 and the suit has been filed within one year from the date of passing the judgment by the Honourable Supreme Court on 21-11-2006, which is within one year from the date of decision by the Honourable Supreme Court, as such in my humble view the suit filed by the plaintiff, in any way is not barred under any Article of the Limitation Act. The case laws relied upon by the learned counsel for the plaintiff in my humble opinion are distinguishable from the circumstances of the present case and are inapplicable.

For all the aforesaid reasons I do not find any merit in the present application which is hereby dismissed. Cost to abide the final event.

R.A. Application dismissed.