PLJ 2005
Present: Muhammad Muzammal Khan, J.
ZARKHEZ AGRO ENGINEERING AND SERVICES (PVT.)LIMITED--Petitioner
versus
M/s. SARGORAH FARM AIDS (PVT.) LIMITED and others--Respondents
C.R. No. 42 of 1996, heard on 23.9.2004.
(i) Civil Procedure Code, 1908 (V of 1908)—
----O. VII, R. 11--Dismissal of application for rejection of plaint--Legality--Order passed by trial Court disallowing application for rejection of plaint being just and in accordance with law could not be interferred with in revisional jurisdiction. [P. 1074] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R. 2 & S. 115--Preliminary issues framed by trial Court on legal objections of defendants--No objection was raised against framing of those issues at any stage of proceedings--Trial Court in exercise of suo-motu powers recalling order in question and instead of deciding preliminary issues framed issues on merits--Legality--Parties having not raised any objection at any stage of proceedings--There was no compelling reason of framing of issues on merits--Trial Court was required to try and decide preliminary issues framed earlier by such Court--Impugned order recalling order relating to framing of preliminary issues being not maintainable, was set aside. [P. 1074] B
1999 SCMR 2396; PLD 1996
Ch. Muhammad Rashid, Advocate for Petitioner.
Mr. M. Iqbal Abid Chaudhary, Advocate Respondents.
Date of hearing : 23.9.2004.
Judgment
This judgment proposes to decide two civil revisions (C.R. No. 42 of 1996 and C.R. No. 2263 of 1995), as those arise out of the same order/judgment, are between the same parties and raise similar question of law and facts.
2. Both these Civil Revisions assail a consolidated order dated 31.10.1995, passed by the learned Civil Judge Lahore whereby on an application of Respondent No. 2 its name was ordered to be deleted from the array of defendants and the application of Respondent No. 1 (M/s. Sargorah Farm Aids (Pvt.) Limited) under Order VII, Rule 11 of CPC was dismissed.
3. Precisely relevant facts are that the petitioner (M/s. Zarkhez Agro Engineering and Services (Pvt.) Limited) filed a suit for recovery of
Rs. 79,78,125/- in form of damages against the respondents with the averments that Respondent No. 1 being an agent of Respondent No. 2, (M/s. FORD NEW HOLLAND) as its sole representative/distributor in Pakistan for sale of their Combine Harvesters known as "FORD NEW HOLLAND-8040 Combines" and other products designed and manufactured by Respondent No. 2, advertised their equipments including the combine harvesters for sale, in response to which the petitioner purchased five harvesters with the specifications mentioned in para 4 of the plaint, from Respondent No. 1, who acted as sole agent/respective/distributor of Respondent No. 2 in Pakistan, in October, 1986 by paying an amount of Rs. 42,11,862/-. the delivery/possession of the harvesters purchased by the petitioner was given to it on 1.11.1986, and 30th October, 1986, under the written agreement dated 6.7.1986 and memorandum of undertaking signed by the parties on 30.9.1986. The petitioner further pleaded in its plaint that the Harvesters supplied by the respondents were not according to the standard/specification represented to it and after correspondence, inter se, the suit in form of recovery of damages, as noted above, was filed before the learned Senior Civil Judge, Lahore. Pending the suit respondents filed two different applications one under Order I, Rule 10 CPC praying deletion of name of Respondent No. 2 from the array of defendants, on the ground that Respondent No. 2 is neither working within the limits of this country nor it has any sub-office within the territorial jurisdiction of the trial Court and that there being no privity of contract between the plaintiff and Defendant No. 2, the suit against it was not maintainable. The other application filed by the Respondent No. 1 was Order VIIm Rule 11 CPC praying rejection of plaint on two fold grounds, firstly that the suit on the face of it, is barred by limitation and on the other ground that according to agreement between the parties the Combine Harvesters were to remain property of Respondent
No. 1 unless and until all the instalments are paid by the petitioner and a discharge certificate is issued by the Respondent No. 1 and since none of those eventuality took place, the plaint did not disclose any cause of action, thus, the same deserved rejection under Order VII, Rule 11 CPC.
4. The petitioner contested both these applications. The learned Civil Judge cognizant of the matter, vide order dated 31.10.1995 dismissed the application filed on behalf of Respondent No. 1 for rejection of plaint, whereas he allowed the application of Respondent No. 2, filed for deletion of its name from the array of defendants. Thereafter the petitioner filed Civil Revision No. 42 of 1996 challenging the order of the trial Court, deleting the name of Respondent No. 2 whereas, Respondent No. 1 filed Civil Revision No. 2263 of 1995 challenging the order of the trial Court dismissing its application under Order VII, Rule 11 CPC. Both the parties having been impleaded in both the civil revisions filed by each of them, appeared in response to notice by this Court and are represented through their respective counsel.
5. The learned counsel for the petitioner in Civil Revision No. 42 of 1996 submitted that besides the specific averments in the plaint with regard to sale of Combine Harvesters by Respondent No. 1 as a representative/sole agent of Respondent No. 2 in Pakistan, there is documentary evidence showing that Respondent No. 1 did not conduct business in Pakistan in his individual capacity rather he being an agent of Respondent No. 2 sold those harvesters to the petitioner. In support of the submission, reference was made by the learned counsel for the petitioner, to the memorandum of undertaking dated 6.7.1986 duly signed by the petitioner and Respondent No. 1 and sale letters by Respondent No. 1 dated 17.12.1988 and 11.5.1989. According to his submission, Respondent No. 2 being the Principal of Respondent No. 1 was not only a necessary, but also a proper party to the suit, and its name could not have been deleted. He further submitted that the application of Respondent No. 1 filed by it under Order VII, Rule 11 CPC was rightly dismissed by the trial Court, as none of the pleas raised therein could be determined without recording of evidence and that none of the pre-requisites of the said provision, was attracted because according to him, suit was not barred by any law and also disclosed a cause of action. It was further submitted that though the suit of the petitioner is within the limitation yet this point being a mixed question of law and facts, cannot be put to rest without proper trial and after recording of evidence of the parties. He further elaborated his arguments that the trial Court has correctly recalled its earlier order of framing of two preliminary issues arising out of pleadings of the parties because, this exercise cannot be undertaken twice, once in support of preliminary issues and then on merits of the case. He also urged that similar evidence is needed to prove that the suit is within time and the petitioner is entitled to the decree prayed.
5. The learned counsel appearing on behalf of the respondents opposed the arguments of the petitioner, supported the deletion of name of Respondent No. 2 and urged that, on the face of the record, plaint in the suit by the petitioner deserved rejection, hence its application under Order VII Rule 11 CPC has incorrectly been dismissed. He further contended that the claimed contract on the basis of which the suit has been filed by the petitioner was arrived at and was signed by the petitioner and Respondent No. 1 to which Respondent No. 2 is not party/signatory, thus, Respondent No. 2 has wrongly been impleaded to the suit and its name has rightly been ordered to be struck off. He further elaborated his arguments by saying that it is bounded duty of the Court, cognizant of the suit, to first determine whether it is within the limitation in view of provisions of Section 3 of the Limitation Act, 1908, and since, the suit as it stood, from the statement in the plaint was barred by limitation, the plaint deserved rejection but a contrary view taken is not in consonance with the settled proposition of law. According to his estimation, the petitioner having not cleared instalments of the Combine Harvesters, those remained property of Respondent No. 1, thus, plaint did not disclose any cause of action and deserved to meet fate provided by Order VII, Rule 11 CPC. It was lastly argued that in case, the plaint of the petitioner is not to be rejected, the preliminary issues framed have to be tried in the first instance, in view of the provisions of the Order-XIV, Rule 2 CPC, thus the trial of the suit was seriously opposed.
6. I have minutely considered the arguments of the learned counsel for the parties and have examined the record appended herewith. The only basis which weighed with the learned trial Judge, for deletion of name of Respondent No. 2 was that there is no privity of contract between the petitioner and Respondent No. 2 but the trial Court while deciding the application of Respondent No. 2 under Order I, Rule 10 CPC, did not examine the pleadings of the parties and the documents appended therewith. The petitioner in Paras Nos. 2 and 4 of its plaint had specifically pleaded that Respondent No. 1 being sole agent/representative of Respondent No. 2, offered sale of the Combine Harvesters, as goods of Respondent No. 2. Though the respondents filed written statements refuting assertions in the plaint and also opted to file Misc. Applications, one by each, yet the petitioner had appended with its plaint a copy of memorandum of undertaking dated 6.7.1986 duly signed by the petitioner and Respondent No. 1 which in its Clause 4, detailed that:
"Party `B' will pay Ist, 2nd & 3rd Instalments
directly to our Principals M/s. NEW HOLLAND N.V., Zedelgem--
7. Similarly, the petitioner produced two letters of the Respondent No. 1 dated 11.5.1989 and 26.6.1989 and both of those clearly convey that the requested modifications in the combine harvesters were recommended by FORD NEW HOLLAND Engineers and that the necessary improvement for the supplied goods was to be provided as and when advised by the Principal FORD NEW HOLLAND. Both these letters have duly been signed by one Mian Tariq, Director of Respondent No.1. The learned trial Judge at the time of impugned order did not take into consideration any of these documents and out of superficial the approach opted to delete the name of Respondent No. 2. Respondent No. 1 itself is neither the importer/manufacturer of the Combine Harvesters supplied to the petitioner and he acted under an agreement, not denied during the course of hearing of this petition, as an agent of Respondent No. 2 and the latter mentioned respondent was neither incorrectly impleaded nor was wrongly arrayed as one of the defendants. According to my estimation Respondent No. 2 was a necessary party to the proceedings initiated by the petitioner in form of suit for damages, allegedly suffered by it on account of supply of defective/damaged machinery which, according to it, was not according to the specification provided by the respondents. The order impugned, in view of the above observations, suffered from material illegalities/irregularities and thus, the same is not sustainable under law. Resultantly Civil Revision No. 42 of 1996 is accepted and the order dated 31.10.1995 passed by the learned Civil Judge Lahore, is set-aside and the application filed by Respondent No. 2 under Order I, Rule 10 CPC for deletion of its name, from the array of defendants, is dismissed.
8. As regards the application filed by Respondent No. 1 under Order VII, Rule 11 CPC it contained two fold reasons for rejection of the plaint, firstly being that the suit is barred by limitation and the other being that the Combine Harvesters still continued to be owned by the respondents, the plaint did not disclose any cause of action. The petitioner in its para 9 of the plaint has clearly mentioned that initially the cause of action accrued during the wheat harvest season in April, 1998 when it was found that the combine harvesters were severely damaged and thoroughly cracked for which there had been correspondence between the parties, as detailed in rest of the paras of the plaint which finally accrued 15 days earlier to the filing of the suit, on final refusal of the respondents to pay the claimed damages. In view of these averments in the plaint, the plaint could not have been summarily thrown out but the point of limitation as asserted, needed to be put to trial, giving opportunity to the parties to produce their respective evidence. In the circumstances of the instant case, question of suit being barred by limitation, was a mixed question of law and facts and on the basis thereof the plaint could not have been rejected. My this view is fortified by an alighted judgment of the Honourable Supreme Court in case of Tariq Mahmood Chaudhry Kamboh Versus Najam-ud-Din (1999 SCMR 2396). Similarly suit in hand is not one for declaration regarding title of the Combine Harvesters rather it is a suit for damages under the sale of Goods Act with the averments that the goods supplied were not according to the specification and were defective/damaged. Sale of Combine Harvesters under a written agreement between the parties and receipt of money there-under even if it in part, is not denied by the respondents. Argument that since the petitioner has not paid all the installments and respondents have not issued the discharge certificate, the plaint does not disclose a cause of action, has not impressed me and I would not like to throw the plaint away on this unfounded, flimsy and fake assertion of the respondents. The plaint as drafted, did disclose a cause of action, thus, the provisions of Order VII, Rule 11 of CPC are not attracted to the case in hand. The order passed by the trial Court dis-allowing the application of the Respondent No. 1 under VII, Rule 11 CPC is just and in accordance with the law. To this extent the trial Court did not commit any illegality or irregularity amenable to revisional jurisdiction of this Court, thus, maintaining the order on application of Respondent No. 1, the Civil Revision No. 2263 of 1995 to this extent, partly is dismissed being devoid of force with no order as to costs.
9. The learned trial Judge on 15.4.1992, after hearing the parties opined that the objections of respondents touching the jurisdiction of the Court and limitation of the suit, can only be resolved after recording the evidence, thus, treating those as mixed questions of law and facts, framed three issues of law, arising out of controversial pleadings of the parties, in terms of provisions of Order XIV, Rule 2 CPC. None of the parties objected to the lawful course adopted by the Court at the time of framing of those issues or subsequently through some application but at the time of decision of the above referred two applications the trial Court, in exercise of its suo-moto powers, recalled order dated 15.4.1992 and felt it appropriate that all the issues arising between the parties be framed in order to avoid exercise of recording of evidence, twice. It is settled controversy that where the issues of law going to the route of the case are raised, those have to be decided in the first instance especially when much evidence is not needed for decision of such issues. There is a chain of judgments on this proposition, out of which some are i.e. I.C.I.C. Versus Mian Rafiq Saigol and other (PLD 1996 Lahore, 528), Raza Hussain Versus Haji Qaisar Iqbal and 7 others (1996 MLD 55), 1999 MLD 2049 and Muhammad Saleem Versus Hafiz Ahmad Din (PLD 1975 Lahore 425). Framing of issues on merits of the case would not only delay the determination of the suit but will also create an incumbersome exercise for the parties and there appears to be no reason to keep the entire lis pending, without decision on preliminary legal objections of the respondents. Viewing the attitude of the parties on framing of issues and not raising any objection at any stage of the proceedings, I hold that there was no compelling necessity of framing of issues on merits of the case and the trial Court should in the first place, try and decide preliminary issues framed on 15.4.1992. The order of the trial Court regarding framing of issues, in the impugned order, is resultantly, set-aside with observations noted above and thus Civil Revision No. 2263 of 1995 is partly accepted, to this extent, with no order as to costs.
(A.A.) Order Accordingly.