Law: Civil Procedure Code (V of 1908)

Section: O.VII,R.11

Law: Civil Procedure Code (V of 1908)

Section: O.VII,R.11

Limitation-------Question of limitation---Mixed question of law and fact---Determination of limitation in factual controversy, required evidence to be adduced by both the parties and it would not be safe and in the interest of justice to decide such issue without giving opportunity to the parties to adduce their evidence in that regard as it was cherished goal of law to decide the cases on merits instead of technicalities. Mukhtiar Ahmad Khan for Petitioner. Syed Khurshid Ali for Respondent No.1. ORDER SARDAR SHAUKAT HAYAT, J.--- The petitioner in the instant constitutional petition, has assailed the judgment and order of learned Additional District Judge-III, Swabi, whereby, on acceptance of revision petition filed by respondent, the plaint was rejected under Order VII, Rule 11,C.P.C. 2. Brief facts of the case are that petitioner/plaintiff filed a suit against respondent No.1 in the trial Court for specific performance of the contract in terms that respondent/defendant is bound to pay the petitioner Rs.167,751, the value of the tobacco with mark-up from 17-3-2003. Respondent No.1/defendant was put on notice, who on appearance filed an application in the trial Court under Order VII, Rule 11, C.P.C. for rejection of the plaint, being time-barred. The learned trial Court after hearing the parties dismissed the application of the respondent No.1/defendant. Aggrieved therefrom, he filed revision petition before the revisional court, which was allowed' vide judgment and order dated 16-4-2008 by the learned Additional District Judge-III, Swabi and the plaint of the petitioner/plaintiff was rejected under Order VII, Rule 11, C.P.C., hence the writ petition in hand. 3. Learned counsel for .the petitioner argued that the impugned judgment and order is against the law and facts, hence liable to be set aside. That cause of action accrued to the petitioner/plaintiff when respondent No.1/defendant gave a receipt to the effect that the petitioner shall start payment in the month of August, 2003 and again in presence of Jirga the respondent No.1 again sought 20 days time but after expiry of such period on refusal of payment by defendant the petitioner/plaintiff filed the…

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