GHULAM RASOOL Versus GHULAM MUHAMMAD

ORDER

ZAFFAR HUSSAIN MIRZA, J.‑‑ Respondent No.1 has filed Suit No.804 of 1985 against the petitioner and respondents Nos.2 to 5 on the original side of the Sind High Court which is pending decision. This suit has been filed for accounts and recovery of possession in respect of a partnership firm which according to the averments made in the plaint stood dissolved on 20th February, 1971.

2. As the suit was filed. on 17th November, 1985 and admittedly the prayer for rendition of accounts related to the said dissolved firm, the petitioner moved the Court under Order VII, Rule 11, C . P. C . for rejection of plaint on the ground that the suit on the face of the plaint was time‑barred. The learned Judge in Chambers, however, dismissed the application on the ground that there were averments in the plaint (which had to be taken as correct for the purpose of rejection of plaint) to the effect that after the dissolution of the firm the plaintiff was excluded from the partnership business and property, although the defendants were signing income‑tax returns in the name of deceased partner Mst. Mariyam Bai as well as the plaintiff. Taking these pleas as amounting to an averment that the defendants were treating the partnership as in existence, the learned Judge held that the plea of limitation was not applicable on the face of the plaint.

3. Petitioner's Intra‑Court Appeal having been dismissed by a Division Bench of the Sind High Court, he seeks to challenge the judgment dated 16th September, 1987, by this petition for leave to appeal.

4. After hearing the learned counsel we feel that in the face of a categorical averment in the plaint that the partnership firm, in respect of which the plaintiff was seeking rendition of accounts A stood dissolved in 1971, the suit appears to be plainly barred by limitation under Article 106 of the Limitation Act and the Court was not competent by inferential conclusion to set up a case different from the one pleaded by the plaintiff himself. This question requires examination and therefore leave is granted. Security for costs Rs.5,000.

M. I./G‑77/S Leave granted.