STALLIONS (PRIVATE) LIMITED, LAHORE Versus CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD

MUHAMMAD SHAFI SIDDIQUI, J.--- This appeal has been filed by the appellant under Article 185(2)(d)(e) of the Constitution of the Islamic Republic of Pakistan, 1973, as of right, against the judgment dated 22.02.2018 passed by the Islamabad High Court, Islamabad, whereby the regular first appeal filed by the respondent/Capital Development Authority ( CDA ) was allowed and the judgment and decree dated 26.10.2016 of the learned Civil Judge, West Islamabad ( Trial Court ) was set aside and the suit filed by the appellant was dismissed.

FACTS OF THE CASE

2.Facts necessary for the adjudication of the present lis are that the appellant, being a registered company engaged in the business of construction work, filed a suit through its authorized Director, namely, Chaudhry Adnan Hamid Khan, on 16.03.2013 for recovery of Rs.90,28,645/- with markup at the rate of 15% till realization of the claimed amount against the respondent/CDA.

3.The basis of the suit for recovery of the said amount was that the appellant was working on a contract, namely, Construction of Additional Gate House at Main Link Road at the Prime Minister House , when it was directed on 25.06.1996, during a visit by the Military Secretary to the Prime Minister along with the Chairman, CDA, for the review of security arrangements being made at the Prime Minister House , to furnish in detail the designs and specifications along with cost estimates for provision of electrically operated steel sliding anti-riot gates at Gates Nos. 2 and 3, designated as Gates No.2A and 3A, as well as provision of anti-terrorist bollards along with road blockers on all four gates ( the said project ).

4.The appellant did the needful and submitted a proposal of Rs.19,56,324/- vide letter dated 30.06.1996 in respect of the said project, and later on the proposed rate was reduced to Rs.18,33,100/- vide letter dated 11.07.1996, which was approved by the respondent/CDA vide letter dated 11.07.1996. The said project was completed on 29.08.1996, and after six months, the respondent/CDA issued a letter of intent on 19.02.1997 for the execution of a formal agreement, which showed that the quotation of the appellant had been accepted for a total cost of Rs.10,73,048/-.

5.The appellant raised this issue with the respondent/CDA that the said project was approved for Rs.18,33,100/- and not for Rs.10,73,048/- and in response, the respondent/CDA promised to consider its claim vide letter dated 03.03.1997. The appellant was paid an amount of Rs.9,07,722/- on 30.06.1997 in respect of the said project, and the remaining amount of Rs.9,25,378/-, along with a security deposit of Rs.45,386/-, remained unpaid. The cumulative interest on the remaining principal amount and the security deposit was stated to be Rs.90,28,645/-. The appellant remained in communication with the respondent/CDA for recovery of the said amount, but the matter was not resolved; therefore, the appellant served a legal notice on 02.01.2013 upon the respondent/CDA and ultimately filed the suit for recovery on 16.03.2013.

PROCEEDINGS BEFORE THE TRIAL COURT AND HIGH COURT

6.The respondent/defendant filed a written statement to the suit and denied the claim of the appellant. The Trial Court, out of the divergent pleadings of the parties, framed eight issues on 22.05.2014. The appellant, in support of its claim, produced oral as well as documentary evidence. The respondent/defendant, despite being afforded several opportunities, neither appeared after filing of the written statement nor brought on record any evidence, and, thus, the Trial Court proceeded against it ex parte vide order dated 16.02.2016. The Trial Court, vide judgment and decree dated 26.10.2016, gave findings on issue No.1 in favour of the appellant and did not return findings on issues Nos. 2 to 7, on the premise that the respondent/defendant had been proceeded ex parte and the onus to prove the said issues lay upon the respondent/defendant, without independently examining the legal implications of the issues so framed. Resultantly, the suit of the appellant was decreed ex parte for recovery of Rs.970,764/- along with profit at the bank rate from the due date till realization of the decreed amount.

7.Feeling aggrieved by the said judgment and decree, the respondent/CDA filed a Regular First Appeal before the Islamabad High Court, Islamabad, which was allowed vide the impugned judgment dated 22.02.2018, whereby the judgment and decree of the Trial Court were set aside; hence, the present civil appeal.

8.We have heard the learned counsel for the parties at length and have carefully perused the material available on record.

FINDINGS AND CONCLUSIONS

9.In the impugned judgment, the learned High Court gave its findings mainly on two grounds; firstly, that the suit filed by the appellant was barred by time, and secondly, that the appellant had failed to discharge the burden of proof, as the documentary evidence produced was not proved in accordance with law and could not be relied upon, while the oral evidence remained insufficient to substantiate the claim.

10.First, we come to the point of discarding oral and documentary evidence of the appellant. The legal scheme governing the principles relating to the burden of proof is encapsulated in Article 117 of the Qanun-e-Shahadat, 1984. Article 117 ibid provides that when a person is bound to prove the existence of any fact, the burden of proof lies upon that person. This provision is founded upon the well-settled maxim, ei incumbit probation qui dicit, non qui negat , meaning thereby that the burden of proving a fact rests upon the party who asserts the affirmative of the issue and not upon the party who merely denies it, for the reason that a negative is ordinarily incapable of proof. The import of this principle is that the obligation to establish a fact in issue never shifts unless and until the party asserting such fact discharges the initial burden cast upon him through legally admissible, credible, and reliable evidence. Until such burden is discharged, the opposite party is under no obligation to lead evidence in rebuttal. The Court, therefore, is required in the first instance to examine whether the party on whom the burden lies has succeeded in discharging the same in accordance with law. This Court, in Mst. Nazeeran 1 has reiterated that the burden to prove the existence of a fact always rests upon the person who asserts it, and until such burden is discharged, the other party is not required to be called upon to prove his case. Applying the above settled principles to the case in hand, it is evident that the entire claim of the appellant was founded upon the assertion that the respondent/CDA was liable to pay the outstanding contractual amount along with markup. The burden, therefore, squarely lay upon the appellant to establish, through cogent and legally admissible evidence, not only the execution and terms of the alleged agreement but also the completion of the work, the correctness of the claimed amount, and the subsisting liability of the respondent. However, as rightly observed by the learned High Court, the appellant failed to discharge this initial burden since the documents relied upon were not proved in accordance with law, being largely in the nature of unverified copies, and no independent or primary evidence was produced to substantiate the claim. In the absence of such proof, the mere fact that the evidence remained unrebutted or unchallenged could not, by itself, elevate it to the status of legally proved evidence. Consequently, the burden never shifted upon the respondent, and the learned Trial Court fell into error in decreeing the suit without first satisfying itself that the appellant had discharged the burden cast upon him under Article 117, ibid. However, this rule is not without qualification, and remains subject to the settled principle that facts admitted need not be proved.

11.We now advert to the second and more crucial question relating to limitation for institution of the suit. At the outset, it may be observed that the law of limitation is not a mere technicality but is founded upon sound public policy, intended to ensure certainty and finality in legal proceedings. The Supreme Court in Malbrow Builders 2 has categorically held that the question of limitation, being not a mere technicality, cannot be taken lightly, and that rights accrued to the other party by efflux of time cannot be snatched away except on the basis of sufficient cause and lawful justification. This principle squarely governs the controversy at hand.

12.In this backdrop, reference may be made to section 3 of the Limitation Act, 1908, which casts a mandatory duty upon the Court to dismiss any suit instituted after the prescribed period, even if limitation has not been set up as a defence. The language of the provision is peremptory in nature and admits of no discretion; once a claim is found to be barred by time, the Court is bound to give effect to such bar irrespective of the equities of the case or the conduct of the parties. This position has been recently reaffirmed by this Court in the case of Sindh Irrigation and Drainage Authority 3 , wherein it was held that under section 3 of the Limitation Act, 1908 it is the inherent duty of the Court to delve into the question of limitation, regardless of whether it is raised or not, and that the law of limitation, being founded on public policy, is aimed at attaining finality to litigation.

13.The aforesaid legal position is further fortified by the well-settled maxims governing the law of limitation, particularly Leges vigilantibus non dormientibus subservient and Vigilantibus Non Dormientibus Jura Subveniunt , which signify that the law aids the vigilant and not those who sleep over their rights. The Supreme Court, in Abdul Tawab 4 has reiterated that the question of limitation cannot be taken casually or unconscientiously, and that a party seeking to invoke the jurisdiction of a Court must act with due diligence and promptitude within the prescribed timeframe. It was further observed that delay in invoking a lawful remedy by a person who has remained indolent or inactive cannot ordinarily be condoned, as the law does not extend its assistance to those who are negligent in asserting their rights.

14.Adverting now to the nature of the claim and the applicable statutory framework, the learned High Court has rightly placed reliance upon Articles 65 and 115 of the Limitation Act, 1908, both of which prescribe a period of three years for suits of the present character. Article 65 governs suits for compensation for breach of a contract where a party fails to perform an obligation at a specified time, whereas Article 115 applies to suits seeking compensation for breach of any contract, express or implied, not otherwise specifically provided for. Though the scope of the two provisions may differ in their textual formulation, the period of limitation prescribed under both is identical, i.e., three years, and more importantly, the starting point of limitation in either case is anchored to the occurrence of breach or the point when the right to sue accrues. In the context of contractual disputes, it is a settled principle that the cause of action arises not when the claimant chooses to assert his claim at a later stage, but when the alleged breach occurs or when the claim is unequivocally denied. Therefore, once the appellant s claim for additional payment was declined by the respondent/CDA, the right to sue stood crystallised, and limitation began to run from that point onwards. Any subsequent correspondence, representations, or administrative exchanges, in the absence of a clear and legally cognizable acknowledgment of liability, do not postpone, suspend, or extend the limitation period prescribed under the law. Applying the aforesaid principles to the facts of the present case, it is evident that even on the appellant s own showing, the latest possible point of accrual of cause of action cannot travel beyond the refusal communicated in the year 1997, and even if, for the sake of argument, the subsequent representation made in 2007 is taken into consideration, the institution of the suit in the year 2013 remains ex facie barred by time. The learned High Court, therefore, correctly appreciated the scope and application of Articles 65 and 115 of the Limitation Act, 1908, and arrived at a conclusion which calls for no interference.

15.Insofar as the plea that the respondent/CDA acknowledged the claim of the appellant is concerned, suffice it to say that the correspondence between the appellant and respondent neither can stop the limitation from running nor can be deemed to have been constituted as a continuation of the limitation period.

16.In view of the above and in the peculiar facts and circumstances of the present case, we are of the considered opinion that the impugned judgment of the learned High Court is unexceptional and in accordance with law and no interference is required therewith. Consequently, this appeal fails and is hereby dismissed.

MH/S-17/SC Appeal dismissed.

1 Mst. Nazeeran and others v. Ali Bux and others (2024 SCMR 1271).

2 Government of Pakistan through Ministry of Works and another v. Messrs Malbrow Builders, Contractor, Sialkot (2006 SCMR 1248).

3 Sindh Irrigation and Drainage Authority v. Province of Sindh and another (2026 SCMR 190).

4 Province of Sindh through Land Acquisition Officer v. Abdul Tawab and others (PLD 2026 Supreme Court 113).