2026 C L C 334

 2026 C L C 334

[Sindh]

Before Muhammad Jaffer Raza, J

Messrs FLY DUBAI through Authorised Representative ---Appellant

Versus

Syed YAWAR HUSSAIN ---Respondent

IInd Appeal No. 53 of 2025, decided on 27th May, 2025.

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

----S.100 & O.XLI, R.31---Limitation Act (IX of 1908), First Sched., Art.

62---Suit for recovery amount---Limitation---Computation and

determination---Accrual of cause of action---Effect of

recurring/continuing correspondence between the parties---

Computation of limitation period from date of last refusal---Effect---

The respondent filed suit for recovery of certain outstanding

amounts allegedly reflected in statements of account exchanged

between the parties during 2015-2021---The suit was initially

rejected under O.VII R.11, C.P.C., but the appellate court remanded

the matter for a decision on merits---After trial, the suit was

dismissed by the Trial Court on the ground of limitation, but the first

appellate court reversed that decision and decreed the claim---The

present second appeal arose from this reversal, raising the issue as

to whether the suit was barred by limitation and whether the

appellate court had correctly relied upon the email-based

statements of account sent by the appellant as constituting a

workable basis for the decree? ---Held: Cross examination of the

appellant revealed that appellate had conceded to the cause of

action arising in the year 2021---The email of 2021 had been

admitted by the appellant and in this regard, High Court agreed with

the findings of the appellate court that even if it is presumed that

Art.62 of the Limitation Act of 1908 was applicable to the present

case, even then the suit filed by the respondent was within the

prescribed period of limitation---The time, it was held, was correctly

calculated from the date of refusal i.e.04.03.2021, by the appellate

court---Statements of accounts admittedly sent by the appellant

through the email reflected the amount owed to the respondent---

The said statement of accounts had not been denied by the appellant

s witness---It was also admitted that the appellant did not produce

their accountant before the Trial Court to rebut the claim of the

respondent---It was further held that once the statement of accounts

was exhibited by the respondent before the Trial Court, the burden

shifted to the appellant to disprove the same for which he made no such effort---Trial Court needlessly deliberated, very extensively, on

the applicability of various Articles of the Limitation Act 1908,

without appreciating that the cause of action arose in the favour of

the respondent lastly on 04.03.2021---Once this apparent conclusion

was reached the deliberation regarding the applicability of various

Articles under the Limitation Act, 1908 became futile---Present

second appeal was devoid of any merits---Suit of the respondent was

decreed in the sum of Rs.4,617,021.62/---Present appeal was

dismissed, in circumstance.

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

----O.XLI, R.31---Appellate court is required to determine points for

determination, the decision on those points, and the reasons for the

decision.

Meer Gul v. Raja Zafar Mehmood through legal heirs and others

2024 SCMR 1496 rel.

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

----S.100---Second appeal---Parameters of interference---Right to file

second appeal can be set into motion only when the decision is

contrary to law; fails to determine some material issue of law, and

substantial error or defect in the procedure provided by the Code or

law.

Bahar Shah v. Mansoor Ahmed 2022 SCMR 284 rel.

Shanu-ur-Rehman for Appellant.

Syed Mustafa Mehdi along with Faraz Akbar Shah for Respondent.

Dates of hearing: 16th, 30th April and 15th May, 2025.

JUDGMENT

MUHAMMAD JAFFER RAZA, J.---The instant Second Appeal under

Section 100 C.P.C. has been preferred by the Appellant being aggrieved

with the judgment and decree dated 25.11.2024 passed in Civil Appeal

No.113/2024. The said Civil Appeal emanated from the judgment and

decree of the learned Trial Court dated 19.03.2024 passed in Civil Suit

No.511/2021. The Appellant in the instant appeal has impugned the

conflicting findings of the Courts below.

2. Brief facts of the case pertaining to the instant Civil Appeal are

that the Respondent herein filed Civil Suit No.511/2021 with the

following prayer clauses:-

(a) This Hon ble Court may be pleased to pass judgment and

decree Rs.5,519,137/- against the Defendant. (b) This Hon ble Court may be pleased allow @ 10% markup per

annum for the years 2017, 2018, 2019 and 2020 till

realization of the outstanding amounts agreed and withheld

by the Defendant.

(c) This Hon ble Court may also be pleased to pass Decree of

Rs.3,000,000/- towards compensation for mental torture

caused as damages by the Defendant.

(d) Any other relief which this Hon ble Court deems appropriate.

3. Thereafter an application was preferred by the Appellant under

Order VII Rule 11, C.P.C. The said application was allowed vide order

dated 05.11.2021. The said order was impugned by the Respondent in

Civil Appeal No.221/2021. The said Civil Appeal was allowed vide order

dated 24.12.2022 and the matter was remanded back to the trial Court

for decision afresh on merits.

4. Thereafter, after framing the issues and recording of evidence of

the respective parties, the learned Trial Court vide judgment and

decree dated 19.03.2024 dismissed the above suit filed by the

Respondent, primarily on the ground of limitation. Thereafter, the

Respondent preferred the above-mentioned Civil Appeal which was

allowed vide impugned judgment and decree.

5. Learned counsel for the Appellant has argued that the suit

preferred by the Respondent was time barred as the Respondent

through the above-mentioned Civil Suit was seeking recovery of

outstanding amount pertaining to the year 2016. Learned counsel has

further placed reliance on Article 62 of the Limitation Act, 1908 which

prescribes a limitation period of three years. In this regard, learned

counsel has stated that the limitation period had expired in the year

2019 and the said Civil Suit was filed in the year 2021, approximately

two years after the prescribed limitation period had lapsed. He has

further argued that the judgment and decree of the learned Trial Court

has deliberated in depth the ground of limitation and has agreed with

the contention of the learned counsel for the Appellant with regard

that no application under Section 5 of the Limitation Act 1908, for

condonation of delay, has been filed by the Respondent. Learned

counsel has further submitted that the learned Trial Court has also

dismissed the case of the Respondent on merits. He has contended that

there is no case is made out by the Respondent and the learned

Appellate Court by setting aside the judgment and decree of the trial

court, has erred in law.

6. On merits, learned counsel for the Appellant has very

categorically stated that the statement of account e-mailed to the

Respondent was only for the purposes of audit and cannot be used as an admission on their part. He has further stated that the statement

account sent by the Appellant has various discrepancies and the same

is highly unreliable. It is also contended that the Respondent owed

significant sums of money to the Appellant. He has further stated that

the arrangement between the parties was such, that money was

deposited by the Respondent in advance and thereafter the Appellant

being the airline, issued the respective tickets on the request of the

Respondent. The learned counsel has relied upon the following

judgments: -

Awan Apparels (Private) Limited and others v. United Bank

Limited and others1;

Dr. Anwar Ali Sahito v. Pakistan

2;

Muhammad Tufail Danish v. Deputy Director FIA

3;

Ali Mardan Shah v. Mushtaque4;

Muhammad Saeed v. Shahabudin

5;

Amir Bibi through Legal heirs v. Muhammad Khursheed and

others

6;

Hussain Developers v. 1st Senior Civil Judge, Karachi South

and 2 others

7;

7. Conversely learned counsel for the Respondent has argued that

the judgment of the Appellate Court warrants no interference. He at

the very outset stated that in case of conflicting findings, preference

must be given to the Appellate Court. In this regard he has relied upon

the following judgments:-

Amjad Ikram v. Mst. Asiya Kausar and others8;

Muhammad Nawaz v. Haji Muhammad Baran Khan and

others

9;

8. He has stated most vehemently that the email and the attachment

sent by the Appellant constitute an admission and the Appellants are

estopped, through their conduct, from raising any plea which is

contrary to the statement of account and the respective email sent to

the Respondent. Learned counsel in this regard referred to various

email correspondences (total 32 in number) and has attempted to

demonstrate that the claim of the Respondent was admitted by the

Appellant. 9. With regards to limitation, the learned counsel has invited my

attention to the email dated 04.03.2021, which according to him, is the

second email sent by the Appellant denying the claim of the

Respondent. Learned counsel has stated that in this regard he has filed

the above-mentioned suit on 15.04.2021 which was only a few days

after the claim of the Respondent was denied in the above noted email.

He has categorically stated that Article 62 of the Limitation Act 1908

does not apply to the present case, and even if it does, the period of

limitation according to the learned counsel will be computed from

04.03.2021, which was according to him, the date on which his claim

was denied by the Appellant. He has stated that Article 120 of the

Limitation Act 1908 is applicable to the present proceedings, and

irrespective of the article applicable to the present case, the cause of

action accrued in favour of the Respondent on 04.03.2021. He has

further argued that the Appellant raised a claim for Rs.7 million,

however, no counter claim and/or set-off was filed by the Appellant.

Learned counsel has lastly contended that the decretal amount is in

accordance with the admission of the Appellant.

10. Order XLI, Rule 31 C.P.C. mandates an appellate court to

determine points for determination, the decision on those points, and

the reasons for the decision. The said principle was also expounded in

the case of Meer Gul v. Raja Zafar Mehmood through legal heirs and

others

10. The points for determination are set out below: -

1. Whether the Civil Suit filed by the Respondent was barred by

the law of limitation?

2. Whether the suit can be decreed in accordance with the

statement of account furnished by the Appellant to the

Respondent?

3. Whether the Impugned judgment and decree suffer from

infirmity and are liable to be set aside?

POINT No.1

11. I have heard the learned counsel for the parties and perused the

record with their able assistance. Prior to delineating on the points

raised by the learned counsel, it is imperative to first examine

paragraph No.17 of the plaint, pertaining to the cause of action. The

said paragraph is reproduced below: -

17. That, the cause of action for filing of the Suit arose to the

Plaintiff firstly when the Defendant emailed vide emails dated

16.04.2016 and 03.11.2016 for the period from 01.10.2015 to

30.06.2016, the latter shows that a balance amount of Rs.

4.617,021/ secondly when the Plaintiff vide emails dated 08.05.2017 and 09.05.2017 repeatedly requested the Defendant to

provide an updated SOA to consolidate his accounts "Thirdly

when the Plaintiff again after checking his available record

emailed the Defendant vide email dated 09.01.2018 and

20.02.2018 asking the Defendant that the provided ledger does

not include some slips/transactions and are missing from the

ledger Fourthly when the Plaintiff again in his email vide email

dated 04.04.2018 reminded the Defendant of earlier requests to

recheck missing slips and transaction total amounting to Rs.

902116 which are missing from the ledger provided by the

Defendant via email dated 03.11.2016 as the total amount laying

with the Defendant is Rs. 5,519137/- as per Plaintiff SOA fifthly

when the Defendant vide its email dated 23.12.2020 asked the

Plaintiff to visit their office to discuss the outstanding, amounts

of the Plaintiff and the Plaintiff accordingly replied vide email

dated 23.12.2020 sixthly when the Plaintiff responded vide email

dated 29.03.2021 replying therein that the case is not closed at

our end as we are claiming our legit and admitted amount.

Lastly when the Defendant failed to repay the outstanding

liability due despite demand made and admission at the part of

the Defendant, which continues till date.

12. I have also taken the liberty of perusing the cross-examination of

the respective parties. More particularly, I have perused the cross-

examination of the Respondent and it appears on the bare perusal of

the said cross-examination that the Appellant conceded to the cause of

action arising in the year 2021. The suggestion in this regard was put

by the learned counsel for the Appellant and the relevant excerpts of

the said cross-examination are reproduced below:-

It is correct to suggest that the Plaintiff used to work as a freelancer

with Defendant. It is correct to suggest that the Plaintiff had

account with Defendant Company as Yawar Samba. Voluntarily

say that Plaintiff was working as freelancer at first place and

later on he was allotted account with defendant Company. It is

correct to suggest that the Plaintiff used to make advance

payment for future ticket booking with Defendant Company. It is

incorrect to suggest that Plaintiff's substantial amount used to

remain in account of Defendant Company. It is correct to suggest

that the Defendant sent two emails dated 16.04.2016 and

03.11.2016 along with attachment of statement of account of

Plaintiff with Defendant Company. It is correct to suggest that as

per that statement the amount was shown as Rs.4,617,021/-

belonged to Plaintiff, Voluntarily say that, it was not officially

sent to him. It is correct to suggest that the emails were sent

from official account of Defendant Company. Voluntarily says that employee of the Defendant Company has sent emails from

his official account but the Defendant Company does not own it.

It is incorrect to suggest that the Defendant Company never

disowned these emails in past. It is correct to suggest that

Defendant Company does not own it. It is correct to suggest that

the Plaintiff sent email 08.05.2017 and 09.05.2017 to the

Defendant Company for demanding updated statement of

account. It is correct to suggest that as per email dated

26.10.2016 the status of Plaintiff has been changed from

freelancer to Travel Agent. It is correct to suggest that Plaintiff

vide email dated 25.09.2020 has provided all details in respect of

his outstanding amount to the Defendant Company. (Emphasis

added)

13. Further in addition to the suggestion made by the Appellant in

the above noted cross-examination, the Appellant witness when

examined has made the following statement on oath:-

It is correct to suggest that the Plaintiff was in communication with

the Defendant Company through email from 2016 to 2021. .. It is

correct to suggest that the Defendant Company sent emails

through Sales Manager Khuram Salar and Senior Regional

Manager namely Vijay Kumar vide dated 27.10.2020 and

15.11.2020 to the Plaintiff and informed him that their team is

working on it and investigating the matter. It is correct to

suggest that email dated 04.03.2021 sent by Sales Manager

namely Khurram Salar of Defendant Company if the Plaintiff

closes claim then the Defendant Company will not claim its

claim and closes his side. Voluntarily say that, email under

reference is actual response to email sent by the Plaintiff. I say

that I don't know whether email dated 25.01.2021 sent by one

Talha Tanveer RAS on behalf of Defendant Company to the

Plaintiff wherein a sated at an amount of Rs. 7 million is

outstanding towards Plaintiff and he is liable to pay the same or

not. I say that I don't acknowledge that whether Plaintiff s claim

is Rs.55.19,137/- excessive amount deposited with Defendant

Company or not. (Emphasis added)

14. It is apparent that the email of 2021 has been admitted by the

Appellant and in this regard, I agree with the findings of the learned

Appellate Court that even if it is presumed that Article 62 of the Act of

1908 is applicable to the present case, even then the suit filed by the

Respondent is within the prescribed period of limitation. The time, it is

held, was correctly calculated from the date of refusal i.e. 04.03.2021,

by the learned Appellate Court. The judgments relied upon by the

learned counsel for the Appellant in reference to applicability of Article 62 of the Limitation Act 1908, do not advance his cause. It has

already been held above that the cause of action arose in favour of the

Respondent in the year 2021 and therefore, I have deliberately

circumvented any deliberation on the judgements noted above. In this

regard point No.1 is answered in the Negative.

POINT No.2.

15. Prior to delineating and adjudicating the instant point it will be

imperative to highlight the dispute between the respective parties. The

Appellant being an airline approached the Respondent for the purpose

of selling tickets. It is not denied between the parties that the

Respondent was, amongst other things, in the business of selling

tickets of the Appellant s airline. It is also not denied that the

Respondent, at least at a later stage in the relationship between the

parties, maintained personal and official accounts from which he

regularly booked tickets of the Appellant s airline. It is also not denied

that the Appellant had issued a Travel I.D. to the Respondent in the

year 2016, even though the relationship of the said parties was

established prior to 2016 where the Respondent was working as a

freelancer.

16. In order to determine the above point for determination, it is

imperative to peruse the cross-examination of the respective parties

for the reason that emails and statements of accounts attached

therewith are not disputed. Such detailed deliberation is necessary as

concurrent findings have been impugned before the through the

instant appeal.

17. The only question which ought to be considered by me, is

whether the said statement was sent for the purposes of audit as

contended by the learned counsel for the Appellant, or the same was

an admission of the outstanding amount owed to the Respondent. To

answer the above noted question I have examined the cross-

examination of the respective parties. The suggestions of the Appellant

counsel during the cross-examination of the Respondent are fatal to

his claim. The relevant portions are reproduced below: -

It is correct to suggest that Defendant Company has to pay

Rs.4,617,021.62. Voluntarily says that it was the claim of the

Defendant Company that they are liable to pay the said amount.

18. Further certain admissions made by the Appellant during the

course of cross-examination do not advance their case. The same are

reproduced as under: -

It is correct to suggest that as per that statement the amount was

shown as Rs.46,17,021 belonged to the Plaintiff. Voluntarily say that it was not officially sent to him It is correct to suggest that

the emails were sent from official account of the Defendant

Company.

19. In addition to the cross-examination of the contesting parties

reproduced above, perusal of the record will reflect that Statements of

Accounts admittedly sent by the Appellant through email dated

16.04.2016 and 03.11.2016, reflect the amount owed to the Respondent.

The said Statement of Accounts have not been denied by the Appellant

s witness. Further on specific query by me, it was admitted that the

Appellant did not produce their Accountant before the learned Trial

Court to rebut the claim of the Respondent. It is further held that once

the Statement of Accounts were exhibited by the Respondent before

the learned Trial Court, the burden shifted to the Appellant to disprove

the same. The Appellant made no such effort and it is evident from the

cross-examination reproduced above, that the Statement of Accounts

were sent through official address, which fact has been duly admitted

by the witness of the Appellant. Further perusal of the email dated

03.11.2016, along with the requisite attachment reads as follows: -

Other Subsidiary Ledger (from 01.10.2015 to 30.06.2016), Account ID

27090 0154 Title Yawar Samna-Khi Group.

20. I agree with the findings of the learned Appellate Court that said

email negates the plea of the Appellant that no ledger was maintained

by the said Appellant. In light of above the point No.2 is answered in

affirmative.

POINT No.3.

21. It is trite law that right to file Second Appeal provided under

section 100 of C.P.C., can be set into motion only when the decision is

contrary to law; fails to determine some material issue of law, and

substantial error or defect in the procedure provided by the Code or

law. The principles governing the scope of Section 100 C.P.C. have been

expounded by the Honourable Supreme Court in the case of Bahar

Shah v. Mansoor Ahmed

11 in the following words: -

10. Now we would like to pay attention to the niceties of a right to

file Second Appeal provided under section 100 of C.P.C, which

can be set into motion only when the decision is contrary to law;

failure to determine some material issue of law, and substantial

error or defect in the procedure provided by the Code or law. In

the case of Madan Gopal v. Maran Bepari (PLD 1969 SC 617), this

Court held that if the finding of fact reached by the first

Appellate Court is at variance with that of Trial Court, such a finding by the lower Appellate Court will be immune from interference in second appeal only if it is found to be

substantiated by evidence on the record and is supported by

logical reasoning, duly taking note of the reasons adduced by the

first Appellate Court. In another case reported as Amjad Ikram v.

Mst. Asiya Kausar (2015 SCMR 1), this Court held that in case of

inconsistency between the trial Court and the Appellate Court,

the findings of the latter must be given preference in the

absence of any cogent reason to the contrary. (Emphasis added)

22. It is therefore held that the learned trial court needlessly

deliberated, very extensively, on the applicability of various articles of

the Limitation Act 1908, without appreciating that the cause of action

arose in the favour of the Respondent lastly on 4.03.2021. Once this

apparent conclusion is reached the deliberation regarding the

applicability of various articles under the Limitation Act 1908 becomes

futile. The learned trial court was perhaps influenced by its findings

earlier when the plaint of the Respondent was rejected on the ground

of limitation and subsequently the said order was set aside in appeal

as noted above.

23. In light of above discussion, the instant appeal devoid of merits

is hereby dismissed with no order as to cost. Consequently, the suit of

the Respondent is decreed in the sum of Rs.4,617,021.62/- only. Office

to prepare decree in the above terms.

UN/F-11/Sindh Appeal dismissed.