Decided on October 10,2006

Jamsheed And Co Appellant
Eveready Industries Respondents


- (1.) THIS civil first appeal is directed against the judgment and decree dated 17th March, 1998, whereby suit of the plaintiff came to be dismissed, which shall be hereinafter referred to as impugned judgment. FACTS:
(2.) APPELLANT -plaintiff filed a suit for recovery of Rs.3,23,529/ - before the trial court which came to be dismissed as time barred vide impugned judgment.
(3.) ON 1st December, 1986 plaintiff executed a contract with defendants and agreed to provide cleaning services in the defendants factory on the monthly service charges of Rs.2250/ - + Rs.4000/ - as cost of material and the work was to be executed right from 1st February, 1989 till 31st March, 1991. The case of the plaintiff is that in the month of April, 1990 defendants closed their factory at Khonmoh, and despite of that plaintiff -appellant rendered his services continuously but defendants failed to make payment to the plaintiff in terms of the agreement which constrained the plaintiff to serve a notice upon the defendants on 6th December, 1994. But the defendants failed to make the payment which constrained the plaintiff to file a suit on 16th October, 1996. Defendants appeared and filed written statement. Following issues came to be framed in the suit: "1. Whether the plaintiffs suit is barred by time? ......... OPD 2. Whether contract dated 01.12.1986 executed by the parties has been frustrated by reason of application of the provisions of Section 56 of the Contract Act? ........ OPD 3. In case the issues No.1 and 2 are decided against the defendant whether the plaintiff is entitled to a sum of rupees 3,23,529/ - in terms of para No.5 of the plaint? ........ OPP 4. Whether this court has no jurisdiction to try the suit, if so why? ........ OPD Issues 1, 2 and 4 came to be treated as preliminary issues. Learned counsel for parties addressed arguments and trial court vide impugned judgment held that suit is barred by time.;

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