ANWAR ZAHEER JAMALI, J.---By this petition, the petitioner Mesirs National Insurance Company Ltd.
Have challenged the judgment,' dated 2140-2003 .Passed by II-Additional District and Sessions Judge Karachi (South) in revision Application No.33 of 2003 whereby she dismissed the Revision'
Application and affirmed the order, dated 28-11-2002 passed by V-Senior Civil Judge Karachi South in Execution Application No.5 of 2000.
2. At the outset, chequered history of litigation forming background of this petition, which spreads over a period of eighteen years, may be summarized in sequence as under:-
(a) In the year, 1986 respondent No.1 filed a suit for declaration against the petitioner, being Suit No.1131 of 1986, with the following prayer;
(i) to declare that the impugned orders of the plaintiff's dismissal from the service of the defendant are illegal unlawful, without jurisdiction, null and void and of no legal effect and wrongful against the rights of the plaintiff.
(ii) to declare that the plaintiff would be deemed to be still in the service of the defendant Corporation and holding the post of Asstt. Departmental Officer with all consequential benefits w.e.f. 26-9-1984, the date from which the plaintiff was wrongfully dismissed from service of the defendant. Corporation and
(iii) to further grant any other relief that this Hon'ble Court may deem fit and proper in the interest of ' justice and the circumstances of case.
(b) After filing of written statement by the petitioner, framing of issues, recording of evidence of both the parties, the lower Court decreed the suit of respondent No.1 vide judgment, dated 254- 1989, with the following observations:- "The above discussion brings me to this conclusion that the plaintiff is entitled to a declaration that the order of his dismissal, dated 26-9-1984 front the service of defendant is illegal, without jurisdiction, and is void and of no legal effect. As far as the prayer H regarding declaration that plaintiff would be deemed to be still in the service of defendant' s Corporation is concerned. Under section 42. Of Specific Relief Act, where the service of an employee is wrongfully terminated, he cannot. Seek, declaration that he continues to be in service, he has only the right to claim benefits for wrongful termination. In view of the above principle of law the declaration that plaintiff would be deemed to be still in service cannot be granted. However, he would be entitled to consequential benefits for the period for which he was kept out of employment. Issue answered.
Accordingly.
(c) Against the aforesaid judgment petitioner preferred Civil Appeal No.37 of 1989 which' was heard and disposed of by learned IV-Additional District Judge Karachi South, vide judgment, dated 10-12- 1989, whereby the judgment, dated 25-1-1989 passed by the lower Court was maintained and consequently the appeal was . Dismissed.
(d) The, petitioner aggrieved by the two preceding judgments filed Civil Revision Application No.59 of 1990 before this Court which was disposed of vide order, dated 4-3-1991 in the following terms:- "It is an admitted position that slismissal of the respondent could be ordered only by the Chairman of the applicant-corporation. The impugned order, dated 26-9-1984 is, not clear if dismissal of the respondent was ordered by the Chairman or ,by any other officer. This point requires evidence, which has not been led in the trial 'Court. Learned counsels agree With -me that this matter deserves being remanded to the trial Court, for-recording evidence on the aforesaid point.
Consequently I accept this revision application and set aside the orders of the Courts below and remand the matter to the Court of learned Vth Senior Civil Judge, Karachi South. With consent of the . Counsels, I frame following additional issues in the matter:-- (1A) Whether dismissal of the plaintiff was ordered by the *competent authority under National Insurance Corporation (Staff) Service Regulation, 1976?
(2A) Whether the Enquiry Officer has not proceeded according to the said Regulations of 1976 and according to the sound judicial principles? .
Learned trial Court is required to allow the parties to lead evidence on the, aforesaid issues, and to decide this matter within a period of three months from '14-3-1991: The parties or their counsels are required to appear in the trial Court on 14-,3-1991 at 9-00 a.m. The Civil Revision Application stand disposed of accordingly with no order as to costs."
(e) After the order of remand, lower Court recorded further evidence of the parties and decreed the suit of respondent No.1 by its judgment, dated 24-7-1991, with the concluding paragraph, as reproduced hereinbelow:-- "In view of my findings on the above issues in my opinion the service of the plaintiff was dismissed illegally and not according to law, therefore, I decree the suit, leaving the parties to bare their own cost."
(f) As a sequel decree was prepared by the lower Court on 24-7-1991 in the following terms:- "This suit is presented on 22-7-1986.
The plaintiffs' prayer is as under:--
(i) to declare that the impugned orders of the plaintiff's dismissal from the service of the defendant are illegal, unlawful, without jurisdiction, null and void and of no legal effect and wrongful against the rights of the plaintiff;
(ii) to declare that the plaintiff would be deemed to be still in the service of the defendant Corporation and holding the post of Asstt. Departmental Officer with all consequential benefits w.e.f.
26-9-1984, the date from which the plaintiff was wrongfully dismissed from service of the defendant Corporation and to further grant any other relief that this HoiCbit.: Court may deemed fit and propel in the interest of justice and the circumstances of the case. This suit is coming up for final disposal on 24-7-1991 before Mr. Inderyas Barket Vth Senior Civil Judge, Karachi South in presence of both parties advocates. It is hereby ordered that the service of the plaintiff was dismissed illegally and not according to law. Therefore suit of the plaintiff is decreed. Leaving the ,parties .To bear their own costs. Given under my hand and the seal of the Court, on this 24th day of July, 1991."
(g) The petitioner ' once again challenged the judgment and decree of the lower Court by filing Civil Appeal No.130 of 1991 which was heard and disposed of by II-Additional District Judge Karachi South on 8-9-1992, whereby the appeal preferred by the petitioner was dismissed.
(h) The petitioner thereafter preferred Civil Revision Application No.191. Of 1992 before this Court which was dismissed by Judgment, dated 12-1-1999 .
(i) The petitioner as a last recourse preferred Civil Petition No.1094 of 1999 before the Hon'ble Supreme Court of Pakistan which too was dismissed vide order, dated 9-2-2000, being time- barred by 53 days.
(j) The respondent No.1 thereafter filed Execution Application No.5 of 2000 before the Court of V- Senior Civil Judge Karachi South for implementation and execution of decree passea in suit No.1131 of 1986 on 24-7-1991.
In this Execution ' appl leadoff respondent No.1 also moved an application under Order XXI, Rules 32, 37, 43. 54 read with sections 51 and 151, C.P.C. On 3-8-2002. The petitioner filed counter affidavit to this application and resisted the same. However, this application was allowed by the executing Court vide its detailed order, dated 28-11-2002.
(k) The petitioner challenged such order, dated 28-11-2002 of the executing Court by filing Civil Revision Application No.33 of 2002 before the respondent No.2 which was also dismissed. It is against the last two orders that the petitioner has preferred this ' Constitutional petition.
3. Mr. Zahid F. Ebrahim, learned counsel for petitioner vehemently contended that though after the order of remand passed,by this Court on 4-3-1991 the suit of the plaintiff was again decreed but it was no where provided that the respondent No.1 would be entitled for reinstatement in service as prayed in the Execution Application. He contended that the result of decree under execution is that not only the petitioner have been heavily burdened for payment of about Rs.4.2 millions to respondent No. 1/Decree-holder but he has been Again reinstated in service, which relief tnnld not been legally allowed to him In an attempt to add force to the case of the petitioner in this regard, learned counsel also made reference to certain observation of the lower Court contained in its earlier judgment, dated 25-1-1989 (as reproduced in the earlier part of this order). But to a query from the Court that whether such observation still hold the field, he frankly conceded that as by order, dated 4-3-1991 passed by this Court in Civil Revision Application No.59 of 1990 such judgment was set aside, therefore such observations are non-existent in the eye of law and of no help to the case of petitioner. He, however, urged that in the given circumstances executing Court was competent to examine this aspect and the legality of the decree under execution to that extent. In support of his arguments learned counsel placed reliance on the following observations from the judgment in the case of Muhammad Lai v. Abdul Quddus (PLD 1975 Quetta 29).
"Thus, it is no doubt true that an executing Court cannot go behind a decree but must execute it as it stands: yet when terms of a decree are ambiguous the Court may construe the decree to ascertain its precise meaning. For this purpose the Court is entitled to look into the original award and even the pleadings, to ascertain the real nature of the relief and its extent. A Court must adopt a construction which will bring the decree in conformity with the judgment, though the Court cannot made a new decree for the parties under the guise of interpretation. Once that precaution 'is taken an executing Court can exercise its discretion to find out the real relief awarded, and it need not rule out the award as- a nullity on account of any apparent error or discrepancy or some obvious inconsistency or ambiguity in the language used, unless for all purposes the award is so absurd as to be incapable of execution. Even if there is an error as to the date of payment and a date is given that had already expired before the award became rule of the Court, the executing Court can so interpret the decree as to implement the real object of the arbitrator and make it capable of execution, by allowing a reasonable time for payment. What the Court is required to keep in view is the essence of the matter. Fixing a date for payment within six months of the award was just an incidental and collateral matter and had hardly any bearing on the decision itself".
"It is the duty of the Court executing a decree, to interpret it and to find out what the decree has really granted; and for this purpose the. Courts are entitled to refer to the pleadings and ascertain to what extent the decree can be executed. In order to find out whether a decree can be executed the Court must find out the-basis of the decree and for this purpose they are entitled to refer to the plaint of the suit. One must construe a document as a whole and one should, not confine himself only to a few words. In order to understand the relief sought in a suit one has to see the facts on which that relief is based".
4. He also placed reliance on the case of Gokaran Singh v. Mangli and others (AIR 1921 Oudh 138), wherein it was held that where the language of decree is doubtful then the benefit of such doubt ought to be given to the, Judgment- debtor, and contended that in the present case the lower Court has only observed that -suit is decreed" and not "suit is decreed as prayed", therefore, benefit of such lapse/ambiguity/should be given to the petitioner.
5. Conversely, Mr. Akhtar Hussain, learned counsel for respondent No.1, contended that the petitioner has been un-. Successfully litigating with the respondent No.1 for over 18 yearS, in the post remand proceedings the suit of the plaintiff was decreed by the lower, Court vide judgment, dated 24-7-1991 and such decree has been admittedly maintained up to the level of Hon'ble Supreme Court of Pakistan. In Such circumstances by way of filing this petition the petitioner cannot be permitted to reopen the same controversy at the execution stage or to nullify the affect of all the judgments passed against him from time to- time up to the level of Honurable Supreme Court. He urged that the judgment referred above has attained finality, therefore, the executing Court cannot reexamine the legality of any finding given in the judgment on the basis of which the decree under execution has been framed in favour of respondent No.1 . More so, as the executing Court cannot go behind the decree. In support of his contentions he placed reliance on paragraph 5 of the judgment, in the case of Naseem Akhtar v. Shalimar General Insurance Company Limited (1994 SCM R. 22), which is reproduced as under:- "After hearing the learned counsel for the parties at length and perusing the record and the precedents we are of the view that no doubt that the liability of the appellants was limited under the relevant statute. In the suit filed by the appellants, the respondent No.1 filed the written statement. It did not take the plea of limited liability. It produced its Manager as D.W.
1. However, decree was passed in favour of the appellants and against the respondents. The respondent No. I filed an appeal but did not prosecute it and it was dismissed for non-prosecution.
The respondent No.1 then filed an application for restoration but did not prosecute. This too, was dismissed. Thus, the decree became final. In the execution proceedings, it was not open to the respondent No.1 to take up the plea which he had not taken before the learned trial Court during the course of the hearing of the suit which was ultimately decreed and the decree allowed to become final. In these circumstances, the respondent No.1 is responsible for the decree against it, even though its liability was limited. It is not open to the respondent No.1 judgment-debtor now to contend that its liability has not been correctly assessed or determined., If it were permissible.
There will be no end or finality to the judgment and decree which had become final. Precedents noted and analysed above make quite clear that once a decree is passed it has to be executed in its terms and it is not open to the executing Court to go being it and re-determine the liability of the parties. In-this view of the matter, there is no option but to allow this appeal and hold that the learned Judge in the High Court fell in error in giving effect to the plea of the respondent No.1- which had not been raised before the learned Trial Court which granted the decree to the.
Appellants" .
6. We have carefully considered the arguments advanced by Mr. Zahid F. Ebrahim, learned counsel for petitioner and Mr. Akhtar Hussain, learned counsel for respondent No.1, and perused the case record.
7 It is an admitted position that in the post remand proceedings the -suit filed by the respondent No.I was again decreed vide judgment, dated 24-7-1991 and decree was accordingly drawn in favour of respondent No.1 in the terms as reproduced above. The petitioner un-successfully challenged such judgment and decree passed against them before the Appellate Court, the revisional Court and finally before the Hon'ble Supreme Court of Pakistan. In such circumstances it cannot be said at this belated stage that on the pretext of filing of this Constitutional petition validity of such decree can be re-examined with reference to the contentions raised in this petition.
The petitioner has not placed before us the copy of memo of appeal filed before Appellate Court, the copy of memo of revision application filed before the revisional Court and the copy of civil petition filed by them before the Hon'ble Supreme Court of Pakistan to show that the plea now raised, by the petitioner was not taken earlier before any forum or it was not considered or decided.
Even if, for the arguments sake, such plea was not raised by the petitioner before the appellate fOnim or the revisional Court then too now it cannot be taken as a valid, ground for the maintainability of this petition.
8. The other contentions of Mr. Zahid F. Ibrahim that there is ambiguity in the decree, 'therefore, benefit of such ambiguity/doubt should be given to the petitioner has also no force as in our view there is no ambiguity in the decree. The perusal of the prayer clause in the suit, as reproduced above, and the operative part of judgment, dated 24-7-1991 clearly go to show that the suit of the plaintiff was decreed in full, as per the prayers made in the plaint. It was for this reason that to the knowledge of petitioner such decree was prepared and signed by the lower Court on 24th July, 2001.- Mere non-mentioning of the words "as priyed" in the judgment does not denote that the suit of-respondent No.1 was partly decreed. The only logical conclusion of the words "I decree the suit" is that the suit was decreed in the terms as prayed by respondent No.1 in the plaint. For arguments sake if it. Is presumed that the decreed was not framed in conformity with the judgment, dated 24- 7-1991 then in our view it should have been one of the grounds agitated by the petitioner in his appeal or revision application referred against the decree under execution. To be more specific, the executing Court cannot assume the role of appellate or revisional Court to "examine the legality of the judgment and decree on such grounds, which were available to 'a party before those forums, whether urged or not. The petitioner did not bother to place on record such documents, which reflects that the petitioner have not approached this Court with clean hands and they are adamant to deprive the respondent No.1 from the fruits of the decree passed in his favour and it is only with this object that the instant petition A has been filed against the two impugned orders.
9. The two . Orders impugned in this Constitutional petition, do not suffer from any illegality or jurisdiction defect so as to persuade us for exercising our jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to interfere with these orders. The observations of the Hon'tile Supreme Court of Pakistan in the case of Mst. Naseem Akhtar (supra) are also quite apt and pertinent to support the case of respondent No.l.
10. Foregoing are the reasons for the short order passed by us on 12-3-2004 whereby this petition 'was dismissed in limine.