1. ' FAISAL ARAB, J.---The plaintiff joined the defendant as Account Assistant on 5-12-1967. On 14-3- 1978 the plaintiff was served with show-cause notice on account of allegations of misappropriation of funds. Thereafter disciplinary action was initiated against him. The plaintiff was ultimately dismissed from service on 2-11-1981 under paragraph 4(1) of Martial Law Regulation No.52.
2. ' The plaintiff was also prosecuted in criminal cases bearing Nos.341 and 342 of 1984. On 14-11-1989 the plaintiff was acquitted as prosecution failed to establish its case against the plaintiff. After acquittal, plaintiff served legal notice, dated 3-12-1989 on the defendant seeking his reinstatement.
3. Having not received any positive response, the plaintiff sent reminder, dated 5-3-1990. Finally the defendant responded to the legal notice vide letter, dated 2-4-1990 filed as exhibit P/10. In the said letter it was stated "We have looked into the contents of your legal Notice and regret to say that it has no merit for consideration." In the said letter it was however stated as follows:-- "We would also like to mention here that the Federal Government of Pakistan constituted a Review Board headed by Chairman, N.I.R.C. To review the cases of all those employees whose services were dispensed with under the provisions of M.L.R.
52. We understood that your client filed an application before the Review Board which was dismissed."
4. ' The decision of Review Board has been filed as annexure P/12. It states as follows:-- "For the above reasons we hold the impugned order void ab initio and recommended to the Federal Government to direct the P.I.A. To re-employ the petitioner at the post and with the same seniority which the petitioner would have enjoyed had his services not been terminated."
5. ' The recommendations of the Review Board were not fully acted upon and the defendant vide its letter, dated 12-4-1990 only offered to re-employ the plaintiff. The plaintiff availed the opportunity of reemployment and joined service on 16-4-1990. During the hearing of this case on 26-1-2006 the plaintiff's counsel filed copy of plaintiff's joining report, dated 16-4-1990. A formal re-employment letter, dated 24-4-1990 containing terms and conditions of re-employment was also given by the defendant to the plaintiff, which has been filed by the plaintiff as Exh.P/11. In the said letter it is stated that on re-employment the plaintiff's seniority will be fixed from the date of his joining. The plaintiff after his re-employment on 16-4-1990 never asked for reinstatement in service until 14-7- 1991 when he for the first time asked the defendant to treat him on duty from November, 1981, i.e. When the plaintiff was dismissed from service. However, the defendant did not accept the demand of the plaintiff for reinstatement. The demand for reinstatement was repeated several time. Last such demand was made on 27-7-1993. On 13-11-1993, the plaintiff filed the present suit for recovery of twenty million rupees. The reason for filing the present recovery suit is stated in paragraph 19 of the plaint, which is reproduced as follows:--
(19) That the contention of the plaintiff is that he has been illegally dismissed from the service and he has been dragged in the Court mala fidely only to save the real Culprits.
6. ' The suit therefore is basically for damages on account of malicious prosecution.
7. ' The defendant filed written-statement. One of the pleas taken in the written-statement was that the suit is barred under the provisions of statute of Limitation.
8. ' On 3-11-2003 this Court passed order directing that the controversy is triable by the Service Tribunal. The plaintiff preferred High Court Appeal which was disposed of on 8-10-2004 with the following observations:-- "After taking into consideration the above factual and legal position and going through the material on record we are satisfied that the impugned order cannot be sustained and is set aside.
9. As great emphasis has been laid by Mr. Yawar Faruqui with regard to the maintainability of the suit in view of the period of limitation prescribed by Article 23 of the Limitation Act, the learned Single Judge is directed to frame a preliminary issue "as to whether the suit filed by the appellant which ostensibly appears to be a suit for compensation for malicious prosecution, was filed within the period of limitation prescribed? For decision on such preliminary issue the parties would be at liberty to lead evidence. In case decision of the preliminary issue is favourable to the appellant the suit proceed in the normal course."
10. ' After the remand evidence was adduced by the defendant on the preliminary issue of limitation.
11. The plaintiff has already adduced his evidence earlier.
12. ' It was contended by Mr. Yawar Faruqui, learned counsel for the defendant that as the case of the plaintiff is of malicious prosecution, Article 23 of the Limitation Act is attracted to the case, which provides one year period for filing of suit and this period under Article 23 starts from the date of acquittal or the prosecution is otherwise terminated whichever the case may be. He, therefore, submitted that admittedly the plaintiff was acquitted on 14-11-1989 and the present suit was filed on 3-11-1993, i.e. Four years after plaintiff's acquittal, the suit is liable to be dismissed as time- barred.
13. Article 23 of the Limitation Act is very clear. It provides that limitation for filing suit for malicious prosecution commences from the date of acquittal or termination of prosecution, which in the present case is 14-11-1989 when the plaintiff was acquitted. The suit having been filed on 3-11-1993 is clearly barred by time.
14. ' The contention of the learned counsel for the plaintiff Mr. Ahmedullah Faruqui is that period of one year is to commence from 27-7-1993 when the plaintiff lastly asked the defendant to reinstate him in service w.e.f. The date of plaintiff's dismissal from service.
15. ' It has come on record that after his acquittal, the plaintiff served legal notice, dated 3-12-1989. On the defendant seeking his reinstatement. This legal notice was responded through defendant's letter, dated 2-4-1990 filed as exhibit P/10 wherein it was categorically stated as "We have looked into the contents of your legal Notice and regret to say that it has no merit for consideration." Thus it is evident that even if the present suit is treated as a suit not based on malicious prosecution but a suit for compensation for breach of a contractual right, the period of three years provided under Article 115 of the Limitation Act started from 2-4-1990 i.e. The day when the defendant refused the plaintiff's demand for reinstatement in service. The present suit having been filed on 3-11-1993 i.e. After expiry of 3 years and seven months is clearly barred by time even if Article 115 is applied.
16. ' One other legal principle, which disenutles the plaintiff to claim compensation from the defendant is that the plaintiff by his own conduct waived his right to claim compensation. This is evident from the fact that the plaintiff instead of seeking his reinstatement in serving at appropriate time, accepted defendants offer of re-employment. Admittedly, the terms of the re-employment are stated in exhibit P/11 produced by the plaintiff himself in his evidence. Having availed the opportunity of reemployment on terms and conditions stated therein, which gives the plaintiff seniority only the date of his joining i.e. 16-4-1990, the plaintiff thereafter cannot claim that his right of reinstatement was still preserved. Hence the question of claiming any compensation from the date of dismissal does not arise.
17. ' In view of the above discussion, the suit is patently barred by time and is dismissed as such.
18. However, there shall be no order as to costs.