ALIBAQAR NAJAFI, J. - The petitioner, through this civil revision challenges order dated 27.09.2004 rendered by learned Civil Judge 1st Class, Rawalpindi, whereby the application for rejection of plaint under Order VII, Rule 11, C.P.C. Was rejected.
2. Briefly the facts giving rise to the filing of this civil revision are that the petitioner is non-statutory body who employed the respondent as Senior Sales Officer-I on 19.12.1981 under the terms and conditions of employment where-after he was regularized. After about 15 years the respondent was relieved by the petitioner on 08.09.1996 vide Clause-17 ibid. The respondent, thereafter, received all his dues and other benefits including company car, Provident Fund, gratuity and leave encashment etc. However, on 01.09.1997 he filed a suit for declaration and for recovery of. Rs.
2,20,39,844/- was damages against the petitioner for wrongful termination. Consequently, written statement was filed and following issues were framed:-
(1) Whether the suit is not maintainable in its present form? OPD.
(2) Whether the plaintiff has no cause of action to bring the suit? OPD
(3) Whether the plaintiff is estopped by his conduct to i.e the suit? OPO
(4) Whether the suit is bad for misjoinder and non-joinder of necessary parties? OPD
(5) Whether the suit is false and vexatious and defendant is entitled for compensator/cost? OPD
(6) Whether termination of the plaintiffs services through letter No. 92/P/FFC, dated 05.09.1996 issued by the defendant is illegal and wrongful and the plaintiff is also entitled for the recovery of Rs. 22039844/- as damages from the defendant? OPP.
(7) Relief.
The petitioner filed an application under Order XIV, Rules 2 & 3, C.P.C. Praying that issues Nos. 1, 2 & 4 be determined first. On 09.10.2003 said application was dismissed without appreciating that issue No. 1 was vital importance which was pressed but it was erroneously observed that same was not pressed. After about 7 years i.e. On 26.04.2004 the petitioner filed an application under Order VII, Rule 11, C.P.C. For rejection of the plaint which application was dismissed on 27.09.2004, hence this civil revision.
3. Learned counsel for the petitioner submits that plaint does not discloses any cause of action and the suit was not maintainable on the face of it as relationship inter se is, admittedly, that of master and servant; the petitioner is limited company and is non-statutory body; that relationship between the parties is governed by contract of service, whereafter no violation of terms and conditions of service were observed; Civil Court cannot assume the jurisdiction of his own; the observation that issues Nos. 1, 2 & 4 as not pressed is factually incorrect. He relies on ABN Amro Bank through Vice-President/Branch Manager v. Wasim Dar (2004 PLC 69); Haji Allah Bakhsh v.
Abdul Rehman and others (1995 SCM R 459); Pakistan, through Secretary, Cabinet Division, Islamabad and others v. Nawabzada Muhammad Umar Khan (Deceased) now represented by Khawaja Muhammad Khan of Hoti and others (1992 SCM R 2450); Mst. Shabeona Perveen v. M/s. Defence Officers Housing Society Authority, Karachi (1993 CLC 2523).
4. Conversely, learned counsel for the respondent submits that admittedly relationship exists between the parties as master and servant, but perusal of the plaint surely discloses a cause of action for wrongful dismissal; an order dared 09.10.2003 mentions that the petitioner did not press issue No. 1 for its early discussion at that stage which order has attained finality-; the impugned order dated 27.09.2004 is a well-reasoned order. He relies on Abdul Majeed Khan v. Tawseen Abdul Haleem and others (PLD 2012 Supreme Court 80); Federation of Pakistan, Chamber of Commerce and Industry, Karachi v. Ali Ahmed Qureshi (2001 SCM R 1733); Pakistan Red Crescent Society and another v. Syed Nazir Gillani (PLD 2005 Supreme Court 806) and"Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and two others (PLD Supreme Court 531) to argue that only remedy available to the petitioner is for suit for damages.
5. I have heard the learned counsel for the parties and perused the record.
6. Admittedly, relationship between the parties is that of master and servant. The question whether dismissal was wrongful or otherwise is a question of fact which requires evidence. Prima facie, the termination of the respondent after a period of 15 years in service must be based on strong and solid reason and not merely by invoking the principal clause (17) of termination in lieu of giving one month's notice. Even otherwise, vide order dated 09.10.2003 the petitioner has not pressed issue No. 1 to be decided first. Affect of receipt of other all outstanding benefit at the time of termination will again by a question by a question to be determined after recording evidence. Judgment relied upon by the learned counsel for the petitioner (2004 PLC 69) is not attracted to the facts and circumstances of this case inasmuch as besides other admitted facts inter se, in that judgment the period of service was three years and the terms of contract involved under contract dated 19.12.1991 were relating to the probation period, whereafter no mention of terms and conditions pf confirmed employees were mentioned. Award of damages, on wrongful dismissal involves evidence as to the question of mala i.e on the part of the employer, mental shock, loss of reputation etc., on the part of the employee; which cannot be answered on the basis of the contents of the plaint and the document relied on. At this stage the plaint does disclose a cause of action even on the basis of admitted facts and circumstances. I am fortified the view taken by the Hon'ble Supreme Court in Gohar Ali and another v. Messrs Hoechst Pakistan Limited (2009 SCM R 109). In this view of the matter, this civil revision is dismissed. The matter is pending since 1997; therefore, Trial Court is directed to decide the suit expeditiously and preferably within a period of six months from the receipt of this order.