' ANWAR HUSSAIN, J.---- By this Appeal, the Appellant/Plaintiff has impugned the Judgment dated 21.12.2004, and Decree dated 10.01.2005, whereby his Suit No,1422 of 1998 for Compensation and Damages, against the Respondents was dismissed by the learned Single Judge of this Court.
2. The facts are that the Appellant, who was holding Diploma Engineer, in the year 1952, joined the Provincial Service as an Overseer, in the year 1954, he was promoted as Sub-divisional Officer and on reference of the then Government of West Pakistan treated as .Unclassified Gazetted Sub- Divisional Officer upto 16.08.1964. The Appellant claimed seniority and promotion as per West Pakistan Public Service Commission's letter dated 26.09.1969. Ultimately, vide S&GAD's Advice Letter dated 14.04.1990, it was intimated to the Appellant that his Appeal dated 27.01.1988, had been allowed and he was assigned seniority over all those Assistant Engineers, who acquired the prescribed qualification for Diploma after his appointment. The Appellant moved Applications dated 21.10.1990 and 22.11.1990, to the Respondent No,1, for the implementation of the Order of Respondent No,2, but retired on 16.12.1990 from service. Thereafter, Secretary 'Government of Sindh vide Notification dated 29.09.1991, assigned seniority to the Appellant in the cadre of SDO/Assistant Engineer over Mr. Datar Dino Shaikh, Executive Engineer (BPS-18, since retired), as such, the Appellant made Application dated 12.10.1992, to the Secretary, Communication and Works Department/ Respondent No,1, for allowing benefits accrued to the Appellant from the said Notification, which Application was rejected by the Respondent No,1, vide Order dated 23.12.1991, the Departmental Appeal of the Appellant before the Respondent No,2, which was dismissed vide Order dated 24.03.1992, then the Appellant filed Service Appeal before the Sindh Service Tribunal, which was also dismissed vide Judgment dated 12.04.1993. The Appellant against the same filed Civil Petition for leave to Appeal before the Honourable Supreme Court, which Appeal ultimately was allowed vide Judgment dated 23.04.1997, whereby case of Appellant was recommended for fixation of his security and pro-forma promotion with financial benefits.
3. In compliance of the same, vide Notification dated 20.10.1997 of the Government of Sindh, the Appellant was promoted as Executive Engineer (BPS-18) w,e,f, 25.11.1960, with monetary benefits from the period commencing from 26.11.1960 up to the date of actual promotion i,e, 20.05.1989, similarly vide another Notification dated 29.10.1997, the Appellant was granted Proforma Promotion as Superintending Engineer (BPS-19) w,e,f, 23.06.1973, with the monetary benefits for the period commencing from 23.06.1973, till the date of his retirement i,e, 15.12.1990, and as such was further allowed move-over from BPS-19 to BPS-20, from 1.12.1984, by the Government of Sindh vide Order dated 28.04.1998. Ultimately, the Appellant calculated the arrears of monetary benefits, arising out of the aforesaid promotions and after Legal Notice filed the said Suit for the recovery of Rs, 1,93,08600/91, as Compensation and Damages, against the Respondents under the Original Civil Jurisdiction of this Court. The Respondent No,2, only filed Written Statement, thereby prayed for dismissal of the said Suit. The Defendant No,1, did not file their Written Statement and as such proceeded ex parte. The Issues, proposed by the Appellant, were adopted on 20.03.2000, by the learned Single Judge.
4. Vide order dated 09.10.2002, the Commissioner was appointed for recording evidence, where the Appellant filed his Affidavit-inEvidence, produced number of documents, and was cross-examined by the learned A.A.G. Sindh. Thereafter, the Respondent No,1, filed Affidavit-in-Evidence of Muhammad Ishaque Khan, Section Officer-E/1, Service and Works Department, Government of Sindh, and was cross-examined by the learned Counsel for the Appellant. On 25.11.2004 and 03.12.2004, the arguments of the Appellant's Counsel were heard and Judgment reserved on 03.12.2004, however the suit was dismissed vide Judgment dated 21.12.2004 and Decree dated 10.01.2005, which are impugned in this Appeal.
5. Learned Counsel for the Appellant argued that the learned Single Judge erred in law in observing that the Appellant's Suit and the claim therein relates directly to the terms and conditions of the service, for which Service Tribunal has got exclusive jurisdiction, as no provisions of relevant law qualifies jurisdiction of Tribunal or restrict it from entertaining and deciding the claim of the present Suit. He further argued That the learned Single Judge wrongly held that the Suit is barred by time, which was to be filed under the Article 36 of Limitation Act, 1908, which provides period of two years and pendency of earlier litigation for seniority and proforma promotion would not be applicable, as the cause of action accrued from the date of malfeasance, misfeasance or nonfeasance. He further contended that since there was neither any specific plea of limitation in the written statement, nor as such there was specific Issue as to limitation, so observation that the Suit is barred by time is not legal and proper and that too when no arguments were advanced in respect of the same by the. Appellant or Respondents, but strangely as referred to in para 10 of the impugned Judgment, that Mr. Abbas Ali, learned Addl. A.G., after the Judgment was reserved, filed statement referring to the case law and provisions of Limitation Act, which has been done behind the back of the Appellant, and it was also observed therein that the Respondent's Counsel failed to advance arguments and the Suit dismissed as also barred by time. Reliance is placed on the case of (i) Muhammad Afzal v. Muhammad Hayat, reported in 1994 SCMR 12 (ii) Nazir Ahmed v. Islamic Republic of Pakistan reported in PLD 1991 Lahore 469 (DB), (iii) Orya Magbool Abbasi v. Federation of Pakistan, reported in 2014 SCMR 817 (iv) Zafar lqbal Qureshi v. Muhammad Ali reported in PLD 200s SC 723 and (v) Muhammad Munir Hassan v. Chancellor NED University of Engineering reported in 2003 PLC (C.S), 490.
6. Whereas learned A.A.G., submitted that the impugned Judgment is legal and proper as under Article 36 of the Limitation Act, Suit is to be filed within two years, but the same is barred by time and the Appellant is not legally entitled for the claim in the matter.
7. Heard the arguments of learned Counsel and gone through the Impugned Judgment/Decree, evidence and record in the matter. From the above facts and submissions following point is required determination: - Whether the findings given by the learned Single Judge as tojurisdiction and limitation in the Impugned Judgment are proper in law and facts ?
8. As to the said Point, reference is made to Sections 3 and 4 of the Sindh Service Tribunal Act, 1973, whereby the Service Tribunal is to adjudicate the grievance of Civil Servant only in respect of terms and conditions of his service, which shall have exclusive jurisdiction in respect of the same. Since the plaint in the matter relates to the recovery of financial benefits by way of Compensation and Damages against the Government on the basis of Appellant's seniority and proforma promotion awarded after the retirement in compliance of the Judgment of Honourable Supreme Court, for which the exclusive jurisdiction lies under the Original Civil Jurisdiction, in terms of Section 9 of Civil Procedure Code, 1908, which is beyond the jurisdiction of the Service Tribunal and as such the Appellant filed the instant Suit in this Court under its Original Civil Jurisdiction, as per Pecuniary Jurisdiction, so the observation of the learned Single Judge in respect of the same is not sustainable in law, as this Court under its Original Civil Jurisdiction and Pecuniary Limit has got the jurisdiction to entertain and decide the Appellant's Suit, which was for the recovery of damages.
Reference is made to the case of Nazir Ahmad (supra).
9. So far as plea of limitation is concerned, the civil suit was filed for the recovery of compensation and damages, as in view of Govt. Of Sindh's Notifications dated 20.10.1997 and 29.10.1997 and Order dated 28.04.1998, the Respondents have given the seniority, proforma promotion and move-over to the Appellant respectively, in compliance with the Judgment dated 23.04.1997, of Honourable Supreme Court, which gives a cause of action to the Appellant, who as such on 30.10.1998 filed the Suit in the matter for recovery of damages, which Suit was within time as per Article 36 of the Limitation Act, which provides two years from the date of malfeasance, misfeasance and nonfeasance, which .Covers wide range of causes, as malfeasance is applied where an act prohibited in law is done by persons, nonfeasance would apply where a person omits to do some acts prescribed by law and misfeasance would apply to a case for which lawful act is done in improper manner. Reference is be made to the case of (a) India General Navigation and Railway Company Ltd v. Akram, reported in PLD 1960 Dacca 321 (DB), and (b) Kripa Ram v. Kunwar Bahadur, reported in AIR 1932 Allahabad 265(DB), wherein it was held that Article 36 of Limitation Act, is a general Article for the suits for compensations or all the acts and omissions amounting to torts, which are not provided for elsewhere.
10. In the present case, earlier in time the Respondents failed to give seniority and promotion to the Appellant, inspite of the best efforts of the Appellant, who as such initiated representations and ultimately went upto the Honourable Supreme Court and on, the basis of the Judgment dated 23.04.1997, of Honourable Supreme Court, seniority and proforma promotion with financial benefits were recommended and in compliance thereof only the seniority and proforma promotion were given to Appellant after his retirement by Govt. Of Sindh/Respondents, but for recovery of financial benefits after Legal Notice, the Suit was filed by the Appellant in the year 1998, after the accrual of cause of action for the instant Suit, in view of Judgment of Hon'ble Supreme Court, which Suit is within time as per Article 36 of the Limitation Act, as such observation of the learned Single Judge as to limitation is not sustainable in law and facts. Moreover, neither there is any specific plea nor specific Issue of limitation in the matter, Learned Counsel for the Appellant, who proceeded with and argued the matter before learned Single Judge, has stated at the bar before us that since there was no such pleading or Issue, no arguments were advanced by him in respect of the limitation before learned Single Judge and in the Impugned Judgment, learned Single Judge has observed that the Respondents have failed to advance the arguments, but after hearing arguments, Judgment was reserved, however, as per the Impugned Judgment later-on Mr. Abbas Ali, A.A.G., filed statement referring case law and provisions of Limitation Act, which to our mind was behind the back of the Appellant's Counsel, who was not put to notice for its rebuttal and the learned Single Judge has considered and appreciated the same, so without hearing other side i,e, Appellant, such observation as to limitation is against the principles of natural justice and fair trial, and as such also not sustainable in law. Reference is made to the case of Muhammad Afzal (supra).
11. We have also observed that while discussing and deciding the Issues, which were mainly in respect of the merits of the case, the Learned Single Judge has given observations as to want of jurisdiction .And barred by time for the dismissal of the Suit vide Impugned Judgment, wherein the Learned Single Judge on the one hand has observed that the Suit is beyond the jurisdiction and on the other hand has observed that the Suit is time barred. To our mind such exercise was not proper.
12. As such we are of the mind that impugned judgment is based on wrong proposition of law and as such not sustainable. Even otherwise the law favours the decision of the cases on merits instead of non-suiting the litigants for the technical reasons. For which reliance is placed on the case of Managing Director, S. S. G. C. v. Ghulam Abbas, reported in PLD 2003 S.C. 724, and case of Muhammad Hanif Bukhari v. President, NBP, reported in 2004 PLC (C.S.) 14.
This appeal was allowed by our short order dated 9.2.2016, thereby the impugned judgment and decree were set aside and matter was remanded back to the learned Single Judge to decide the suit afresh after hearing the arguments of the parties. Above are the reasons of our short order.