' These Civil Revision Applications Nos. 202 and 203 of 1979, filed under section 115 of the Civil Procedure Code, 1908, involve common questions of law, I therefore, propose to dispose of them together.
2. The facts giving rise to these revision applications briefly stated, are as follows :-
3. Syed Mushtaq Hussain, who is respondent in Civil Revision Application No, 202 of 1979, is an employee of applicant No, 1 for assisting in the outdoor work for clearance on a consolidated salary of Rs, 200 per month. Syed Hamid Hussain, who is respondent in Civil Revision Application No, 203 of 1979, is an employee of applicant No, 1 as an outdoor clerk for clearance on a basic pay of Rs, 650 per month with allowances.
4. On 14th January, 1978, applicant No, 2 on behalf of applicant No, 1 issued separate show-cause notices to the respondents informing them that applicant No, 1 had received memorandum from Headquarters, Martial Law Authorities, Zone 'C', Karachi, on a complaint, addressed to them by various persons that the two respondents had taken Rs, 19,000 alongwith ten passports belonging to various persons for sending them to Gulf States and further informing them that the said action on their part was subversive to discipline and they had been charge-sheeted for the said offence and requiring them to show cause within 48 hours of the receipt of the charge-sheets why disciplinary action should not be taken against them. This notice was followed by another notice dated 16th January, 1978 informing the respondents that Mr. Azmat All had been appointed as Enquiry Officer in the matter. Both the respondents replied to the said show-cause notice and objected to the appointment of Mr. Azmat Ali as Enquiry Officer, therefore, applicant No, I appointed applicant No, 3, as the Enquiry Officer in both the cases, who fixed the date of enquiry ultimately as 31st January, 1978 but meanwhile, on 30th January, 1978 both the respondents filed separate suits against the applicants being Suits Nos. 314 and 315 of 1978, in the Court of XXI Civil Judge, Second Class, Karachi, wherein the respondents have claimed the following reliefs :- "(1) Declaration that the said show-cause notice-cum-charge-sheet dated 14th January, 1978 and consequential enquiry to be held on 31st January, 1978 are mala fide, illegal and without any lawful effect ; and
(ii) for permanent injunction restraining applicant No, 3 or any other officer, subordinate to applicant No, 2 from holding an enquiry against them on 31st January, 1978, under the order of applicant No, 1 as subordinate officer to applicant No, 2."
5. On the completion of the pleadings by the parties, on 7th May, 1978, the Court adopted the following consent issues filed by the parties in both the suits :
(1) Whether the suit is maintainable?
(2) Whether the Court has jurisdiction to entertain the suit ?
(3) Whether the charge-sheet and enquiry proceedings against the plaintiffs (respondents) are mala fide ?
(4) Whether the plaintiffs (respondents) are entitled to any relict?
6. Alongwith the suits the respondents filed applications for ad interim injunction, of which notices were issued to the applicants, but since meanwhile the enquiry was completed and the respondents were dismissed from service, the applications for ad interim injunction were not pressed as having become infructuous.
7. Therefore, in Suit No, 314 of 1978, filed by Hainid Hussain, the evidence of the respondent and his two witnesses was recorded but no evidence was recorded in suit No, 315 of 1978, filed by Syed Mushtaq Hussain.
8. In the meantime, the applicants moved an application under 0. XIV, r. 2, C. P. C. For trying the issues Nos. (1) and (2) as preliminary issues, the same being legal issues.
9. The learned Civil Judge heard the arguments of the parties on these issues and, by his order dated 21st May, 1979, decided both the issues in favour of the respondents, holding that the suits are maintainable and the Court has jurisdiction.
10. Aggrieved by the said order, the applicants have come in the above revision applications. I have heard Mr. J. H. Rahimtoola, Advocate for the applicants and Mr. Mirza Saeed Baig, Advocate for the respondents.
11. It is contended by Mr. J. H. Rahimtoola that the learned trial Court by wrongly deciding the issues has conferred jurisdiction on itself.
12. In support of this contention, it is submitted by Mr. Rahimtoola that the respondent's suits are for declaration that the show-cause notices- cum-charge-sheets dated 14th January, 1978, and consequential enquiry are mala fide, illegal and without any lawful effect, and suits for such declarations are not maintainable under the provisions of section 42 of the Specific Relief Act. He, placed reliance on M. A. Naser v. Chairman, Pakistan Eastern Railway (1); Alvi Sons Ltd. v.
Government of East Pakistan & others (2) ; Muhammad Farooq Khan v. Suleman A. G. Panjwani (3) and Muhammad Syed Ali v. Muhammad Sabed Ali (4). He further submitted that the enquiry against the respondents was being conducted in accordance with the provisions of Standing Orders Nos. 12 & 15 of the West Pakistan (Standing Orders) Ordinance, 1968 and if the respondents were aggrieved by any such enquiry, the proper forum for redress of their grievances was the Labour Court through applications under section 25-A of the Industrial Relations Ordinance, 1969.
On the other hand, Mr. Mirza Saeed Baig, has submitted that these revision applications are not maintainable under section 115, C. P. C. I would deal with this submission later on.
13. Now, I propose to deal with the submissions of Mr. Rahimtoola. The respondents' applications are for declaration as mentioned before and for permanent injunction restraining the applicants from holding any enquiry. I inquired from Mr. Mirza Saeed Baig that under what provision of law the relief for declaration could be granted. In reply it was submitted by him that the respondents have filed the suits for declaration under section 42 of the Specific Relief Act. A declaratory decree could be granted only to a person entitled to any legal character or to any right as to any property. It is an admitted position that in the suits filed by the respondents, they do not seek any declaration to any legal character or to any right as tb any property. From the relief claimed in suits it is clear that what they are seeking is declaration that the show-caus notices-cum-charge-sheets dated 14th January, 1978, and consequential enquiry which was then due to be held on 31st January, 1978 are mala fide, illegal and without lawful effect. Therefore, this relief cannot be granted under section 42 of the Specific Relief Act. The cases relied upon by Mr. Rahimtoola fully support him. In M. A. Naser v.
Chairman, Pakista Eastern Railway, a contractor filed a suit for declaration that the catering agreement was still subsisting. It was observed, by Fazle Akbar, J. At page 89 of the report as follows : "In the suit there was also a prayer for declaration under section 42 of the Specific Relief Act that the contract in question was still subsisting. The learned counsel has not pressed this point before us. Under the provisions of section 42 of the Specific Relief Act a person entitled -to any legal character" or "to any right to pro. Perty" can institute for a declaratory relief in respect of his title to such legal character or right to property. It will, therefore, suffice to say that section 42 (Iles not contemplate a suit like the present one.
14. In Muhammad Farooq Khan v. Sulaiman A. G. Panjwani (PLD 1977 Kar. 83), a declaration was sought by the plaintiff in the suit that he was not liable to Habib Bank Limited for the advances to the tune of Rs, 2,50,000 and interests thereon made to Sulaiman A. G. Panjwani in the name of the partnership firm and that this was doae collusively. {{FOOT NOTE}}
(1) PLD 1965 SC 83 .(2) PLD 1968 Kar. 222
(3) PLD 1977 Kar. 88 (4) PLD 1959 Dacca 1, {{FOOT NOTE}} ' A further declaration was sought that the amounts secured by Sulaiman A. G. Panjwani were invested in his own business carried on through his company. My learned brother Zaffar Hussain Mirza, 3, following Alvi Sons Ltd. v. Government of East Pakistan (PLD 1968 Kar. 222) held that the declarations sought in the suit were not available by way of relief under section 42 of the Specific Relief Act.
15, In Alvi Sons Ltd. v. Government of East Pakistan and others (PLD 1968 Kar. 222), a declaration was sought that the plaintiff had not committed any breach of contract for supply of steam coal to the Government of East Pakistan and further that the Government of East Pakistan was not entitled to require payment of Rs, 66,030 through Habib Bank Limited under its guarantee for due performance of the contract. It was observed by Noorul Arfin, J. (as he then was) in paragraph 10 of judgment as follows :- "10. A further objection to the maintainability of the suit is that the declaration sought by the plaintiffs is neither with respect to the plaintiff's legal character, nor with regard to any right to property, under section 42 of the Specific Relief Act, 1877, it is only with regard to these matters that a person can come to the Court for declaratory relief. The phrase "legal character" has been used, as `held in K. P. Ramakrishna Patter v. K. P, Narayana Patter and others (I L R 39 Mad. 80) in the sense of "status", which is constituted by the attributes which the law attaches to a person in his individual and personal capacity and which according to Holland, is preferable to such legal conditions as-
(l) sex, (2) minority, (3) 'patria protestas' and 'mantis', (4) coverture, (5) celibacy, (6) mental defect,
(7) bodily defect, (8) ranks caste and official position, (9) slavery, (10) professio i, (11) civil death,
(12) illegitimacy, (13) heresy, (14) foreign nationality, and (15) hostile nationality. Accordingly to Salmond, the term "status" is usually confined to perosnal legal condition or personal capacities and incapacties, or compulsory as opposed to conventional personal conditions. In this sense, the expression will include personal rights and burdens to the exclusion of the proprietary relations, contractual capacities and incapacities, or legal conditions imposed upon a person by law without 'his own consent as opposed to the condition which he has acquired himself by agreement, such as the position of a slave. A declaration that the plaintiff has not committed breach of legal character, nor any right to or in any property. This point is now conclusively settled by the decision of the Supreme Court in a M. A. Nasir v. Chairman, Pakistan Eastern Railways and others (PLD 1965 SC 83) from which I would, with respect, reproduce the following observations of Fazle-Akbar, J.
(which I have already reprodued hereinbefore)."
' Thus judgment proceeds further :- "This pronouncement should effectively dispose of doubts, if any, with regard to the maintainability of the present suit, which I hold accordingly to be misconceived and incompetent.. The plaintiffs' remedy could have been either a suit .For rescission of the contract, or for specific performance if so permitted, or for damages for its breach but none of these courses have been pursued by the plaintiffs."
16. It is, therefore, clear that the suits for the relief of declaration are not maintainable under section 42 of the Specific Relief Act. However, while deciding this issue, the learned Judge has not adverted to section 42 of the Specific Relief Act at all, though he has mentioned the contention raised on behalf of the applicants that the case being of service nature, the respondents have no right to seek any relief except damages. The relief for injunction sought was of a consequential nature.
Even otherwise, a contract of personal service could not be specifically enforced as for breach thereof generally damages could be obtained and 8 therefore, no injunction could be granted under the provisions of section 56 of the Specific Relief Act. Further, the enquiry, which was sought to be restrained, had already culminated in the dismissal of the respondents from service and, therefore, this prayer had become infructuous. Thereafter, the respondent's' remedy, if any, was under section 25-A of the Industrial Relations Ordinance, 1969, for if the respondents had any grievance in respect of violation of any right guaranteed under the Standing Orders Ordinance then their remedy was under section 25-A of the Industrial Relations Ordinance, 1969 for it is well settled that where a statute creates a right and also provides machinery for its enforcement, resort must be had to procedure prescribed in the statute creating right for enforcement and jurisdiction of Civil Courts would be barred in such matters. 1 may here refer to a decision by Mushtak Ali Kazi, J.
In Pakistan International Airlines Corporation and 5 others v. Muhammad Izharul Ahsan Qureshi (1), wherein he observed at page 642 of the report as follows:-- "The above decisions would apply to the case of the plaintiff/respondent also seeking remedy against any apprehended wrongful dismissal. It is not open to the plaintiff to stop the employer from holding a departmental enquiry into his misconduct nor could the plaintiff ask for his re- instatement against an order of suspension duly passed by the employer under the rules of service. The remedy for a worker lay under section 25-A of the I. R.
0. And for this purpose special jurisdiction is vested in the Labour Courts. The civil Courts could not accordingly adjudicate on such matters, there being special forum provided for redress of such grievance of the workers."
17. Now, the question that remains for consideration is the objection of Mr. Mirza Saeed Baig as to the maintainability of these revision applications.
18. In support of his objection, the learned counsel has relied upon Md. Hussain v. Bala Laxman (2), Muhammad Jamil Asghar v. Improvement Trust (3), Bhatla Co-operative Housing Society v. D. C.
Pate! (4) and S. Zafar Ahmad v. Abdul Khaliq (5).
19. In Nagpur case it was submitted whether the lower Court had done substantial justice, even though the order was wrong in law, High Court should not interfere. It was observed by Vivian Bose, J. At page 263, Column, of the report as under :- "I was referred to a decision of Clerk, J. In Civil Revision No, 862 {{FOOT NOTE}}
(1) PLD 1979 Kar. 640 (2) AIR 1951 Nag. 261
(3) PLD 1965 SC 698 (4) AIR 1953 SC (India) 16
(5) PLD 1964 (W. P) Kar. 149 {{FOOT NOTE}} ' of 1939 where he applied this rule following certain Allahabad and Lucknow decisions. I do not doubt the soundness of the rule but it has to be applied with care. The substantial justice referred to their relates to rights to which a party has a legal as opposed to a purely moral claim. The rule applies when owing to some technical rule of procedure or to some stupid blundering the claim is likely to fail whereas had the proper rule or remedy been applied, it would have succeeded. It does not refer to cases where whatever the plaintiff had done his claim could not in any event have succeeded. If a plaintiff's suit is barred by time on the date on which it is instituted there is nothing that he can do to remedy the defect and consequently the rule referred to is not attracted."
20. From the above observation it will be seen that this case does not help the respondents at all, for there was no question before the Civil Judge of doing any substantial justice between the parties.
21. In Mr. Muhammad Jamil Asghar v. Improvement Trust, Rawalpindi (PLD 1965 SC 698) reliance is placed on the following observations of B. Z. Kaikaus, J. Which appear at page 704 of the report :- A purely administrative officer who is empowered to pass an order if certain circumstances exist has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him the Court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present it will declare the order to be void. Of course, although the officer has been granted no jurisdiction to determine any facts he will have to ascertain whether requisite circumstances exist for otherwise he cannot pass the order, but his conclusion as to the existence of those circumstances binds nobody and it is open to any person affected to challenge his act on the ground that those circumstances do not in fact exist. An administrative officer or authority may be given jurisdiction to determine some facts on proof of which he can pass an order and in that case he will act in a quasi-judicial manner for the determination of those facts and his determination validly reached will support his order in relation to those facts. For instance the Government may be empowered to acquire property if it is "satisfied" of the existence of a public purpose for such acquisition. If the Government validly reaches a conclusion as to the existence of a public purpose its order will be legal provided of course that the circumstances which it has found to exist do in law constitute a public purpose. The Government still will have no jurisdiction to determine the connotation of "public purpose" and it will not be able to validate an acquisition by a misinterpretation of "public purpose". It is the Court which will determine what is meant by "public purpose". So far as special judicial tribunals are concerned they are given jurisdiction to determine certain facts but they are not judges of the facts which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction However, with respect to mala fides the jurisdiction of the Civil Court can never be taken away for a mala fide act is in its very nature an illegal and void act and the civil Court can always pronounce an act to be mala fide and therefore, void."
22. There is no doubt that the jurisdiction of civil Court is not barred in respect of mala fide actions but here the question was whether D the suits as framed were maintainable or not. Therefore, the above observations are not relevant to the issue under consideration.
23. In Messrs Bhatla Co-operative Housing Society v. D. C. Patel (AIR 1953 SC 16), reliance is placed on the following observations made in paragraph 8 of the judgment :- "It is well settled that a Civil Court has inherent power to decide the question of its own jurisdiction although, as a result of its enquiry, it may return out that it has no jurisdiction over the suit.
Accordingly, we think, in agreement with High Court that this preliminary objection is not well founded in principle or on authority and should be rejected."
24. There cannot be any dispute with these propositions but these observations have no relevancy to the point raised before me. In the case of S. Zafar Ahmad v. Abdul Khaliq (PLD 1964 Kar. 149), principles on which the inference can be made in revision have been laid down, but this case is not an authority for the proposition that where an issue, which goes to the root of the matter like one as to jurisdiction, is decided in one way or the other as a preliminary issue, no inference can be made at that stage in revision.
25. The decision on the preliminary issues as to jurisdiction or suit being not maintainable under the provisions of the Specific Relief Act would, in my opinion, be in the nature of an order passed under clauses (a) and (d) of r. 11 of O. VIII, C. P. C. Such an order being not one appealable would, in my opinion, be revisable under section 115, C. P. C.
26. Further, Mr. Rahimtoola has brought to my notice a case from Madras High Court namely, N.
Muthusami v. Perival Achi (I), wherein Wadsworth, J. Has observed that ordinarily a High Court will not entertain revision petition against decision on issues which are not decisions of the whole suit but in the circumstances of the case he held that the matter should be decided in revision. I may here quote the relevant observations which appear at page 85 of the report and are as follows :- "A preliminary issue was framed in the suit on the question whether the suit was maintainable when the plaintiff's husband's estate had vested in the official receiver. Ordinarily this Court will not entertain revision petitions against decisions on issues which are not decisions of the whole suit, but in the circumstances of the present case it seems to me that the matter should be decided in revision."
The instant case before me is also such that it would be in the interest of all if fruitless litigation is not allowed to be prolonged.
27. I, therefore, for the reasons given above, hold that the suits are not maintainable and the Court has no jurisdiction. Consequently, I allow these revision applications. Now, the trial Court will dispose of the two suits in the light of the decision on the two issues. In the circumstances of the case 1 leave the parties to bear their own costs. Petitions accepted. {{FOOT NOTE}}
(1) AIR 1941 Mad. 84 {{FOOT NOTE}}