Impugned herein are the order and judgment dated 05.04.2016 passed by Additional District Judge-V, Peshawar, whereby appeal of petitioner against return of plaint's order dated 09.04.2015 passed by Civil Judge-XXI under Order-WI Rule 10, CPC was dismissed.
2. Brief facts of the case are that petitioner instituted civil Suit No, 263/1 on 29.09.2014 for declaration to the effect that office order dated 30.01.2012 vide which service of petitioner has been terminated is against law, facts and is ineffective upon the rights of petitioner/plaintiff with relief that it be cancelled and petitioner be reinstated on his post of Assistant Manager Operational (AMO) along-with decree for permanent injunction in mandatory form fully detailed in the plaint.
3. The Defendants/Respondents No, 1 to 5 were summoned who submitted their written statement on 15.01.2015 and case was fixed for arguments on application for issuance temporary injunction on 09.04.2015. During course of arguments learned counsel for petitioner/plaintiff' requested the learned trial Court for withdrawal of his suit in the light of judgment of this Court in Labour Appeal No, 373/2010 decided on 22.12.2014, so same suit was returned to the plaintiff to invoke proper jurisdiction vide impugned order dated 9.4.2015.
4. Thereafter present petitioner filed Labour Appeal No, 16/1 of 2015 before the learned Labour Court, KPK, Peshawar on 09.05.2015 and again same labour appeal was withdrawn through filing application for withdrawal with permission to seek remedy for his redressal which application was allowed vide order passed by learned Presiding Officer of Labour Court dated 03.12.2015.
5. The present petitioner after withdrawal of his said Labour Appeal filed Civil Appeal No, 19/13 on04.05.2016 before the same appellate Court of Additional District Judge Peshawar by challenging the order dated 09.04.2015 passed by learned Civil Judge-XXI, Peshawar and same appeal after hearing was dismissed vide judgment dated 5.04.2016 passed by learned Additional District Judge-V Peshawar impugned herein.
6. The petitioner feeling aggrieved from the above said order dated 09.04.2015 and of learned appellate Court dated 05.04.2016 has filed instant revision petition on the grounds mentioned therein.
7. Learned counsel for the petitioner contended that the petitioner is employee of TESCO and is neither workman nor civil servant nor employee of establishment so the civil Court under Section 9 of, CPC has the jurisdiction being a Court of plenary jurisdiction; he added that his then counsel at the time of arguments on application for the grant of temporary injunction wrongly prayed for withdrawal of his suit without his consent and his counsel fallen into misconception about the jurisdiction of learned Civil Court and wrongly prayed that it is Labour Court who has got jurisdiction for redressal of his client. He further argued that learned trial Court of Civil Judge-XXI, Peshawar also did not appreciate the law while passing impugned order dated 09.04.2014 as every judge must put on all laws on his sleeves while administering justice. Resultantly his client was made rolling stone sometime filing suit sometime filing labour appeal and when became somehow acquainted with law and about the jurisdiction with civil Court, the petitioner moved application for withdrawal of his labour appeal to seek proper relief and challenged the order dated 09.04.2012 by filing civil appeal with prayer that it be set aside as learned civil Court has got plenary jurisdiction to try all civil nature cases. He added that TESCO is a company while petitioner is not workman. So his appeal has been dismissed without adverting to the law. He referred case laws PLD 2015.P 84, 2010 SCM R 1408 and lastly prayed that valuable rights of petitioner has been infringed by impugned termination order dated 30.01.2012, so, order of learned trial Court and of appellate Court be set aside and learned trial Court be directed to proceed with the case according to law.
8. On the contrary learned counsel for respondents argued that petitioner is estopped by his own conduct to resile from his earlier stance by conduct as he himself through his counsel requested for withdrawal of suit, so order dated 09.04.2014 was passed on his request. Similarly, he when filed application for withdrawal of his labour appeal he did not state that hi will re-agitate his instant civil suit or will file civil appeal against the said order dated 09.04.2014.He also submitted that the case law referred by learned counsel for petitioner is not relevant to the facts and, circumstances of the instant case so could not be pressed into service. He lastly supported the order and judgment impugned herein.
9. Arguments heard and record perused.
10. From the perusal of record it reveals that petitioner was appointed as Assistant Manger Operations (AMO) and was working in TESCO Company and due to absence from duty was charge sheeted and resultantly removed from service vide termination order dated 30.01.2012 passed by CEO TESCO and petitioner filed civil suit for cancellation of the said order dated 30.01.2012 alongwith application for temporary injunction. It is further admitted position that during course of arguments on application for grant of temporary injunction as discussed above, his counsel requested the Court that he want to file labour appeal and this Court i,e, civil Court has got no jurisdiction so then impugned order dated 09.04.2014 was passed. It is further admitted position that petitioner filed above discussed labour appeal before learned labour Court of District Judge Peshawar but again it was withdrawn in parlance that he/petitioner does not fall within the definition of workman as defined under Section 2(1)(o) of KPK Workers Compensation Act, 2013. Similarly, it is further admitted position that petitioner is not law graduate nor it was included in his responsibility to know about the jurisdiction of competent Court or about jurisdictional matter, he only remain dependent on his counsel or on the wisdom of the learned Court. It is also admitted position that petitioner claims that he has valuable rights, a valid grievance with all legitimate expectations a valid cause of action which are to be adjudicated by civil .Court therefore remained pursuing his cause meticulously for his redressal before the law Court bonafidely.
11.According to law laid down by this Court in its judgment passed in case titled as Arbab Munir Ahmed, _Additional Director PESCO and two others Vs. Pakistan Electric Power Company (Put) Ltd, Wapda House Lahore and Others Cited as PLJ 2015 Peshawar 434 wherein an employee of company PESCO filed a civil suit for his redressal about his right to promotion but the PESCO in that case raised objection that civil Court has got no jurisdiction. In the same judgment it came to surface that TESCO as a private limited company has neither statutory rules framed till date nor FST has got jurisdiction, while under the principle of Administration of justice, there is a maxim of law that "when there is right, there is remedy" (ubi jus ibi renedim). So Section 9 of CPC, 1908 has been postulated on the same principle/maxim and there is only an exception to this principle incorporated in concrete provision of law under no specific forum for redressal of grievance of petitioner was available to the PESCO employees, therefore objection was over ruled and civil Court was directed to proceed further. For comprehension about the rule/relevant principle enunciated in the cited judgment is reproduced as follows; "Since, petitioners are the employees of company having no statutory service rules and in view of above cited judgments neither they can file a writ under Article 199 of the Constitution nor can approach the Federal Service Tribunal, but no one can be left remedy less. Moreover, the grievance agitated by the petitioners in their suits seems to be genuine as junior to them are promoted without any reasons or justifications and in contravention of rules, no doubt non statutory, but it is an admitted fact that for promotion purposes the respondents department is having the rules and if at all that are violated or contravene there will be a rule of jungle within the department for in service employees, creating problem for the company itself.
When there is a right, there is a remedy (Ubi Jus ibi remendium), is a fundamental principle of law and the law is Section 9 of the Civil Procedure Code, 1908 which reads along with explanation as under: "Courts to try all civil suits unless bared.--The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation.--A suit in which the right of property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies."
Any person having right has a corresponding remedy to institute suits in a Court unless the jurisdiction of the i,e, Civil Court is barred and by virtue of above a referred provisions of the section, civil Courts are granted general jurisdiction to try all suits of a civil nature. In other words wherever the object of proceedings is the enforcement of civil rights, a Civil Court has jurisdiction to entertain the suit independently of any statute unless its cognizance is either expressly or impliedly barred. Civil Courts are Courts of ultimate jurisdiction and unless there jurisdiction is either expressly or impliedly barred, the final decision with regard to a civil right, duty or obligations, shall be that of the civil Courts, judgments of other Courts notwithstanding.
In view of above, these revision petitions are allowed. Impugned judgments and orders of trial Court dated 7.1.2014 and that of appellate Court dated 14.6.2014 are set aside, and the suits of the petitioners are deemed to be pending before the trial Court. The trial Court is expected to decide the cases as per National Judicial Policy, being the old litigations on merits."
12.When the instant case was examined upon the touch stone of referred judgment this Court too reached to the same conclusion that learned trial Court was not absolved from his duty to have applied the principle enunciated in the above cited judgment. The learned trial Court in absence of proper assistance from an advocate shall must has strictly acted upon the principle of law that "all the laws must be put on over the sleeves of the Hon'ble Judges", so petitioner has been affected adversely by wrong advice of his counsel a well as by the act of the learned trial Court, while, it is also a settled principle of law that "Any act of Court shall prejudice non.
13. Thus in view of above discussion when there are no statutory rules, when petitioner is not workman, not civil servant then learned civil Court has plenary jurisdiction to decide the controversy between the parties according to law, hence this petition is allowed, the impugned order dated 09.04.2014 passed by learned Civil Judge and judgment of learned appellate Court dated 05.04.2016 are set aside and the suit of the petitioner is deemed to pending before the learned trial Court of Civil Judge-XXI Peshawar which would resume its proceedings from the stage for which it was fixed.