1. K. HOSSAIN, J.--These two appeals are by the two defendants. Appeal No, 76 of 1961 has been filed by the Province of East Pakistan, and Appeal No, 88 of 1961 has been filed by the East Pakistan Provincial Co-operative Bank Ltd. Both the appeals arise out of one suit and as such they are disposed of by this one judgment.
2. The suit was instituted by the plaintiff with the following prayers.
3. (a)For a declaration that the order passed on 12-11-54 by then Officer-in-Charge of the East Pakistan Provincial Cooperative Bank Ltd., Dacca, purporting to discharge the plaintiff from his service as Assistant Manager of the said Bank is illegal, ultra wires, void and without any force or effect and the service of the plaintiff has not been terminated by the said illegal order.
4. (b)That it be declared under service rules and also according to the condition of suspension order regarding the re-instatment in service after acquittal the plaintiff is entitled to be re-instated in service.
5. (c)For a direction on the defendant now in charge of the Bank to allow the plaintiff to sit and work in the Bank as Assistant Manager thereof and to allow him to enjoy all benefits and privileges of the service.
6. (d)That in case the learned Court is of opinion that it has no jurisdiction for a direction for re- instatement of the plaintiff in service the plaintiff prays that a decree may be passed against the Government, for recovery of the amount as given in Schedule below. The plaintiff made other consequential prayers as well.
7. The facts giving rise to the suit are that the plaintiff joined the service of the East Pakistan Provincial Co-operative Bank Ltd., Dacca, as an officer on training in October 1949, and on completion of the training period he was appointed as the Assistant Manager of the said Bank with effect from June 1950. That in the meantime the management of the Bank was superseded and on the relevant date Mr. M. A. Halim was the Officer-inCharge of the Bank; that on 21st September 1954 Mr. Halim suspended him on condition that he would be re-instated if the criminal proceedings, that were stated against him by the ex-Chairman of the Bank and others, ended in acquittal ; that on 12-11-54 the plaintiff was discharged from his service by the defendant No, 3 on the ground of misconduct. It was also asserted that during the period of suspension the plaintiff received one-fourth pay as his subsistence allowance up to October 1954. The plaintiff also asserted that the charges levelled against him in the notice of discharge are without foundation and that he is not guilty of those charges and that he was not at all responsible by virtue of his terms of service of the alleged illegalities or irregularities for the alleged loss to the Bank levelled against him. The plaintiff wanted re-instatement but was not allowed. He, therefore, served notice under section 80 of the Code of Civil Procedure and has instituted the suit.
8. The suit was contested by defendants Nos. 1 and 2 who filed separate written statements but in substance their contentions are the same. They raised the question of maintainability of the suit and it was also asserted that under the provisions of section 80 of the Code of Civil Procedure, notice was not served on the Province and that the orders of suspension and discharge are legal and effective and there is no tnala fide in passing the said orders. It was also alleged that the suit was barred by limitation. The further contention of the defence was that the plaintiff in collusion with the Manager and others connected with the Bank made shady transaction in the shape of advancing loans to persons without proper security of the payment of the money in violation of the provisions of the Co-operative Societies Act, 1940, and as a result of the various criminal acts the financial position of the Bank was badly shaken and the reputation of the Bank badly suffered ; that in such a situation the Government under the provisions of the Co-operative Societies Act superseded the committee of Management of the Bank and appointed defendant No, 3 as the Officer-in-Charge for the management of the affairs of the Bank ; that after taking over charge defendant No, 3 detected various irregularities, illegalities, criminal misappropriation and criminal breach of trust and he therefore lodged a complaint against the plaintiff and others and the Police of the Anti-Corruption Branch after a thorough investigation submitted a charge-sheet against the plaintiff and others under sections 406, 408 and 409/120-B of the Pakistan Penal Code. The plaintiff and others were thereafter placed on trial before the Senior Special Judge, Dacca, and that due to technical flaw the proceedings were withdrawn and an order of acquittal was passed by the learned Special Judge which was for all intents and purposes an order of discharge and can never be construed as an order of acquittal.
9. Both the parties led evidence, plaintiff examining himself and defendant examining only one witness and certain papers were also exhibited. The trial Court after a consideration of the evidence has decreed the suit in part giving declaration in favour of the plaintiff against the dismissal and also allowing him arrear pay for the suspension period but refused the prayer for re- instatement. Against this decision the aforesaid two appeals have been filed but in substance the contentions of these two appeals are the same, and Mr. M. A. Rouf appearing on behalf of the appellant--the East Pakistan Provincial Co-operative Bank Limited has adopted the argument advanced by the learned Assistant Government pleader who has appeared on behalf of the Province of East Pakistan. Before coming to the contentions of the respective parties it is proper that the evidence as led by both parties and the facts that emerge therefrom may be ascertained, as the grounds of the appeals are dependent more on the question of law and the maintainability of the suit than on the question of allegations of fact made in the plaint and its denial in the written statement.
10. The important document in this appeal is Exh. 4, therefore of discharge passed by Mr. Halim and the relevant portion may be quoted in all as follows:-- "No, 162/DR dated 12-11-54 Whereas you, Moulvi Momtaz Ahmed, Assistant Manager of the East Pakistan Provincial Co- operative Bank Limited (Placed under suspension on the 21st September 1954, in connection with Sutrapur P. S. Case No, 65 under section 406/408/409/ 120-B, P. P. C. dated 20-9-54; are, as it has since been detected from the records of this Bank, found guilty of the following among other charges :- "1. During the tenure of your office you have allowed accommodation to the following parties in express violation of the provisions of rules 45 and 78-A of the Bengal Co-operative Societies Rules, 1942 :-
(1) M/s. Amin Bros. Rs, 600-0-0
(2) M/s. East Pakistan Commercial SyndicateRs, 1,150-0-0
(3) Mvi. Md. Hasan Rs, 800-0-0 Rs, 2,550-0-0
(2) Due to your negligence the Bank has suffered a huge loss to the extent of more than one lakh of rupees by way of debts which have been allowed to be barred by limitation, and whereas after considering the whole issue, I am convinced that your action is unpardonable.
11. It is, therefore, ordered that you Mvi. Momtaz Ahmed, Assistant Manager of the Bank (under suspension) be discharged from the services of the Bank with effect from the date of suspension (i.e, 21-9-54), and that your liabilities to the Bank be adjusted from your Provident Fund Account and other assets within Bank, if any, and the deficiency if any, be recovered from you by ordinary course of law. M. A. Halim, 12-11. Officer-in-Charge."
12. The plaintiff himself has asserted that he was confirmed as Assistant Manager of the Bank in June 1950. He entered the Bank as an officer on training on 24-10-49 and the service of the Bank employees was then guided by the B. S. R. The Bank had no rules of its own in 1949. The Board of Directors adopted the B. S. R. till they could frame its own rules. His duties were defined in the letter of appointment and also in a resolution of the Board's meeting. His appointment letter is missing.
13. He was suspended in 1954 by Mr. M. A. Halim, the then Officer-in-Charge of the Bank and he has filed the suspension order. He was dismissed from service by Mr. Halim by his order under No, 162DR dated 12-11-54 which has also been filed. He has further stated that he was not given any show- cause notice. The bank was under the Government management during his suspension and dismissal; and that the two criminal cases against him were false and fabricated. He also stated that he was in charge of the general administration and establishment, but he had no power to grant any loan. In cross-examination this witness has stated-- "I have not called for the original letter of my appointment. I have no paper to show that the Bank adopted the B. S. R. for its employees. I do not know if copies of all the resolutions passed in the Board's meetings are forwarded to the Registrar. I was a responsible officer of the Bank (within the scope of my appointment) The Bank is guided by the Co-operative Societies Act rules framed under it and by the bye-laws." He further admitted in cross-examination that "Mr. Halim also had no grudge against me personally." He further admitted in the cross-examination. "In my service is controlled by the Co-operative Societies Act, rules and bye-laws of the Bank. Exh. A is applicable to me and the other employees of the Bank". These are all the evidence of the plaintiff. The evidence of D. W. 1 who is the only witness on behalf of the defendant is Sk. Habibur Rahman, an employee of the defendant-Bank and he manages the law section of the Bank and also works in the accounts section. He stated that the plaintiff was the Assistant Manager of the defendant-Bank. He used to check the postings made by the dealing Assistant in the ledger and dealt with the personal files of the staff. There were three Assistant Managers. The plaintiff and the other officers did not manage the affairs of the Bank properly. This was reported to the Registrar, Co-operative Societies and he suppressed the Bank in June, 1954. The Registrar then deputed Mr. N. Gonj the Deputy Registrar for the management of the Bank. He worked for about a month or so. Then Mr. Halim came to manage the Bank as its Officer-in-charge. Mr. Halim detected loss of the Bank to the sum of Rs, 1(1/2) lakhs due to the mismanagement of the Officers of the Bank. The plaintiff and others were charge-sheeted under sections 406, 408 409/120-B, P. P. C. The case was withdrawnby Government before trial. The case was started during the Governor's Rule in the Province and was withdrawn during Parliamentary Government headed by Mr. Abu Hossain Sarkar.
14. He further stated that the plaintiff was suspended by Mr. Halim after the starting of the criminal case. The plaintiff preferred no appeal and made no protest against the order of suspension. Later the plaintiff was dismissed by the Bank. The plaintiff preferred no appeal against the order of dismissal. Mr. Halim was legally competent to suspend and dismiss the plaintiff. The Bank employees are guided by the Co-operative Act and the rules and bye-laws. He further stated that he did not hear that by a resolution the Board of Directors adopted the B. S. R. for the Bank Employees. He also stated that there was no mala fide in the action of Mr. Halim against the plaintiff. He also stated that the plaintiff now served in the firm of Mr. Wahiduzzaman, Exh. V. C. of the Bank and co-accused in the Criminal case with the plaintiff.
15. From these evidences on record it is apparent that the plaintiff was Assistant Manager of the East Pakistan Provincial Co-operative Bank Limited and that his appointment is governed by the letter of appointment averred by the plaintiff himself. He was discharged from his service for misconduct is apparent from Exh. 4 referred to above. With regard to the averment of the plaintiff that his service conditions were governed by the Bengal Service Rules (B. S. R.) is not borne out by his own evidence when in cross-examination he admitted that he does not know whether the Directors have adopted in the resolution that the employees will be governed by the Bengal Service Rules. D. W. 1 has clearly stated that no such rule was adopted by the Society. Both the plaintiff and D. W. I admitted that they are governed by the East Bengal Co-operative Societies Act, 1940 and the Rules and by-laws made thereunder. The only bye-law applicable in this case, as has been pointed out by the learned Advocates for both parties is bye-law No, 45, as is found from Exh. B, which may be quoted as below:-- "45. (1) Any Officer appointed by the general meeting may be removed from his office by a resolution of a general meeting specially convened for the purpose,"
16. No other rule has been shown regarding the appointment and dismissal of an employee of this Bank. The position therefore is that in the case of the plaintiff he will be governed by the ordinary principles of master and servant.
17. We may now deal with the contentions raised by the appellants serially. The first contention of the learned Assistant Government Pleader is that the Government is not a party to the proceeding and as such the Government was wrongly impleaded and was wrongly saddled with a decree. To appreciate the contention we only refer to section 19 of the Bengal Co-operative Societies Act, 1940 hereinafter referred to as the Act which clearly lays down that "the registration of a co-operative society shall render it a body corporate by the name under which it is registered, with perpetual succession and a common seal, and with power to hold property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all things necessary for the purposes for which it was constituted." From this it is clear that the Bank was registered under section 19 as a body corporate and what was done in 1954 was that the managing committee which was equivalent to the Board of Directors were superseded and officer was appointed, so that separate corporate existence of the Bank continued and if there was disturbance it was regarding its management and its body of management being replaced by the Officer-in-Charge. The corporate existence of the Bank having continued the mere appointment of the officer to manage the affairs of the Bank does not make the Government a party, or for that matter the separate corporate existence of the Bank did not lose its existence and as such the Government is in no way a party to the proceeding, nor the action of Mr. Halim who was Officer-in-Charge can in any way, be construed to be the action of the Government. That being the position the Province of East Pakistan was wrongly impleaded and the learned Subordinate Judge was in error in decreeing the suit against the Province of East Pakistan. This contention of the learned Assistant Government Pleader therefore, prevails.
18. Next we come to the most important point in this appeal and which is the central point in the appeal itself namely, whether the suit itself is maintainable against the Provincial Co-operative Bank, for the alleged wrongful dismissal or discharge of the plaintiff from service of the Bank. The contentions of the learned Advocate for the appellants are that in the present case relationship between the plaintiff and the Bank is that of a master and servant and under the ordinary principles of master and servant a master has always the power to dispense with the service of his employee and in case of misconduct can dismiss him without notice. Even in case of wrongful dismissal no suit for declaration lies. If at all, a suit for damages may lie when so properly constituted. But the plaintiff having chosen to frame the suit for declaration only and having prayed for a consequential relief his claim for re-instatement and payment of arrear salary it is not maintainable. There is much substance in this contention of the learned Assistant Government Pleader. In this connection, several decisions have been cited by both the learned Advocates which may be dealt with one by one. The first decision has been cited by the appellants in the case of Lahore Central Co-operative Bank Limited v. Pir Saif Ullah Shah , where the Commercial Manager of the said Co-operative Bank was dismissed and in that connection it was observed by the Supreme Court as follows:-- "By the ordinary law of master and servant, when a servant is guilty of misconduct, the master is entitled as of right to terminate his services without notice. In this case, the notice given was of some two months' duration, following upon a period of five months of suspension during which enquiries were being held. There can be no doubt that under the general law of master and servant, the action taken by the Committee was a perfectly proper one, and it could have been taken in an even more per-emptor manner."
19. There is another very weighty observation which may be quoted as follows :- "The resolution of the 3rd February 1945, to which reference has been made earlier was not passed in the form of a rule, and it is, therefore, very doubtful whether it can be thought that thereby compliance was made with bye-law No, 23(18). Consequently we consider that it is a point of considerable doubt whether the respondent could claim the application to himself of the Civil Service Rules. In any case, these Rules were not applicable to him of their own force, but merely by reference. Where these embody safeguards provided for public servants under the then Constitution, i.e., the Government of India Act, 1935, as then in force, they cannot be availed of by such a person as Pir Saif Ullah Shah, as a matter of legal right."
20. The next case cited on behalf of the appellants is the Chairman, E. P. I. D. C. and another v. Rustom All and another wherein it has been held by the Supreme Court as follows:--1 2 "There is another strong reason why a direction of the kind in question should not have been issued by the High Court in this case. The report of the Enquiry Committee was amply sufficient to establish that Rustom Ali has been guilty of misconduct in the discharge of his duty. The High Court should, therefore, have taken notice of this fact in considering whether in exercise of the discretion they should have issued a writ in this case. As pointed out in the case of The Lahore Co-operative Bank Limited, `by the ordinary law of master and servant, when a servant is guilty of misconduct, the master is entitled as of right to terminate his service without notice.' Hence there can be no doubt that under the general law of master and servant, the action taken by the Secretary on behalf of the corporation was a proper one."
21. The next case cited on behalf of the appellants is Ghulam Farid Khan v. East Pakistan Industrial Development Corporation , wherein it has been held as follows:-- "The East Pakistan Development Corporation is a body incorporate and the petitioner is an employee of a statutory Corporation. He is bound by the rules of the corporation and the terms and conditions of his appointment. The terms and conditions of his appointment will govern the relationship between the petitioner and his employer. He cannot, therefore, plead the safeguards provided for public servants under the Constitution as a matter of legal right. The terms and conditions embodied in the letter of appointment (Annexure C) though appear to be very harsh, give wide power to the Corporation to terminate the service of a probationer in its discretion in accordance with the rules governing the service and in that view of the matter it cannot be said that the ordinary law of master and servant will not apply in this case."
22. Next decision relied on by the learned Advocate on behalf of the appellants is Messrs Malik and Hag v. Muhammad Shamsul Islam Chowdhury and others where the Supreme Court has held, inter alia, as follows :- "This appeal should succeed for the simple reason that in the absence of any statutory provision protecting the servant it is not possible in law to grant to him a decree against an unwilling master that he is still his servant. A servant cannot be forced upon his master. The master is always entitled to say that he is prepared to pay damages for breach of contract of service but will not accept the services of the servant. A contract for personal service as will appear from section 21 (b) of the Specific Relief Act cannot be specifically enforced. But it is not even necessary to invoke section 21 (b) for such a contract is unenforceable on account of section 21 (a) wherein it is provided that a contract for the non-performance of which compensation in money is adequate relief cannot be specifically enforced. In a case where there is a contract between a master and a servant, the master agreeing to pay the salary and the servant agreeing to render personal service it is obvious that money compensation is full relief for all that the servant was entitled to under the contract was his salary. A breach of contract can give rise to only two reliefs: damages or specific performance. If specific performance be barred the only relief available is damages. When a master in breach of his contract, refused to employ the servant the only right survives to the servant is the right to damages and a decree for damages is the only decree that can be granted to him."
23. It has further been held :- "But really it is not at all necessary to refer either to the plaint or to the judgments or to the conduct of respondent No,
1. It is quite sufficient that the master when he files the written statement or appears in Court takes up the position that the servant is no longer his servant and that his services have been terminated by him."
24. Mr. D. C. Bhattacherjee, the learned Advocate for the respondent, has, of course, cited the decision of Abdus Saboor Khan v. Karachi University and Controller of Examinations, Karachi University where the principle of `audi alteram partem' was upheld by the Supreme Court in the matter of disciplinary action of expulsion taken against a student of the Government Engineering College.3 4 5 This decision has followed the earlier decision of the Dacca University v. Zakir Ahmad which also refers to the expulsion of a student, and Mr. Bhattacherjee has also relied on the following passage : -- "This Court has already had occasion to point out in at cases, namely, in the cases of the Karachi v.
25. Mrs. Dina Sohrab Katrak PLD 1959 SC (Pak.) 45, -- Faridsons Limited v. Government of Pakistan PLD 1961 SC 537 and Abdur Rahman v. Collector and Deputy Commissioner, Bahawalnagar and others PLD 1964 SC 461 that in all proceedings by whomsoever, held, whether judicial or administrative, the principles of natural "justice have to be observed if the proceedings might result in consequences affecting 'the person or property or other right of the parties concerned'. This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness."
26. From a reading of the above decision it is clear that in the case where there is a dispute between master and servant and the case is governed by the principle relating to master and servant, all that is to be seen is whether the plaintiff is governed by such principle. If so, then the uniform decision of the Supreme Court is that in case of misconduct he can be dismissed even without notice and that in case of wrongful dismissal the remedy that is available to the plaintiff, namely, the aggrieved employee, is by way of suit for damages and no other remedy. It has also been held by this Court that where there is an employee of a statutory body both the statutory body and the employee are governed by the statute itself which has brought into existence that statutory body and the rules and- regulations framed thereunder. But in the absence of such a rule governing the relationship of employer and employee in the case of statutory body or body corporate, ordinary principle of master and servant will apply. In the present case we have already found that the plaintiff's terms of appointment are governed by his own appointment letter which he has not filed in Court. The rule applicable is Rule No, 45 which says that the Bank has the power of dismissal but no special procedure has been prescribed and therefore it is clear that in the present case the plaintiff will be governed by the principle of master and servant. Mr. Bhattacherjee by referring to those two decisions reported in PLD 1965 SC 90 and PLD 1966 SC 536 which related to disciplinary action against a under has wanted us to extend that principle to the case of master and servant. According to him, the principle enunciated by the Supreme Court is equally applicable to the case of master and servant. We find it difficult to uphold this contention of the learned Advocate for the respondent. First of all the Supreme Court up till now has not extended this principle in the case of master and servant and no such decision has been placed before us where the Supreme Court has extended the principle of 'audi alterampartem' where the relationship is governed by the ordinary principle of master and servant. On the contrary in the three decisions of the Supreme Court, namely, PLD 1959 SC (Pak). 210, P L D1961 SC 531, PLD 1966 SC 848 it has been clearly stated that in case where the relationship of the employee and the employer is governed by the principle of master and servant, the employer can dismiss the employee for misconduct without any notice. It has also been held that the remedy if at all available is by way of suit for damages for breach of contract and no suit for re-instatement lies.
27. Mr. Bhattacherjee refers to the observation made in PLD 1959 SC (Pak.) 210 by Cornelius, J. (as he then was) that "by the ordinary law of master and servant, when a servant, is guilty of misconduct, the master is entitled as of right to terminate his services without notice." According to him, this is not referable to the notice involved in the principle of 'audi alter= partem'. From the contest in which it was made and the observation as above, this contention of Mr. Battacherjee is not sustainable. It is well settled law that an employee can always be dismissed from service by his master. The only question is whether if the employer does so, he should pay damages for breach of contract and no master can be compelled to keep C in employment a servant any more than6 required. It is difficult to extend the principle of 'audi alter= partem' in the case of employer and employee governed by the principle of master and servant. The contention of the learned Advocate for the respondent cannot be accepted, and there is much substance in the contention of the learned Assistant Government Pleader, appearing on behalf of the appellant.
28. It is found that the plaintiff has filed the suit for declaration that his order of suspension and dismissal are illegal and not binding upon him, and as a consequential relief he has claimed re- instatement. He has also claimed relief for arrear pay during the period of his suspension. As this present case is governed by the principle of master and servant, no declaration for re- instatement as claimed by the plaintiff can be given in the suit. The suit is therefore not maintainable and the learned Subordinate Judge was wrong in not holding that the suit was not maintainable. The contention of the learned Advocate for the appellant must be upheld.
29. The learned Assistant Government Pleader has raised another bar to the suit by referring to section 133 (3) of the Bengal Co-operative Societies Act, 1940 which is as follows :- "133(3) Save as provided in this Act, no order, decision or award under this Act shall be liable to be challenged, set aside, modified, revised or declared void in any Court on any ground whatsoever except want of jurisdiction."
30. The plaintiff has not challenged the jurisdiction of defendant No, 3 to dismiss him. At the relevant time he was acting as Office-in-Charge after the supersession of the Managing Committee. On the contrary, he has admitted his jurisdiction. He has also admitted that the Officer-in-Charge being defendant No, 3 did not act mala fide. The learned Subordinate Judge has also found that the defendant No, 3 had jurisdiction and that he did not act mala fide. In that view of the matter, there remained no scope for the Court below to proceed with the suit further. As is evident the suit is also barred under section 133(3) of the Bengal Co-operative Societies Act, 1940.
31. It has been contended by Mr. M. A. Rouf that the plaintiff has prayed in his plaint for recovery of the amount from Hossain, Government alone and not from the East Provincial Co-operative Bank Limited, and as such the trial Court was wrong in granting a decree against the defendant No, 2 who is an appellant in this Court. Apart from the question that the suit is not maintainable and as such a relief of this nature could not have been granted at all, this objection also has some merit in view of the fact that when the plaintiff himself has not asked for any relief against a pro forma defendant, the Court below was wrong in decreeing the suit against it. Mr. Bhattacherjee at the time of hearing of the appeal made a verbal prayer and thereafter has filed a written application today asking for amendment of the prayer (d) made in the plaint. Since it has been found that the suit is not maintainable and no relief of this nature can at all be granted it would be futile to allow this application. This application is therefore rejected. The additional reason for not entertaining this application is the inordinate delay in making it without sufficient reason and made when the hearing of the appeal was concluded and the matter was put up for judgment. Since the suit is not maintainable this prayer (d) made in the plaint cannot come in for consideration at all. Regarding the merit of the case, it may be stated that the learned Subrodinate Judge has based his decision mostly on the ground of that allegation of mere knowledge that the Manager and the Managing Committee were no working properly cannot bind the plaintiff with responsibility is not sustainable in law in view of the fact that the learned Subordinate Judge has not come to a proper finding as to what was the precise responsibility of the plaintiff when at that time he was Assistant Manager and himself claimed to be a responsible officer and was in charge of the administration. He has also overlooked the fact that D. W. has clearly stated that the plaintiff at present was working in the firm of Mr. Wahiduzzaman, Exh. V. C. of the Bank and who was co-accused in the case complained of. In that view of the matter, his decision as to the liability of the plaintiff cannot be upheld. In any event the materials placed on record are insufficient to come to a conclusive finding on that point.
32. Regarding the finding of the learned Judge granting the plaintiff a decree for recovery of his back pay and allowance from the date of his suspension till the date of the institution of the suit, as claimed in the plaint, is not sustainable, as the suit is not maintainable.
33. The result, therefore, is that these two appeals are allowed with costs against plaintiff-respondent.
34. The judgment and decree of the learned Subordinate Judge are set aside and the suit dismissed with costs. The plaintiff-respondent shall pay one set of cost to be divided equally between the defendants 1 and 2 in the suit.
35. SIDDIKY, C. J.--I agree. PLD 1959 SC (Pak.) 210 PLD 1966 SC 848 PLD 1968 Dacca 347 PLD 1961 SC 531 PLD 1966 SC 536 PLD 1965 SC 90