1. This Revision Application under section 115, C.P.C. Is directed-against the impugned judgment passed by the learned 1st Additional District Judge, Karachi East on 15-9-1992 by which an appeal filed by the applicant was dismissed.
2. The facts leading to the present litigation are that the appellant filed a suit for declaration and mandatory injunction against the respondents stating therein that he is. The permanent employee of Civil Aviation Department, Government of Pakistan, Ministry of Defence and was appointed as Radio Technician with effect from 10-2-1958 and was working as Assistant Communication Engineer in Grade-16 since June, 1976. The service of the appellant was transferred to the respondents Organization in pursuance of section 14 of Pakistan Civil Aviation Authority, and he remained in service with the respondent till his unlawfully compulsory retirement with effect from 31-7-1983 vide letter regarding his retirement dated' 1-1-1984 and the said letter was subsequently amended, whereby the date of retirement was amended to 31-1-1984 vide letter dated 26-9-1984. It is further alleged that appellant throughout his service with the respondents was dealt with discriminatively and was not ranted promotion which though he deserved in the relevant cadre and whenever such posts had fallen vacant either ex-service persons or the outsiders were directly recruited and the appellant was deprived of his rights. The appellant then sought retirement after completion of 25 years qualifying service for pension with effect from 29-1-1983 but his application for grant of L.P.R. Was not granted nor his premature retirement was considered by the respondents and such application was kept pending for long time. The appellant then submitted applications dated 16-7-1983, 17-7-1983 and 7-10-1983 which were acknowledged by the respondents. The appellant was directed by the respondent No.1 to attend through their letter dated 7-4-1983 in connection with his premature retirement and in compliance with the order of respondent No.1 the appellant attended the meeting with the respondent No.2 who made observations on the appellant's application dated 29-1-1983 that no action is proposed on his appellant's application for retirement. The appellant therefore changed his mind from his retirement and sent another application for withdrawal of his application for premature retirement which was not considered by the respondents. Due to great need of long leave in connection with his family affairs the appellant again made applications on 5-6-1983 and 6-7-1983 for grant of leave without pay for one year from 16-7-1983. The respondents instead of granting leave for one year without pay granted on 15 days' rest recreation leave with effect from 16-7-1983 after about seven months vide their letter dated 11-1-1983. Such leave could not solve the problems of the appellant therefore he applied for E.O.L. For which the provisions were provided in Fundamental Rules F.R. 85(a) read with Leave Rules 1980, as adopted by the respondents in Chapter-8 of respondents' Service Regulations, and the respondents did not pay any heed to the said application nor leave was extended on various applications of the appellant. The appellant did not attend the office after expiry of rest recreation leave which resulted in the suspension of the appellant with effect from 1-11-1983. The appellant was issued show-cause notice by the respondent No.2. The appellant replied the said show-cause notice which was not considered and the appellant was imposed the major penalty that is to say the compulsory retirement of the appellant with retrospective effect. The appellant filed an appeal against the said order before the Appellate Authority but the same was rejected by the respondent No.2 instead of transmitting the same to the Appellate Authority. The appellant therefore filed an appeal before the Service Tribunal which was dismissed on 31-12-1989 for want of jurisdiction. Then appellant filed a suit bearing No.168/90 before the IIIrd Senior Civil Judge, Karachi East for declaration and mandatory injunction which was dismissed by the learned Judge on 26-4-1992. The appellant being aggrieved with the judgment of the learned IIIrd Senior Civil Judge Karachi East, dismissing the suit of the appellant, filed an appeal under section 96, C.P.C. Which was dismissed by the 1st Additional District Judge, Karachi East.
3. As far as this Revision Application filed under section 115 of the Code of Civil Procedure is concerned the learned counsel, Mr. Shabbir Rizvi, appearing on behalf of the applicant has contended that the Appellate Court below has failed to exercise its discretion vested upon him according to law by not appreciating the law in the matter of employment of statutory servant and the law related to the master and servant which amounts to refusal of exercise of jurisdiction. Further that great error has been committed by both the Courts below by deciding the matter that the suit filed by the applicant was time-barred as such proper exercise of jurisdiction was not appreciated in both the impugned orders. The learned counsel therefore contended that the suit filed by the applicant was not barred by Law of Limitation as under the advice of his counsel he at the first instance approached the Service Tribunal and knocked the door of the Service Tribunal for redressing his grievance where he failed therefore he filed a suit before the competent Court of law and thereafter he being unsuccessful filed this Revision Application as such the forum chosen by the applicant under the advice of his counsel is not debarred to take fresh steps therefore Law of Limitation will not apply under such circumstances.
(1) Mrs. Anisa Rehman v. P .A.C. And another 1994 SCM R 2232
(2) Sherin and 4 others v. Fazal Muhammad and others 1995 SCM R 584.
(3) Sher Muhammad and 8 others v. Ismatullah and 3 others 1996 CLC 206.
4. On the other hand, Mr. Nasarullah Awan, learned counsel for the respondent, has contended that the suit filed by the applicant was itself barred under the Law of Limitation on the ground that in spite of the facts that the dispute was known to both the parties but wrong forum was chosen therefore suit as well as appeal cannot be entertained. Mr. Awan has further contended that there are concurrent findings on the point of limitation against the applicant and no material illegality or irregularity has been committed therefore merits of the case as well as the legal point involved in it cannot be considered as on the face of it the suit filed by the applicant was barred under the Law of Limitation and has further contended that the plea on the point of limitation taken by the applicant in appeal cannot be considered in the Revision Application as the decree passed by the trial Court has achieved finality. Mr. Awan further contended that the cause of action arose to the appellant on 29-: -1983 which suit is to be filed within six years that is before 28-1-1989 but the suit was filed on 11-2-1990 therefore it is barred by Law of Limitation.
5. I have heard both the learned counsel at great length and have also perused the record of both the Courts below. The important issue regarding the point of limitation was framed by the learned trial Court as Issue No.5 besides framing issues on the pleadings of the parties. As far as issue of limitation is concerned the clear position which is based on the record is that the suit of the applicant was to be filed within six years when the cause of action arose which cause arose on 29- 1-1983 therefore the suit was to be filed before 28-1-1989 but the said suit was filed on 11-2-1990 that is after the delay of more than one year and no plausible explanation was given therefore on merits as well as on the point of limitation the suit was dismissed on which an appeal was filed which appeal was also dismissed. The contention of the applicant further is that the time of limitation is to be calculated from the date of the retirement of the applicant which was communicated to him vide letter dated 31-1-1984. Even if this contention is accepted then the suit is barred by Law of Limitation as it was filed on 11-2-1990 that is after the delay of eleven days even no explanation for such delay was y as given although the applicant is bound to explain the delay ofeach and every day for filing such suit. Even from the perusal of the impugned judgment I do not find any illegality or irregularity committed but observe that each and every point raised by the applicant in his suit has been discussed and disposed of properly. The facts of the cited cases are very much different from the facts of the present case. The point in the present case is whether the suit was filed before the expiry of limitation period whereas, the facts in the cited cases were that appeal was not filed within a proper time which was considered by the superior Courts therefore I am of the opinion that this Revision application has got no merits which is accordingly dismissed.