.....Before proceeding with the recording of the plaintiff's evidence, I would like to be satisfied on the point that how this suit for declaration is maintainable, in view of section 42 of the Specific Relief Act, 1877, and in view of the judgment of this Court, in the case of Alavi Sons Ltd. v. The Government of East Pakistan and others PLD 1968 Kar. 222. Mr. Munir requests for time to make his submissions.
As suggested, to come up on 27-10-1998. Meanwhile, issue notice to the D.A.-G.I at Karachi."
2. Despite service of fresh notices, neither the Dy.A.-G. nor any other Law Officer from their office has appeared. Lastly, it was on 20-2-1989 when one counsel Mr. Muhammad Jamil appeared for the defendants. I have heard Mr. Munir-ur-Rehman at length who argued that the ratio of the case Alavi Sons Ltd. (ibid) is not attracted to the facts of this case on the ground that by virtue of clause 65(d) of the General Conditions of PAFW-2249 which is an agreement executed between the parties, the defendant's claim became time-barred. Further reliance is placed on paras. 4 and 10 of the written statement of the defendants wherein it is admitted that the contract in question was awarded in the year 1973; the work was completed on 20-12-1975 and final payment was made on 24th of December, 1980. It appears that sometime in the year 1988 during an inquiry held by the defendants and which was conducted at the back of the plaintiff, it was found that a sum of Rs,10,78,858.93 was overpaid to the plaintiff and that such payment was required to be recovered from the plaintiff. This is the main controversy which gave rise to the so-called cause of action to the plaintiff to file the instant suit with the following reliefs:--
(a) Declare that the demand of the defendants for payment of Rs,10,78,858 by the plaintiffs to the defendants is illegal, unjust, uncalled for, void ab initio, against the principles of natural justice and of no legal effect,
(b) Grant permanent injunction in favour of the plaintiffs restraining the defendants, their agents, servants, employees, representatives and assigns person, persons acting through or under them from giving effect to their Circular Letter No. 5016-W-11/X-E5 , dated 18-1-1987 (Annexure "F") and from recovery the abovesaid amount from the plaintiffs in any manner.
(c) Award of the suit, and
(d) Grant any other relief/reliefs which this Honourable Court deems fit and proper in the circumstances of this suit in favour of the plaintiff and against the defendants."
3. In the case of Alavi Sons Ltd. (ibid) it was held inter alia, that according to section 42 of the Specific Relief Act, 1877, a plaintiff can approach the Court for declaratory relief in respect of his legal status and character for which reliance was placed by this Court on 15 different definitions as given by Professor Holland. It was further held that these expressions include personal rights arising out of law and excludes prohibitory relations, contractual capacity and incapacity. A declaration that the plaintiff has not committed breach of the term of a contract was held to be a declaration neither with regard to any legal character nor any right to or in any property. In the case of Pakistan International Airlines Corporation and 5 others v. Muhammad Izharul Ahsan Qureshi PLD 1979 Kar.
640 it was held by this Court that the term legal character or status as mentioned in section 42 of the Specific Relief Act denotes a character or status conferred by law and not one conferred by a contract. This view was reiterated by this Court in the case Agricultural Development Bank of Pakistan and 3 others v. Anwar Hussain Jatoi PLD 1982 Kar. 313 where it was held inter alia, that section 42 applies only to a legal character or status apart from a contract.
4. As a result of above discussion, I am of the considered view that the plaintiff is not entitled for the declaration to the extent as prayed in the plaint. Even otherwise this declaration is in negative form which is seldom granted by this Court and in rare and special cases. If any reference is needed see the case of Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others PLD 1978 Lah.
113. Coming to the question of permanent injunction, this relief has also become infructuous in view of the fact that the defendants' claim to recover the so-called amount of over payment has not only become time-barred by the operation of Limitation Act, 1908, but according to their own Regulations as reproduced by them in their written statement this claim has become time-barred. Mr. Munir, has expressed his apprehension that the plaintiff, who is still working for the defendant, but on a different project, may be put to hardship as the defendant may press for their so-called recovery of overpayment by not making payments of the running contract. If it happens so, it will give a fresh cause of action to the plaintiff. However, for the present, the defendant's claim appears to be time-barred and, thus, the plaintiff has no cause to seek any relief of declaration and injunction in respect of such claim.
5. In my considered view it will not serve any purpose if the exercise to record evidence is undertaken by this Court as the claim of the defendants has become time-barred and by virtue of that this suit itself has become infructuous. This being the legal position this suit appears to be incompetent and is liable to be dismissed with no order as to costs, in line with the decision laid down by a Division Bench of the Dacca High Court in the case of Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190. This view was followed by this Court in the cases Pakistan State Oil v. K.E.S.C. PLD 1991 Kar. 365, Messrs National Fibres Ltd. v. K.D.A. and another 1996 MLD 76 and PIAC and 50 others v. Muhammad Izharul Ahsan Qureshi (supra). Before parting with his order, it would be pertinent to observe that this suit was pending for more than 10 years.
There was no prohibitory injunction in the field restraining the defendants from filing any suit claiming any amount, but it was not done. The defendants and their officers slept over their rights and allowed their claim to become barred in law by lapse of time. These acts of the defendants are highly questionable and must be dealt with at the higher level. Office is directed to forward a copy of this order to the relevant quarters.
6. As a result of above discussion, the above suit is dismissed being incompetent with no order as to costs.