This Civil Revision under section 115, C.P.C. Has been directed against the judgment/decree dated 17-11-2001 passed by the learned Additional District Judge-I, Quetta whereby the decree passed by the learned Civil Judge-III, Quetta was set aside and the case was remanded to the trial Court with the direction to decide the same afresh after recording the evidence of both the parties. The brief facts of the case are that on or about 10-2-2001 the respondent instituted suit for declaration and for reinstatement in the service in Tameer-e-Nau Public School, Quetta against the petitioners which came up for hearing in the Court of learned Civil Judge III, Quetta and was registered as Civil Suit No,22 of 2001. The case of the respondent as set up in the plaint is that in the year 1991 he was appointed as J.E.T. In Tameer-e-Nau Public School (Primary Section) and as per rules and regulations of the school his employment was purely on temporary basis for a period of three years and in the year 1997 he was confirmed in service instead of 1994 and as per his appointment order read with the relevant rules and regulations framed by the Administration Committee of the School it was provided that before termination of his service for any reason 15 days prior notice was required to be served or in the alternative 30 days' salary according to the nature of service was required to be paid. Further the case of the respondent/plaintiff is that he served the school for a period of more than ten years without any complaint, but abruptly on 16-12- 2000 he was terminated from service walnut any intimation or service of notice as per rules for no justification or fault on his part and thus; the termination order is without jurisdiction, illegal and unjust. On these averments the following relief was claimed in the suit:-- "It is, therefore, respectfully prayed that a decree may kindly be passed in favour of plaintiff against the defendants that the act of defendant No,2 is without jurisdiction and contrary to facts, law and justice. It is also prayed that a decree in favour of plaintiff against the defendants for reinstatement of plaintiff in his service with all back benefits in the interest of justice with cost." The petitioners defendants contested the suit and repudiated the claim of the respondent seeking for relief of declaration and consequential relief for reinstatement in service by means of their joint written statement dated 3-5-2001. The maintainability and competency of the suit was also challenged on the ground that the respondent/plaintiff was not entitled to any legal character or right being an ex-employee of a private school to be reinstated in service which was subject to the satisfaction of the employer and the service of the plaintiff was not governed by any law or statutory rules; secondly the service of the respondent was terminated in terms of clause 7 of his appointment order dated 1-3-1991 but taking rather a liberal view of the matter he was paid two months' salary in lieu of notice instead of thirty days' salary as provided by clause 7. On merits of the case it was explained in the written statement that the work and conduct of the respondent/plaintiff was found to be unsatisfactory, therefore, his service was terminated and no prior notice was issued to him and in lieu thereof by taking a liberal view instead of thirty days' salary, two months' salary was paid to him. Also; an instance of misconduct in breach of discipline of school with regard to unsatisfactory performance of duties has been quoted in the written statement. Out of the pleadings of the parties the learned trial Court framed the following issues: "LEGAL ISSUES:
(1) Whether the services of the plaintiff were governed by any rule/condition?
(2) Whether plaintiff has prayed for any declaration in his plaint?
(3) Whether the suit is competent under section 42 of the Specific Relief Act?
ON MERITS:
(4) Whether the plaintiff has right to be reinstated on his post in view of condition of his appointment?
(5) Whether the services of plaintiff were confirmed in the year 1997?
(6) Whether the condition No,7 of appointment letter was not completed by defendant?
(7) Whether the conduct of plaintiff remained unsatisfactory of the employer and injurious of the character of children/students?
(8) Relief?"
3. Before proceeding with the suit on merits, the parties' learned counsel were heard by the learned trial Court on legal issues referred to above and by resolving all the three legal issues against the respondent/plaintiff vide judgment and decree dated 6-8-2001 suit was dismissed. The respondent/plaintiff feeling himself dissatisfied with the decree of the learned trial Court challenged the same by riling appeal in the Court of learned District Judge, Quetta and the same was transferred on the file of learned Additional District Judge-I, Quetta (registered as Civil Appeal No,36 of 2001). The learned Appellate Court vide judgment and decree impugned herein set aside the decree of the trial Court and remanded the case with the direction to decide the same afresh after recording evidence of both the parties. The petitioners/defendants have assailed the appellate judgment/decree by filing the instant civil revision petition.
4. The respondent was served and on his behalf Mr. Ghulam Hussain, Advocate filed vakalatnama on 22-3-2002 and sought for adjournment to prepare the brief. The request so made was entertained and hearing was adjourned. On 25-4-2002 when the case was called for hearing repeatedly neither the respondent nor his learned counsel made appearance and no intimation about failure to attend the matter was sent to the Court, consequently; having been left with no other justifiable option to adjourn the hearing, arguments of the petitioner's learned counsel were heard.
5. Raja M. Afsar mainly contended that during the course of arguments before the Appellate Court in the light of legal issues framed, by the learned trial Court it was specifically urged and argued on behalf of the petitioners that the suit instituted by the respondent/plaintiff seeking for the relief of declaration and reinstatement in service was hit under section 42 of the "Specific Relief Act for want of any legal character/status vesting in the' plaintiff/respondent to be reinstated in the service of private school and for the reason that the service of the plaintiff was not governed by any statutory Rules, rather the matter relating to the termination of service was subject to the principles of Master and Servant, hence; the suit was incompetent and not maintainable and in support of the contention relevant case-law i,e, PLD 1984 SC 194; PLD 1981 SC 224 and 1993 SCM R 346 were also cited, but the learned Appellate Court without taking into consideration the contention raised by him and the case-law as well as without applying its mind to the facts of the case and the law applicable on the subject in a perfunctory manner set aside the decree passed by the learned trial Court by observing that since no reason for terminating the service of the respondent/plaintiff was mentioned in the termination order and certain allegations about the conduct of the plaintiff were levelled in the written statement; therefore, the disputed question of facts need recording of evidence; is an approach totally unwarranted on the part of the Appellate Court while upsetting the decree of the trial Court based upon resolving the legal issues only about the competency and maintainability of the suit, hence the impugned appellate judgment/decree is liable to be set aside and the appeal filed by the respondent to be decided afresh in the light of the law applicable on the subject after hearing the parties.
6. The contentions put forth by Raja M.Afsar have been considered in the light of pleadings of the parties and the judgments passed by the learned Courts below which have been gone through carefully. It is an admitted position in view of the pleadings of the parties that the respondent/plaintiff was the employee of the petitioner's school i,e, Tameer-i-Nau and was appointed initially as J.E.T. In the year 1991 in the private school whose service was terminated by the school administration vide letter dated 16-12-2000. Also as hereinabove noted the suit, instituted by the respondent was contested by the petitioners on merits as well as on legal plane and specifically a preliminary objection was taken in the written statement that the suit was hit under section 42 of the Specific Relief Act for want of any legal character/status vesting in the plaintiff to be enforceable by law i,e, to be reinstated in service and the plaintiff being an ex- employee of a private school, his service was not governed by any law or statutory rules and instead the same was subject to the satisfaction and consent of the employer, therefore, the learned trial Court after having gone through and considered the pleadings of the parties framed legal as well as issues on merits and the parties were heard on legal issues only apparently for reason that the suit can conveniently be disposed of finally be resolving the legal issues. The legal issues were resolved in negative with the result that the suit of the respondent was dismissed, hence; in such view of the matter it was obligatory for the learned Appellate Court to have had confined itself only to examine as to whether the legal issues Were decided by the learned trial Court in accordance with law in the light of pleadings of the parties and the undisputed documents appended therewith or otherwise, and; also the learned Appellate Court to have itself independently and in accordance with law in view of the admitted facts as per pleadings to have decided the legal issues according to law applicable on the subject as well as in view of the provisions of section 42 of the Specific Relief Act, but surprisingly without looking into the findings and reasons found favour with the learned trial Court in deciding the legal issues, the learned Appellate Court entered upon the merits of the case as it emerge from the contents of the written statement and the pleas taken by way of defence in the written statement which even was not permissible to be dilated upon by the Appellate Court in view of the dismissal of suit on legal issues by the trial Court, thus; the learned Appellate Court mis-exercised the jurisdiction vested in it and acted with grave illegality and impropriety by ignoring the glaring fact that the suit was dismissed as being incompetent and not maintainable, only by resolving the legal issues and such a substantial aspect of the case was altogether omitted from consideration by the Appellate Court which renders the impugned appellate judgment/decree as not sustainable. Secondly; it may be observed that it is always obligatory for Appellate Court to consider and decide all the contentions that may be urged during arguments by the parties' counsel or by the parties or as the case may be, in accordance With law and in the light of facts of each case for safe administration of justice; so that litigants enjoy absolute confidence in Courts without suffering any feeling that they have not been dealt with justly, fairly and equitably. Moreover, needless to observe by quoting the well- known principle of justice that not only justice has been done but the same seems to have been done to the, parties, always to be observed.
In view of the above reasons the impugned appellate Judgment is set aside and the appeal filed by the respondent/plaintiff shall be deemed as pending on the file of the learned Appellate Court which shall be decided afresh after notice to the parties and hearing them, in accordance with law and on its own merits. The result is that this civil revision is allowed in the above terms, leaving the parties to bear their own costs.