HAMID ALI MIRZA, J.- These two civil appeals with leave of this Court are directed against the common judgment and decree of the Peshawar High Court, Circuit Bench, Abbottabad dated 2.6.1996 in Civil Revision No. 196 of 1993 {Federation of Pakistan v. Sqn. Ldr. (R) Mushtaq Tahirkheli), whereby the appellants' civil revision was partly allowed, thereby judgment and decree with regard to relief claimed by the respondent Sqn. Ldr. (R) Mushtaq Tahirkheli for declaration and permanent injunction as per sub-paras (a) and (b) of the plaint were upheld, whereas the claim for relief in sub-para (c) with regard to damages was disallowed, therefor the appellant Federation of Pakistan preferred Civil Appeal No. 541 of 1997 with leave of this Court, dated 22.4.1997, whereas the respondent also being aggrieved by refusal of his claim with regard to damages also preferred an Appeal No. 1680 of 2002 with leave of this Court dated 13.11.2002.
2. Brief facts of the case are that respondent Sqn. Ldr. (R) Mushtaq Tahirkheli filed Suit No. 189/1 of 1990 for declaration that he was entitled to disability pension for 30% total disability, due to injuries and disease suffered by him, while in PAF active service which injuries/disease having been declared as attributive and aggravated by the service conditions, and because of order of the appellants Federation of Pakistan communicated to the respondent vide letter dated '8.11.1975 rejecting his claim for disability pension which order/decision of the appellants, was illegal, unlawful, without lawful authority, mala fide, perverse and consequently of no legal effect on the rights of the respondent which a further prayer for mandatory injunction with the direction to the appellants to release and pay disability pension to respondent from 26.12.1973 for life-time with interest on the arrears of pension and cost. The plaintiff in the suit also prayed for recovery of Rs.
24,000/- as damages due to mental torture and anguish caused by the appellants to him by wrongfully withholding his disability pension and expenses incurred by him on litigation. The respondent/plaintiff also filed am application under Section 14 of the Limitation Act for condonation of delay in filing suit on the grounds mentioned therein. The appellants/defendants filed written statement and denied the contents of the plaint so also claim of the respondent/plaintiff. The learned Trial Court of Senior Civil judge, Abbottabad, settled as many as fourteen issues with no issue on limitation" and recorded evidence of the parties and after hearing learned counsel for the parties, decreed the suit of respondent/plaintiff against the appellants/defendants. The appellants/defendants preferred Civil Appeal No. 10/13 of 1993 which was heard by Additional District judge, Abbottabad and was dismissed as per judgment and decree dated 14.6.1993. The appellants/defendants, thereafter, preferred Civil Revision No. 136/93 against the judgment and decree of learned two Courts below which was heard by learned judge in Chambers of the Peshawar High Court Bench, Abbottabad, which civil revision was partly allowed maintaining the judgment and decree with regard to the reliefs of declaration and injunction, however disallowed the relief of damages to the respondent/plaintiff, thereafter parties preferred their separate civil petitions for leave to appeal before this Court wherein leave to appeal was granted as said above.
3. We have heard both the appeals together as the same arise of the common judgment involving same facts and question of law.
4. Par (4) of the leave granting order dated 22nd April, 1997 in the petition filed by the appellant the Federation of Pakistan reads as under:- "It was contended by the learned counsel for the petitioners that the Courts below did not advert to the material legal issues pertaining to limitation, estoppel by conduct of the respondent, jurisdiction of the Civil Court and form of the suit. These issues have been dealt within a cursory manner. The facts that the respondent willingly continued in service after sustaining such injuries and subsequently duly promoted and after retirement got his entire pensionery benefits to his satisfaction, have been totally ignored by the Courts below, which has got material bearing on the decision of the case.
Leave is granted, inter alia, to consider the above contentions." Leave granting order dated 13.11.20Q2 in petition of Mr. Mushtaq Ali Tahirkheli reads as under:- "to consider whether the petitioner is entitled to recover a sum of Rs.24,000/- as damages for mantel torture and anguish."
5. Contentions of learned counsel for the appellants, Federation of Pakistan, are (i) that the suit was barred by limitation, (ii) that the Trial Court of Senior Civil judge, Abbottabad had no territorial jurisdiction to try the suit, (iii) respondent Mushtaq Ali Tahirkheli was barred to sue the appellants Federation of Pakistan on the principle of estoppel by conduct after having got the normal retirement pension under the rules, hence could not claim disability pension.
6. Respondent/plaintiff in his submissions submitted that all the three Courts, after proper assessm ent of evidence on record, have concurred in granting the reliefs to him in accordance with law except that the learned Judge in Chambers of the Peshawar High Court erred in law and facts in not granting damages Rs. 24,000/- to him. He submitted that the appellants cannot be permitted to challenge the finding on limitation, which finding being of fact and law, having not been challenged at the earlier stage arrived at by the Trial Court while dealing with preliminary issue and further that there could be no estoppel to claim right which under the law respondent is entitled as there could be no estoppel against the statute. He in the end submitted that he would not press his claim for damages and would withdraw his appeal.
7. Contention of learned counsel for the appellants Federation of Pakistan that the suit is barred by limitation has no merit, It would appear from the record that a preliminary issue was settled by the Trial Court with regard to the fact as to whether respondent/plaintiff was entided to condonation of delay in filing suit, if any, under Section 14 of the Limitation Act. The said issue was decided by the Trial Court as per detailed order dated 27.3.1991 with an observation at page 129 of the paper book of Appeal No. 1680 of 2002 as under:- "The words in the above section, underlined by me, are significant. A bare perusal of the provision of the above section of law makes it clear that only the plaintiff in a suit, is entitled to the extension of the concession provided for in this section who has been prosecuting the other civil proceeding with due diligence in good faith in a Court which from defect of jurisdiction was unable to entertain it.
The claim of the plaintiff to disability pension was rejected by the concerned quarter on 8.11.1975.
He, thereafter, filed appeal before the Pension Appeal committee which was duly acknowledged on 11.12.1975, but, according to the plaintiff, the result of his appeal was not communicated to him. He, however, through his personal efforts, came to know of the dismissal of his appeal by Deputy Secretary in the Ministry of Defence, whether, he served the defendants and other with a legal notice on 19.8.1979, and filed a writ petition in the High Court in the same year. The High Court dismissed his writ petition on 20.6.1989; and he moved a petition for leave to appeal in the Supreme Court in the same year, which was, however, refused on 14.3.1990. He, thereafter, filed a review petition which was also dismissed on 16.5.1990. He got the attested copies on 5.6.1990 and instituted this suit on 31.7.1990. The above dates would show that the plaintiff was prosecuting his remedy in the other forums with due diligence, It may be added here that the High Court and the Supreme Court did not dismiss the writ of the plaintiff on the ground of laches.
The food faith of the plaintiff is evident from the fact that any person having fairly good knowledge of law would be under the impression that the higher Courts have the jurisdiction to entertain the writ of the plaintiff after reading PLD 1975 SC 506, particularly, page 542, to which a reference has been made not only in the judgment of august Peshawar High Court at Abbottabad but also by the august Supreme Court of Pakistan. The good faith of the plaintiff is also apparent from the fact that he was so sure about the jurisdiction of the higher Court sin his matter that he was not contended with the judgment of the august Peshawar High Court at Abbottabad and not only moved petition for leave to appeal but also a review petition in the august Supreme Court of Pakistan. The detailed discussion of the High Court in the writ petition and the Supreme Court of Pakistan in the petition for leave to appeal on the point of jurisdiction also speaks of the good faith of plaintiff.
The august Peshawar High Court, at Abbottabad dismissed the writ of the plaintiff and the august Supreme Court of Pakistan refused leave to appeal to the plaintiff on the ground of the lack of jurisdiction in view of the provision of Article 199(3) of the Constitution.
Consequently, the plaintiff is entitled to the condonation of delay under Section 14 of the Limitation Act, 1908, and the issue is accordingly decided in the affirmative.
After condonation of delay in favour of plaintiff, his suit becomes within time and the same shall now proceed on other issues in the case. Order accordingly. File to come-up for framing of the remaining issues on 9.4.1991."
In view of above decision on preliminary issue, it would appear that the Trial Court did not frame issue of limitation while framing the other issues and after recording of evidence are hearing of learned Advocates for the parties judgment was pronounced by the Trial Court on the other issues except the issue of limitation which was already decided, It would also appear that the appellants Federation of Pakistan did not prefer civil revision against the finding of the Trial Court holding the suit to be within time and the said plea of limitation would not be considered at the time of final disposal of the suit.
8. The legal position as held by this Court time and again is that the finding on the preliminary issue can be agitated before the next higher forum after final decision in the suit, as in appeal whole case including interim order passed get reopened and can be challenged, therefore, the finding given on preliminary issue on the point of limitation cannot be said to have become resjudicata or that it would operate as estoppel on the ground that the said finding was not appealed against at the stage when the suit was not finally disposed of. Reference be made to (i) Mst. Khurshid Begum and others v. Ahmad Bakhsh and others (PLD 1985 SC 405 = PL] 1985 SC 483), (ii) Muhammad Ahram and others v. Khan Muhammad (1990 SCMR 1699 at page 1701) and (iii) Satyadhyan Ghosal and others v. Smt. Deorajin Debt and another (AIR 1960 SC 941 at page 944, para I6 column 2). In the instant case it may also be observed that the respondent/plaintiff had also moved an application under Section 14 of the Limitation Act for condonation of delay in filing suit and the Trial Court as per detailed order dated 27.3.1991 condoned the delay, It is admitted position that the respondent/plaintiff, after rejection of his appeal which he made to the Commander-in-Chief filed constitution petition in the High Court on 24.11.1979 which when dismissed, eh approached this Court for leave to appeal against that order of High Court which was declined and petition was dismissed and then filed review application which was ultimately dismissed on 16.5.1990 and thereafter he approached the Civil Court by filing civil suit on 31.7.1990. The learned Trial Court and the High Court have concurred on the finding that suit was not barred by time as the respondent/plaintiff was pursuing his remedy in good faith before other competent forums which under the law he was bound to approach and exhaust remedies available, In the said respect, reference may also be made to the decisions of this Court Province of Punjab v. Ikramul Haq and another (1986 SCMR 1994) wherein delay in filing appeal before the Service Tribunal was condoned under Section 14 of the Limitation Act as delay was occasioned by pursuing his remedies before the Federal Service Tribunal instead of Provincial Service Tribunal; wherein this Court at page 1998 in para 7 observed:- "The question whether the principles underlying Section 14 of the Limitation Act could be made applicable while considering an application for condonation of delay under Section 5, Limitation Act in an appeal before a Service Tribunal was considered in Muhammad Hasham Khan v. The Chairman Balochistan Service Tribunal and others (PLD 1983 SC 262) and it was held that the underlying principles of Section 14 would not ordinarily be excluded in such a case. We feel that the respondent was pursuing his remedy by means of an appeal before the Federal Service Tribunal in good faith. The order was passed against him by the President of Pakistan while he was serving the Federal Government . However, when the Federal Service Tribunal held that the respondent was holding a substantive appointment by virtue of his lien under the Punjab Government, and hence was a civil servant under the Punjab Civil Servants Act, he had to file an appeal before the Punjab Service Tribunal. Indeed he had submitted a petition for leave to appeal against the order of the Federal Service Tribunal, vide Civil Petition No. 623-R of 1983, and simultaneously submitted an appeal before the Punjab Service Tribunal. Subsequently he withdrew the petition from this Court on 4th March, 1984, in order to pursue his remedy before the Punjab Service Tribunal. Subsequently he withdrew the petition from this Court oh 4th March, 1984, in order to pursue his remedy before the Punjab Service Tribunal, In his application for condonation of delay the respondent had explained that he was at Lahore when the Federal Service Tribunal decided his appeal and the intimation of the judgment was received by him on 13th September, 1983. He then applied for certified copies of judgment and appeal alongwith annexures which were supplied to him on 12th October, 1983. On the next day he presented the appeal before the Punjab Service Tribunal. The learned Service Tribunal having taken into consideration the explanation for the delay exercised its discretion to condone the delay. We find no illegality or perversity in the exercise of the discretionary power vesting in the Tribunal and, therefore, find that the exercise of jurisdiction is not open to exception."
(ii) Federation of Pakistan v. Muhammad Azam Javed and others (1988 SCMR 1458) wherein delay under Section 14 of the Limitation Act was condoned when the order of discharge was found to be violative of law and without lawful authority wherein this Court at page 1469 observed:- "So far as the question of limitation is concerned and of exhausting the departmental, remedies prescribed under the law, the Tribunal dealt with it, in the following words:- "We have given our thought to the technical objection raised above but are unable to accept it, for the reason that, although the representation was made directly to the appellant authority and not through the head of the Pakistan Rangers under whom the Appellant was serving before the termination of his service, in our opinion, this cannot constitute a reason for treating the departmental appeal as invalid. The Tribunal has consistently taken the view that, whenevpr a civil secant makes a departmental appeal or representation or application for review of a departmental order, if such representation is made to the wrong quarters, it is the duty of the authority receiving the application or representation to forward it to the proper authority, In this case, if the representation had been wrongly sent directly to the appellate, authority, it was the duty of the appellate authority to send it down to the original authority who passed the impugned order, for processing it according to the rules, In view of this, we repel the preliminary objection and proceed to discuss the case on merits." It may also be observed that the instant suit being declaratory one, therefore, Article 120 of the Limitation Act would be attracted for which period of six years has been provided which period would run from the date when cause of action would arise to an aggrieved person or when the right to sue would accrue to the aggrieved person. Iii the instant case admittedly when the respondent/plaintiff came to know about rejection of his appeal, he filed writ petition and when the same was dismissed for want of jurisdiction, he moved this Court for leave to appeal which petition too was dismissed, he preferred review application which finally was dismissed on 16.5.1990 and suit having been filed on 31.7.1990 could not be said to be barred by time in view of Article 120 of Limitation Act and delay, if any, having also been condoned by the Trial Court under Section 14 of the Limitation Act as said above, In the circumstances the contention that suit was barred by time has no merit.
9. So far the contention that the Court of Senior Civil fudge has no territorial jurisdiction to try the suit has also no merit, considering that on perusal of the written statement no specific issue with regard to absence of territorial jurisdiction was raised by the appellant Federation of Pakistan but only vague and general plea of want of jurisdiction was raised, therefore, in view of Section 21 of CPC, the objection with regard to place of suing shall not be allowed either by Trial Court or revisional Court, if the same was not raised at the earliest possible opportunity and in case it would have been raised the respondent/plaintiff would have led evidence on the said plea considering also that no such specific issue was even framed by the Trial Court. Reference may also be made to the decision of this Court Ch. Ghulam Nabi v. Mian Javed (1994 SCMR 1893) wherein this Court at page 1897 observed:- "A plain reading of the above section indicates that no objection as to the place of suing can be allowed by any appellate or revision Court unless such objection was taken in the Court of the first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice, In other words, by virtue of the above provision of C.P.C., appellate or revisional Court is precluded from allowing objection as to the place of suing, whereas in the Court of first instance, such objection can be raised but that too at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice." and (ii) Province of Balochistan and another v. Messrs Saleem Brothers (PLD 1985 Quetta 48), (iii)
Muhammad Farash Khan v. Mst. Nishadar Jan (PLD 1983 SC (A]SCK) 43 at page 55), (iv) Bahrein Petroleum CoL Ltd. v. P.J. Pappu and another (AIR 1966 SC 634 at page 636, para 7), and (v) Hira Lai Patni v. Sri Kali Nath (AIR 1962 SC 199 at page 200 para 4). It may also be stated that respondent/plaintiff came to know about rejection of appeal at Abbottabad, therefore cause of action in the jnstant suit wholly and partly arose in view of sub-section (c) of Section 20, CPC at Abbottabad within the local limit of the Court of Senior Civil Judge, Abbottabad considering that the appellant/Federation of Pakistan could not be said to carry on business or could be said to reside or to work for gain as the said terms have been used with reference to natural person.
Reference may be made to Pakistan v. Waliullah Sufani (PLD 1965 SC 310) and (ii) Muhammad Saeed v. Federation of Pakistan (PLD 1954 Sindh 117). In the circumstances the said contention has no merit and substance, considering also the concurrent finding arrived at by the learned Judge in Chambers of the Peshawar High Court and the Trial Court cannot be interfered with by this Court.
10. The last submission of the learned counsel for the petitioner with regard to the fact that the respondent/plaintiff was barred to sue the appellants Federation of Pakistan on the principle of estoppel by conduct on the ground that after having obtained normal retirement pension under the rules he cannot agitate his claim with regard to disability pension. We do not find merit and substance in the said contention as well. Ex-PW-1/4 Joint Services Instruction No. 45/65, dated 16.7.1995 runs:- "An officer who has been released from military service in medical category higher than ' ' or equivalent in PAF may be awarded by the Government on the merits of each case a disability m element to the rate appropriate to his degree of disablement at the following rates:- Percentage of degree of disability Rs. Per annum I0O 1,335 Less than I0O But not less than 90 1,200 - do- 90 -do- 80 1,055 -do- 80 -do- 70 935 -do- 70 -do- 60 800 -do- 60 -do- 50 665 -do- 50 -do- 40 535 -do- 40 -do- 30 400 -do- 30 . -do- 20 265 Para-3 of the said JSI reads:- "The provisions of this JSI will not apply in cases where a military officer when placed in medical category higher than ' E" is not released but continues to serve for such period as would enable him to earn enhanced service pension."
Admittedly the respondent/plaintiff continued to service PAF in the G.D. Administration Branch after he was diagnosed for miocardiac ischaemia and thereafter he was promoted in G.D. Branch to the rank of Squadron Leader which enable him to earn enhanced pension and the fact that the respondent/plaintiff was not invalidated out of service because of said disability and it earned normal retirement. The fact that the respondent continued in service apd his transfer to G.D.
Administration Branch was a change of branch within [Vol.XXU Federation of Pakistan through Secry. Genera! S.C. 381 Ministry of Defence V..Sqn. Ldr. (R) Mushtaq Ali Tahirkheli (Hamid Ali Mina, J.)
AF, therefore in view of para 3 of JSI 45/65 his continuance in service wbuld enable him to earn enhanced pension of 30% total disability, aggravated by service condition as determined by Medical Board in September, 1974. It has also been observed that the rejection letter of the appellants Federation of Pakistan did not state as to how respondent/plaintiff would not be entitled to enhanced pension in spite of his continuance in service, considering pay slips Ex.PW-1/4 being in GD(P) and pay slip Ex.PW-1/16 after transfer to G.D. (Administration). Therefore admittedly the respondent/plaintiff was entitled 30% total disability pension and his case could not have been thrown merely on the basis of the exclusion clause of JSI 45/65. As the respondent/plaintiff was examined by the Medical Board about his degree of disability, warranting invalidment release, the directions contained in letter dated 16.7.1974 Ex.PW- 1 /3 should have been taken to logical conclusion and his normal retirement on 25.1.1974 should have been converted into invalidment retirement/release granting the respondent/plaintiff disability pension which the appellant Federation of Pakistan wrongfully and unjustifiably denied. The fact that the respondent obtained normal retirement pension therefore/ he would be estopped to make his claim with regard to disability pension which otherwise, as said above, he was entitled, would not operate as estoppel by conduct, It may be stated that conduct founded on mistake of fact or wrong interpretation of law would not bind the party and such conduct would not come in the way of the party having otherwise a right to make claim.
11. We find that the learned Judge in Chambers has ably discussed in detail the entitlement of the disability pension of the respondent/plaintiff in the impugned judgment which warranted no interference, considering the cogent reasons arrived at, after considering the evidence of the parties keeping in view the instructions of the appellants issued and there being no rebutting evidence of the appellants/defendant. Accordingly, Appeal No. 541 of 1997 filed by the Federation of Pakistan has no merit, consequently the same is dismissed.
12. So far the appeal filed by the respondent/plaintiff with regard to claim of damages of Rs. Twenty four thousand, the same having not been pressed, also stands dismissed.