SECRETARY, MINISTRY-OF HEALTH, LABOUR AND SOCIAL WELFARE, GOVERNMENT OF PAKISTAN Versus Syed YASIN SKAFF SHAH
AJMAL MIAN, J.‑‑ This High Court Appeal is directed against the judgment/decree dated 24‑11‑1987 passed by a learned Single Judge, of this Court in Suit No.141 of 1980 decreeing the suit of the respondent for a sum of Rs.33,518.48 as well as full salary for six months and half salary for six months in lieu of LPR.
2. The brief facts leading to the filing of the above appeal are that the respondent was first employed as L.D.C. in the Karachi Police where he had shown his date of birth as 20th July, 1916. After his discharge from the Karachi Police he was employed in the Home Department as U.D.C. In his service book date of birth was entered as 20‑7‑191.4 instead of 20th July, 1916. It seems that after being unsuccessful through a Writ Petition for correction of his date of birth, filed Suit No.194 of 1984 in the Court of V11Ith Civil Judge, Karachi on 21.‑1‑1969 for the correction of his date of birth in the service book, which was decreed on 16‑10‑1972. Against the above judgment/decree the appellant filed First Appeal No.77 of 1972 in the erstwhile High Court of Sind and Baluchistan, which was dismissed on 16‑1‑1974. After that the appellant filed a Petition for Leave to Appeal, namely, Petition No.40/K of 1974 to the Supreme Court, but the same was declined by an order dated 5‑9‑1974. After that the respondent filed an execution application No.13 of 1972 which was dismissed by the learned District Judge, against which he filed an appeal in this Court which was also .dismissed. The respondent then filed an application before the Service Tribunal which was dismissed. His Petition for Leave to Appeal was also dismissed by the Supreme Court on 8‑3‑1977.
3. It further seems that the Deputy Attorney‑General who was appearing in the High Court made a statement on 19‑10‑1976 in the earlier litigation that to case of failure of the appellant before the Supreme Court against the above judgment/decree of the VIIIth Civil Judge dated 16‑10‑1972 the appellant would pay the entire salary due to the respondent including the time‑barred arrears. Thereupon, the Court had directed the respondent on 30‑10‑1977 to file statement of account of his dues and supply a copy thereof to the Deputy Attorney‑General which was done on 24‑11‑1977. The appellant instead of paying the full amount of the salary paid a sum of Rs.9,275 in pursuance of sanction accorded on 19‑12‑1977. After that the respondent filed the above suit for the recovery of the balance of his salary and the salary for the leave period on the assumption that the correct date of birth was 20th July, 1916; and that he remained in service upto July, 1976. The above suit was resisted by the appellant. On the basis of the pleadings of the parties, a learned Single Judge of this Court framed the following issues;
(i) Is the suit barred by limitation?
(ii) Is the suit barred under section 79 and Order I Rule 3, C.P.C.?
(iii) Is the suit in contravention of Order VII Rule 1(f) 14 and 26 of the C.P.C. and if so to what effect?
(iv) Since when and upto what period the services of the plaintiff are liable to be counted?
(v) Has the plaintiff any cause of action as alleged?
(vi) Has the plaintiff suffered damages, if so to what amount of compensation?
(vii) Is the suit vague, misconceived and the defendant entitled for special cost?
(viii) What should the decree be?
4. The respondent in support of the suit examined himself and produced the Order of the Supreme Court (Ext.5/1) judgment of Civil Court (Ext.5/2), judgment dated 16‑1‑1974 (Ext. 5/3), copy of order of Supreme Court dated 5‑9‑1974 (Ext.5/4), copy of order dated 3‑6‑1976 (Ext.5/5), copy of order of Supreme Court dated 8‑3‑1977 (Ext.5/6), copies of orders dated 31‑3‑1976 and 19‑10‑1976 (Exts.5/7 and 5/8), copy of decree passed in Suit No.194 of 1972 (Ext.5/9), copy of the letter dated 30‑4‑1973 (Ext.5/10), letter dated 29‑11‑1977 (Ext.5/11), covering letter dated 11‑1‑1978 (Ext.5/12) and its reply (Ext.5/13) and had closed his side, whereas the appellant did not examine any witness.
5. The learned Single Judge after hearing the parties decreed the suit in the above terms. The appellant being aggrieved by the above judgment/decree has filed the present High Court Appeal.
6. In support of the above appeal Mr.Akhlaq Ahmed Siddiqui, learned counsel for the appellant has vehemently urged that the decree is not sustainable as the claim was time‑barred; and that it was also barred by Order 11, Rule 2, C.P.C.
In our view, the learned Single Judge has rightly concluded that the cause of action accrued to the respondent for the balance amount of the salary etc. when the respondent was paid a sum of Rs.9,275 only on or about 18‑12‑1977 instead of making payment of the full amount. We are also inclined to hold that the provisions of Order II, Rule 2, C.P.C. are not applicable to the present case as in the previous litigation the only question in issue was the date of birth of the respondent wrongly recorded in the service book and not his right to claim salary. As pointed out hereinabove the learned Deputy Attorney‑General appearing for the appellant as late as on 19‑10‑1976 made a statement before the Court that the appellant would pay even time‑barred arrears of the salary in case the appellant failed to obtain leave from the Supreme Court against the judgment/decree of the Civil Judge and the High Court which in fact the appellant failed to obtain..
7. We may observe that the respondent appears to be an old person of about 74 years and there has been litigation for quite considerable period, the learned Single Judge has dealt with the points raised by the appellant thoroughly and, therefore, we are not inclined to admit the above appeal. It is dismissed in limine.
These are the reasons in pursuance of short order of even date.
S.O./S‑213/K Appeal dismissed.