THE DIRECTOR-GENERAL, COAST GUARDS OF PAKISTAN Versus FAZLE GHANI KHAN
1. This Revision Application is directed against the order dated 12‑1‑1988 passed by the learned IVth Additional District Judge (South), Karachi whereby he allowed the appeal of respondent and decreed the suit of the respondent for Rs. 50,000 with interest of 12 % per annum alongwith the cost of the suit. I have heard Mr. Akhlaque Ahmed Siddiqui, learned counsel appearing for the appellant and Mr. Mubin Ahmed, learned counsel appearing for the respondent on preadmission notice.
2. The brief facts leading to this litigation are, that the respondent is an Advocate, who was engaged by the appellant No. 1 to appear on his behalf before the Hon'ble Supreme Court in his Appeal No. 181 of 1981. Admittedly, no fee was settled at the time of the engagement, and no fee was paid to the respondent even after disposal of the appeal in the Supreme Court. The respondent, therefore, after service of notice upon appellants filed suit claiming his professional fee at Rs. 50,000. The appellant resisted the suit on the grounds, that fee had to be fixed by the Ministry of Law and that the respondent had abandoned the case which they had to pursue through some other advocate. On the pleadings of the parties, the trial Court settled the following issues.
(i) Whether the suit is not maintainable?
(ii) Whether the plaintiff is entitled to recover the amount of Rs. 50,000 with interest from the defendant?
(iii) What should the decree be?
3. It may be pointed, that issue No. 2 is issue of fact, and on this issue both the learned Courts below have given concurrent findings that respondent is entitled to receive Rs. 50,000, as his professional fee with interest from the defendant/appellant. However, on issue No. 1 the learned trial Court was of the opinion, that the cause of action even according to the plaint accrued to the respondent on 2nd July, 1981, while the suit was filed on the 3rd of July, 1984 viz. after period of three years, therefore, the suit was barred by limitation. The learned appellate Court did not agree with this finding of the learned trial Court and set aside the finding of the learned trial Court on issue No. 1, and consequently, decreed the suit.
4. The learned counsel for the appellant has assailed the judgment of the learned appellate Court on two grounds.
(i) That the proper parties have not been joined in the suit.
(ii) That the suit is time‑barred.
5. It is contended by Mr. Akhlaque Ahmad, learned counsel for the appellant, that the appellant No. 1 Coast‑Guards was under control of the Ministry of Interior, therefore, Government of Pakistan, who is appellant No. 2, should have been sued through Secretary, Ministry of Interior and not through Ministry of Defence. Reference was made to section 79, C.P.C. which provides, that in suits by or against Government the authority to be named as plaintiff, or defendant as the case may be, shall be .... a) in the case of suit by or against Federal Government `Pakistan'. Pakistan has been impleaded as party of the suit. The law does not require that `Pakistan' be impleaded through any Secretary. 1 Even if Pakistan has been impleaded through a wrong Secretary, it would not affect the maintainability of the suit. Federal Government of Pakistan has been impleaded by making Pakistan as party. The Secretaries are the employees/agents of the principal viz. Federal Government. If wrong Secretary was named in the plaint it was the duty of that Secretary to forward the case to A the concerned Secretary for pursuing it in the Court. Pakistan has been impleaded as defendant No. 2 and defendant No. 2 did contest the suit as well as appeal. He was not at any stage declared as ex parte. Therefore it cannot be said that proper parties were not before the Court, and that consequently suit was not maintainable.
6. With regard to the question of the limitation, the learned appellate Court has pointed, that 2nd July, 1984 was a closed holiday due to Eidul‑Fitr, and therefore, respondent could file suit on the next opening day. It was pleaded before the learned appellate Court, that as this plea was not raised by respondent before the trial Court, therefore, it could not be raised before the learned appellate Court. It may be pointed, that even in the written statement no plea was specifically raised that the suit was time-barred, therefore, the appellate Court did not commit any illegality by taking into consideration the plea of the respondent that 2nd July was a closed holiday. Under section 4 of the Limitation Act, where period of limitation prescribed expired on a day when the Court is closed, the suit may be instituted on the day the Court reopens. Besides, admittedly notice under section 80, C.P.C. was served upon the appellants, under section 12 (2) of the Limitation Act, this period has to be excluded. In view of these provisions of law I the suit cannot be considered as time‑barred.
7. With respect to the amount of fee both the Courts below have given concurrent findings. Admittedly no fee has been fixed or paid by Ministry of Law C so far. The respondent is a Senior Advocate of Supreme Court and the Courts have given cogent reasons for fixing his fee at Rs. 50,000. I find no merit in this Revision Application, which is accordingly dismissed in limine .
8. AA./D‑33/K
9. Revision dismissed.