TRUSTEES OF THE PORT OF KARACHI Versus FAQUIR MUHAMMAD

1. This revision petition is directed against the judgment, dated 10‑1‑1991 passed by the IInd Additional District Judge, Karachi, whereby allowing the appeal filed by the respondent and setting aside the judgment and decree of the IInd Senior Civil Judge, Karachi, West dismissing the suit of the respondent.

2. The facts leading to the filing of the above revision petition are that the respondent was employed as electrician by the appellant. The respondent at the time of his appointment was medically examined by the Chief Medical Officer of K.P.T. and his age was thirty years but age of the respondent as shown by the Medical Officer by appearance was about 40 years. This position came in knowledge of the respondent on enquiry on 11‑5‑1983. The petitioners served the respondent with a notice in which the age of superannuation (60) sixty years has been shown on 18‑11‑1983. The respondent averred in his plaint that actually on 18‑11‑1983, his age would be fifty years. The respondent made a written request to petitioner No.2 for withdrawal of notice of retirement which was not acceded to. In these circumstances, the respondent filed suit against the petitioners, for the following reliefs:‑

(a) For declaration that the plaintiff will reach to the age of superannuation in the year 1993.

(b) For declaration that the notice of retirement of the plaintiff from 18‑11‑1983 is based on mala fides and hence illegal.

(c) For permanent injunction restraining the defendants, their agents, servants or any person or persons from retiring the plaintiff from service before the age of superannuation.

(d) Costs of the suit.

(e) Any other relief or reliefs this Hon'ble Court thinks fit and proper under the circumstance of the case.

3. The petitioners contested the suit and filed their joint written statement. The petitioners raised legal objections that the suit is not maintainable and is barred under sections 42 and 56 of the Specific Relief Act. The petitioners stated in their joint written statement that in the absence of any documentary evidence, the medical officer after examining the respondent certified his age to be forty years. The petitioners denied that the said position came in the knowledge of the respondent on 11‑5‑1983. On the pleadings of the parties, the trial Court framed the following issues:‑

(i) What was the age of plaintiff at the time of his appointment considering the certificate of Chief Medical Officer, KPT and certificate of Civil Surgeon, Karachi?

(ii) What age of retirement be taken in view of Findings on the issue No.1?

(iii) Whether the plaintiff is entitled to relief claimed for?

(iv) What should the order be?

4. The parties led the evidence in support of their respective contentions. The learned trial Judge discussed issues 1 and 2 together. The trial Court, on assessment of the evidence of the parties, came to the conclusion that the respondent admitted that there was no documentary evidence to show his actual age at the time of his appointment, the respondent was referred to the Chief Medical Officer for medical examination. The Chief Medical Officer examined him and determined that the age of the respondent was forty years. The plea of the respondent that it came to his knowledge on 11‑5‑1983 was not accepted by the trial Court. In that view of the matter, he held that the correct age of the respondent at the time of appointment is as given by the Chief Medical Officer, KPT and that age to be taken for the retirement of the respondent. In that view of the matter, he held that the respondent was not entitled to any relief. Consequently the suit was dismissed. The respondent being aggrieved by the judgment and decree of the trial Court, preferred an appeal being Civil Appeal No.74 of 1990. Ultimately the appeal was heard by the IInd Additional District Judge, Karachi West.

5. During the pendency of the appeal, the respondent was retired and the learned counsel appearing for the respondent fairly conceded before the lower appellate Court that the respondent will not resort to the prayers made in the plaint; if benefits available to him under the law are allowed. The counsel appearing for the petitioners attempted feebly to argue this proposition. The learned Additional District Judge observed as follows:‑

6. " ..in the interest of justice, keeping in view the norms, more particularly rules of service of the employees of K.P.T. as well as attending circumstances of the case, I hereby hold that the appellant has retired from his service w.e.f. 20th December, 1990, as such' he is entitled to all benefits available to him under the theme of service laws and rules till then."

7. The petitioners being aggrieved have filed the present revision.

8. I have heard Mr. Abbas Ahmed in support of the revision petition and Mr. Syed Abbas Zia learned counsel appearing for the respondent. I have gone through the impugned judgment and perused the R & P of the case.

9. In the present case, as already stated, the case of the plaintiff/respondent is that notice of this retirement from service served on him by the petitioners was invalid inasmuch as the plaintiff/respondent did not attain the age of superannuation which is 60 years on 18‑11‑1983, for his date of birth was 19‑1.1‑1923. Accordingly, if the plaintiff/respondent did attain 60 years of age on 18‑11‑1983, the petitioners would be justified in requiring him to retire on that date but if on the other hand the contention of the plaintiff/respondent that he would retire on 18‑11‑1993 is correct, the notice requiring him to retire on 18‑11‑1983 would be bad inasmuch as it violates terms of service. Therefore, such a question as is raised in the present suit is not tantamount to asking for enforcement of a contract of personal service or, for the matter of that for retirement. Accordingly, the provision of section 21(1)(b) of the Specific Relief Act is no bar and such a suit is entertainable by a Court of law.

10. The suit was dismissed on 18‑12‑1990 and the respondent was retired from service on 20‑12‑1990. The learned counsel appearing for the respondent before the lower appellate Court submitted that the respondent will not resort to the prayers made in the plaint if benefits available to him under the law are allowed. The learned Additional District Judge held that the respondent is entitled to all benefits available to him under the service laws and rules till then.

11. It is settled position that in appropriate cases, the Court can take subsequent events into consideration to do complete justice between the parties and the Court would be justified in acting upon such subsequent events as are admitted by both the parties and have a material hearing on the decision of the case.

12. The trial Court, while dismissing the suit, dealt with the question as to whether the notice of retirement was valid or not or as to whether the respondent was to attain the age of 60 years on 18‑11‑1983 or on 18‑11‑1993 and on a detailed consideration of evidence (oral and documentary) came to the conclusion that Chief Medical Officer's certificate was within the knowledge of the respondent and the respondent admitted that he had no document to show that he was thirty years old at the time of his appointment.

13. The legislature has entrusted a very important duty to the first appellate Court and it is for that Court to decide finally all questions of fact on which the disposal of the suit might depend. It must also appear on a perusal of" the judgment passed by the lower appellate Court that it has made a sincere endeavour to make proper appraisement of the merits of the case put forward by the parties. In a case of reversal or disposal of appeal on contentions made by the learned counsel appearing for the appellant, it is all the more important for the Court of appeal below to consider the evidence and the reasonings of the trial Court and only thereafter to give its reasons for not agreeing with the findings of the trial Court. A perusal of the judgment must show that the lower appellate Court has or has not applied its mind to the evidence on record.

14. The trial Court dismissed the respondent's suit.' Whether the plaintiff/respondent could get a declaration or not was the most important question to be considered by the Court of appeal below; more so, when the, trial Court in arriving at the finding that the plaintiff was forty years of age as certified by Chief Medical Officer, K.P.T. at the time of examination o p plaintiff, is correct and the correct age of the plaintiff at the time o appointment is as given by the Chief Medical Officer and that age to be taken for the retirement of the plaintiff. Whether the age given by the Medical Officer was correct or not, was the question to be considered by the lower appellate Court. The view taken by the Court of appeal below to the effect that the plaintiff is entitled to all the benefits upto the date of retirement i.e 20‑12‑1990, cannot be considered as proper.

15. In view of the settled principles of law, as already stated above, the Court of appeal below should have taken into consideration the reasonings o the trial Court and the evidence on the record which it did not do; more so, when the Court of appeal below was reversing the judgment and decree of the trial Court.

16. In the result, the appeal is allowed and the judgment and decree of the Court of appeal below are set aside. The case is sent back to the Court of appeal below for a fresh decision in accordance with law, after hearing the parties, on the materials already on the record within two months from 8‑2‑1992. However, there will be no order as to costs. The parties will be entitled to argue all the points available to them in law. The parties through their counsel are directed to appear before the IInd Additional District Judge, Karachi West on 8‑2‑1992.

17. H.B.T./T‑126/K Appeal allowed.