PROVINCE OF PUNJAB Versus MUHAMMAD ANWAR

IRSHAD HASAN KHAN, ACTG. C.J. ---This petition for leave to appeal is directed against the judgment of the Lahore High Court, Lahore, dated 18-2-1998 passed in Civil Revision No. 1520-D of 1998.

2. The brief facts are that the respondent was dismissed from service on 9-11-1967. His departmental appeal, dated 10-10-1968 (Exh.D-II) was dismissed on 17-5-1968 and second appeal was also dismissed on 30-10-1968. The respondent instituted a suit for declaration challenging the orders, dated 9-11-1967, 17-5-1968 and 30-10-1968. The learned Judge Small Cause Court, Lahore vide an ex parte judgment and decree, dated 1-12-1981 allowed the suit in favour of the respondent/plaintiff.

3. The petitioner filed an appeal for setting aside the ex parte judgment and decree, dated 1-12-1981 and the order, dated 27-3-1988, which was dismissed by the learned Additional District Judge vide judgment, dated 18-6-1988. Feeling aggrieved, the petitioner filed a civil revision in the Lahore High Court, Lahore, which was also dismissed by a learned Single Judge vide impugned judgment, dated 18-2-1998.

4. Mr. Muhammad Nawaz Bhatti, learned Additional Advocate General, Punjab, states that the Courts below have failed to appreciate that law favours adjudication and decision on merits instead of knocking down a party by technicalities, that in terms of section 8 of the Punjab Service Tribunals Act, 1974, all suits, appeals and applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the establishment of the appropriate Tribunal shall abate on the establishment of such Tribunal, and an aggrieved party to such a suit, appeal or application, could only approach the Tribunal within ninety days of the establishment thereto by preferring an appeal in respect of any matter which was in issue in such suit, appeal or application. On these premises it is argued that the entire proceedings before the trial Court were coram non judice and of no legal effect. Be that as it may, a bare reading of clause (c) of section 4 of the Act shows that no appeal was competent before the appropriate Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969. The order of dismissal from service of the respondent was admittedly passed on 9-11-1967. Hence, the suit filed by the respondent was appropriate and competent.

5. We have heard the learned Additional Advocate-General on merits and find that the learned Judge in Chambers was right in holding that the Government Pleader had failed to appear before the learned Court which resulted in ex parte proceedings, and the application under Order IX, rule 13, C.P.C. for setting aside the ex parte decree, was also dismissed vide A order, dated 27-3-1988.

6. . The impugned judgment of the High Court does not suffer from any illegality. Clearly the opposite-party cannot be penalized for negligence of the petitioner-Government in not appearing before the Court despite service. A valuable right has accrued to the respondent by efflux of time and he cannot be deprived of the same on the ground urged by the learned Additional Advocate-General. Resultantly, the petition is dismissed and leave declined.

H.B.T./P-51/S Petition dismissed.