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P L D 1957 (W. P.) Lahore 378

 

Before Akhlaque Husain, J

 

RASHID INAYAT‑Plaintiff‑Appellant

 

Versus

 

THE FEDERATION OF PAKISTAN‑Defendant –Respondent

 

Second Appeal No. 77 of 1955, decided on 22nd March 1957, from the decree of the Court of Ch. Muhammad Ali, Senior Civil judge, with Enhanced Appellate Powers, Rawal pindi, dated the 30th October 1954, affirming that of Mian Muhammad Salim, Civil Judge. First Class, Rawalpindi, dated the 8th April 1953.

 

S. M. Zafar, Advocate for Appellant.

 

Sheikh Muhammad Iqbal Husain, Advocate for the A. G., West Pakistan for Respondent.

 

Date of hearing : 19th March 1957.

 

JUDGMENT

 

AKHLAQUE HUSAIN, J.‑——This second appeal arises out of a suit by the plaintiff appellant against the Federation of Pakistan (now Islamic Republic of Pakistan) for a declaration that he had been wrongfully dismissed from his service in the North Western Railway where he was employed as a shunter, and that the order of his dismissal was null and void and inoperative. The suit was dismissed on the findings of the trial Court on the following two issues which were against the plaintiff :‑

 

(1) Is the notice under section 80, Civil P. C. invalid ?

 

(2) Is the suit within time ?

An appeal to the learned Senior Civil Judge, Rawalpindi, having failed, the plaintiff has come up to this Court in second appeal.

 

As regards the second issue, both the Courts below held that the suit, which was brought more than a year after the plaintiff’s dismissal order, is barred by Article 14 of the First Schedule to the Limitation Act. That Article applies to a suit “to set aside any act or order of an officer of Govern ment in his official capacity, not herein otherwise‑ expressly provided for”. It is not in terms applicable .to the present suit which is one for declaration, The applicability of this Article could not have been decided without further deciding that the plaintiff was not entitled to the declaration asked for and was bound to sue for setting aside the order of his dis missal. There may be other objections to applying that Article to the present suit. It is, however, unnecessary to mention or consider them in view of the admission by the respondent’s learned counsel that the decision on the second, issue was premature and that in the particular circumstances of this case it could not have been treated as a preliminary issue and decided without going into the merits of the case.

 

On the first issue both the lower Courts have found that the notice in question is bad only for the reason that the date of the plaintiff’s dismissal is not mentioned therein. It is contended by the defendant’s learned counsel that the omission of the date is tantamount either to non‑statement, or incomplete statement, of the cause of action as required by section 80 of the Code of Civil Procedure. While I cant visualize cases where the omission of the date on which the E cause of action accrued‑ to the party giving notice may be al fatal defect, I cannot subscribe to the proposition that it is so in every case.

 

In the notice in question the cause of action was des cribed in para 2 as follows :‑

 

“That he was charged for a mis‑declaration and has been wrongly dismissed from service”.

 

In the other five paragraphs the facts relevant to the plaintiff’s dismissal have been set out at length. There has been a considerable divergence of opinion between the various High Courts in this sub‑continent on the question as to what would constitute sufficient compliance with the provisions of section 80, Civil P. C. A Division Bench of this Court, of which I was a member, has recently held in Mrs A. V. Isaacs v. The Federation of Pakistan (P L D 1954 Lah. 800) that what is required is a substantial, and not strict compliance with the require ments of the section. Notice in that case was upheld even C though it failed to mention one of the reliefs claimed in the suit.

 

The cases reported as Vellayan Chettiar v. The Govern ment of the Province of Madras (AIR1947PC197:PLD1947PC160) and The Talukdari Settle ment Officer v. Bhaijibhai Ishwardas (16 1 C 445) relied upon by the respondent have no bearing on the facts of the present case. In the former case one of the two plaintiffs had not given a notice at all and the second case was really a case of a notice which had been given before the actual accrual of the cause of action. There are some observations in Konnoth Meenakashi Amma v. Province of Madras (A I R 1946 Mad. 73), which lend some support to the respondent’s contention but these run counter to the decision in Mrs. A. h. Isaacs v. The Federation of Pakistan and cannot, therefore, be acted upon.

 

In the circumstances of this case, it cannot be contended that the authority to which the notice was addressed was, in any way, misled by the omission of the date of the order of dismissal. It must, therefore, be held that the notice is not invalid, as alleged.

 

Before parting with this judgment I would like to make, another observation. The second plea which was raised the written statement regarding the notice was that its validity was denied. The ground on which this denial was based was disclosed for the first time during the arguments on the first issue. Such pleadings are to be strongly, deprecated since they are calculated to spring surprises upon opposite party as also upon the Court during the final argu ments. It would appear that in this case the plea was taken ‑as it is taken in similar cases‑as a matter of routine with out knowing or considering the ground upon which it was to be pressed during the arguments.

 

For the above reasons, I allow this appeal with costs and set aside the judgment and decree of the Court below. The case is remanded to the trial Court for decision on merits, and on the second issue, according to law.

 

A. H. Appeal allowed.

 

 

 

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