1984 PLP 247 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑Sherdil Khan, first respondent, who is a diploma‑holder from Ishanullah Engineering College, Dacca, is aggrieved by the orders of promotion of the petitioners, who are so qualified, as Sub‑Engineers in Grade 16 N: W. F. P. Public Works Department. In this connection two Government Notifications are relevant. The first Notification, dated I1‑1‑1979 by which the said respondents were promoted and second Notification, dated 13‑1‑1979 whereby the newly promoted officers postings and transfers were ordered.

2. The first respondent, therefore, brought a suit in the Court of Senior Civil Judge, Peshawar, for a declaration challenging the validity of Notifica tion, dated 13‑1‑1979 instead of Notification dated 11‑1‑1979 and for mandatory injunction for his own promotion by way of consequential‑ relief. During the pendency of the suit, the first respondent, however, prayed for withdrawal of suit with permission to file a fresh suit as provided by Order XXIII, rule 1(2) of the Code of Civil Procedure. The trial Court without disposing of this application dismissed the suit on the preliminary issue that the suit was barred under section 56(d) of the Specific Relief Act vide judgment, dated 3‑5‑1979. The first respondent challenged the decision of the trial Court by way of an appeal, which came up before the learned Additional District Judge, II Peshawar, before whom the said respondent repeated his prayer for withdrawal of suit with permission to refile a fresh suit. Referring to application which remained undisposed of before the trial Court, the learned Additional District Judge, took the view that in fact the first respondent was aggrieved by the first Notification, dated 11‑1‑1979 which furnished the cause of action to the respondent and, therefore, the question of jurisdiction of the Court or the statutory bar on the grant of relief, could only be considered after deciding the application made by the first respondent before the trial Court. In this view of the matter the learned Judge set aside the judgment and decree passed by the trial Court, and remanded the suit for a fresh decision according to law, after recasting the issues on the pleadings of the parties. However, it was left open to the Court to take up and decide the application for with drawal of suit lying undecided and dispose it of first. The remand order thus passed in appeal vide order dated 1‑5‑1980 was challenged in appeal before the High Court unsuccessfully, by the petitioners, hence this petition for special leave to appeal.

3. The main contention advanced in support of this petition is that the remand order was not in accordance with law inasmuch as the question of jurisdiction and competency of the suit, was a pure question of law which, ought to have been examined by the appellate Court itself as no evidence was necessary for the decision of the same. We, however, feel that this question could not be decided against the first respondent without first disposing of his prayer for withdrawal of the suit with liberty to bring a fresh suit on the same cause of action, as plea is that the real cause of action accrued to him on the passing of the promotion orders as contained in the basic Notification, dated 11‑1‑1979 but inadvertently he challenged the notification relating to transfers and postings. This appears to be prima facie supported by the averments contained in the plaint. Be that as it .nay, in the presence of such an application for withdrawal the real question in con troversy were not 'before the Court so as to dispose of the question of jurisdiction and non‑suit the respondent. In our opinion, therefore, there was no legal infirmity in the impugned order of remand. Even otherwise we feel that no prejudice will be caused to the petitioners as a result of the remand order, as all the questions at issue will be reopened for a fresh deci sion and the trial Court will be free to decide the issue that may arise between the parties as ordered by the learned Additional District Judge in the opera tive part of his order, if the suit goes to trial on the decision of the withdrawal application.

4. There is, therefore, no merit in this petition which is accordingly dismissed. S.Q. Petition dismissed.