P L D 1957 (W (PLP)
ABUL KHAIR WALIULLAH-Applicant Versus THE FEDERATION OF PAKISTAN-Respondent
| Citation | P L D 1957 (W (PLP) |
| Forum / Court | |
| Bench Members | Constantine and Wahiduddin, JJ |
| Parties | ABUL KHAIR WALIULLAH-Applicant Versus THE FEDERATION OF PAKISTAN-Respondent |
Q1: What are the key laws and sections cited in P L D 1957 (W (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 1957 (W (PLP)?
The case was heard and decided by the bench comprising: Constantine and Wahiduddin, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 1957 (W (PLP) (ABUL KHAIR WALIULLAH-Applicant Versus THE FEDERATION OF PAKISTAN-Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Ali Athar for Appellant.
- S. Nasiruddin for Respondent.
Headnotes / Summary
Civil Procedure Code (V of 1908), S. 80-Notice specifying several reliefs-Suit as lodged containing an additional relief by way of a formal declaration-Provisions of section not carried out-Plaint, however, allowed to be amended so as to delete additional relief to secure agreement between notice and plaint-Civil Procedure Code (V of 1908), O. X1, r.
17. A notice under section 80, Civil P. C., served by a civil servant prematurely retired, specified several reliefs, viz., re-instatement, period of forced absence from office being counted towards service, payment of arrears of salary and of compensation for mental worry caused by the wrongful order of early retirement. The suit as lodged contained an additional prayer for a declaration that the order of premature retirement of plaintiff was arbitrary and illegal. Held, that it was clear that the relief of declaration had not been mentioned in the notice and that therefore the provisions of section 80 had not been carried out. Neverthe less, this difficulty could be got over in appeal, since it was a purely technical difficulty, by allowing the appellant to amend his plaint by deletion of this portion of relief from the plaint; that is to say, the formal declaration sought in the plaint alone, was not necessary in order to obtain the other reliefs which the plaintiff had sought and had mentioned both in the notice and in the plaint.
Judgment & Decree
CONSTANTINE , J.
This is a first appeal against the judgment of our learned brother, Muhammad Bakhsh, J. dis posing of the suit of the plaintiff on the preliminary point that since a relief claimed in the plaint had not been mentioned in the notice, under section 80, Civil P. C. the suit was bad. Briefly stated the facts are that the appellant had been required by the Post Offce authorities to retire on the ground of superannuation. The appellant claimed that this order was illegal and he claimed consequential reliefs. The notice set out reasons why this order was bad and then in the last paragraph the notice stated :- "That in claiming relief on behalf of our client, we call upon you to (1) reinstate him in his proper post, (2) treat the period of his forced absence from office as spent on duty and counted towards leave, promotion, increment pension etc., in the light of F. R. 54 (3) pay him his arrears salary and (4) grant him compensation amounting to Rs. 10,000 (rupees ten thousand) for unnecessary mental worries and physical troubles sustained by him and his dependents loss of education and prospects of his sons etc., within two months of the receipt of this notice failing which we have instructions from our client to file a suit in a Court of competent jurisdiction against the Federation of Pakistan for the recovery of the legitimate dues of our client and the removal of his grievances described above, which please note". The plaint, however introduced in its prayer clause a prayer for a declaration that the order of the defendant dated 22nd September 1948 retiring the plaintiff from service be declared as arbitrary, illegal, unjust and invalid. Mr. Justice Muhammad Bakhsh, therefore, considered that the provisions of section 80 had not been carried out, and, in our opinion, it is clear that the relief of declaration claimed in the plaint had not been mentioned in the notice. But we think that this difficulty should be got over in appeal, since it is a purely technical difficulty, by allowing the appellant to amend his plaint by deletion of this portion of sub-paragraph (ii) of paragraph 15 of the plaint ; that is to say, we do not think that the formal declaration which he sought in the plaint alone is necessary in order to enable him to obtain the further reliefs which he has sought and has mentioned both in the notice and in the plaint. The application to amend has been made and has been granted. The result is, therefore, that the appeal is allowed and that the case should proceed in the Court of original jurisdiction upon the further issues. In the circumstances there will be no order as to costs of this appeal. A. H. Appeal allowed.