1988 PLP 2119 (CLC)

B . M . Bangash for Petitioner. S. Hamid Hussain for Respondents. The applicant was employed with the respondents as an Engineer. The applicant completed his probation period satisfactorily and thereafter, he was transferred on deputation from Manora Workshop to West Wharf Fleet Section of Deputy Traffic Manager West Wharf. After completion of his probation period on 20‑10‑1984 the applicant became a confirmed employee of the respondents. Thereafter, on 9‑4‑1985 the applicant came to know that the respondents were endeavouring to obtain order from the Federal Government for termination of his services on the basis of misrepresentation and false allegations and consequently, he filed a suit for declaration and injunction for restraining the respondents from preventing him from performing his duties as Assistant Mechanical Engineer etc. An application seeking, temporary injunction was also filed alongwith the plaint. The respondents thereafter filed an application under Order 7,> Rule 11, C.P.C. praying the learned trial Court to reject the plaint, which came to the conclusion that the relationship between the applicant and the respondents was purely governed by the law of master and servant and consequently, the applicant had no locus standi to claim relief under section 42 of the Specific Relief Act. The learned trial Court also found that the applicant had failed to give notice to the respondents as required under section 87 of the K.P.T. Act. It also held that since the services of the applicant had been terminated during the pendency of the proceedings, the suit had become infructuous. The applicant then appealed before the learned Fourth Additional District Judge, Karachi (South), but without any success as his appeal was also dismissed vide judgment of the learned Additional District Judge, dated 18‑2‑1986, and hence this revision application. Before this Court, although Mr. Hamid Hussain, learned counsel for the respondents has very candidly conceded that the first finding given by both the learned subordinate Courts to the effect that the applicant had no locus standi to file suit under section 42 of the Specific Relief Act, is erroneous as admittedly the employees of the respondents are governed by statutory rules in respect of matters relating to their service, conduct and discipline, and consequently the relationship between them and the respondents is not purely governed by the law of master and servant. However, as regards section 87 of the Karachi Port Trust Act, the contention of Mr. Hussain has been that it is mandatory requirement of the Act and no suit can be filed without first serving such notice on the Trustees of the Port of Karachi. Section 87 provides as under:‑ "87 No suit shall be commenced against any person for anything done or purporting to have been done, in pursuance of this Act, without giving to such person one month's previous notice in writing of the intended suit and of the cause thereof, nor after six months from the accrual of the cause of such suit. And, in the case of a suit for damages, if tender of sufficient amends shall have been made before the suit was brought, the plaintiff shall not recover more than the amount so tendered and shall pay all costs incurred by the defendant after such tender." The contention of Mr. B.M. Bangash on the other hand, is two‑fold. Firstly, that section 87 is applicable only to a suit which is filed or commenced against a 'person' and the defendants in the suit are not covered by such expression, no notice was required before filing a suit against them. The second argument is that section 87 of the Karachi Port Trust Act relates to past, acts and does not include future acts. The first contention of Mr. B.M. Bangash, does not appear to be so substantial as a similar argument had been advanced before Naimuddin, J. (as he then was) in Messrs Muhammad Ismail and Company Ltd. v. Karachi Port Trust Karachi P L D 1978 Kar. 892 and the same was repelled by him. Reference was made by him to he definition of the term 'person' in the General Clauses Act. The same view was once again reiterated by his Lordship in the case of General Carriers Limited v. Karachi Port Trust P L D 1978 Kar. 1041. As I have no hesitation in agreeing with the same view, the first contention of Mr. B.M. Bangash is repelled. However, the second contention of the counsel appears to be more formidable as the contention is, that the language of section 87 clearly suggests that notice is required to be given 'for anything done or purporting to have been done' in pursuance of the Karachi Port Trust Act, which according to the learned counsel refers to the past acts and not acts intended to be done in future by the respondents. Reliance has been placed on the case of Chairman Town Area Committee Baramulla v. Ghulam Mustafa Shah and others A I R 1964 J&K

50. In that case, the plaintiffs had sought a perpetual injunction against the concerned Town Area Committee restraining it from demolishing their wall. A question arose, whether notice under l section 41 of the Town Area Act was necessary for filing such suit Section 41(2) of the Town Area Act read as follows:‑ "Notwithstanding anything contained in the Limitation Act .... all actions which may be lawfully brought against a Town Area Committee or any servant of a town area committee in respect of anything done or alleged to have been done in pursuance of this act, shall be instituted within six months from the date of the act complained of and not afterwards: Provided that no such suit shall be instituted until the expiration of one month after notice has been given stating the cause of action and the name with place of abode of the intending plaintiff and the plaint shall contain a statement that such notice has been given." It was held by the High Court of Jammu and Kashmir that the language of section 41 of the Town Area Act, without any difficulty showed that the act in respect of which a suit was brought requiring one month's notice must be done or alleged to have been done and in both the cases the act must have been a past act and the section did not contemplate a future act to be performed by a Town Area Committee. It was consequently held that a suit in which the plaintiff wanted that the defendant should be restrained from demolishing their wall in future cannot be held to be barred for want of notice because if the plaintiffs were to wait for one month's notice, the result would have been that the wall would have been demolished long before the suit could be instituted and the Legislature was not expected to leave any loop‑hole in such a contingency by leaving an aggrieved party without any remedy. Somewhat similar views were expressed in an earlier case decided by Patna High Court, reported as State of Behar v. Raghunandan Singh and another A I R 1960 Pat.

530. In that case it was held that notice under section 80 was not necessary for filing suit for permanent injunction restraining the Government from doing something in the future. If these cases are to be followed, then I can have no difficulty in coming to a conclusion that the view taken by the learned subordinate Courts is not correct. However, Mr. Hamid Hussain has very heavily relied on the cases of Muhammad Ismail and Company Limited and General Carriers Limited, to which I have earlier referred in this judgment, though in a different context. In both the cases, it has been held that a suit filed against the Port Authorities without giving notice under section 87 of the Karachi Port Trust Act is not maintainable. However, I find both the cases to be distinguishable as in these cases stevedoring licences of the plaintiffs had been cancelled by the Karachi Port Trust and they filed suits for declaration and injunction against the Karachi Port Trust without giving to the latter any notices as required by section 87 of the Karachi Port Trust Act. Contentions were raised on behalf of the plaintiffs to the effect. that the defendants had acted illegally in canceling the licence, therefore, they had not acted in pursuance of the Act and consequently, no notice under section 87 was necessary. This contention was, however, repelled by the Court. Moreover, in those cases besides seeking injunction, the plaintiffs had sought declaration in respect of the past action of the defendants. No doubt, in the present case the applicant has also prayed for a declaration besides an injunction, but such declaration is not in respect of anything done by the respondents. The facts of the present case are, therefore, clearly distinguishable. In view of these circumstances I find myself in agrqement with Mr. B.M. Bangash that notice under section 87 of the Port Trust Act was not required in the present case. The last ground for rejection of the plaint which has found favour with the learned Fourth Additional District Judge, however, is, that the relief prayed for in the original suit has been frustrated owing to removal of the applicant from the respondents' service during the pendency of the suit. Although this cannot be a ground for rejection of the plaint under Order 7, Rule 11, C.P.C. as Order 6, Rule 17, C . P. C . authorises the Court to permit any party at any stage of the proceedings to alter or amend his pleadings but Mr. Hamid Hussain has pointed out that under the present circumstances, even if the applicant is permitted to amend his plaint, the suit cannot be maintained by him, since even assuming that no notice under section 87 of the Port Trust Act was necessary to be given to the respondents, at the time of filing of the plaint, the same would now become necessary under the present circumstances. The contention of the counsel is, that since admittedly, no notice has been given by the applicant even after termination of his services by the respondent. It would be fruitless to remand the case to the learned subordinate Courts as the time for giving such notice as mentioned in section 87 has already expired. Although change in the circumstances of the case during pendency of an action cannot ordinarily frustrate the cause of action, but in view of the circumstances stated by Mr. Hamid Hussain, I agree with him that remand of the case to the learned subordinate Courts would be an exercise in futility since admittedly no notice under section 87 has been given by the applicant after termination of his services by the respondents. After such action of the respondents, notice under section 87 of the K . P . T . Act becomes necessary and even if the plaint filed by the applicant is allowed to be amended now, the mandatory requirements of section 87 would constitute a bar against maintenance of an action against the respondents. The upshot of the discussion is that this revision is dismissed with no order as to costs. H.B.T./A‑260/K Revision dismissed.