P L D 2003 Karachi 405 (PLP)

SABIHUDDIN AHMED, J.

These two appeals are directed against the same judgment of a learned Single Judge of this Court on the original side decreeing the Suit No.748 of 1993 tiled by the appellant in H.C.A. No.297 of 1999 (hereinafter mentioned as the plaintiff) against the appellant in H.C.A. No.325 of 1999 (hereinafter referred to as the defendant). Briefly the admitted facts are that the plaintiff who was employed by the defendant as a flight engineer met with an accident while on duty in Kuwait on 23-8-1988: As a consequence of the injury caused he was retired from service with effect from 16-10-1989. He claimed disability compensation from the defendant in the sum of Rs.2,038,716 in accordance with agreement dated 7-3-1991, which was made effective from 1-5-1989. The defendant initially kept negotiating the amount payable but eventually through its letter dated 21-11-1990 informed the plaintiff that the National Insurance Corporation, with whom such risks were insured had approved them plaintiff's claim to the maximum extent of Rs.1,008,

000. The plaintiff being aggrieved thereby submitted a complaint before the Wafaqi Mohtasib who, after calling for comments and hearing the parties through his order dated 5-6-1991 held the defendant guilty of maladministration to failing to enhance the insurance cover commensurate with the increasing salaries and recorded that the plaintiff was entitled to disability compensation in the amount of Rs.1,998,116, payment whereof was the liability of the defendant. The defendant preferred a representation against the decision of the Mohtasib before the President of Pakistan and apprised the plaintiff of the same. The plaintiff, however, did not receive any notice requiring him to submit a reply or appear for hearing of the representation. However, on 12-5-1993 he was informed that a representation of the defendant against the recommendations of the Mohtasib had been accepted through a non-speaking order.

2. Under these circumstances, according to the plaintiff who was in great financial stress was pressurized by the management of the defendant to accept the amount of Rs.1,008,000 otherwise he would get nothing. Therefore, he was coerced into accepting the aforesaid amount and acknowledge the same in full and final settlement of his claim. Nevertheless, on 17-11-1993 he filed a suit for recovery of the difference between the same originally claimed and that received as well as costs and interest.

3. The defendant in their written statement repudiated the plaintiff's clam as to the quantum of compensation contending that the accident having occurred prior to the date of enforcement of the agreement relied upon by the plaintiff he was not entitled to compensation calculated according to the terms of such agreement. Alternatively it was contended that even under the agreement compensation could only be paid to the maximum extent of the insurance cover and such amount had been paid. It was further averred that the plaintiff had accepted the amount of Rs.1,008,000 in full and final settlement of his claim without any coercion or pressure and had waived his claim for recovery of any additional amount. Moreover, a number of legal objections regarding limitation and maintainability of the suit were also taken. At this juncture it may also be pertinent to mention that the plaintiff had also filed C.P. No.1817 of 1992 seeking issuance of directions to the defendant for payment of pension but the same was withdrawn after few months.

4. Upon the pleadings of the parties, the following issues were framed: ISSUES: (1) Whether the suit is barred? (2) Whether the suit is not t maintainable? (3) Whether the defendant has discharged his legal obligations in respect of the compensation due to the plaintiff? (4) Whether this Court has no jurisdiction once an Order has been passed by the President of Pakistan under Article 32 of 'the President's Order 1 of 1983? (5) Whether the plaintiff is entitled to recover Rs.2,838,072 or any other amount from the defendant? (6) What should the decree be?

5. The learned Single Judge after exhaustively considering the respective contentions of the parties found that the suit was not barred by Limitation or by any other provision of law. He further went on to hold that the defendant had not discharged its legal obligations in respect of the compensation due to the plaintiff and the acceptance of Rs.1,008,000 by the plaintiff was made under coercion and could not be deemed to- be a valid contract. Accordingly findings on Issues Nos. 1 to 4 were recorded in favour of the plaintiff. With respect to Issues Nos. 5 and 6 he found that the plaintiff was entitled to the difference between the amount payable in terms of the agreement dated 7-3-1991 (effective from 1-5-1989) and the amount already paid and decreed the suit in the sum of Rs.1,030,716 with mark-up at the rate of 169 per annum from the date of decree till its payment. The parties were left to bear their own costs.

6. Syed Amjad Hussain learned counsel for defendant assailing the aforesaid Judgment and decree did not question any particular aspect of the impugned Judgement, but requested us to examine the validity of every finding by asserting that he wished to rely upon the written arguments submitted before the learned Single Judge. Mr. Khalid Jawed learned counsel for the plaintiff while defending H.C.A. No.323 of 1999 also relied upon the written arguments submitted on behalf of the plaintiff before the learned Single Judge. Nevertheless, in support of H.C.A. No.297 of 1999 he contended that he was only aggrieved to the extent that the learned Single Judge awarded mark-up only from the date of decree and not from the date of filing of the suit. In view of the above it may be pertinent to take up the findings of the learned Single Judge on different issues in the context of the arguments put across on behalf of the parties.

7. As to the question of limitation the defendants have contended that a suit for compensation for an injury caused to a person is to be filed within one year from the date when the injury is committed and it has been argued that since the plaintiff met with an accident on 23rd August, 1988, a suit could have been filed only within one year, reliance was placed on the 1980 SCMR 481, Kayumarz v. Mohammadi Tramway Company PLD 1968 Karachi 376 and N.A. Shahriyar v. Conforce Limited.1979 CLC 740.

8. From all these cases however, it is apparent that the plaintiffs therein had claimed compensation in tort against the defendant. They were examined elaborately by the learned Single Judge, who held that Article 22 applied when the injury was caused by an overt act of the defendant and residuary Article 36 was applicable for any other malfeasance or misfeasance i.e. mere negligence. In the instant case, however, the plaintiff had neither attributed any tortuous act to the defendant nor had computed the extent of loss likely to arise out of disability.

9. The learned Single Judge, therefore, held that Article 115 was applicable as the plaintiff's case was premised upon breach of contract. As to the starting point of limitation Articles 22 and 36 stipulate that limitation will commence from the date of injury is committed or from the date when the malfeasance, misfeasance or non-feasance takes place. In the case of compensation for breach of contract under Article 115 it commences from the date when the contract is broken. It is not disputed that the plaintiff was retired on account of disability only on 16-10-1989 and the defendant kept on negotiating the question of disability compensation till 21-11-1990 when he was informed that he would be paid compensation only to the extent of Rs.1,008,000 as approved by the insurer. The suit filed by him on 17-11-1993 therefore, was within time. In view of the above, we are convinced that the findings of the learned Single Judge on the question of limitation are entirely unexceptionable.

10. As to the question of maintainability of the suit covered by Issues Nos. 2 and 4 the defendants' contention was that having invoked the jurisdiction of the High Court under Article 199 of the Constitution and that of the Wafaqi Mohtasib under Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, and particularly after the decision of the President allowing the defendants' representation against the recommendations of the Mohtasib, the plaintiff could not agitate the same grievance through a suit.

11. With respect to the first contention the learned Single Judge observed that the memo. of petition in C.P. No.1817 of 1992 was not produced in evidence to show that the same relief as sought in the suit had been claimed. On the other hand it was specifically suggested to the plaintiff in cross-examination that he had not claimed damages or compensation in the above petition to which he replied in the affirmative stating that the petition had been filed as the defendant did not pay him half pension as per rules. It is therefore evident that the reliefs claimed in the suit had not been claimed in the Constitutional petition.

12. With reference to the same plea, we would like to add that admittedly the Constitutional petition before this Court was eventually withdrawn by the plaintiff and it is not possible to say that upon such withdrawal the plaintiff stood precluded from seeking relief through ordinary proceedings. Indeed under Order 23, Rule 1, C.P.C. a plaintiff cannot file at second suit after withdrawing the first one on the same cause of action, unless permission to do so has been accorded by the Court. Nevertheless, we are of the view that though normally the broad principles and procedural provisions of C.P.C. are applicable to Constitutional petitions, the provisions of Order 23, Rule 1, C.P.C cannot by the very nature of the jurisdiction under Article 199 apply to cases of withdrawal of Constitutional petition and filing a civil suit subsequently. It needs to be kept in view that a pre-condition for invoking the jurisdiction under Article 199 is the absence of an alternate remedy. If a petitioner on account of some mistake or misconception files a Constitutional petition seeking a particular relief and subsequently realizes that an alternate and equally efficacious remedy by way of a civil suit was available the right course .for him ought to be to withdraw the petition and file a suit. To insist that he could not do so without obtaining the permission of the Court before whom the petition is filed would amount to ignoring the extraordinary nature of proceedings under Article 199 and defeating the concept of Constitutional remedies. We, therefore, find no force in this objection and repel the same.

13. As regards the proceedings before the Wafaqi Mohtasib it needs to be noticed in the first instance that the plaintiff's claim was premised on the terms and conditions of his service and strictly speaking the complaint before the Mohtasib was not maintainable in terms of Article 9 of President's Order No. 1 of 1083. In any event once an order had been passed by the Mohtasib it could be set aside by the President on the application of defendant only through a reasoned order after giving the plaintiff a proper opportunity of being heard as has been held by the Honourable Supreme Court in Federation of Pakistan v, Muhammad Tariq Pirzada (1999 SCMR 2744). Thirdly there is nothing to indicate that the plaintiff had questioned the validity of the Order of the President passed under Article

32. Indeed Article 29 of the Order bars the jurisdiction of Courts to question the validity of an order made or purported to have been made under this Order. Nevertheless, such' bar according to a series of precedent laid down by the Honourable Supreme Court since Muhammad Jamil Asghar v. Improvement Trust, Rawalpindi (PLD 1965 SC 698) must be confined to orders made within the four corners of a Statute and cannot be extended to those passed in blatant violation of elementary principles of natural justice as held in Tariq Pirzada's case. Moreover, it needs to be kept in view that under Articles 9 and 11 of the, Order, the Mohtasib may entertain a complaint by an aggrieved person, alleging maladministration and is empowered to make recommendations for implementation. There is no provision barring an aggrieved person from approaching a Court of law for redress in case he is unable to obtain the same under the Order. A Court unlike the Mohtasib is required to entertain a suit provided it is maintainable and can pass an enforceable decree while the Mohtasib can make recommendations for implementations. Therefore, while the Mohtasib does not have jurisdiction to investigate or enquire into matter which is sub judice before a Court under Article 9 but there is no corresponding provision in the Order or any other law barring a Court from entertaining a suit or legal proceedings in a matter being or having been investigated by the Mohtasib. We are, therefore, clearly of the opinion that the plaintiff's suit being founded upon his original cause of action, nothing turns upon the proceedings having been initiated before the Mohtasib and culminating upon the decision on the defendants representation. The findings of the learned Single Judge with respect to Issues Nos. 2 and 4 are also unassailable.

14. Coming to Issue No.3, the defendants' case is founded upon two contentions namely: (a) Under the provisions of the Contract the plaintiff was not entitled to payment of anything over and above the amount determined by the National Insurance Corporation; and (b) That in any event having received payment to the extent of Rs.1,008,000 in full and final settlement of his claim the appellant had waived his right to claim any amount in excess thereof.

15. On the other hand it was argued on behalf of the plaintiff that the agreement clearly stipulated payment of 36 months gross salary by way of disability compensation and the defendant could not take advantage of their own wrong by failure to enhance the rate of premium for getting their increased liability under-written on account of rise in salaries of employees. With respect to the second aspect of the defendants' contention it was argued that the plaintiff was coerced into accepting a much lower amount than what was lawfully due under stress of financial difficulties and the so-called acceptance could not be treated as a contract made with free consent.

16. The learned Single Judge has elaborately dealt with both the contentions and recorded his findings in favour of the plaintiff. With respect to the first question there does indeed appear to be an apparent inconsistency in the provision of the agreement relating to disability compensation quoted in para. 8 above. Indeed the plaintiff relied upon the first part of the revision which speaks of liability to pay compensation for an amount equal to three years gross salary or allowances. The defendants on the other hand placed reliance on the second part to contend that all claims of such nature had to be settled in terms of the Aviation Personnel Accident Insurance Policy and the plaintiff was paid the maximum compensation so determined.

17. A careful reading of the relevant provision, however, would show as has been done by the learned Single Judge, that the inconsistency is more apparent than real and each part of the provision can be harmoniously reconciled. The learned Single Judge has observed that the first part of this provision refers to liability to pay compensation for death, total or partial disability as a result of accident; the second part relates to computation of amount payable as disability compensation i.e. three years gross salary including allowances and the third part relates to settlement of claims in accordance with the insurance policy. The liability of the defendant to pay is covered by the second part and the mode of settlement of claim by the third. In our humble view this would mean that the defendant would invariably be bound to pay compensation at the rate of three years gross salary or allowance though perhaps actual payment could be made after settlement of claim under the insurance policy. At the same time it cannot be ignored that the obligation to take out an insurance policy was that of the defendant and the defendant could not be allowed to resile from its commitment by failure to pay the requisite amount of premium for meeting its obligation or by not paying any premium at all. We would therefore, uphold the findings of the learned Single Judge to the effect that the defendants were liable to pay the amount claimed by the plaintiff on the basis of three years gross emoluments.

18. As regards the question of acceptance of Rs.1,008,000 it may be recapitulated that immediately after his retirement vide letter dated 18-10-1989 the plaintiff kept seeking payment of disability compensation and a great deal of correspondence negotiating the amount ensued. On 20-11-1990 he was informed that a maximum amount of Rs.1,008,000 could be paid. He moved the Wafaqi Mohtasib who by his order dated 5-6-1991 recommended that the defendants should at least partially compensate the plaintiff. The defendants made representation to the President but no comments were sought from the plaintiff nor was any opportunity to present his point of view was furnished. He addressed several letters to the President but they remained un-responded. Eventually after almost two years he was informed by letter dated 12-5-1993 that the defendants' representation had been accepted. In the face of this situation he was called upon through letter dated 20th May, 1993 to convey his acceptance of the amount offered in full and final settlement of his claim.

19. Against this background it was argued on behalf of the plaintiff that on account of the financial difficulties he was suffering as a consequence of non-payment of even agreed amount he was forced into accepting the same and such acceptance being under pressure and coercion could not be treated as a contract made with free consent or a voluntary abandonment of the claim. Learned counsel for the defendants on the other hand argued that there was no pressure or coercion on the plaintiff to accept the amount in full and final settlement of his claim and in any case the burden to prove undue influence was on the plaintiff which he failed to discharge. In support of the latter proposition reliance was placed on a number of precedents but it is not necessary to refer to them as there can be no cavil with the proposition that such burden is upon party who is alleging it.

20. Nevertheless, the question to be determined was whether the plaintiff in fact acted under undue influence in accepting the amount. The learned Single Judge has elaborately dealt with the above and has referred to the following observations of Lord Denning, M.R. in D & C Builders Limited v. Ress (1965) 3 AEL 837 to the following effect: "The creditor was in need of money to meet his own commitments, and she knew it. When the creditor asked for payment of the 480 due to him, she said to him in effect: "We cannot pay you the

480. But we will pay you 300 if you will accept it in settlement. If you do not accept it on those tenns, you will get nothing. 300 is better than nothing." She had no right to say any such thing. She could properly have said: "We cannot pay you more than

300. Please accept it on account." But she had no right to insist on his taking it in settlement. When she said: "We will pay you nothing unless you accept 300 in settlement", she was putting undue pressure on the creditor. She was making a threat to break the contract (by paying nothing) and she was doing it so as to compel the creditor to do what he was unwilling to do (to accept 300 in settlement); and she succeeded. He complied with her demand."

21. In the facts of the present case, it is quite evident that though letter dated 21-11-1990 (Exh.5/42) they offered to pay Rs.1,008,000, but stated that in cite he failed to turn up the offer would be withdrawn and never paid arty amount till about 2-1/2 years thereafter knowing perfectly well that the plaintiff had lost a lucrative job. The letter from the defendant dated 21-5-1993 enclosing a draft latter has been placed on record as exhibited in evidence (Exh.5/60), whereas the plaintiff's letter of acceptance dated 24-5-1993 is produced as (Exh.5/58). It is, therefore, quite evident that the defendants agreed to release the amount only upon the plaintiff's accepting the same in given terms. These facts un-mistakenly establish that the plaintiff's case is fully covered by the precedent cited above.

22. Moreover, our own superior Courts have lastly viewed transactions between the parties enjoying unequal bargaining position with suspicion and have field that undue influence can also be inferred from circumstances. In Hamida Begum v. Murad Begum (PLD 1975 SC 624) their Lordships have held undue influence may be inferred when the benefit is such as the taken has no right to demand either in law or equity and the grantor has no rational motive to give. In Rasheed Ahmed Khan v. President of Pakistan (PLD 1994 SC 36), their Lordships proceeded to hold that undue influence can be inferred on the basis of the capacity of a person to influence the decision of another and not his presence or absence at the time of decision. A Division Bench of this Court in Abdul Rahim v. United Bank (PLD 1997 Karachi 62) has elaborately dealt with the concept of undue influence as a result of economic coercion and we fully subscribe the view recorded therein. We are, therefore, clearly of the opinion that the defendants having taken advantage of the plaintiff's financial difficulties were not even willing to disburse the amount which they had earlier agreed to do despite a clear liability to pay disability compensation exhorted undue influence upon the plaintiff and the acknowledgement in question is of no consequences. We would uphold the findings of the learned Single Judge on this aspect of the case as well. Consequently we would dismiss H.C.A. No.325 of 1999 with costs.

23. Coming to H.C.A. No.297 of 1999 the appellant have questioned the judgment and decree to the extent that the learned Single Judge despite recording his finding in favour of the plaintiff's on merits granted mark-up only from the date of decree. The reasons for doing so as stated in the impugned judgment are that interest and profit could not be granted as the amount of compensation had not been settled prior to the judgment and no agreement existed for payment of any profit or mark-up. Indeed it is true that in the absence of prior agreement interest on damages or compensation determined by Court cannot be granted. Nevertheless, with profound respects we are of the humble view that the learned Single Judge omitted two-consider that in the instant case the plaintiff was not really claiming compensation for an injury or breach of contract which could arise in tort or contract and was to be determined by the Court but he was only seeking recovery of money which was to be paid under the provisions of the contract. We would, therefore, modify the decree to the extent that the plaintiff would be entitled to mark-up at the rate of simple interest notified by the State Bank from the date of filing of the suit till the final payment. H.C.A. No.297/99 is accordingly allowed to the above extent. S.A.K./A-421/K Order accordingly.