1984 PLP 1209 (MLD)

S. 21--Civil Procedure Code (V of 1908), S. 96--Contract of private service--No cause of action of filing suit for declaration and continuance in service available--Suit for damages for wrongful removal, held, could be filed. (c) Civil Procedure Code (V of 1908)

S.96 and O.VII, r.11--Suit against wrongful dismissal and resignation allegedly obtained under duress--Evidence not led on point whether allegations made by plaintiff /appellant correct or not--Observation made by Court on merit of case while rejecting plaint under O. VII, r. 11, Civil Procedure Code not desirable. Shahen Shah Hussain for Appellant. Nemo for Respondent. Date of hearing: 2nd September, 1984. This appeal calls into question the order of 3rd Additional District Judge, Karachi, who rejected the plaint of the appellant under Order V11, rule 11, C.P.C. The appellant was a Regional Manager of respondent Corporation in 1968 and he had tendered his resignation on 30th of August, 1968, which was accepted on 4-9-1968. The plaintiff appellant filed a suit on 24-4-1971 for declaration to the effect that he was forced to tender his resignation by fraud, undue influence and duress exercised by the respondent Corporation and its superior officers; that the acceptance of his resignation was fraudulent; that he was in fact removed from the field; that he continues to be in service of the respondent and that his licence of Employers of Agent, which was granted to him, subsists. The respondent filed an application under Order VII, rule 11, C.P.C. for rejection of the plaint as no cause of action was disclosed. The Civil Judge rejected this application, but the respondent filed revision application before the Additional District Judge, which was accepted on 2-5-1973. 2. Mr. Shahen Shah Hussain submitted that there was no relationship of Master and Servant and hence the appellant was not servant. This submission is not correct as the first para. of the plaint shows that the plaintiff joined the office establishment of the defendant Company. The same is nothing, but an employment. In para. 15 of the plaint it has been stated by the plaintiff that the plaintiff is still in service in the defendant Company and his licence still subsists. Even in the first paragraph of the prayer in the plaint, the plaintiff has sought a declaration that the plaintiff still continues to be in service of defendant Company. Consequently, this submission that there was no relationship of Master and Servant is incorrect as the same was the main basis of the Plaint. 3. Counsel thereafter submitted that there was no suit for specific performance of service contract and that it was merely a suit under section 39 of Specific Relief Act for declaration of his resignation and its acceptance as void. I have read the whole plaint in the suit and there is no doubt in my mind that the plaintiff had alleged that he had been hounded out and removed from service by his superiors in the respondent Corporation and that his resignation had been secured by a devious method of harassing him by filing of complaints against him and by transfer of his field staff. The details of the persons, who were responsible for such actions had not been given. However, the fact is that the plaintiff had alleged that he had been removed from service and his resignation had been obtained by duress and that the authority was not competent to accept his resignation. The effect of all these allegations is nothing, but that the plaintiff had been thrown out of his office and removed or indirectly dismissed from service. Therefore, it was a suit against breach of contract of service. In all such situations, in case of a private service, there was no cause of action of filing suit for declaration and continuance in service, but only a suit for damages for wrongful removal could be filed. Reference is invited to P L D 1961 S C 531. The plaintiff has sought a declaration that he continues to be in service of the respondent Company and that declaration was not within competence of the Civil Court and hence the suit filed was not competent and was without any cause of action. This was not merely a suit for having the document of rejection declared as void or voidable, but was clearly a suit designed to secure a declaration should the continuance of service of the appellant. I, therefore, do not find anything wrong in the order of the District Judge. 4. Thereafter, the learned counsel submitted that the observations made by the learned Additional District Judge in respect of merits of the case were uncalled for in an order under Order VII, rule 11 of when evidence had not been recorded and that the same will damage the case of appellant in a suit for damages for wrongful dismissal. This submission of the counsel is justified to certain extent as the evidence had not been allowed to be led on the point, whether the allegations made by the appellant in the plaint were correct or incorrect. The learned Judge has however, taken various paras. in the plaint into consideration and thereafter come to the conclusion that the plaintiff was inconsistent in the plaint, However, the same was not absolutely necessary to do in this case, the observations made by the District Judge in the impugned order in respect of the merits and circumstances of the resignation and its acceptance are merely interpretations, of the various paras. of the plaint and hence they cannot be deemed as affecting merits on evidence of the plaintiff in case he files a suit for damages, if the same be competent now. It is needless to say that the trial Court in that suit will be at liberty to take its own view of the evidence as led before it, if any, and of course it could also consider the pleadings of the appellant here. With these observations, this appeal is found to be without merit and is hereby dismissed. M. Y. H. Appeal dismissed.