1989 PLP 2043 (MLD)

Date of hearing: 24th April, 1986. This a peal under section .96 of the Code of Civil Procedure has been filed by the plaintiff/appellant against the judgment off' the `First Additional District Judge, Karachi, in Suit No. 228/1972,'dated 30th of September, 1974. The appellant instituted the above suit, claiming the following reliefs:- "(a) declaring that the plaintiff is legally entitled to be treated as a confirmed Chargeman-Electrical (Senior Electrical Chargeman) and accordingly he is entitled to receive his settlement dues in accordance with the pay scale of Chargeman-Electrical (Senior Electrical Chargeman); (b) declaring that after his retirement the plaintiff is legally entitled to receive his pension in view of his option for the same in the year. 1954,- in accordance with the Rules governing the grant of pension; (c) declaring that the plaintiff is legally entitled, to the . grant of Leave Preparatory to Retirement and to its .consequent.' benefits, after his retirement, the same having been duly applied for and refused by the defendants; and (d) awarding costs of the suit to the plaintiff," ' The suit was resisted by the respondent, and, after recording the evidence of the parties, the learned trial Court dismissed the suit on merits. At the hearing of this appeal, a preliminary objection has been raised by the learned counsel for the respondent that the suit instituted by the appellant was beyond time. It is an admitted position in the case that the plaintiff/appellant retired from his service on 27-3-1960,'and he was paid his dues in respect of provident fund, amounting to Rs. 7,354.06 on 17-5-1960, while, in respect of the gratuity, the amount was received on 4-8-1960. The suit, claiming the above reliefs, was instituted by him on 24-3-1971. It is contended by the learned counsel for the respondent that the appellant having received the- amounts of provident fund and gratuity on 17-5-1960 and 4-8-1960 respectively, the suit should have been, brought within three years of the payment made to him, if the payment was not acceptable to the appellant /plaintiff. It is also contended that, in so far as the relief of declaration claimed in the suit in paragraphs 20(a),(b) and (c), are concerned, the cause of action for institution of the suit arose to the plaintiff on the date he was retired from the service, namely; 27-3-1960. It is contended that the maximum period available for institution of a declaratory suit under the residuary Article of the Limitation Act is 6 years from the date of accrual of the cause of action, and therefore, the institution of the suit, in the year 1971 vas hopeless time barred. The learned counsel for the appe1lant, on the other hand, contended that, as the appellant was re-employed after his retirement from the service, and he finally left the employment, after re-employment in 1965, therefore, six years' period of limitation should be counted from the date when he finally relinquished his employment with the respondent. After hearing the learned counsel for the parties, I am of the view that the re-employment of the appellant with the respondent after his retirement has no nexus with the cause of action, which accrued to, him to seek the declaration prayed for in the suit. The learned counsel for the respondent rightly contended that the cause of action for the declaration sought in the suit arose to the appellant on 27-3-1960, when, he was retired froth the service, after having attained the age of fifty-five years. The, other objection of the learned counsel, for the appellant to entertain' the plea of limitation, at this stage, is that this plea was neither originally raised in the written statement nor any such issue was framed before the trial Court. Section 3 of the Limitation Act places an obligation on the Court to dismiss a suit, or, an, appeal if 'it is instituted after the expiry bf the period of limitation' even in cases, where limitation has not been as defence in the proceedings. On the facts admitted, it is quite clear that the cause of action for the, present suit accrued to the appellant on 27-3-1960, and the suit having been instituted on 24-3-1971, it was hopelessly lime-barred. I therefore, hold that the suit instituted by the appellant before the trial Court in respect of the claim of declaration was not maintainable on account of bar of limitation. In view of the above finding it is not necessary to decide the contentions raised by the- learned cauns8l for the appellant on merits. The appeal is accordingly dismissed, but, in the circumstances of the case, I will make no order as to costs: H.B.T./M-811/K Appeal dismissed.