1985 PLP 27 (SCMR)

SHAFIUR RAHMAN, J.-- The petitioner who is a civil servant and a plaintiff in a civil suit seeks leave to appeal against the judgment 'of the Lahore High Court, dated 13th of June, 1984 whereby a civil revision petition filed by the respondent was allowed and the first appeal was remanded to the District Judge to dispose of the same within a month. The petitioner was employed as a Clerk in the office of Commissioner, Multan Division. He was proceeded against departmentally under the Efficiency and Discipline Rules and by an order, dated 15-1-1962 removed from service. His appeal to the Board of Revenue was dismissed on 30-5-1964. The constitutional petition filed by him was dismissed and leave to appeal was refused by this Court. He thereafter, instituted a civil suit challenging the order of removal. It was contested. Issues were framed. The trial Court decreed the claim of the petitioner on 27-3-1971. The Commissioner in obedience to the decree of the civil Court re-instated him on 26-5-1971. However, the Government filed an appeal against the judgment and decree on 28-5-1971. When it came up for hearing before the Additional District Judge, Multan, on 4-9-1973 the following statement of the learned Government pleader was recorded:- "According to the record produced by Mr. Muhammad Saleem, Senior Clerk, of the Commissioner Office, Multan, the respondent has joined the service since 26-5-1971, therefore, the appeal has become infructuous." Following this an operative order was passed on the same day hereunder:- "In view of the statement of the learned counsel for the appellant, the appeal is dismissed as having become infructuous." A revision petition was then filed by the Government challenging such a disposal of the appeal. It was contended that the re-instatement had not the legal effect of making the appeal infructuous, there was a misconception of the factual and legal position both by the learned Government pleader as well as by the appellate Court disposing. of the appeal in terms of the statement recorded and already reproduced. The learned Judge in the High Court called for the record from the Commissioner's Office, examined the same and held as follows:- "The learned appellate Court below certainly acted under mis conception in disposing of the appeal, it ought to have dealt with and decided the appeal- on merits." The civil revision petition was allowed. The appeal was remanded to the District Judge, Multan, who was directed to dispose it of within a month. The learned counsel for the petitioner has contended that section 8 of the Punjab Service Tribunals Act, 1974 had the effect of abating the proceedings pending in the civil Court be it the first appellate Court or the High Court. According to him, the exclusion contained in clause (c) subsection (1) of section 4 of the Act did not control the abatement provision made in section

8. In order to sustain his ground, he wanted that the decision of this Court in Khan Faizullah Khan v. Government of Pakistan P L D 1974 S C 291, and Islamic Republic of Pakistan v. Amjad Ali Mirza P L D 1977 S C 182 be re-considered and the view taken by the Lahore High Court in the case of Gulaher Khan and another v. The Province of West Pakistan and 2 others P L D 1977 Lah. 975 be adopted. The second ground taken up by the learned counsel for the petitioner is that a revision petition was not at all competent in the High Court because under section 100, C.P.C. as it stood before its amendment before Law Reforms Ordinance, 1972 a second appeal was competent to the High Court. It was contended that as the suit had been instituted in 1962 the right to file a second appeal had come to inhere in the parties under the law as it then stood and the amendment made in section 100, C.P.C. whereby restrictions were imposed on the right to file a second appeal would not aversely effect such a right the amendment being procedural. Reliance was placed for sustaining this ground on Municipal Committee, Bahawalpur v. Sh. Aziz Elahi P L D 1970 S C

506. Lastly, it was contended by the learned counsel for the petitioner that the order passed by the Additional District Judge on 4-9-1973 exhibited no defect of jurisdiction nor was it illegal. As it was an order made consequentially on a statement made by the counsel representing the party, it would amount to withdrawal of the appeal. On that score too, the order was not liable to interference in revision. On examining the Punjab Service Tribunals Act, 1974 we fin that section 4 thereof relates to the jurisdiction of Tribunal and the follows the abatement provisions relating to similar proceedings pending elsewhere. Article 212 which forms the very basis of the Service Law enacted after 1973 provides in clause 2 for abatement of only such proceedings in respect of which the Administrative Court or Tribunal is conferred jurisdiction. The jurisdiction of the Service Tribunal in both the cases decided by this Court which the learned counsel wants to be reconsidered has been held to be confined to final orders of the departmental authorities passed after 1-7-1969. As in the proceedings now before us the order under challenge was passed on 15-1-1962 the abatement clause will not apply and there does not appear any justification for re-opening the question already decided. Besides, the decision in Gulsher Khan's case does not take note of the decisions of this Court referred to. . It is admitted by the learned counsel for the petitioner that the objection with regard to the competence of the civil revision petition was not taken up before the High Court. It is an objection which has been taken for the first time in this Court. It is an afterthought and somewhat belated. If it had been taken in the High Court and found, tenable, the High Court could have treated the revision petition as second appeal subject to satisfaction of the other requirements. Such is the view of this Court in Thal Engineering Industries Ltd. v. Bank of Bahawalpur Ltd. 1979 S C N R 32 and of the High Courts in Sreemati Guru Dasi v. Sarbananda Mahaldar and others P L D 1961 .Dacca 243, Muhammad Shafi v. Firm Haji Fazal Ilahi Noor Ilahi P L D 1964 (W.P.) Pesh. 182, Ibrahim v. Muhammad Rafique P L D 1961 (W.P.) Lah. 644 and Ghulam Ali v. Nawaz Ali P L D 1975 Kar. 1090. Having not taken the objection at the proper stage, it would be unfair to allow the petitioner to raise such an objection at this stage. From the statement recorded and reproduced above it is quite clear that there was a misconception on a point of law. It was that the re-instatement which had taken place before the filing of the appeal had the effect of making the first appeal infructuous. Re-instatement could have no such effect. It was a mistaken view of the law which materially affected exercise of jurisdiction possessed by the first appellate Court. The revisional powers were on merits attracted and interference was justified. There is no merit in the petition and leave to appeal is refused. M . Z . M . Petition dismissed.