1987 PLP 2103 (CLC)

Maddu Mal v. Baggu and others 20 IC 831 ref. Moin‑ud‑Din Javed Buttar for Petitioner. Muhammad Nawaz for Respondents. Date of hearing: 31st May, 1987. This civil revision arises from the order dated 3‑10‑1981 of the learned Additional District Judge, Lahore, whereby he dismissed the petitioner‑plaintiff's suit for a declaration that he was entitled to special travelling allowance at the rate of Rs.42 per day during the days when he used to take passenger train to India. He is an Engine Driver of the respondents‑ Railways. He asserted that all other staff accompanying him on duty to India was being paid special travelling allowance, but in his case the respondents‑ Railways acted mala fide on a discrimination due to his previous litigation with them over some service matters.

2. The suit was resisted. The learned trial Court rejected the plaint on 8‑1‑1978. The appeal, however, was accepted on 17‑2‑1980 and the case was remanded for a decision on merits. The trial Court decreed it on 4‑10‑1980, but in appeal the learned Additional District Judge vide the impugned judgment dated 3‑10‑1981 not only accepted the appeal, but also dismissed the suit as it did not lie only for a declaration. According to him the suit should have been one for recovery of money. Aggrieved by it, the petitioner‑ plaintiff has preferred the present civil revision.

3. The view adopted by the lower appellate Court was not seriously assailed. In a way, therefore, it was conceded that the suit for a mere declaration to obtain special travelling allowance did not lie. Seeing this weakness in the case the petitioner‑ plaintiff‑‑moved C.M. No. 564‑C/1984 for amendment of the plaint convert it into one for money.

4. The C.M. is seriously opposed on behalf of the respondents -Railways pointing out that it was too late in the day and further that it will change the entire complexion of the suit. Additionally it was urged that a valuable right of pleading limitation had already accrued in favour of the respondents and that the same may not be destroyed by allowing the proposed amendment. Lastly it was argued that unless the revision petition was formally admitted, the civil miscellaneous could not be taken up.

5. Since the parties have argued on all points, it shall be treated as a Pacca case as if the revision petition was admitted. Unfortunately for the petitioner plaintiff, things had not been quite smooth. Frame of the suit by which the impugned declaration was sought in relation to a monetary benefit, was not legally tenable. In fact it should have been a straight suit for recovery of money, all the more when the impugned special allowance was being claimed for past period. The cause of action was not recurring and, therefore, the prayer should have been for payment of money due. The defect was purely technical, but its consequences were far reaching inasmuch as a new suit seeking this relief may be totally barred by Order 11, Rule 2, C.P.C. On a plain reading of the plaint the plaintiff seems to have a cause of action as his visits to India were not denied. According to him, others were paid special travelling allowance, but he was denied on some discrimination. Section 1, Rule 12 Appendix It of Pakistan Railways Personnel Manual Vol: I authorises the petitioner as an official of category‑111 to charge special travelling allowance for visits to India. The rate in his case was Rs.38 per day, but he was praying only for Rs.42 per day. If others could be paid such a rate for visits to India, why should he not be treated alike? I am afraid refusal to paying him the same may be discriminatory. He referred to a typical background wherein he was locked in litigation with the respondents‑ Railways over some matters. He may not be very Wrong in urging that he was being punished for his previous litigation. There are cases of allowing amendment of pleadings even in revision, for example, Maddu Mal v. Baggu and others 20 IC

831. Such amendments usually take effect from the institution of the suit. As a result the C.M. is accepted and he is allowed to amend the plaint. The civil revision is also accepted. The judgment and decree of the lower appellate Court are set aside and the case is remanded to the trial Court 'to try it afresh after taking amended plaint from the petitioner‑plaintiff on the lines mentioned in the civil miscellaneous under discussion. The parties are left to bear their own costs. They are directed to appear before the Senior Civil Judge, Lahore on 16‑6‑1987 for further proceedings. S.Q./M‑241/L Case remanded.