1989 PLP 4279 (MLD)

This application under Section 115 Civil Procedure Code arises out of the facts briefly stated as under:-- Mohammad Ashrafullah Khan, the respondent herein was appointed as the Assistant Sub-Inspector by the Chittagong Port Trust on Zonal basis due to his local domicile in East Pakistan. This post was under the control of the Federal Government of Pakistan. In 1972 after the fall of Dacca and creation of Bangladesh he migrated to Pakistan and was absorbed as Assistant Sub-Inspector in the Watch and Ward Department of the Karachi Port Trust. According to policy decision the Government of Pakistan in order to decide such cases went on taking decision, which were incorporated in various office memoranda issued on the subject. One of such memoranda bearing No. 2/28/72/VIG/Vo1.III) dated 8th June, 1983 is reproduced as under: "GOVERNMENT OF PAKISTAN CABINET SECRETARIATE ESTABLISHMENT DIVISION. No. 2/28/72-Vol. (Vol.III) Rawalpindi the 8th June, 1983, OFFICE MEMORANDUM Subject ABSORPTION, SENIORITY AND PENSION OF FORMER EMPLOYEES OF -GOVERNMENT OF YEAST PAKISTAN AND AUTONOMOUS BODIES IN EAST PAKISTAN EMPLOYED UNDER THE FEDERAL GOVERNMENT. The Government has given the following decision:- (i) All employees of Government of East Pakistan or of Autonomous Bodies m East Pakistan who repatriated or who migrated from East Pakistan after 16th December, 1971 and upto 31st December, 1974 may be absorbed as far as practicable in equivalent grades in existing or supernumerary vacancies in the Federal Government/Provincial Government or in Autonomous Bodies as the case may be: and (ii) The employees of Government of East Pakistan mentioned in (i) above may be allowed seniority in accordance with the earlier decision of the Government applicable to the employees of the Government of East Pakistan who were on deputation to the Federal Government on 16th December, 1971 and who were absorbed in posts in West Pakistan as published vide Establishment Dn D.M.No. 2/28/72/RC (Estt) dated 16th April, 1978. Employees of Autonomous bodies should be allowed seniority from the date of their regular appointment to these posts in West Pakistan. (2) The Government decision covers employees appointed to posts in Federal Government, Provincial Governments or in Autonomous bodies set up, managed or controlled by the Federal Government or Provincial Governments. An Ordinance to implement the decision relating to the employees of the former Government of East Pakistan appointed to Federal posts has now been published in the Gazette of Pakistan, Extraordinary, Part I, dated the 20th May, 1983, as Order No. XI of 1983 (Copy enclosed). (3) The Ministries/Divisions are requested to bring the decision mentioned in the foregoing paragraph to the notice of all concerned in the Ministry/Division, direct the Autonomous Bodies under their administrative control to implement the decision and amend their rules wherever necessary, in accordance with the Government decision. (4) The Provincial Government may also promulgate their own Ordinance in respect of the employees of former Government of East Pakistan who have been appointed in Provincial posts. Sd/- A.I. Durrani, Joint Secretary. " Mohammad Ashrafullah Khan in spite of his service of 12 years under the Karachi Port Trust as stated above, was not given a permanent posting ignoring the decision of the Government of Pakistan on the subject including the decision contained in the memorandum reproduced herein above. He therefore filed a suit for declaration and injunction being Suit No. 831 of 1987 in the Court of VIIth Senior Civil Judge, Karachi (West) against Karachi Port Trust. The petitioner claimed that his entire service commencing from 21-1-1950 (In East Pakistan) be counted for the purpose of determining his seniority and on that basis he be declared to be entitled to promotion to next higher grade and further sought to direct the Karachi Port Trust Authority to follow and comply with the directions issued by the Government of Pakistan .n the subject. An application under Order VII Rule 11 Civil Procedure Code was filed on behalf of the Karachi Port Trust, the defendant in the Suit, seeking rejection of the plaint. The Civil Judge by his order dated 31-10-1987 rejected the plaint Mohammad Ashrafullah Khan being aggrieved by the order of the Civil Judge tiled an appeal before the District Judge, Karachi (West) and his appeal was accepted. It is against this order that the present revision has been filed. I have heard Mr. S. Hamid Hussain the learned Advocate for the applicant. According to, him the suit as filed cannot ultimately be decreed on account of various legal grounds and therefore the order passed by the original Court rejecting the plaint was a proper order requiring to be maintained by this Court. According to him a Civil Court is not competent to even grant the relief appellate Court in repelling such arguments has rightly held that Civil Court due to allegation of mala fides made in the plaint against defendants will have jurisdiction in the matter. By now it is a settled provision of law that a plaint can only be rejected under Order VII Rule 11, Civil Procedure Code, when patently on its plain reading and without considering the pleas that may possibly be raised by the defence it is found that either it does not disclose a cause of action, or when plaintiff is required by Court to correct valuation within specified time or when plaintiff fails to make up the deficiency in court-fees within time in spite of such orders by the Court or on the basis of statement made in the plaint is barred b any law. No such ground has been shown to be available in this case for rejecting the plaint. Mr. S. Hamid Hussain has urged no other ground to enable this Court to exercise the jurisdiction contemplated by Section 115, Civil Procedure Code This application is therefore dismissed in limine. M.Y.H./T-58/K . Application dismissed.