2007 PLP 569 (SCMR)

CH. IJAZ AHMED, J.

The appellants have filed direct appeal against the judgment of Peshawar High Court, dated 28-6-2004 wherein the learned High Court had reversed the judgment of the trial Court, dated 25-5-1995. Necessary facts out of which the present appeal arises are that respondent No.1/plaintiff filed suit for recovery against the appellants and respondent No.2 in the Court of Civil Judge Peshawar. Respondent No.1/plaintiff claimed following amount from the appellants/ respondent No.2:-- (a) Recovery of Rs.1,50,000 as cost of medical treatment for injuries sustained by the plaintiff in a road accident during the course of employment of the defendants. (b) Recovery of Rs.5,00,000 for permanent disability caused to the plaintiff during performance of duty as employee of the defendants, whereby his earning capacity has been marred on account of road accident. (c) Recovery of Rs.3,50,000 for aggravating the conditions of injuries of the plaintiff sustained during the employment of defendants, by the defendants by forcing plaintiff to perform such duties which were against the considered medicoadvise of the various medical specialist. (d) Recovery of Rs.19,581.53 out of which Rs.17,500 has been forcibly taken from the plaintiff by the defendants and Rs.2,081.53 is going to be deducted from the emoluments of the plaintiff by the defendants against his consent. (e) Recovery of Rs.5,00,000 as damages for wrongful, unlawful, illegal and mala fide termination of service of plaintiff. The contents of plaint reveal that respondent No.1 filed a suit against the appellants and respondent No.2 for damages alleging that during service as Principal in Group No.9 in the School at Hayatabad Peshawar while returning from Islamabad to Peshawar on 29-7-1981 met with a road accident near village Shaidu on G.T. Road due to which he remained hospitalized for more than 7 months. Subsequently respondent No.1 was transferred to Islamabad and ultimately on 10-6-1984 he was terminated from service. For the period of December, 1980 to June, 1984 the respondent was neither paid the emoluments and salary etc. as alleged nor paid the compensation awarded as a result of inquiry conducted by the Enquiry Committee in which the driver of the Jeep of Pakistan Army was held responsible. Appellants filed written statement, controverting the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed 15 issues. Appellants after filing written statement did not participate in the proceedings before the trial Court. Respondent No.1 had produced eight witnesses to prove his case against the appellants. The Civil Judge, Peshawar/the trial Court vide its judgment, dated 25-5-1995 dismissed the suit of the respondent No. 1 for the following reasons:- (i) Respondent No.1 failed to implead proper and necessary party i.e. Pakistan Army as defendants in the suit because he had suffered due to the negligence of the driver of the Pakistan Army. (ii) Suit for damages was to be filed within one year from the date of accrual of injuries or the loss of limbs. Hence the present appeal.

2. The learned counsel for the appellants submits that services of respondent No. 1 was terminated by the appellants in accordance with the terms and conditions of contract by giving one month notice and this fact was not considered by the learned High Court in the impugned judgment. He further maintains that respondent No.1 had claimed damages in general terms without specifying particular damages sustained by him qua each item and failed to prove the damages claimed by him and this fact was also not considered by the learned High Court in its true perspective. He further maintains that learned trial Court was justified to dismiss the suit of the respondent/plaintiff with cogent reasons as the plaintiff/respondent had not impleaded the proper and necessary party as defendant i.e. Pakistan Army in his suit and the suit was also not filed by the respondent within the prescribed period of one year under the Limitation Act in view of section 22.

3. The learned counsel for the respondent No.1/plaintiff has supported the impugned judgment. He submits that appellants had tiled written statement and thereafter disappeared. The evidence of the respondent/plaintiff was recorded ex pane. The respondent/plaintiff had proved the case by producing his evidence and witnesses of the respondent/plaintiff were not cross-examined by the appellants, therefore, learned High Court was justified to reverse the judgment of the trial Court. He further maintains that plaintiff/respondent had proved all the claims in his evidence which were duly corroborated by the sufficient evidence on record.

4. We have considered the submissions made by learned counsel for the parties and perused the record. It is admitted fact that respondent/ plaintiff had gone to Islamabad on official duty. The vehicle was provided by the appellants to him but the driver was not provided. It is a settled law that nobody is penalized by the act of public functionaries in view of the Article 4 read with Article 5(2) of the Constitution. It is also a settled law that nobody is allowed to take the benefit of his own misdeeds as law laid down by this court in the following judgment:- (i) Raja Muhammad Fazal Khan's case PLD 1975 SC 331, (ii) Wali Muhammad's case PLD 1974 SC 106, (iii) Tufail Muhammad's case PLD 1965 SC 269 and (iv) Abdul Rashid's case 1969 SCMR

141. It is also a settled law that nobody is allowed to approbate and reprobate as law laid down by this Court in Ghulam Rasool's case PLD 1971 SC

376. It is pertinent to mention here that appellants themselves have not provided him the facility of driver and send him on official duty and he met with an accident while coming back from Islamabad to Peshawar and his services were also terminated on account of his health, therefore, learned High Court was justified to reverse the judgment of the trial Court. The learned High Court in its capacity as appellate Court possessed the jurisdiction to come to his own conclusion on the basis of. evidence adduced before the trial Court by the parties and resultantly the learned High Court could competently reverse the finding of the trial Court on the questions of fact involved in issues. The learned High Court after proper appreciation of evidence had reversed the finding of the trial Court with cogent reasons as is evident from paras.8 to 10 of the impugned judgment which are reproduced hereunder:-- "Insofar as the question that Pakistan Army was a necessary party is concerned, the same is not a valid ground. The appellant met with an accident during his official duty, therefore, he could sue the respondents-Organization as he was their employee. The trial Court has neither acted in accordance with law nor appreciated the evidence on record especially the evidence of the officials of the respondents/defendants-Organization wherein they had categorically admitted the relevant facts agitated by the appellant. The learned trial Court also non-suited the appellant that suit was filed after the elapse of one year without quoting any relevant and direct provision of law. However, even if it is presumed that the suit has to be filed within one year, the elapse of time, if any, is conceivable from the facts of the case on record. The appellant was hospitalized for more than seven months and. even thereafter he was in a miserable/disabled condition. Still when he was denied, he persuaded his case actively till he was terminated, hence the delay is safely condonable. In view of the above discussion, I hold that in the circumstances of this case, the suit of the appellant is decreed to the extent of prayers (a), (b), (d) which relate to damages whereas prayer (c) is rejected, however, in the course of proceedings if the respondents-Organization could succeed by bringing substantial proof as to the payment of prayers (a) and (d), that can be taken into consideration by the Executing Court at the time of execution of the decree."

5. It is a settled law that statement made in the written statement cannot be treated as evidence in the case. See Mst. Khair-un-Nisa's case PLD 1972 SC

25. The learned trial Court erred in law to dismiss the suit of the respondent whereas the learned High Court was justified to reverse the same with cogent reasons. It is an admitted fact on the basis of evidence on record that accident had taken place on account of the negligence of the driver of the Pakistan Army. The amount of damages was given by the Pakistan Army to the respondent/plaintiff which had taken back by the appellants. As mentioned above, the claim of the respondent No.1/plaintiff was not controverted by the appellants, therefore, learned High Court was justified to award the same to the respondent/plaintiff. See Mian Ghulam Bari's case 1995 MLD

480. The learned High Court was justified to come to the conclusion that suit filed by the respondent was not time-barred and also that suit was not liable to be dismissed on the ground that respondent/plaintiff had not impleaded all the necessary parties as defendants in his suit as law laid down by this Court in Muhammad Yousif's case 1993 SCMR 1185. It is pertinent to mention here Pakistan Army in the present case is not necessary and proper party in view of aforesaid circumstances as the Pakistan Army had already paid the damages to the respondent/plaintiff which had taken back from him. Even otherwise the respondent had filed the suit against the appellants in view of the liability of the appellants as the respondent/plaintiff was their employee at the relevant time. His services are terminated by the appellants, therefore, dispute in question is between the respondent No.1 and appellants. The appellants are liable to pay the damages to the respondent/plaintiff because the competent authority had sent him on official duty without providing facility of the driver. See Mukhtar Ahmad's case PLD 1956 Sindh

124. This Court has already observed in Niaz Ahmad's case PLD 2006 SC 432 as "it is a high time to put the nation on a right path to promote the law of tort".

6. For what has been discussed above, the appeal has no merit, therefore, the same is dismissed. M.H./O-5/SC Appeal dismissed.