2003 PLP 315 (CLC)

Brief facts out of which present revision petition arises are that the respondent was appointed by the petitioner as Sanitary Worker on 1‑9‑1970. The date of birth of the respondent was not available in the record of the petitioner, therefore, date of birth of the respondent was assessed by the petitioner subsequently as 28‑8‑1972 and the respondent has to retire on 28‑8‑1994. The respondent did not intimate the date of retirement to the petitioner and continued to perform the duties of the petitioner till 31‑5‑1995. The petitioner deducted the salaries of the respondent amounting to Rs.22,662.38. The respondent being aggrieved filed a, suit for recovery of the said amount before the Civil Judge 1st Class, Faisalabad on 16‑12‑1994. The petitioner/defendant filed written statement controverting the allegation levelled in the plaint. Out of the pleadings of the parties, the learned trial Court framed the following issues:‑‑ Issues (1) Whether the plaintiff has no cause of action? OPD (2) Whether the plaintiff has not approached the Court with clean hands? OPD (3) Whether the suit is bad due to non‑service of notice under section 184, P.L.G.O.? OPD (4) Whether the defendant is entitled to special costs under section 35‑A, C.P.C.? OPD (5) Whether the plaintiff is entitled to the decree as prayed for? OPD (6) Relief.

2. The learned trial Court decreed the suit vide' judgment and decree dated 28‑2‑2001. The petitioner being aggrieved filed appeal before the learned Additional District Judge, Faisalabad, who dismissed the same vide judgment and decree dated 27‑2‑2002. Hence, the present revision petition.

3. The learned counsel of the petitioner submits that judgments of both the Courts below are not in accordance with dictum laid down by the Honourable Supreme Court. In support of his contention, he relied upon a case Mehr Khan v. Executive Engineer 1998 SCMR

613. He further submits that judgment of the Honourable Supreme Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution. He further submits that judgment of Mehr Khan is attracted in the present case.

4. I have given my anxious consideration to the contention of the learned counsel of the petitioner and perused the record myself.

5. The Honourable Supreme Court has decided the case of the similar circumstances in Jalal‑ud‑Din's case PLD 1992 SC 207 and laid down the following principle:‑‑ . "However, as the respondent had received the amount on the bona fide belief, the appellant is not entitled to recover the amount drawn by the respondent during the period when .the latter remained in the field. Learned counsel of the appellants had submitted that the appellants had drawn Rs.12,890.86 during this period but the Engineer‑in‑Chief had directed the recovery of Rs.1,860 only. We considered that as far as the recovery of the amount in question is concerned, the principle of locus poenitentiae would be applicable and the appellants are not entitled to recover the amount. The appellants have themselves taken a liberal view and the recovery of only 12 months is being made. " It is pertinent to mention here that at the time of deciding of Mehr Khan's case by the Honourable Supreme Court, the case of Jalal‑ud‑Din was not considered. It is also pertinent to mention here that the petitioner did not terminate the private respondent on 28‑8‑1994 according to the date of birth assessed by the petitioner, therefore, the petitioner is also contributory negligent qua the action taken by the petitioner against the respondent subsequently as per principle laid down by the Honourable Supreme Court in case Chairman,‑B.I.S.E. v. Suleman Manzoor Ahmad 1981 SCMR 481. it is settled principle of law that no body should be penalized by inaction of the public functionary as per principle laid down by this Court in Ahmad Latif's case PLD 1994 Lah.

3. The principle of locus poenitentiae is attracted in the present case as per principle laid down by the Honourable Supreme Court in case Pakistan through the Secretary, Ministry of Finance v. Muhammad Hamayat Ullah Farukhi PLD 1969 SC

407. It is pertinent to mention here that principle of locus poenitentiae was not agitated by the learned counsel of the petitioner before the Honourable Supreme Court in Mehr Khan's case (supra). In the aforesaid circumstances, the dictum laid down by the Honourable Supreme Court in Mehr Khan's case is distinguished on facts and law and has no relevancy to resolve the present controversy between the parties. The relevant observation of Mehr K;han's. case is reproduced hereunder:‑‑ "We have also noticed that the petition has been dismissed as barred by limitation. However, application for condonation of delay has been filed by the petitioner. Be that as it may, but without going into this question, the case of the petitioner does not merit consideration even on merits."

6. The facts of Mehr Khan's case are that he first approached Wafaqi Mohtasib Aala on 21‑3‑1995 who rejected his complaint, thereafter he preferred a departmental appeal before the Departmental Authority, which remained unresponded, therefore, Mehr Khan filed an appeal before the Service Tribunal on 12‑11‑1995 which was dismissed by the Service Tribunal as barred by time; whereas in the present case, the respondent filed a suit for recovery against the petitioner which was decreed and petitioner preferred an appeal before the learned Additional District Judge, who dismissed the same. Meaning thereby that both the Courts below have given concurrent findings of facts against the petitioner. It is settled principle of law that this Court has very limited jurisdiction while exercising its powers under section 115, C.P.C. to set aside the concurrent findings of facts unless and until the same are the result of misreading and non‑reading .of the record. The learned counsel failed to point out any piece of evidence which was misread by both the Courts below. In view of aforesaid discussion coupled with facts that revision is discretionary relief. Keeping in view the conduct of the petitioner, I am not inclined to exercise my discretion in favour of the petitioner. In view of what has been discussed above, this revision petition has no merits and the same is dismissed. Q.M.H./M.A.K./M‑1378/L Revision dismissed.