2013 PLP 372 (YLR)

WAQAR AHMAD SETH, J.

This judgment shall also decide Civil Revision No.1622 of 2011 as both these petitions are outcome of one and the same judgment of learned Additional District Judge-II, Charsadda.

2. The petitioners have assailed the judgment of learned Additional District Judge-II, Charsadda dated 19-9-2011 whereby appeal of the respondent was accepted and the order of learned Civil Judge-III, Charsadda dated 3-2-2011 has been set aside.

3. Short but relevant facts of the case are that the respondent filed a suit for decree of declaration against the petitioners to the effect that she was appointed as Sweeper on contract basis by petitioner No.2 vide appointment order bearing No.1(4)/2006-2007/Admn dated 15-12-2007, who in consequence thereof submitted arrival report and joined her duties accordingly. Subsequently, the said petitioner through his letter dated 11-1-2008 cancelled/recalled her appointment, which is against law, facts and the principle of natural justice as no charge sheet or show-cause notice has been given to her and the petitioners have got no right to repudiate her appointment. Prayers for perpetual injunction and recovery of Rs.24,000 were also contained in the plaint.

4. The suit was contested by the petitioners, however, at the conclusion of trial, the same was decreed by learned Civil Judge-III, Charsadda vide judgment and decree dated 6-10-2009 to the extent of paras 1 and 2 of the plaint while para. 3 in respect of back benefit was dismissed. Dissatisfied from the said judgment and decree, the petitioners preferred appeal, which was dismissed by learned District Judge, Charsada vide judgment dated 28-10-2010. The respondent/decree holder then filed execution petition notice whereof was given to the petitioners and on their behalf government pleader informed the court that the respondent/decree-holder had been reinstated into service as per direction of the court, however, the prayer for back benefit was not acceded to by learned executing court vide order dated 3-2-2011 as the same was not claimed in the plaint. Not contented with the said order, the respondent filed appeal, which was accepted vide the impugned judgment dated 19-9-2011, hence the revision petitions in hand.

5. Learned A.A.-G. appearing on behalf of petitioners contended that the executing court cannot go beyond the decree, hence it rightly dismissed the execution petition of the respondent but the learned appellate court wrongly assumed jurisdiction by accepting appeal of the respondent as no prayer for back benefit was contained in the plaint. In support of his submissions, he relied on 1994 SCMR 22, 2002 CLC 1609 and 2004 CLC 1449.

6. Learned counsel appearing on behalf of the respondent in both the matters contended that the learned appellate court while accepting appeal of the respondent has rendered a well founded judgment, which is neither illegal nor perverse, hence the same warrants no interference by this court in revisional jurisdiction. Arguments heard. Record perused.

7. The respondent filed a suit for declaration, in terms, that she was appointed as Sweeper on contract basis by petitioner No.1 through his order dated 15-12-2007 and in consequence thereof submitted her arrival report and joined the duty. Later on, the said appointment order was recalled and no notice for such cancellation was given to her. The suit was contested by petitioners, however, the same was decreed and the respondent was reinstated into service but the prayer with regard to back benefit was not acceded to. Feeling dissatisfied, the petitioners filed appeal, which was dismissed vide judgment dated 28-1-2010.

8. The decree was put to execution but the learned court executing the decree held that as there is no prayer claimed by the respondent regarding back benefit in the plaint/pleadings, hence the same relief cannot be granted. In appeal, the relief sought for was granted by learned appellate court vide judgment dated 19-9-2011.

9. The bare perusal of plaint as well as record reveal that the respondent had claimed only reinstatement of service, which relief was granted by the learned trial Court, however, the plea with regard to the grant of back benefit for the intervening period was not acceded to as the same was not called for therein. It is well-settled principle that the court executing the decree cannot go behind it and allow its validity to be impugned. When a plea not specifically asked for by an aggrieved person, the court seized of the matter, is supposed not to allow the same. The case-law cited by learned A.A.-G. is fully attracted to the facts and circumstances of the present case. The said principle escaped attention of learned appellate court as it has granted the relief no specifically taken, hence fallen into legal error causing miscarriage of justice. For the aforementioned reasons, this revision petition is accepted and the impugned judgment of learned appellate court dated 19-9-2011 is set aside with no order as to cost, C.M. 1384 of 2011 having become redundant also stands disposed of. MH/371/P Revision allowed.