1989 PLP (C (PLC(CS))

This is an application under section 12(2), C.P.C. for setting aside the judgment dated 2-10-1983. On that date the appellants were not present and the Advocate for the respondent argued the appeal. Briefly the facts are that the service of the respondent was terminated on 11-7-1967, which he challenged in a suit for declaration, which was dismissed on 25-4-1969. The respondent then filed 1st Appeal before the District Judge, Khairpur, which was allowed. The appellants then filed this IInd Appeal on 5-1-1972. By West Pakistan Water and Power Development Authority (Amendment) Ordinance, 1975 promulgated on 13-9-1975 the service of WAPDA was declared service of Pakistan and every employee of WAPDA unless on deputation from any Provincial Government was deemed to be a civil servant for the purposes of Service Tribunals Act, 1973. Section 6 of the Service Tribunals Act provides that all suits, appeals or applications relating to any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of the Act shall abate. Referring to this provision the learned counsel for the respondent contended that the appeal has abated and reference was made to P L D 1981 S C

250. Judgment dated 2-10-1983 was passed and appeal was held to have abated. By this application it has been contended that the appeal has not abated. This seems to be the, correct position because while considering section 6 it was not considered that only those appeals had abated which were within the jurisdiction of the Tribunal. No doubt the appeal related to service but under section 4(c) no appeal could be fled before the Tribunal against an order of a departmental authority made before 1-7-1969. In the present case such order was passed on 11-7-1967, therefore, the Tribunal had no jurisdiction in the matter. This fact escaped notice and the judgment was passed on the basis that the Tribunal has jurisdiction in the matter. Consequently the appeal cannot abate. The effect of this judgment would be that neither the appellants can proceed with appeal in this Court nor before the Service Tribunal. In such a situation when the illegality of the order is pointed out it is the inherent jurisdiction of the Court to correct the error as no party should be allowed to suffer due to the mistake J the Court. In this regard reference can be made to Saifuddin v. Zainuddin P L D 1973 Kar. 210 where a preliminary decree was passed and Habib Bank was appointed as a receiver. It wanted to be discharged and the plaintiff and defendant made an application for compromise praying that final decree be passed by which the factory and godown be handed over to the plaintiff as a sole proprietor. The plaintiff was also appointed as receiver but before the final decree was passed, it was noticed that the plaintiff was an Indian national and could not be appointed as a receiver nor prosecute the suit in view of section 83(2) of C.P.C. and Rule 164(b) of Defence of the Pakistan Rules. In these circumstances the Court cancelled the invalid order and observed as follows: - `It is well-settled law, that a Court can in its inherent powers, cancel its own invalid orders, by recording that what had been done was without jurisdiction. It is also not necessary to go further and see that any fraud or deceit had been practised. Such a view was taken in Sardar Muhammad Hussain Khan and another v. Rasool Bux and others A I R 1948 Sind 124 and Dholandas Gidumal v. Ladhumal Dchumal and others 32 S L R

215. In view of Rule 165(2) of the Defence of Pakistan Rules, even the attorney of the plaintiff cannot be allowed to carry on as a receiver. The order dated 3-12-1971, appointing the plaintiff as the receiver of the factory, therefore, stands recalled. In the present case similar situation has arisen, therefore, I recall judgment dated 2-10-1983 and the appeal will now be fixed for hearing. M.Y.H./C-59/K Order accordingly.