2019 PLP (C (PLC(CS)N)

MOHAMMAD IBRAHIM KHAN, J.

Under the appanage of retainer-ship fee per month @ Rs.3,500/- the Respondent (herein before called as Plaintiff) was offered as Standing Counsel to look-after the routine business of S.D.D.A. He was to tender legal advice to the Project Director, S.D.D.A Kanju Township Kanju Swat (herein before called as Defendant). The services if no more were required he may be relieved of his duties subject to one month notice. This contract was given truthful color vide Endst: No.2831-35/SDDA/O-1, dated 18.1.2003 by the Ink Slinger being the Project Director S.D.D.A. Kanju Township Swat. This concordance Perdure till cancellation of the deal by its communique letter bearing No.527/SDDA dated 02.8.2011.

2. Ghafoor Khan an Advocate, privilege-holder seeking declaration on the basis of the office order of his officiating as Standing Counsel has challenged the validity of the cancellation document to be ineffective against his rights as it is not in accordance with rules and regulations. The act of the Project Director S.D.D.A Kanju Township Kanju Swat in collusion with his Deputy Director S.D.D.A and Account Officer S.D.D.A depriving him from his privileges is in fact a step towards concealment of all their illegal actions besides taking over personal benefits.

3. There is an added Prayer for obtaining mandatory injunction to restrain the authorities of S.D.D.A from taking any illegal action in discharge of the duties of the Respondent (herein before called as Plaintiff).

4. The claim on the basis of asservations was hotly resisted by raising various legal and factual objections, whereas pleadings of the parties were then reduced into following issues:- Issues:

1. Whether plaintiff got cause of action?

2. Whether this Court got jurisdiction to entertain the suit?

3. Whether the suit is bad for mis-joinder and non-joinder of parties?

4. Whether plaintiff is estopped to sue?

5. Whether plaintiff is appointed as legal adviser/standing counsel SDDA Kanjaoo Township vide order No.2830 dated 22.10.2003?

6. Whether defendant No.2 has without being authorized cancelled appointment order of the plaintiff mala fide in order to receive illegal gains?

7. Whether appointment order of the plaintiff has been cancelled in violation of prescribed law, without show-cause notice and opportunity of hearing?

8. Whether plaintiff has been terminated as per law standing counsels?

9. Whether plaintiff is entitled to the decree as prayed for? Relief.

5. Next off, parties were allowed to lead their evidence which was accordingly adduced on behalf of the learned Advocate/Plaintiff appearing as PW-1 and Inayat-ur-Rahman Senior Clerk was examined as PW-2. Whereas inversely the Petitioners (herein before called as Defendants) examined Sartaj Khan, Deputy Director as DW-1 and Inayat-ur-Rahman Senior Clerk again appeared in the witness-box as DW-2 on behalf of the Defendants.

6. The learned Civil Judge/Illaqa Qazi-V Swat vide his decision dated 31.01.2014 accepted the prayer and decree was granted along with back benefits (back benefits were neither desired in the plaint nor have ever been shoot off in the statement).

7. The Petitioners then filed an appeal bearing No. 28/13 of the year 2014 before the Court of learned Additional District Judge/Izafi Zila Qazi VI Swat which was dismissed as withdrawn vide the order dated 07.03.2014. On learning that the representative on behalf of the S.D.D.A without, being authorized for withdrawal, the Petitioners (herein before called as Appellants) before the Court of learned Additional District Judge/Izali Zila Qazi-VI Swat preferred another appeal bearing No. 34/13 of the year 2014 which was also withdrawn by the order dated 17.10.2014. By that time it was thought of that the earlier appeal No. 28/13 of the year 2014 was required to be restored for which an application under section 12(2) of the Civil Procedure Cede was preferred. This application was dismissed by the Court of learned Additional District Judge/Izafi Zila Qazi-VI, Swat for all the reasons mentioned in his judgment dated 12.02.2015, hence this Revision Petition.

8. Having heard arguments of learned counsel for the Petitioners and the Respondent Ghafoor Khan an Advocate in person, record with their valuable assistance gone through.

9. Learned counsel for the Petitioners placed reliance on 2008 CLC 960 (Karachi) "Ghulam Muhammad v. Province of Sindh through Secretary", 2009 CLC 763 (High Court AJ&K) Neelum Valley Development Board through Chairman and another v. Muhammad Saddique" 2008 SCMR 236" Mrs, Anis Haider and others v. S. Amir Haider and others" 2013 MLD 1309 (Peshawar) "Muhammad Kazim Khan Khattak and another v. Mewa Khan and 3 others" and 2004 CLC 1398 (SC AJ&K) "Ch. Muhammad Younis Arvi and 3 others v. Sohail Boston and 3 others" and prayed for acceptance of this Revision Petition. On other hand, the Respondents/an Advocate mainly relied upon 2017 CLC 1032 "Zahur Ahmad (deceased) through LRs and others v. Pakistan Cargo Service Private Limited", 2011 SCMR 1298 "Government of Pakistan through Secretary Cabinet Division and another v. Dr. M. Akbar Rajput", 2006 SCMR 531 "Warraich Zarai Corporation v. F.M.C. United (Pvt.) Ltd.", 2013 YLR 2611 "Rooullah and 2 others v. Qubat and 8 others", PLD 2014 Lahore 529 "Sabir Ali v. Additional District Judge and others and 2006 YLR 394 (Multan Bench Multan) "Mst. Bhagari v. Khia and 2 others" and prayed for dismissal of the Revision Petition with cost.

10. Whether an application under section 12(2) of the Civil Procedure Code filed before the learned appellate Court could be decided when there was serious allegation levelled of fraud which could be established by way of recording of evidence. The record before the Court would speak up that there was requirement of framing of issues:- (i) Whether the representative on behalf of the Project Director S.D.D.A and his officers was induced as per averments taken in the application under section 12 (2) of the Procedure Code to have acted under the command of Ghafoor Khan who is an Advocate who has forced him to withdraw the appeal? (ii) Whether the said representative of the Project Director and his officers recorded his statement as being not instructed to file an appeal which has been filed without any authority at the behest of Ghafoor Khan Advocate being an interested party let the decree in his favour to remain stagnant?

11. As per leitmotif of this Petition followed by the arguments, this, hassle has been spruced away by Ghafoor Khan Advocate, the Respondent appearing in present under his clean breast admission that the application for withdrawal of the appeal was drafted by him in his own handwriting which was then presented to the learned appellate Court. In his presence the appeal was withdrawn without proper consultation of the officers of the S.D.D.A. After this admission has come up before this Court there is no need left to further exaggerate and put the propounded issues for recording of evidence. There is no cavil in acceptance of the prayer of setting aside the impugned order dated 12.02.2015 passed by the learned Additional District Judge/Izafi Zila Qazi-VI, Swat.

12. A look over the office order vide Endst: No.2831-35/ SDDA/A/O-1 dated 18.10.2003, it is clear in its terms that the contract is for specific period to continue as long as the will of the Project Director S.D.D.A Kanju Swat wish for. There is a specific provision at Serial No. 5 (If the services of the Advocate are no longer required, he may be relieved of his duties subject to one month notice). This office letter tenders the contract involving personal service. The relationship between the parties in every contract remained in subsistence as long as it was required to have been continued then the principle of master and servant is applicable. The master has the right to terminate the services of his servant if found guilty of misconduct or even without such misconduct it is the sweet will of the master in entirety to terminate the services of his servant.

13. Suffice it to say that if this retainer-ship order was not accepted to the Respondent (herein before called as Plaintiff), there was no compulsion on his part to have accepted this contract. It continued from the year 2003 till 2011 enjoying his remuneration @ Rs.3500/- only.

14. The earlier office order dated 18.10.2003 for the appointment as Standing counsel of Ghafoor Khan was issued with the approval of the Zila Nazim. For latter cancellation order dated 02.8.2011 the Government of Khyber Pakhtunkhwa Local Government, Elections and Rural Development Department under the subject "AFFAIRS OF LOCAL AREA AUTHORITIES, DISBANDMENT OF GOVERNMENT OF GOVERNING BOARDS" has duly authorized the Project Director, whereby at Serial No. (ix) SDA Swat has been given the authority for issuance of any appropriate Order. It shall be without recourse to any office whether that be of the District Nazim or even the Deputy Commissioner of the Swat. Thereby the order dated 02.08.2011 in respect of termination of the Respondent has been passed in utter authority and is legal.

15. Whether the contract involving personal service can be specifically enforced and for contractual employment the remedy would be available for a suit of declaration under section 42 of the Specific Relief Act, 1877 particularly when the services are to be rendered by an employee being in private capacity? If so whether the consequences of terminating of such services it is provided for such dismissed person the right to seek his reinstatement to continue his services as Standing Counsel. These queries are answered in the light of wisdom contained in PLD 1971 Lahore 591 Lahore "M. Rashid Ahmad v. National and Grindlays Bank Ltd." 2000 CLC 1796 (Karachi) Gool Bano and another v. Aurangzeb" 2000 CLC 1801 (Lahore) "Mst. Razia Bibi v. Jaffar Ali", PLD 1966 Supreme Court 848 "The Chairman, East Pakistan Industrial Development DACCA and others v. Rustom Ali and another". Where there is a relationship of master and servant the employment being contractual. There is termination of the contract then such like office order or de-notification cannot be challenged by way of filing of suit for declaration, as such like suits are not maintainable. Whether if at all to establish the legal character has been held to be out of the scope of Section 42 of the Specific Relief Act, 1877.

16. The legislation under the Civil Procedure Code in order to curb the menace of vexatious and crucifying claims by presentation of the plaint, it is duty of the Courts before when such like suits are instituted even before issuance of summons are required to examine the plaint so as to determine the cause of action. If does not accrue the plaint is liable to be returned under Order VII Rule 10 of the Civil Procedure Code or it may be rejected under this rule. The legislation has given such ample powers for rejection of the plaint which does not disclose cause of action not only to the Court of first instance primarily the learned Civil Court, rather the learned appellate Court possess such powers equally. The plaint can be rejected even at the stage when the Court exercising its revisional powers. Guidance is sought from 2006 MLD 12 "Mst. Sarwar Jan and 8 others v. District Judge Bagh and others" and 1989 CLC 15 "Mian Muhammad Akram and others v. Muhammad Rafi".

17. Although the prayer as set under this Revision Petition reads for acceptance of the Revision Petition, the impugned order and judgment dated 12.02.2015 passed by the learned Additional District Judge/Izafi Zila Qazi-VI Swat, may graciously be set aside by allowing application No. 1/12 (2) of 2015 for a remand to the learned appellate Court for hearing appeal bearing No. 28/13 of 2014 and its decision of merits, Yet in the wake, of plaint presented by Worthy Ghafoor Khan Advocate, is not in consonance with its legal character, as he maintained the relationship of master and servant with the Project Director S.D.D.A. The contract in his favour manifests that if his services are no longer required he may be relieved from his duties subject to one month notice and acceptance of the office order on behalf of him. The office Order No.527/SDDA/ Dated Kanju 02.08.2011 under the captioned subject "NOTICE FOR TERMINATION FROM SERVICE" is in utter authority of the Project Director S.D.D.A Kanju Swat.

18. Having no cause of 'action it is absolutely held, let the plaint stands rejected under Order VII Rule 11 of the Civil Procedure Code. This has been wrought so as to avoid further bootless exercise of proceedings and wastage of time endlessly.

19. In the above terms this Civil Revision Petition is accepted leaving the parties to bear their own costs. ZC/67/P Revision allowed.