PLJ 2006
Present: Anwar Zaheer Jamali &
Muhammad Ather Saeed, JJ.
MUHAMMAD AFZAL--Petitioner
versus
PAKISTAN INTERNATIONAL AIRLINES CORPORATION,
C.P. No. 395 of 2005, decided on
28.3.2006.
(i)
Civil Procedure Code, 1908 (V of 1908)--
----S. 47--Execution of decree--Scope of
Executing Court--Question of interpretation--Scope of--Executing Court is
limited to the extent that it cannot behind the decree, but the fact remains
that where in the implementation and execution of a decree the question of its
interpretation is involved, then it is for the Executing Court to examine the
relevant record to conclude exact nature of the reliefs allowed to a party on
the basis of decree framed in a suit. [P.
91] B
(ii)
Constitution of
----Art. 199--Civil Procedure Code (V of
1908), S. 47--Suit for declaration and decreed by trial Court, First Appellate
Court and High Court--Execution petition--Objection petition of respondent
dismissed by Civil Court--Appeal was treated as revision and
allowed--Validity--Plain reading of prayer clause (b) of the decree under
execution revealed that it was only the first part of such payer which was
declaratory in nature while the consequence of such declaration was
incorporated in the second part--Petitioner was entitled to pension and other
benefits--Held: Petitioner had succeeded in his prolonged litigation with the
respondent but practically he was gained nothing out of its which obviously
cannot be his intention in filing the suit, or of Court which had passed the
decree in favour of the petitioner in the terms that suit was decreed as
prayed"--By virtue of decree under execution petitioner was not only
entitled for the sum of Rs. 46000 towards the provident fund but also other
lawful benefits of retirement, excluding those which were given up by
him--Impugned order declared as without jurisdiction and of no legal effect and
the case remanded to the executing Court. [Pp.
91 & 92] C & D
(iii) Duty of Court--
----Multiplicity of litigation should be
avoided for mere hypertechnical reasons and further while interpreting a
document--Courts instead of giving effect to its form or literal meaning should
give more weight to its substance to give effective and substantive reliefs to
the parties in litigation. [P.
91] A
2003 SCMR 29; 1994 SCMR 22; 1986 SCMR
1927 ; PLD 1983 Lah. 445; 1979 CLC 446; PLD 1960 Dacca 305; 2004 YLR 1218 and
PLD 2005 Lah. 331, rel.
Mr. Qamar Abbas, Advocate for Petitioner.
Mr. Amir Malik, Advocate for Respondent.
Date of hearing : 28.3.2006.
Order
Anwar Zaheer Jamali, J.--The petitioner,
an ex-employee of respondent corporation, has preferred this constitutional
petition with the prayer that the order dated 22.3.2005 passed by II-Additional
District Judge, Malir, Karachi, in Civil Appeal No. 44/2004, (subsequently treated as
Revision Application) thereby allowing the said Revision Application and
directing the respondent to pay only the decretal amount of Rs. 46,000/-
(Provident Fund) alongwith mark up at 6% per annum from 1976 till date within
one month, and declining other reliefs allowed to the petitioner by the
Executing Court in its order dated 11.10.2004 passed in Execution Application
No. 18/2003, may be declared as of no legal effect and without jurisdiction.
2.
Summarized facts relevant for the disposal of this petition are that on
24.3.1982 Suit No. 1296/1982 was instituted by the petitioner against the
respondent for recovery of dues amounting to Rs. 78,000/- with the following
prayers:--
"(a) For
a declaration that the defendant order contained in letter dated 4.5.1976 is
illegal, mala fide, arbitrary and discriminatory.
(b) Declaration
that all subsequent proceedings and Orders passed against the plaintiff are
illegal and void and the plaintiff is entitled to pension and all other
benefits.
(c) Mandatory
injunction directing the defendant to accept the resignation of the plaintiff
w.e.f. 15th April, 19/6.
(d) A
decree against the defendant for a sum of Rs. 68,600/- towards the provident
Fund, and for accumulated leave and bonus
for the year 1972-73 and a sum of Rs. 10,000/- towards damages for the
loss of reputation and mental agony suffered by the plaintiff may be passed
against the defendant, and for any other sum found due and payable by the
defendant after the trial of the suit.
(e) cost
of the suit.
(f) Interest
at the rate of 14% may also be granted.
(g) Any
other relief which this Honourable Court may deem fit and proper."
3.
Initially, on an application under Order VII, Rule 11 CPC moved by the
respondent in this suit on 21.12.1982, plaint in the suit was rejected by the
Senior Civil Judge vide order dated 14.3.1983. This order was challenged by the
petitioner by way of filing Civil Appeal No. 162/1983 before the District
Judge,
4.
After the above noted first round of litigation with reference to the
maintainability of the suit, when the suit proceeded on merits various issues
arising out of the pleadings of the parties were framed, parties evidence was recorded,
and vide judgment dated 13.12.1993 the suit of the petitioner was decreed as
prayed and accordingly decree was framed on 20.1.1994, in terms of the prayers
made in the amended plaint filed in the suit, which reads as under:
"Plaintiff prayed as under:--
(a) For
declaration that the defendant order contained in letter dated 4.5.1976 is
illegal, mala fide, arbitrary and discriminatory.
(b) Declaration
that all subsequent proceedings and orders passed against the plaintiff are illegal
and void and the plaintiff is entitled to pension and all other benefits.
(c) Mandatory
Injunction directing the defendant to accept the resignation of plaintiff with
effect from
(d) To
pass a decree against the defendant in the sum of Rs. 46,000/- towards
Provident Fund.
(e) Grant
cost of the suit.
(f) Interest
at the rate of 14% may also be granted.
(g) Any
other relief which this Court may deem fit and proper.
This suit is coming up for final disposal
on this 13th day of December 1993 before Mr. Inderyas Barkat, Ist Senior Civil
Judge, Karachi East, in presence of both parties counsels.
It is ordered that the suit of the
plaintiff is hereby decreed as prayed with Cost."
5.
In the appeal preferred by the respondent, being civil Appeal No.
4/1994, judgment and decree passed in Suit No. 1296/1982 were maintained and
consequently appeal was dismissed vide judgment dated 17.9.1997. The respondent
being dissatisfied with the concurrent findings of the two Courts below,
preferred Civil Revision Application No. 45/1998 in the High Court, which was
also dismissed vide judgment dated 21.4.2002.
6.
Before the Executing Court when the matter came up for execution of
decree passed in Suit No. 1296/82, which had already attained finality upto the
level of High Court, objections were filed on behalf of
judgment-debtor/respondent. The Executing Court by its order dated 11th October
2004 rejected such objections and allowed the execution application with
directions to the Nazir of the Court to calculate the sums in terms of the
decree and issuance of writ of attachment accordingly. When the writ of
attachment was issued for recovery of decretal amount in the sum of
Rs. 31,68,390/-, the respondent preferred Misc. Civil Appeal, before the learned
II-Additional District Judge, Malir, challenging the quantum of decretal amount
claimed by the petitioner in the execution application. The crux of the case of
the respondent was that the money decree passed in the suit is only in the sum
of Rs. 46,000/-, therefore, on the basis of other declaratory decree in the
suit, petitioner was not entitled to recover any sum more than the one
specifically contained in the decree. The appellate Court treating the misc,
appeal as revision application and agreeing with the contentions of the
respondent, allowed the Revision Application by its impugned order.
7.
Mr. Qamar Abbas, learned counsel for petitioner in his arguments made
reference to the chequered, history of litigation between the parties,
commencing from the year 1982. He made particular reference to the prayers made
in the amended plaint of the suit and contended that relief prayed for as per
clause (b) of the plaint, which was granted by the Civil Court and maintained
upto the level of High Court, contained not only declaration that all
subsequent proceedings and orders passed against the petitioner were illegal
and void but also other consequential relief that the petitioner was entitled
to pension and all other benefits. He contended that in view of such executable
nature of decree the petitioner at the time of filing of execution application
rightly calculated and mentioned his upto date claim of pension and other
benefits which are recoverable from the respondent in term of the said decree.
To reiterate the stand of the petitioner about his total claim allowed by the
Executing Court in relation to his pension from the date of retirement and
other permissible allowances. Mr. Qamar Abbas also referred various documents
to show that on facts respondents are unable to controvert such claim of the
petitioner being based on their own documents and record.
8.
Learned counsel also placed on record photostat copies of judgments in the following
cases to fortify the case of the petitioner:
(i) Syeda
Tahira Begum and another v. Syed Akram Ali and another (2003 SCMR 29).
(ii) Mst.
Naseem Akhtar and Four others v. Shalimar General Insurance Company Ltd. and
two others (1994 SCMR 22).
(iii) The
Administrator Thal Development & another v. Mehboob Ali Khan (1986 SCMR
1927)
(iv) Abdul
Khaliq v. Haji and another (PLD 1983 Lahore 445).
(v) Ali
Hussain v. Rafiquddin & nine others (1979 CLC 446).
9.
In the first case Hon'ble Supreme Court, dilating upon well recognized
principles of administration of justice observed that the technicalities of law
should not obstruct the way of justice as rules of procedure are framed to
foster the cause of justice and not otherwise. In the second case, it was held
by the Hon'ble Supreme Court that the defendants in execution proceedings could
not take up plea, which they had not taken before the trial Court during the
course of hearing of suit, which was ultimately decreed and decree became
final. It was further observed that once a decree was passed it had to be
executed in its terms and it was not open to
10.
In reply to the submissions of Mr. Qamar Abbas, Mr. Amir Malik, learned
counsel for respondent, did not dispute the previous record of litigation
between the parties and the fact of finality of the decree in Suit No.
1296/1982 passed in favour of the petitioner. To dispute the claim of the
petitioner, the main arguments of Mr. Amir Malik are that the declaration
sought in prayer clause (b) of the suit could not be stretched to the extent of
covering the pension benefits and other permissible allowances of the
petitioner against the respondent in the form of money decree till this date,
as such declaratory decree under the provisions of Specific Relief Act was not
executable and for further relief of recovery of such sums, the petitioner had
to file a fresh suit. In support of his arguments, learned counsel placed
reliance upon the following cases:
(a) Gladstone
Wyllte & Co. Ltd. v. Badshah Miah (PLD 1960 Dacca 305);
(b) Salma
Akhtar Bhatti v. Mehboob Qadir Shah & Five others (2004 YLR 1218).
(c) Muhammad
Ali v. Zakir Hussain (PLD 2005
11.
In Galdstone's case it was held that a declaratory decree obtained in
the suit was not executable. In Salma Akhtar Bhatti's case, the learned single
Judge dilated upon various kinds of decrees and their execution and held that
declaratory decree is not executable, while prohibitory decree can be executed
only when it is violated. In Muhammad Ali's case it was held that the
12.
While concluding with his submissions. Mr. Amir Malik supported the
impugned order passed by the Appellate Court and contended that since the
Executing Court cannot go beyond the decree, therefore, under the grab of mere
declaration sought by the petitioner in his suit, he cannot claim the recovery
of sums mentioned in the execution application/subsequent statement, in excess
to the sum of Rs. 46,000/- only for which the suit was valued by the petitioner
after withdrawal/deletion of certain other reliefs at the appellate stage.
13.
In order to examine respective contentions of parties counsel in more
comprehensive manner and for convenience sake, it will be useful to reproduce
hereunder the statement of account submitted by the petitioner before the
Monetary value of claim under
Decree by Ist Senior Civil Judge
Karachi (East) in Suit No. 1290 of
1992 read with Civil Revision
No. 45 of 1998 Interest
at
14% p.a.
Specified claims which may be
verified by summoning PIA
(I) (b) Pension
estimated by plaintiff
at
Rs. 662.50 per month from
15.4.1976
to 31.12.2002 26 years
8
months and 15 days 212,994 383,336 Calculation attach
pension
entitlement on service
of
15 years for SR FE 1 plus 25%
increase
negotiated in 1971 as
per
F.E.N.A. agreement with PIA
per
schedule. Annexure I
(b)
Other benefits
1.
Bonus for the year 1972-73
Proportionate
- say Annexure 2 2,738 10,267 26 years 9 months
15
days to 31.1.2000
2.
Accumulated leave which could
not
be availed due to PIA's
operational
requirements
293
days compensation @ Rs. 3,650 pm 35,648 133,703 26 years 9 months
15
days to 31.1.2000
Evidence
of unavailed leave
Annexure
3
II (d) Provident
Fund contribution by
self
and PIA estimated by
plaintiff
kept by Provident Fund
Trustees
invested per Fund Rules 73,000 273,794 26 years 9 months
____________ ______ 15 days to 31.1.2000
Annexure
4 specified at 324,380 801,099
Rs.
46,000 in the decree ___________ _______
Unspecified
claims which may be
Require
negotiations with PIA
(b) Other
benefits
1.
Value of leave passage entitlement
for
self and family members during,
service
which could not be availed
as
leave declined by PIA 6 members
family
at Rs. 3,000 for six members
per
leave i.e. 9 times Karachi/
London/Karachi 162,000 607,597 26
years 9 months
15
days to 31.1.2000
2.
Value of free annual passage
Since
1977 to 2002 - 26 times
for
self and wife and 2 unmarried
daughters
at average cost of
Rs.
10,000 per passage per annum
KYC/LON/KYC 1,040,000 waived
for
two sons 31 passages at
Rs.
7,500 per passage KYC/LON/KYC 232,500 waived
___________ _______
1,434,500 607,597
___________ _______
Total Specified
benefits 423,380
Interest
on specified benefits 801,099 1,125,479
_________
Unspecified
claims 1,434,500
Interest
on unspecified claims 607,597 2,042,097
_________
Legal
costs 813
____________
3,168,389
____________
14. A bare
reading of the above statement of claim submitted by the petitioner before the
Executing Court, shows that in the first place, sum of Rs. 2,12,994/- has been
claimed as pension benefits, in the next column of other benefits, bonus for
the year 1972-73 has been claimed in the sum of Rs. 2,738/-, accumulating leave
benefits in the sum of Rs. 35,648/- and provident fund contribution of Rs.
73,000/- totaling Rs. 3,24,380/-. On the other side of the statement, on all
these sums, interest at the rate of 14% per annum in terms of prayer clause (f)
granted by the Court, has been worked out in the sum of Rs. 801, 099/-.
In the next column, unspecified claims,
which require negotiations with PIA have been mentoined in the sum of Rs.
14,34,500/- with corresponding mark up at the rate of 14% per annum on one head
of account amounting to Rs. 607,597/-.
15.
There is no cavil to the proposition of law canvassed by Mr. Aamir Malik
on behalf of respondent that the
16.
On merits of the claim of the petitioner against the respondent. Mr.
Aamir Malik could not advance any other arguments except that for recovery of
such claims the petitioner should have filed separate suit or that the claim
submitted by the petitioner before the
17.
In our opinion, it should always be the approach of the Courts of law
that multiplicity of litigation should be avoided for mere hyper-technical
reasons, and further while interpreting a document, the Courts instead of
giving effect to its form or literal meaning should give more weight to its
substance to give effective and substantive reliefs to the parties in
litigation. Both the learned counsel are in agreement on the well recognized
proposition of law that the scape of Executing Court is limited to the extent
that it cannot go behind the decree, but the fact remains that where in the
implementation and execution of a decree the question of its interpretation is
involved then it is for the Executive Court to examine the relevant record to
conclude exact nature of the reliefs allowed to a party on the basis of decree
framed in a suit. As observed above, plain reading of prayer clause (b) of the
decree under execution reveals that it was only the first part of such prayer,
which was declaratory in nature, while the
consequence of such declaration was incorporated in the second part, that the
petitioner is entitled to pension and other benefits. If we agree to the
arguments of Mr. Aamir Malik that the decree under execution to the extent of
prayer clause (b) is only declaratory in nature, it will mean that though the
petitioner has succeeded in his prolonged litigation of over twenty years with
the respondent but practically he has gained nothing out of it, which obviously
cannot be his intention in filing of the suit, or of the Court which has passed
the decree in favour of the petitioner in the terms that "suit is decreed
as prayed". Thus, we are of the considered opinion that by virtue of the
decree under execution, the petitioner is not only entitled for the sum of Rs.
46,000/- towards the provident fund as prayed in the prayer clause (d) of the
decree but also other lawful benefits of retirement, excluding those which were
given up by him in terms of his application under Order XXIII, Rule 1 CPC dated
18.7.1984 moved before the Appellate Court in Civil Appeal No. 162/1983.
18.
Insofar as the entitlement of the petitioner for the actual monetary
claim to be worked out on the basis of decree under execution is concerned, we
find substance in the submission of Mr. Aamir Malik that unilateral statement
of account submitted by the petitioner before the Executing Court cannot be
accepted by the Executing Court without calling upon objections from the
respondent and verification of such claim in a judicious manner. Even as per
statement of claim submitted by the petitioner, the second part of his claim
under the head "unspecified claims" is dependent upon his
negotiations with the respondent. Thus, such claim is yet to be adjudged and
determined by the parties through negotiations.
19.
For the foregoing reasons we declare the impugned order dated 22nd March
2005 passed by the Court of II-Additional District Judge Malir in Civil Appeal
No. 44/2004 as without jurisdiction and of no legal effect and remand the case
to the Executing Court with the directions to invite fresh objections from the
respondent to the statement of monetary claim submitted by the petitioner in
the executing proceedings. If deemed appropriate, a Commissioner be appointed
for this purpose at the cost of the decree-holder to be added towards the cost
of execution application and upon submission of final adjudged claim of the
petitioner/Decree-holder, necessary Court fee be recovered on the said amount
and further execution proceedings be held for the satisfaction of decree under
execution in terms thereof. It is expected that such exercise will be completed
within three months from the date of this order.
(M. Ajmal Rana) Case remanded.