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First Civil Appeal No. ‑11 of 1963, decided on 25th October 1967.

O. II, r. 2‑Service agreement stipulating payment of certain amount forthwith and thereafter salary month by month‑Agreement of employment containing both terms which formed one transaction‑Two distinct rights in favour of employee viz., to receive certain fixed amount forthwith and to receive monthly salary‑Two distinct causes of action‑First suit for recovery of amount (stipulated to be paid forthwith) omitting claim in respect of salary‑Subsequent suit for recovery of arrears of salary not barred‑Provisions of O. 11, r. 2, C. P. C., in circumstances, held, not applicable.

According to the terms of agreement the plaintiff was entitled to certain fixed amount payable forthwith so as to enable him to meet his immediate‑ professional commitments and was further entitled to receive his monthly salary as stipulated in the agreement. The plaintiff had, filed a suit against the employer for the recovery of the fixed amount in terms of agreement and had in that suit omitted his claim in respect of salary. In a subsequent suit for recovery of arrears of salary an objection was raised that since, in the previous suit, he had omitted to claim his salary, the subsequent suit, so far as pertained to the salary up to the date of filing of previous suit, was barred under O. II, r. 2

Held, it is true that on the basis of the agreement deed, the plaintiff was entitled to Rs. 22,500 on his arrival at L so as to enable him to meet his commitments at K in connec tion with his profession, and he was further entitled to receive his monthly salary. These two clauses formed one transaction but it gave rise to two distinct rights in favour of the appel lant, namely, to sue for the recovery of Rs. 22,500 on his arrival at L and his monthly pay. He could, however, sue for the recovery of Rs. 22,500 a day after his arrival at L, but could not sue for the recovery of his salary before the end of the month, and therefore. These are two distinct causes of action, and merely because they arose from one transaction, i.e., agreement deed, does not mean that the plaintiff-appellant had one cause of action, and, therefore, Order II, rule 2, C. P. C., does not apply.

Rafia Begum v. Miraj‑ud‑ Din and others P L D 1959 Lah. 890 rel.

Wrongful dismissal‑Damages- Plaintiff duty bound to do all that is possible to mitigate damages.

A servant complaining of wrongful dismissal from service cannot rest content by merely putting forward a claim for recovery, in lump sum and in advance, of the entire amount of antici pated salary covering the whole period for which he expected to continue in service. The law which recognises his right to recover damages for wrongful dismissal imposes a correspond ing duty on him to do ail that is possible to mitigate such damages. He is bound to act in that direction not only in his own interests but also in the interests of the opposite‑party against whom he has to sustain an action for damages. He has to use due diligence in endeavouring to obtain suitable employment with wages approximating that which he was getting in the service from which he was dismissed, even though he is not expected to accept a fresh engagement in a lower status. The possible chance of obtaining a suitable employment elsewhere has to be taken into account in assessing the measure of damages to be awarded to the plaintiff:

Messrs General Iron & Steel Works v. Fazal Muhammad P L D 1967 Kar. 1 ref.

, S. 74‑Service agreement -Compensation for breach‑Provision of S. 74 attracted only when e amt is named in contract as amount to be paid in case of breach.

Muhammad Parial for Appellants.

Mohanlal for Respondents.

Dates of hearing : 18th and 19th October 1967.

The First appeal arises out of a suit brought by Pir Muhammad, plaintiff‑appellant, son of Jehan Khan Chandio, resident of House No. 74/K7‑A, Nawabad Lyari Quarters Karachi‑2 against Ahmad Sultan, son of Mir Muhammad Khan Chandio, resident of 138 Sultan Manzil, Jagumal Bagumal Road, Garden West Quarters, Karachi, for the recovery of Rs. 85,400. The plaintiff alleged that he Was appointed as Secretary by the defendant on or about 10th of February 1955, to manage his estate at Karachi and in the District of former Sind. His appointment was to commence from 10‑2‑1955: The plaintiff was to be paid Rs. 500 for the first year, and thereafter it was to be increased to Rs. 800 per month. The terms and conditions of the service of the plaintiff were embodied in the letter of appointment, dated the 10th of February 1955, copy of which is marked A'. A general power‑of‑Attorney was subsequently executed by the defendant in favour of the plaintiff with a view to facilitate the Management of his vast property. The defendant, how‑ ever, became irregular in the payment of salary to the plaintiff and till 11‑6‑58 had paid him Rs. 7,000 only. The plaintiff asked the defendant to arrange for the payment of his arrears of pay The defendant, however, instead of arranging the payment of the arrears is said to have cancelled the general power‑of -Attorney executed by him in his favour on the basis of notice, dated 2nd of September 1958, which was received by the plaintiff on 4‑9‑58, and is marked 'B' and terminated his services.. The plaintiff alleged that he was entitled to the salary for the entire period of ten years in accordance with the terms and conditions embodied in the letter of appointment. His salary for ten years amounted to Rs. 92,400 out of which he had received Rs. 7,000 and Rs. 85,400 was still due.

2: The defendant in his written statement admitted the execution of the power‑of‑Attorney and letter of appointment, but urged that he was not bound by the terms and conditions of the letter of appointment dated the 10th of February 1955, and the power‑of‑Attorney executed by him; in favour of the plaintiff. He urged that the plaintiff had managed to take Rs. 7,000 from him to which he was not entitled. The plaintiff did not do even a day's work for him from 1955 to 1958, or thereafter is pursuance of the so‑called letter of appointment. It was admitted that Mr. Kaikobad, counsel for the defendant had cancelled the power‑of‑Attorney, executed in favour of the plaintiff at his instance. He also admitted the‑ execution of letter, dated 2‑9‑1958 (marked B'), but denied that the services of th0plaintiff were terminated by this letter. He averred that his late grand‑father Nawab Sir Ghaibi Khan Chandio was Jagirdar and landlord in the former Province of Sind and owned about two lac acres of land. He was the biggest landlord and Jagirdar in the former Province of Sind. Nawab Sir Ghaibi Khan Chandio died on 26‑11‑1954 and was survived by his son, namely, Mazhar Ali Khan and several grandsons, including the defendant. On the basis of a will Nawab Sir Ghaibi Khan Chandio had given his entire Jagir to the defendant on the basis of a will, which (will) was ultimately accepted by the Government of the former Province of Sind and recognised him as the new Jagirdar. Soon after the death of Nawab Sir Ghaibi Khan Chandio, disputes arose between the defendant and Mazhar Ali Khan, which resulted in litigation in Civil and Revenue Courts. The most important case between the parties was Civil Suit No. 614 of 1955, instituted by Mazhar Ali Khan in former Chief Court of Sind at Karachi, seeking declaration that he was rightful claimant to the Jagir left behind by Nawab Sir Ghaibi Khan Chandio. The plaintiff who also happens to be Chandio by caste belongs to District Dadu and has settled at Karachi since about 25 years. During the pendency of the Civil Suit No. 614 of 1955 and before the defendant was recognised as a new Jagirdar by the Government of Sind in succession of his late father Nawab Sir Ghaibi Khan, the plaintiff is said to have approached the defendant, at Karachi, saying hat he had certain documents in his possession, which if placed on record, would completely destroy his defence and Mazhar Ali Khan would be recognised and accepted as the successor of the late Nawab. The plaintiff then proposed to the defendant that if he was agreeable to bargain, he would suppress these documents, otherwise he would hand them over to Mazhar Ali Khan. The plaintiff, however, did not show these documents to the defendant but assured him that he had these documents and could produce them against him. The plaintiff then proposed that if the defendant paid Rs. 500 per month for the first year and Rs. 800 per month for the following years and also paid him an additional amount of Rs. 22,500 in cash, he would suppress these documents. Taking undue advantage of the situation, the plaintiff is said to have forced the agreement upon the defendant without getting any time an independent advice.

3. It was also averred that the plaintiff had never worked for the defendant, and he was, therefore, not entitled to any pay. At the material time he had remained and worked as an Advocate's agent at Karachi as before. Since the agreement in dispute was executed with a view to suppress evidence from' the Court of law, so it was against public policy and not enforceable. The suit was not maintainable and was time‑barred. The following issues were framed :‑‑

(1) Is the claim of the plaintiff time‑barred, if yes, to what extent

(2) What is the effect of the letter of the defendant's counsel dated, 2‑9‑1958, cancelling the power‑of‑Attorney

(3) Did the plaintiff do any work between 1955 to 1958, in pursuance of the letter of appointment and the power‑of‑Attorney dated 10‑2‑1955, and 31‑3‑1955, respectively and what would be the effect either way on the contract of appointment

(4) Is the suit in respect of future pay maintainable

(5) Did the plaintiff during the pendency of Suit No. 614 of 1965 disclose the existence of any documents in his possession having bearing on the merits of this suit namely 614 of 1955 and did the plaintiff agree to suppress the said documents

(6) Was the letter of appointment executed by the defendant under undue influence and or inequality between the parties, if so what is the effect

(7) Was the object of the letter of appointment against public policy, and if so, what is the effect

(8) Has the plaintiff any cause of action

(9) What relief if any is the plaintiff entitled to

4. An application was moved by the defendant for the amendment of the written statement, on the ground that the plaintiff had brought a suit on 31‑3‑1958 for the recovery of Rs. 20,500 against him on the basis of the letter of appointment, dated the 10th of, February 1955, and in the above‑mentioned suit he had omitted to claim the salary up to the date of the filing of the suit, and so the suit for the recovery of salary up to 31st of March 1958, was barred under Order 11, rule 2, C. P. C. He, therefore, sought the amendment of the written statement so as to raise this plea. The learned trial Judge by his order, dated 31st of July 1962, allowed the amendment. After the filing of the amended written statement, the following additional issue was framed :

"Is the claim in suit or any part thereof barred by virtue of Order 11, rule 2, C. P. C. "

After recording the evidence examined by the parties, the learned trial Judge came to the conclusion that the suit brought by the plaintiff was within time. He discussed issues Nos. 6 and 7 together and found that the letter of appointment, i.e. the agreement, was freely executed and was not the result of undue influence. The object of the letter was also not against the public policy, and so he found both these issues against the defendant (sic). On Issue No. 3 he found that the plaintiff had taken up his duties and worked as such. On Issue No. 5 he observed that it was not necessary for him to dilate on this aspect of the case. He, however, found that there were no documents in possession of the plaintiff to be suppressed. He further observed that the plaintiff being one of the tribe had some associations with the family, and therefore, the defendant could afford to retain him. On Issue No. 2 he found that the plaintiff was secretary to the estate at least till the 7th of April 1956, and his services were terminated sometimes round about March/April 1956, because in his opinion it was not conceivable that the plaintiff would muster courage to stand up against the defendant in Suit No. 556 of 1958, while still his employee. He, therefore, found that the mere continuance of the power‑of -Attorney ipso facto would not establish that the plaintiff had remained in the service of the defendant till it was cancelled .on 4‑9‑1958. On Issue No. 4 he found that six months pay by way of compensation would meet the ends of justice, but even that amount could not be awarded in view of what he had discussed earlier and what was to follow. Issues Nos. 8 and 8‑A he discussed together and came to the conclusion that the Services of the plaintiff were terminated in March/April 1956, or at any rate before the institution of Suit No. 556 of 1958, and the plaintiff must have brought his entire claim and every remedy enforceable in respect of that claim in the earlier suit. Having failed to do so, his further remedy was barred tinder Order II, rule 2, C. P. C. As a result of his 'above‑mentioned finding, the learned District Judge, Dadu, by his order, dated 31‑10‑1962 dismissed the plaintiff's suit with no order as to costs. The plaintiff has come in appeal.

5. The learned counsel for the appellant urged that the plaintiff was employed by the defendant‑respondent on the basis of an agreement dated the 10th of February 1955 (copy Exh. 40 at page 52 ‑of the file) for a period of ten years, and therefore, in the opinion of the learned counsel, the appellant was to remain in service of the respondent till the 10th of February 1965. In the alternative it was urged that it was on the ‑basis of notice, dated the 2nd of September 1958 (copy Exh. 41 at page 54 of the file) that the services of the appellant were terminated which notice was received by him on the 4th of September 1958. This was a notice sent by Mr. Rustam, J. E. Kaikobad, Advocate Karachi to the. plaintiff, informing that under the instructions of his client Ahmad Sultan, defendant, he had to inform him that the general power‑of‑Attorney given to him by the defendant for the purposes of managing his lands in the former Sind was hereby withdrawn and revoked. He was, therefore, called upon to return the said power‑of‑Attorney to the respondent, and was further directed to desist from acting in pursuance thereof. It, therefore, follows that it was on the basis of this notice that the services of the plaintiff were terminated. The learned District Judge, however, came to the conclusion that the plaintiff had remained in the service of the defendant till March/April 1956, and this finding is based on two letters Exh. 41, dated 2‑9‑1958 at page 54 of the file and Exh. 46, dated the 4th of April 1956 at page 62 of the file. He observed:‑--

"I am led to believe that the service of the plaintiff had been terminated some times round about March/April 1956. That is also borne out by the payments received by him. It is inconceivable that the plaintiff would muster courage to stand up against the defendant and file Suit No. 556 of 1958 while still in his employ, and liable to report at Ghaibi dero'."

We do not find ourselves in agreement with the observation of the learned trial Judge, regarding the termination of the services of the plaintiff by the defendant in Mach 1956, because there is no basis for this finding. The defendant in his written statement and in his statement recorded at the trial did not say that he had terminated the services of the plaintiff in March/April 1956. The defendant 4hroughout said that he had never employed the plaintiff as his agent and urged that the letter of appointment was the result of undue influence. It was on the 2nd of September 1958, that Mr. Rustam J. E. Kaikobad, Advocate sent a notice to the plaintiff on behalf of the respondent informing him that the power‑of‑Attorney executed in his favour by the defendant had been cancelled and further directed him to desist from acting in: pursuance thereof. The last para. of the letter is as under :‑------

"Please note that in spite of this notice if you act on the said power‑of‑Attorney you shall do entirely at your risk and, cost.

There is no other evidence on the record regarding the termination of services of the plaintiff by the defendant, except the letter Exh. 41 at page 54 of the file. From this letter it is obvious that it was on the 2nd of September 1958, that the power‑of- Attorney in favour of the plaintiff‑appellant was cancelled, and so it is clear that he had remained in the service of the defendant till 2‑9‑1958.

6. There is no basis for the contention of the learned, counsel for the respondent that the letter of appointment Exh. 41 was the result of undue influence, as there is no material in support of this plea. The learned trial Judge also rightly rejected this contention of the respondent. It was urged by the respondent that his grandfather, the late Nawab Sir Ghaibi Khan who was a Jagirdar and a big landlord, had given his entire property to him, and so there was dispute between him and his uncle Mazhar Ali Khan over the succession to the Jagir and: other property left behind by the deceased. The plaintiff, it is said, approached the defendant, informing him that he had some docu ments, in his possession, which if placed on the record, would completely destroy his defence, and he further threatened that if he did not care to employ him and agree to his terms, then he would pass on the documents to Mazhar Ali Khan. It was under this threat that he (the defendant) executed the agreement (copy Exh. 41), agreeing to appoint the plaintiff, and this letter had, therefore, no binding force. It may be pointed out here that the so‑called documents which were allegedly in possession of the appellant and. which were likely to turn the scales of the case in, favour of Mazhar Ali Khan and which were suppressed by the plaintiff in consideration for his appointment by the defendant have not seen the light of the day, and they were not even shown to the defendant. In cross‑examination, the defendant, however, stated that certain documents which were in possession of the plaintiff were shown to him which were in English and were never read out to him, and since be does not know English, he was unable to make out as to what were the contents of those documents. It, therefore, follows that the story put forth by the defendant that the agreement was executed by him under undue influence has to basis. We are unable to hold that the contract between the parties had been invalidated by fraud, because he (the defendant) got the Jagir. The Government of Sind was pleased to declare Mir Sultan Abroad Khan Chandio, i.e. the defendant‑respondent as "Pagdar" and "Sardar" of the Chandia Tribe of the late Nawab Sir Ghaibi Khan Chandio by notification, dated the 8th of March 1955, which was published in the Gazette. It is, therefore, clear that the notification, regarding the declaration of the defendant‑respondent as "Pagdar" and "Sardar" of the Chandio Tribe was published in the gazette on the 8th of March 1955, but in fact he must have received the order before its publication and must have known sometime in February 1955, that he was being considered to be declared as "Pagdar" and "Sardar" of the tribe. The letter of agreement which was executed on the 10th of February 1955. is said to be the consideration for inducing the plaintiff to suppress the documents in his possession, whereas the defendant was declared as "Pagdar" and "Sardar" by the Sind Government sometime in February/March 1955, and so he was no longer interested in the suppression of documents, allegedly in possession of the plaintiff and could terminate his services straightaway. These facts taken together would show that the plea of the defendant that the agreement (Exh. 41) was the result of undue influence and invalidated by coercion has no foundation and was rightly rejected by the learned lower Court. From the foregoing discussion it follows that the plaintiff bad remained in the service of the defendant till the 2nd of September 1958, and therefore, he is entitled to receive his salary.

7. It was further urged that since the plaintiff had not worked even for a day for the defendant, so he was not entitled to any remuneration. In support of this contention, it was ,urged that the burden of issue No. 3 was placed on the plaintiff to show that in pursuance of the letter of appointment he had worked from 1955 to 1958, but he had failed to discharge the .onus. We agree that it was for the plaintiff to prove that he had served the defendant, or had offered to serve him. The plaintiff when examined as P. W. stated in lines 109 to 114, page 67 :‑----

"This power was cancelled by the defendant, through a legal notice and publication in Daily Mehran'. I ceased to work under the circumstances from 4th of September 1958, when I had received the notice. The defendant also did not assign any work to me."

Exhibit 46 at page 62 is a letter, addressed to the appellant by D. W. Khalifo Yar Muhammad, Administrator, Ghair Baloch, Public Jageer, which its dated the 4th of April 1956, informing him that certain people had trespassed into the house of Pathans who were brought by Mazhar Ali Khan. He further informed him that it was rumoured that in a day or two the Collector and the Mukhtiarkar were going to mutate the record of the entire Jagir in favour of Mazhar Ali Khan, and, therefore, he asked him to inform the authorities in this behalf. Khalifo Yar Muhammad who was examined, admitted that the letter Exh. 46 bore his signature, and this fact coupled with the statement of the appellant, would show that he did work for the defendant under the agreement till 4‑9‑1958.

8. The learned counsel for the respondent urged that the suit was hit by Order II, rule 2, C. P. C. In this context, reference was made to a copy of the plaint marked Exh. 52 at page 72 of the file. This was a suit brought on tine 31st of March 1958, by the appellant against the defendant for the recovery of Rs. 20,500 on the basis of agreement deed, dated the 10^th of February 1955, and he had omitted to sue for the recovery of' his salary up to the date of the institution of the suit, and now he is barred from claiming it.

9. The question which requires determination would be as to whether Order II, rule 2, C. P. C. applies with respect to the part of the claim, relating to the period from the date of the institution of the previous suit, dated the 31st of March 1958. It was on the 2nd of September 1958, that the respondent gave a notice to the appellant, asking him not to act under the power‑of‑Attorney executed in his favour. Under the contract i.e., the agreement deed, the plaintiff was entitled to the recovery of Rs. 22,500 immediately on his arrival at Larkana and could sue for its recovery a day after his arrival, in case this amount was refused. On the basis of this agreement, dated the 10th of February 1955, his salary was fixed at the rate of Rs. 500 per month for the first year and Rs. 800 per month for the remaining years. The terms of the agreement if found to constitute one transaction, would not mean that the agreement contains one cause of action, because the plaintiff could have brought the suit for the recovery of Rs. 22,500 on the following day of his arrival at Larkana, whereas he could not claim his salary until the end of the month, and therefore, that was a distant cause of action. Merely because it arose from one transaction, does not mean that he had one cause of action. Reliance was placed on Rafia Begum v. Miraj‑ud‑Din and others (P L D 1959 Lah. 890). The question for decision in that appeal was whether the suit brought by Mst. Rafia Begum for the recovery of Rs. 6,990 on account of principal amount and interest on the basis of a mortgage against Miraj Din, respondent, was barred by Order 11, rule 2, C. P. C. The facts of that case briefly, arc that respondent had mortgaged with possession three houses to the appellant for a sum of Rs. 10,000 on the 18th of April 1945, out of which Rs. 6,600 were paid to the respondent in cash and the balance left with the appellant for redeeming an earlier mortgage of one of the houses in favour of Mst. Inayat Begum which sum had not been paid so far. The mortgage in favour of the plaintiff was for no fixed period and the principal amount was to carry interest at the rate of 10 per cent. per month which was expressly made payable on the expiry of each month. Simultaneously with the execution of the mortgage deed the respondent had executed a lease deed of the three houses in favour of the appellant undertaking to pay rent at the rate of Rs. 62‑8‑0 p.m., which was equivalent to the amount of monthly interest on the principal amount. In 1945 the appellant brought a suit against the respondent for the recovery of Rs. 2,002‑7‑0 on account of arrears of rent, and a consent decree for payment of Rs. 1,278‑12‑0 was passed in favour of the appellant. On the 12th of March 1950, the appellant instituted a snit for the recovery of Rs. 6,990 against the respondent on account of principal money and interest thereon after crediting the sum of Rs. 2,002 realized on account of rent of the mortgaged property up‑to‑date. The respondent while admitting the creation of mortgage, the receipt of Rs. 6,600 as principal money as well as the fixation of interest at the rate of 10 per cent. per month, however, raised a preliminary objection that since the appellant had omitted to sue for the principal amount and interest due on it in the earlier suit he had by virtue of Order II, rule 2, C. P. C. had precluded himself from maintaining the present suit. Their Lordships observed :‑‑

"Turning now to the facts of the present case earlier we have pointed out that under the mortgage deed interest was expressly made payable from month to month which indicates the intention of the parties that while the cause of action to proceed against the mortgage security was to remain intact mortgagee was authorised to maintain a suit for realization of interest after the expiry of each month. The execution of the lease deed by mortgagor simultaneously with the creation of the mortgage also points in the same direction because this authorised the mortgagor to recover interest in the form of rent as an independent obligation. Nevertheless it cannot be denied that the mortgage and the agreement of lease formed one transaction; but as found earlier it gave rise to two distinct obligations in favour of the mortgagee, namely, to realise interest by proceeding against the person of mortgagor and to recover the mortgage amount by proceeding against the mortgaged property and in the light of the authorities discussed above the provisions of Order II, rule 2, C. P. C. did not bar the present suit although the amount of rent claimed in the former suit was in reality interest due on the principal amount."

This authority is complete answer to the arguments of the learned counsel for the respondent. It is true that on the basis of the agreement deed, the plaintiff was entitled to Rs. 22,500 on his arrival at Larkana so as to enable him to meet his commitments at Karachi in connection with his profession, and be was further entitled to receive his monthly salary. These two clauses formed one transaction but it gave rise to two distinct obligations in favour of the appellant, namely, to sue for the recovery of Rs. 22,500 on his arrival at Larkana and hi monthly pay. He could, however, sue for the recovery of Rs. 22,500 a day after his arrival at Larkana, but could not sue for the recovery of his salary before the end of the month, and therefore, these are two distinct causes of action, and merely because they arose from one transaction; i.e., agreement deed, does not mean that the plaintiff‑appellant had one cause of action. We, therefore, hold that Order II, rule 2, C. P. C., does not apply.

10. The learned counsel for the appellant further urged that on the basis of agreement, the plaintiff was employed by the defendant with effect from 10‑2‑1955 for a period of ten years and he was thus entitled to the salary for the above‑mentioned period in accordance with the terms of the agreement, which amounts to Rs. 92,400 out of which he had realized Rs. 7,000 and the balance of Rs. 85,400 was still due. The plaintiff was, however, removed from service on 2‑9‑1958 and he received the notice on 4‑9‑1958, so he is entitled to receive his pay from 10-2‑55 to 4‑9‑1958. The plaintiff is not entitled to any compensation from 4‑9‑1958 to 9‑2‑1965, because he failed to prove the amount of damages he suffered. It was the plaintiff's duty to mitigate such damages, i.e., that he was unable to get suitable employment, or because of his dismissal, he got bad reputation and could not get suitable employment. The plaintiff has not said a word about damages. A servant complaining of wrongful dismissal from service cannot rest content by merely putting forward a claim for recovery in lump sum and in advance the entire amount of anticipated salary covering the whole period for which he expected to continue in service. The law which recognises his right to recover damages for wrongful dismissal imposes a corresponding duty on him to do all that is possible to mitigate such damages. He is bound to act in that direction not only in his own interests but also in the interests of the opposite‑party against whom he has to sustain an action for damages. He has to use due diligence in endeavouring to obtain suitable employment with' wages approximating that which he was getting in the service from which he was dismissed, even though he is not expected to accept a fresh engagement in a lower status. The possible chance of obtaining a suitable employment elsewhere has to be taken into account in assessing the measure of damages to be awarded to the plaintiff. The plaintiff has failed to mitigate such damages, and in these circumstances we hold that he is not entitled to it. Learned counsel for the appellant referred us to a case reported as Messrs General Iron & Steel Works v. Fazal Muhammad (P L D 1967 Kar. 1) wherein it was held:‑---

"It is only in those cases in which no sum is specified that the damages are to be determined after taking into considera tion the probabilities of employee obtaining employment elsewhere. It will be noticed that under the English Common Law where a contract of service provides that sum shall be payable in the event of breach, such sum is recoverable if in fact it constitutes liquidated damages and not a penalty on the principle that the sum named is the result of honest and genuine pre‑estimate of damages. In Pakistan the law on this point is governed by sections 73 and 74 of the Contract Act. In cases where the parties have not contemplated before hand a fixed amount as damages. its estimate is to be made in accordance with section 73. But if the parties have pre‑estimated the damages, it will be assessed in accordance with the principles laid down in section 74 of the Contract Act . . . . In disputes arising between master and servant ordinarily the measure of damages would be determined according to the covenants in the contract but the party at fault would be entitled to claim the exclusion of any earning made by the servant during the period for which damages are claimed on the possible chance of obtaining a suitable appointment elsewhere."

This authority is distinguishable from the instant case, because in that case section 74 of the Contract Act was involved. Section 74 of the Contract Act is not applicable to this case, because to attract this section, there must be condition in the contract and a sum is named in the contract as the amount to be paid in case of such breach to the party against whom the breach is committed. In the instant case, however, no sum is named to be paid to the party against whom the breach is committed. The plaintiff has failed to mitigate the damages and has not stated a word that he has not been able to get a job after he was wrongfully dismissed by the defendant, and so in these circumstances, we hold that he is not entitled to claim damages from 4‑9‑1958 to 10‑2‑1965. We, however, hold that he had remained in the service of the defendant from 10‑2‑55 up to 4‑9‑1958 and he is entitled to the salary for the above mentioned period. His pay for the first year, commenting from 10‑2‑1955 to 9‑2‑1956 was at the rate of Rs. 500 per month, which amounts to Rs. 6,000. With effect from 10‑2‑1956, his pay was raised to Rs. 800 per month, and thus his pay from 10‑2‑56 up to 4‑9‑1958, the date on which he was removed from service, amounts to Rs. 2,4613‑5‑4 approximately, and in all he is entitled to Rs. 30,613‑5‑4. Out of this, he has realised Rs. 7,000 and now he is entitled to Rs. 23,613‑5‑4. We, therefore, accept this appeal, set aside the judgment and decree of the Court below, and pass a decree for the recovery of Rs. 23,613‑5‑4 with proportionate costs. We, however, disallow the payer for interest from the date of the suit till realisation of the decretal amount.

A.E./K B.A. Appeal accepted.

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