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Civil Petition for Special Leave to Appeal No. 350 of 1967, decided on 12th October 1967.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 30th May 1967, in Civil Revision No. 41 of 1961).
O. II, rr. 2 & 3 & O. XXIII, r. I‑Plaintiff withdrawing part of claim, clearly prefac ing his statement to this effect by remark that he would bring afresh suit for such claim‑Court decreeing suit but dismissing same in respect of claim withdrawn‑Held : Court, in circumstance, presumed to have impliedly granted permission to bring fresh suit in respect of claim withdrawn‑Mere omission to mention in so many words that permission to bring a fresh suit was being given‑Does not render second suit incompetent.
Art. 58(3)‑Special Leave to Appeal not granted on a mere technical point where otherwise substantial justice in case had been done.
S. M. Zainul Abidin, Advocate Supreme Court instructed by Tanvir Ahmad, Attorney for Petitioner.
Nemo for Respondents.
Date of hearing : 12th October 1967.
This is a petition for special leave to appeal from an order of a learned Single Judge of the High Court of West Pakistan, Lahore, passed in his revisional jurisdiction under section 115 of the Code of Civil Procedure:
It appears that the respondent No. 1, who was employed as a manager of the respondent No. 2 ; of which the petitioner was the. proprietor, on a monthly salary of Rs. 125 plus commis sion ; was discharged from service on the 19th April 1958. He filed a suit for recovery. of his arrears of salary and for accounts of the commission. The suit was contested and an objec tion was raised as to the maintainability of tile suit with regard to the claim for rendition of accounts by an agent against his principal.
On the 2nd of April 1959, however, the counsel for the defendant admitted that the arrear of salary was due and owing from him to the petitioner and indicated that he would have no objection to a decree being passed for that amount. Upon this the counsel for the petitioner stated that he would bring a fresh suit for the accounts and, therefore, the suit for accounts may be dismissed but a decree may be passed for the arrears of salary. Upon these statements the trial Court passed the decree for the arrears of salary but dismissed the suit for rendition of accounts.
The respondent No. 1 then brought a suit for recovery of Rs. 14,600 on account of his commission. On this occasion the petitioner objected to the maintainability of the suit on the ground that a fresh suit was barred under Order XXIII, rule 1 and Order II, rule 2 of the Code of Civil Procedure, but the trial Court rejected this preliminary objection and proceeded to frame issues on merits.
It is against this order that the petitioner went up in revision to the High Court and urged that since no permission had been given to file a fresh suit the subsequent suit was barred.
The High Court, however, took the view that since the counsel for the respondent No. 1 had clearly prefaced his state ment by the remark that he would bring a fresh suit for the commission it is reasonable to infer that the Court when passing the decree for arrears of salary impliedly also gave him the permission to subsequently file a suit for the commission.
The petitioner now seeks special leave to appeal and it is contended on his behalf that implied permission is not sufficient, for, permission in such cases must be express permission. In support of this contention he has also relied upon two decisions from the Rangoon High Court. But we do not consider this fit case for granting special leave to appeal upon such a technical objection. It seems clear that what the plaintiff in the firs suit intended was to reserve his right to bring a subsequent suit for commission and the Court also was minded to give him that permission. In the circumstances, the mere omission of the Court to mention in so many words that permission to bring a fresh suit was being given does not, in our opinion, render the second suit incompetent.
In any event, we are not satisfied that can this technical ground alone we should grant special leave to appeal, as sub stantial justice has manifestly been done and no question of law of general importance arises for consideration.
This petition is, accordingly, dismissed.
Leave refused,
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