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Regular Second Appeal No. 454 of 1956, decided on 24th May 1957 from the decree of the Additional District Judge, Lyallpur; dated 13th August, 1956.
Art. 14-‑Order in dispute passed by authority having jurisdiction to pass it‑Article 14 applicable‑Limitation from date of order.
Article 14, Limitation Act is only applicable if the order in dispute is passed by an authority having jurisdiction to pass it. If the 'order is without jurisdiction or otherwise invalid, it does not require to be set aside, and Article 14 will consequently not apply.
Limitation under Article 14 begins to run, not from the date of knowledge of the act or order, but from the date on which the act or order was done or passed.
Surannanna v. Secretary of State for India I L R 24 Bom. 435; Rameswaram ‑Devasthanam v. Secretary of State A 1 R 1927 Mad. 1167; Mst. Munna v. Suklal A I R 1924 Nag. 142; Sir Wasil Ali Mirza Nawab Bahadur of Murishidabad v. Saradindu Narain Rai A I R 1925 Cal. 953; Sunmonu v. Disu Raphael A I R 1927 P C 270; Secretary of State v. Bagmal Kisandayal A I R 1927 Nag. JO and Gangu v: Maharaj Das I L R 15 Lah. 389 ref.
S. 9‑Civil Courts have jurisdiction to try all suits except those in respect of which their jurisdiction is expressly or impliedly barred.
Abdul Salam for Appellant.
Mazhar‑ul‑Haq for Respondent No. 1.
The facts leading up to this regular second appeal are that the appellant, Qazi Hafiz Muhammad Siddiq, was before Partition employed as a senior clerk in the office of the Deputy Commissioner, Ambala. He migrated to Pakistan and was posted as Sub‑Inspector, Civil Supplies, Layallpur. On the report of the Superintendent of the office the Additional Deputy Commissioner, Lyallpur, passed an order dated the 19th of April 1948, suspending the liens of two permanent Assistants. In the vacancies thus created two officials, M. Abdul Majid and Ch. Abdul Aziz, were promoted in q substantive provisional capacity to the rank of Assistant though, according to the plaintiff appellant, he was senior to both of them: Again, on the 22nd of July 1950, the Deputy Commissioner, Lyallpur, appointed Abdul Majid and Abdul Aziz as substantive permanent and substantive provisional Assistants, respectively, it being further ordered that on the retirement of one Sardar Khan on the 12th of September 1950, Abdul Aziz's appointment should become substantive permanent.
Both the above orders were challenged by the plaintiff as being void and inoperative. With respect to the first, it is alleged that the Additional Deputy Commissioner, had no jurisdiction /that pass such an order, which was moreover obtained by fraud and misrepresentation, while with regard to the order of 1950 the plaintiff contended that it was based on the previous illegal order of 1948, and that it violated the express instructions of the Punjab Government contained in letter No. 4695‑E, dated the 21st of November 1949, which made it incumbent on the Deputy Commissioner to report cases of promotion to Government in order to safeguard the rights of refugee officials.
The defendants, namely, the then Punjab Province and Malik Abdul Majid and Ch. Abdul Aziz II (the promoted officials), contested the suit and traversed the allegations of the plaintiff.
The following issues were framed:‑
(1) Is not the suit against the Punjab Province defective in this that it has not been brought against the Punjab Province through the Secretary concerned or the Collector .
2. Has not the Civil Court jurisdiction to entertain and;‑ try the suit
3. Is the suit within time
4. Is the Punjab Province a necessary party to the suit
5. Was a valid notice under section 80, Civil P. C., served on the defendants
(6) Is the order of the Deputy Commissioner dated 22nd July 1950, void and' without jurisdiction on the grounds mentioned in paragraphs 5 and 6 of the plaint
(7) Was the order dated 22nd July 1950, of the Deputy Commissioner obtained by fraud and does that fact affect the question of limitation of the suit
(8) Relief;
The suit was dismissed by the trial Court, which held, inter alia, that it was barred by time. An appeal to the Additional District Judge, Lyallpur, was dismissed.
It was held by both the Courts below that the provision of the Limitation Act applicable to the facts of the case is Article 14. This is strenuously contested by the appellant, and it must conceded that if one of the reasons given by the Courts below for their finding were to be accepted as correct, the contention of the appellant that Article 14 has no application would have considerable force. Both the learned Senior Civil Judge and the learned Additional District Judge appear to be under the impression that orders of the kind now in dispute can only be challenged by suit if they are either without jurisdiction or otherwise void and inoperative. The learned Senior Civil Judge remarks‑
"I consider, therefore, that the Article applicable in the present case is Article No. 14 of the Limitation Act and the suit is hope lessly beyond limitation. I may here add that the Civil Court can have jurisdiction to entertain such a suit if it is proved that the authority who passed the order had no powers to pass it or that the order was obtained fraudulently. If one of these facts is proved the Civil Court has no jurisdiction'.
The relevant portion of the judgment of the learned Additional District Judge runs‑
"The second point raised by the learned counsel for the respondents is that the present suit cannot be entertained in the Civil Court. It is settled law that if the order in question was passed without jurisdiction, the Civil Court had authority to challenge the order but if the orders have been passed properly by the authority the orders of the Additional Deputy Commis sioner and the Deputy Commissioner cannot be challenged in the Civil Court".
The above quotations reveal a complete misunderstanding on the part of the Courts below of the true legal position, which is that Article 14 is only applicable if the order in dispute is passed by an authority having jurisdiction to pass it, and that if the order is without jurisdiction or otherwise invalid, it does not require to be set aside, and Article 14 will consequently not apply.
On another point also the Courts below have misdirected themselves. Both of them, while considering the point of limitation have discussed the question of when the plaintiff acquired knowledge of the order of the Additional Deputy Commissioner, overlooking the fact that limitation under Article 14 begins to run, not from the date of knowledge of the B act or order, but from the date on which the act or order was done or passed. This point is clearly brought out in a decision of the Bombay High Court in Surannanna v. Secretary of State for India (I L R 24 Bom. 435), where, at page 452, it is remarked by Candy, J. "I am not oppressed by the argument that if my view is correct, then a man may have an order passed against him behind his back, and yet he is allowed but one year from the date of the order within which to assert his rights . . . . . . Prima facie the order' in Article 14 must be an order which it is necessary that plaintiff should, for the protection of his own rights, get set aside. But if the article cannot apply to a given case, because it is possible to suppose such an order being passed behind a man's back, then it can never apply to any case whatever".
Learned counsel for the appellant cited a number of, autho rities, none of which, however, materially assists him.
The first is Rameswaram Devasthanam v. Secretary of State (A I R 1927 Mad. 1167) in which it was held that in order to come under Article 14 an order must be one of at least a quasi judicial character and not a mere executive order. The orders now in dispute are, however, of such a character, and in particular they fulfil the requirement laid down in Surannanna's case, namely, that the order must be one which it is necessary that the plaintiff should, for the pro tection of his own rights, get set aside.
The next authority cited is Mst. Munna v. Sukhlal (A I R 1924 Nag. 142) in which it was held, first, that Article 14 applies to acts or orders done in the exercise of powers legally exercised by the Executive and that before it can be applied, the order must be one which needs to be set aside, and, secondly, that if in fact there is no provision of law for setting aside the order, Article 14 cannot apply. With respect, I fully agree with the first proposition above cited, but the scope of the second is not altogether clear to me. Taking it at its face value, however, there is undoubtedly a provision of law for setting aside the present orders, namely, the established principle that Civil Courts have jurisdiction to try all suits except those in respect of which their jurisdiction is expressly or impliedly barred.
The next authority cited, namely, Sir Wasif Ali Mirza Nawab Bahadur of Murishidabad v. Saradindu Narain Rai (A I R 1925 Cal. 953) merely reiterates the principle that an order under Article 14 must be one which the officer is empowered under the law to pass and which will be effective unless set aside, with the amplification that it must further be an order which under the ordinary law is liable to be set aside by a suit in the Civil Court.
The next case cited, Sunmonu v. Disu Raphael (A I R 1927 P C 270) lays down the same principle, namely, that if an order is illegal the plaintiff is not bound to file a suit to set it aside, but is entitled to wait until it is enforced against him, the attempt so to enforce it giving him a good cause of action and a fresh starting point of limitation.
In Secretary of State v. Bagmal Kisandayal (A I R 1927 Nag. 10) it was held by the learned Additional Judicial Commissioner that to apply a particular Article of the Limitation Act, the plaintiff's version of the case should be assumed as correct and that where a plaintiff, against whom an order of ejectment has been passed by a Government Official, merely sued for a declaration of title, Article 14 had no application. In the first place, it is not clear how this authority helps the present plaintiff, since he has clearly attacked both the orders in dispute, and secondly, the proposition itself is contrary to that laid down by a Full Bench of this Court in Gangu v. Maharaj Das (I L R 15 Lah. 389) in which it was held that a suit under section 12 of the Redemption of Mortgages (Punjab) Act II of 1913, instituted by a person aggrieved by an order passed by the Collector under sections 6 to 11 of the Act, to establish his right in respect of the mortgage is governed by Article 14 of the Limitation Act, and that it makes no difference that the suit is one for a mere declaration or that no relief to set aside the order of the Collector has been expressly asked for in the plaint. With great respect, I accept the view of this Court.
Applying the principles enunciated above to the facts of the present case, the suit of the plaintiff‑appellant is clearly barred by time. As he has failed to show that the orders of Additional Deputy Commissioner and of the Deputy Commissioner passed on the 19th of April 1948 and the 22nd of July 1950, respectively, are in any way illegal or ultra vires, Article 14 clearly applies, and as those orders were not attacked within one year from the dates on which they were passed, they are not now open to attack.
This appeal accordingly dismissed with costs.
K.M.A. Appeal dismissed.
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