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Civil Revision No. 731-D of 1980, decided on 16th November; 1983.

---S. 42--Declaratory suit--Maintainability of--Objection to maintainability of suit not pressed by petitioner before Courts below--Petitioner, held, could not be allowed to urge such point for, first time at revisional stage--Objection to maintainability of suit, therefore, stood abandoned in circumstances.

---S. 42--Limitation Act (IX of 1908), Art. 120--Civil Procedure Code (V of 1908), O. 1, r. 10--Declaratory suit- -Impleading of party--Cause of action- -Limitation--Declaratory suit challenging order, dated 11-4-1968 was filed against Government in April, 1970---Lahore Municipal Corporation was impleaded as party in March, 1975--Accrual of cause of action against Lahore Municipal Corporation was occasioned in January, 1970- Argument that declaratory suit challenging order, dated 11-4-1968 had already become barred by time, held, did not take note of facts on record-- Impleading of Lahore Municipal Corporation as defendant fell within six years from 13-1-1970 when the general letter was written to which date the accrual of cause of action has been attributed in plaint- Suit, was, therefore, in time--Set of fresh circumstances, combined with old facts, held, may give rise to fresh cause of action.

Syed Fayyaz Hussain Qadri for Petitioner.

Muhammad Anwar Rana for Respondent No. 1.

Nemo for Respondents Nos. 2 to 5.

Date of hearing: 15th November, 1983.

The facts are that Sheikh Fazal Karim respondent was employed as a Teacher with the L.MX .In the seniority list published by the latter on 31-12-1948, his name was placed at serial No. 66. However, in the subsequent list, he was shown at serial No..170. The respondent was aggrieved by the seniority list. He further claimed that having crossed the efficiency bar on 1-2-1961, he was entitled to the selection grade but was illegally deprived of the same and on 11-4-1968, this grade was awarded to some other S.V. Teachers. The respondent further asserted that in pursuance of the L.M.C's. Resolution No. 60, dated 31-8-1965, the seniority of the S.V. Teachers was counted from the date of acquisition of qualification by them, but this Resolution was cancelled under Resolution, dated 31-1-1967, whereby it was decided that the selection grade would be allowed from the date of the appointment. Aggrieved by the latter Resolution, the respondent challenged it before the Commissioner, who by his order dated 21-10-1967 took the view that those who-joined as J. V . Teachers but obtained S.V. qualifications later on, were eligible for consideration, for grant of selection grade, from the date of qualifying as S.V. Teachers. However, the Secretary, Basic Democracies by his order No. SOI(LG)-LMC=1(13)/64, dated 11-4-1968 maintained that the rule as to the counting of the seniority from the date of original appointment, and not from the date of acquisition of qualifications; would apply.

2. The suit giving rise to this revision petition was brought by the respondent for declaration that the Secretary, Basic Democracies order, dated 11-4-1968, in respect of seniority of the S.V: Teachers, for the purposes of grant of selection grade, -was illegal and of no legal effect. He further prayed for setting aside of the orders already passed, in respect of fixation of his seniority. The suit was initially instituted against the West Pakistan Province in April, .1970, but later on L.M.C. was impleaded as party and original plaint substituted by an amended plaint, dated 22-3-1975.

3. The learned trial Court on evaluation of the material on' the record and contentions, raised by the parties, decreed the suit on 13-12-1976. The L.M.C. went in appeal but it was dismissed by the learned Additional District Judge by his judgment and decree, dated 6-2-1980. The Corporation has now come to this Court under section 115, C.P.C.

4. Notices were sent to respondents Nos. 2 to 5. No one appears on their behalf. They are, therefore, proceeded against ex parte.

5. I have heard the learned counsel for the petitioner as well as for respondent No.l. The record has also been perused. The learned counsel for the petitioner assailed the findings of the Courts below on issues Nos. 2 and 4 only. Issue No. 2 embodies the petitioner's objection that the suit is barred by time and issue No. 4 is to the effect as to whether the suit in its present form is not competent. Dealing with issue No. 4 first, I find from the record that it was not pressed by the petitioner before both the learned Courts below: The objection to the maintainabilities of the suit thus, stood abandoned. The petitioner cannot be allowed to urge this point for the first time at the revisional stage. Even otherwise, there is nothing wrong with the form of the suit. The only course open to the respondent was to seek a declaration.

He could not claim further relief and sue for salary, till such time, the selection grade was granted to him.

6. As regards issue No. 2, the L. M. C's. case was that the suit against it would be deemed to have been instituted when it was impleaded as party. The submission was that in the year 1975 when the L.M.C. was brought on the record as defendant, the declaratory suit challenging the order, dated 11-4-1968 had already become barred by time.

7. This argument does not take note of the facts obtaining on the record. The respondent-plaintiff, moved a petition before the Government for withdrawal of the order, dated 11-4-1968, which was rejected and intimation thereof given to him, vide Punjab Government letter, dated 16-3-1970 (Exh. P.7). It appears that the learned Commissioner also moved the Provincial Government in the matter but they declined to B recall the order, dated 11-4-1968. This is substantiated by letter, dated 13-1-1970 (Exh. P.2) sent to the Commissioner by the Basic Democracies, Social Welfare and Local Government Department. It is, thus, obvious that the matter remained under consideration of the Provincial Government. It is well-settled, that a set of fresh circum-' stances, combined with old facts may give rise to a fresh cause of: action. The petitioner's representation, as observed above, was disposed, of on 16-3-1970. In the plaint, the accrual of cause of action has also been attributed to the issue of the Government's letter, dated 13-1-1970. The impleading of L.M.C. as defendant falls within six years of the aforesaid dates. Evidently, the suit is within time. Accordingly, this objection is also rejected.

8. As no other point has been urged and the contention raised by the learned counsel for the petitioner have failed, this revision petition having been found without merit is dismissed with costs.

H . B . T .

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