MUHAMMAD YOUNUS SHAIKH vs COREX ENTERPRISES and anothers

ORDER

1. Granted.

2. This High Court Appeal is directed against the order, dated 6th May, 2005 passed by learned Single Judge of this Court in Suit No,347 of 2005 whereby CMA No,2987 of 2005, an application under Order VII Rule 11, C.P.C., was allowed and consequently plaint in the suit was rejected on the sole ground, being hit by section 79, C.P.C. And Article 189 of the Constitution of Islamic Republic of Pakistan, 1973.

2A. In the context of such short controversy involved in the presentappeal, we have heard learned counsel for the parties and perused the case record, which reveals that the two judgments referred and relied by the learned Single Judge, for enforcing the applicability of section 79, C.P.C. And Article 189 of the Constitution, to the facts and circumstances of the instant suit, were based on different premises, inasmuch as in both these cases the question of maintainability of suits was taken into consideration, where the subordinate functionaries of the Provincial/Federal Government were impleaded as parties, without joining Province/Federation as party to the proceedings, while in the present suit the Collector of Customs (Appraisement) was joined as defendant No,2 in the suit, being one of the officers of a statutory body. Thus joining of Federation of Pakistan was not necessary. Moreover, it some technical objection was coming in the way of the appellant as regards maintainability of the suit, following the principle laid down in the case of Wasim v. HAICO and 2 others (2002 CLD 1623) the proper course available for the Court was to afford due opportunity to the concerned party to overcome such technical defect, instead of ordering rejection of plaint in the ,suit for that reason. An interesting aspect gathered from the case of Wasim (surpa) is that in this case also same learned counsel (Mr. Raja Muhammad Iqbal) has made reference to these cases in support of his contention with reference to the provisions of section 79, C.P.C. But such contention was not accepted by the Court.

3. The submission of Mr. Sultan Ahmed Shaikh with reference to the provisions of Order, I Rule 9, C.P.C. Is also apt and convincing, Which specifically provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties and the Court may deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. This view also finds support from the case of Central Government of Pakistan and others v. Suleman Khan and others (PLD 1992 SC 590). Relevant observations read as under:-- "Order I, rule 9, C.P.C. Gives also, very strong support for the foregoing approach regarding interpretation and application of Order I, Rule. 10, C.P.C. This provision (Rule 9) is in a mandatory negative form; namely, that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties are concerned."

4. Besides, while passing the impugned order of rejecting plaint under Order VII Rule 11, C.P.C., the learned Single Judge also skipped sight of the fact that the provisions of section 79, C.P.C. And Article 185 of the Constitution have no applicability as to the maintainability of the suit against private defendant No,1 in the suit, as independently effectivedecree could have been passed against him. To put this legal proposition in other words, on account of non-joinder of Federal Government as party to the suit with reference to joining of Collector of Customs as defendant No,2, plaint in the suit could not have been rejected either in part or as a whole.

5. For the foregoing reasons, we set-aside the impugned order and remand the case to the learned Single Judge for further proceedings in accordance with law.