GOVERNMENT OF BALOCHISTAN, CWPP&H DEPARTMENT and others vs Nawabzada MIR TARIQ HUSSAIN KHAN MAGSI and others

' JAVED IQBAL, J.---This appeal with leave of the Court is directed against the judgment, dated 21- 9-2005 whereby civil revision preferred on behalf of appellants has been dismissed and the judgment and decree dated 26-3-2005 passed by learned Majlis-e-Shoora, Naseerabad, has been kept intact whereby appeal filed by the appellants against ex parte judgment, dated 29-10-2001, was dismissed,

2. Leave to appeal was granted by means of order, dated 17-8-2006 which is reproduced hereinbelow to explain the legal and factual aspects of the controversy:--- "The precise relevant facts of the case are that the respondents instituted a civil suit against the petitioners including the Government of Balochistan through Collector/Deputy Commissioner Kachhi at Dhadar for declaration and perpetual injunction in the Court of Qazi Gandawa, feeling aggrieved of the issuance of notice for their eviction from the Government building allegedly occupied by the respondents/plaintiffs illegally. They also claimed title/ownership of the building/ house in dispute including the land covered by such premises.

' It is reflected from the impugned judgment that in response to the summons issued by the trial Court, one Abdul Sattar, Head Clerk appeared as representative of the defendants/petitioners to whom copy of the plaint was provided. The said representative of the defendants submitted an application before the learned trial Court in which it was pointed out that the designation of the defendants-officers have been substituted by operation of law i,e, the Balochistan Local Government Ordinance, 2001; however; subsequently, despite publication of notice of the institution of the suit in daily Mashriq Quetta, none appeared for the defendants, consequently, they were proceeded ex parte and the suit was decreed ex parte in favour of respondents/plaintiffs.

' Subsequently, on 7-10-2004 the defendants/petitioners 2010] Government of Balochistan v. Mir Tariq Hussain Khan Magsi 117 challenged the ex parte decree by filing appeal before the learned Majlis-e-Shoora, Naseerabad at Dera Murad Jamali/Appellate Court accompanied by an application filed under section 5 of the Limitation Act seeking for condonation of delay on the grounds mentioned therein, reproduced in the impugned judgment.

' The learned Majli-e-Shoora after hearing the parties vide judgment and decree, dated 26-3-2005 dismissed the application for condonation of delay in preferring the appeal beyond the prescribed period of limitation, consequently, the appeal was dismissed vide judgment impugned in civil revision before the learned Single Judge in the High Court.

(3) It has, inter alia, been contended by the petitioner's learned counsel that petitioner No,1 i,e, Government of Balochistan was not sued through its appropriate Secretary, although; it was obligatory on the part of the, respondents/plaintiffs to have sued the petitioner No,1 in the name of Province of Balochistan through the concerned Secretary of the Administrative Department within the purview of section 79, C.P.C. And as provided by Article 174 of the Constitution of Islamic Republic of Pakistan, 1973, hence; the suit having been defectively instituted against petitioner No,1 could not have resulted into the passing of an ex parte decree nor even the said petitioner was validly served with the summons which even if be presumed to have been served upon the Collector/Deputy Commissioner of the concerned District could not have been equated or termed as a valid service of summons upon the Province of the Balochistan, which thus; according to the learned counsel, rendered the impugned judgment i,e, passed by the learned High Court, as well as; by the learned Appellate Court as a nullity in the eye of law, therefore, the limitation in preferring the appeal beyond the prescribed period of limitation was condonable and would not result in non-suiting the said petitioner on the ground of limitation. To supplement his contention reliance has been placed by the learned Advocate Supreme Court for the petitioners on the judgment of this Court in case of Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner, Khuzdar 1999 SCM R 16.

' The learned counsel further has, inter alia contended, independent of the above canvassed ground that since ex parte decree without recording evidence was passed on subsequent date next after the date fixed in the summons/notice therefore, the same could not be sustained for being illegal and nullity in the eye of law within meaning of Order XI, rule 6, C.P.C. So, on this ground alone the same was liable to be set aside, nor even the petitioners could have been non-suited by the Appellate Court on the ground of limitation or on any other ground but such legal and factual aspects of the matter despite having been argued before the learned Single Judge of the High Court have not been dilated upon, which resultantly rendered the impugned judgment as not tenable in law and on facts.

(4) Controverting the above contentions put forth on behalf of the petitioners by their learned counsel Mr. Hadi Shakeel Ahmad, the learned Advocate Supreme Court for the respondents contended that even if it be assumed that ex parte decree passed by the learned trial Court without recording evidence was a nullity in the eye of law, the petitioners having been in the knowledge of and earlier obtained the copies of the impugned judgment and decree since did not prefer the appeal before the learned Appellate Court within the prescribed period of limitation, had to account for the delay of each day satisfactorily which they failed, consequently, the impugned judgment and the one passed by the learned Appellate Court are unexceptionable and; the stated failure to sue petitioner No,1 through a proper functionary would not entail any adverse effect upon the ex parte decree or the validity and legality of the service of notice/ summons.

(5) Having considered the submissions put forth on behalf of the parties in, the light of the related facts and the provisions of section 79, C.P.C. Read with Article 174 of the Constitution and in view of the law laid down by this Court in the cited judgment noted above, the same since required consideration, therefore, leave to appeal vide our short order mentioned above was granted. The question of limitation in the circumstances of the case has been left open."

3. A bare perusal of the leave granting order, as reproduced hereinabove, would reveal that it was mainly granted to consider as to whether the suit was instituted properly pursuant to the provisions as enumerated in Article 174 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) and A section 79, C.P.C. As admittedly the Government of Balochistan was not impleaded as party through the Secretary concerned. The question which needs determination would be as to whether without impleading the Provincial Government of Balochistan, the suit instituted by the respondents can be considered a validly instituted suit in view of the provisions as enumerated in section 79, C.P.C, which is reproduce+ hereinbelow for ready reference:- "79. Suits by or against the Government- In a suit by or against the Government the authority to be named as plaintiff or defendant, as the case may be, shall be---

(a) in the case of a suit by or against the Federal Government, Pakistan;

(b) in the case of a suit by or against a Provincial Government, the Province;

4. The above reproduced section has been couched in a simple and plain language and there is hardly any need for its scholarly interpretation and it simply provides that a suit instituted against the Government, the authority to be named as defendant would be the Federal Government of Pakistan or Province concerned as the case may be. No suit can be filed against Provincial Government without imp leading the Province as a party and the procedural precondition is mandatory in nature and no relief can be sought without its strict compliance and such suit would not be maintainable. The provisions as enumerated in section 79, C.P.C. Were discussed in case titled Province of Punjab v. Muhammad Hussain PLD 1993 SC 147, relevant portion whereof is reproduced herein below for ready reference:--- "Section 79 of the C.P.C. Requires, and so does Article 174 of the Constitution, that all suits against the Central Government have to be filed in the name of Pakistan and against a Provincial Government in the name of Province."

5. A similar proposition was also discussed in case title Abdul Aziz v Government of Baluchistan 1999 SCM R 16 and it was observed as follows:-- "It, no doubt, follows from the said observations that the learned Judge in Chambers could have taken notice of the fact that the appeal in the present case had been entertained by the Appellate Court in spite of being barred by 55 days, but it appears that the learned Judge found it necessary to address himself to a more important question as it transpired that the plaintiff had failed to comply with the provisions of section 79, C.P.C., or Article 174 of the Constitution, both of which require that in a suit filed against the Government, the authority to be named as a defendant is to be the Province. Since the suit was filed in the present case against the Provincial Government, the Province could be sued through the Secretary to the Government. Obviously, there had been no compliance with the said provisions when the suit was initially filed by the appellant. Unless suit is filed through a proper person, any order directing ex parte proceedings against the defendant would be liable to challenge. Reference in this regard may, be made to a judgment of this Court in Province of the Punjab v. Muhammad Hussain PLD 1993 SC 147, our attention to which has been invited by the learned counsel for the appellant himself. In this case, questions raised before this Court for the first time in regard to maintainability of the suit, its valuation or its being within time, which had not received due attention earlier by the Courts below while dealing with the case, were considered by this Court and the judgments and the decrees passed by the Courts below were set aside and the suit filed by the plaintiffs was dismissed as barred by limitation. Therefore, there is no doubt that the learned Judge in the High Court, while exercising revisional jurisdiction, was empowered to take notice of the defects which were apparent on the face of the record. The failure of the appellant to sue through a proper person was a defect which went to the root of the matter and, but for interference by the High Court, serious prejudice would have been caused to the respondent. Therefore, in our view, the order passed by the learned Judge in Chambers is not open to exception."

6. We may mention here at this juncture that the provisions as contemplated in section 79, C.P.C.

Cannot be made a ground for technical knockout and wrong description of a Secretary as functionary of the Government is always subject to correction. In this regard we are fortified by the dictum laid down by this Court in case titled WAPDA v. Alam Khan PLD 1991 SC 374.

7. Due to non-compliance of the mandatory provisions as enumerated in section 79, C.P.C. And Article 174 of the Constitution of Islamic Republic of Pakistan, a suit against the functionary only is not maintainable as has been done in this case. In view of what has been discussed hereinabove, the appeal preferred on behalf of Government of Balochistan is hereby allowed and the judgment dated 21-9-2005 passed by learned Single Judge of the High Court of Balochistan in Chambers is set aside and the suit filed by the respondents being non-maintainable is also dismissed.