SUTLEJ COTTON MILLS, OKARA Versus HASHIM & COMPANY

ABAID ULLAH KHAN,J.-- The facts relevant for the purpose of disposal of this appeal against the order of the learned Civil Judge, Okara, dated the 23rd April, 1984, recording dismissal of the appellant's suit for recovery of Rs. 3,12,387.25 against the respondents may be shortly stated. Sutlej Cotton Mills Limited, Okara. instituted suit on the 5th March, 1962:11it plaint was signed and verification of its contents was done by Mr. S. Sajjad Hussain, General Manager of Sutlej Cotton Mills Limited, Okara. Mr. Sharif Hussain, Advocate, counsel of the Mills, also signed the plaint.

2. The suit was pending when there was an outbreak of hostilities between Pakistan and India in September 1965. With the enforcement of the Defence of Pakistan Ordinance, 1965, and the Defence of Pakistan Rules, Sutlej Cotton Mills, Okara, was treated as enemy property and came to be vested in the Custodian of Enemy Property.

3. Amended plaint in the suit was filed on the 14th July, 1966, and it was signed and verified, apart from Mr. Sharif Hussain, Advocate, by Mr. M.B. Farooqi, who was Assistant Custodian of Enemy Property as well as General Manager of Sutlej Cotton Mills, Okara. The plaintiff was described as 'the Assistant Custodian of Enemy Property in Pakistan continuing the suit instituted by the 'enemy firm' Sutlej Cotton Mills Limited, Okara, with its registered office at Amritsar (India). This was done presumably pursuant to what had been laid down by the High Court of West Pakistan while answering reference 1 of 1965 P L D.1966 (W.P) Kar. 160.

4. The respondents came up with the objection that it was the Custodian of Enemy Property who could continue the suit and that the amended plaint has not been filed by legally authorised person. They questioned the status of Sutlej Cotton Mills, Okara, which had become enemy property, to continue the suit. Also they attacked the validity of the order of restoration of the suit which had been dismissed on the 30th March, 1978, due to the failure of the parties to put in appearance.

5. The learned Civil Judge seized with the trial of the suit set down the following issues for preliminary hearing:

1-A Whether the amended plaint has not been signed, filed and presented by the plaintiff unauthoritatively and with what effect?

1-B Whether there exists any legal person of the name of Sutlej Cotton Mills, Okara. If not can the suit proceed in the name of the present plaintiff? OPP.

1-C Whether the last amended plaint has been filed by the proper plaintiff. If no what is its effect? OPP.

1-D Whether the order of the restoration of the suit dated 22-1-1977 is without jurisdiction, null and void and can be ignored by this Court? OPD.

(without No.) Whether the plaint is liable to be rejected under Order VII, Rule 11 of CPC and section 83 of CPC for the reasons given in the application?

6. The learned Civil Judge formed the view that the Custodian of Enemy Property alone could continue the suit and that amended plaint filed by the Assistant Custodian of Enemy Property was not in order because the Assistant Custodian had not been duly authorised by the Custodian in that behalf. He thought that there was no legal person by the name of Sutlej Cotton Mills Limited, Okara, and, therefore, the last amended plaint showing the Mills as plaintiff was not valid. He held the order of restoration of the suit as void because application for its restoration had been moved after the expiry of the period of limitation of thirty days and the delay in making the application could not be condoned. Consequently he dismissed the suit.

7. It seems that the provisions of sub-rule (5) of rule 182 of the Defence of Pakistan Rules were not brought to the notice of the learned Civil Judge. Sub rule (5) declares that the Custodian includes the Deputy Custodian of Enemy Property and an Assistant Custodian of Enemy Property. Hence the Assistant Custodian, while signing, verifying and filing the amended plaint, could very well be taken to be Custodian of Enemy Property and his action of signing, verifying and filing of the plaint could not be adjudged to be invalid. It may be mentioned that Mr. M.B. Farooqi, who was Assistant Custodian of Enemy Property, was also the General Manager of the Mills and he as well as Mr. Sharif Hussain, Advocate, counsel of the Mills, signed the plaint. The plaint is quite in order. It may be worth stating that Sutlej Cotton Mills, Okara, has not lost its legal entity and in law it is the Mills which is to pursue the litigation in its name. The last samended plaint was duly signed by its General Manager who has the authority from the Managing Director. No exception can be taken to it on this score.

8. A perusal of the order-sheet of the suit discloses that on the 3 rd February, 1976, the suit was adjounred to the 2nd March, 1976, for further proceedings (Braye Mazid Karvayee). On the last mentioned date it was adjourned to the 30th March, 1976, for further proceedings (Braye Mazid Karvayee). It means that the 30th March, 1976, was not a date of hearing as envisaged by Order IX, rule 3 of the Code of Civil Procedure. Therefore, it could not have been dismissed if the parties had not entered appearance on the 30th March, 1976. The impugned order of dismissal of the suit was void. It could very well have been ignored as nullity by the learned trial Court and the restoration of the suit was perfectly in order. The learned Civil Judge employed fallacious process of reasoning to treat the order of restoration of the suit to be void.

9. The argument of the learned counsel for the respondents that the appeal is not competent because the word `Limited' is not written after the appellant's name 'Sutlej Cotton Mills, Okara,' and also because the name of the person through whom the appellant is appealing has not been mentioned is too frivolous to be given serious consideration.

10. In view of the above the appeal is accepted, the impugned order is set aside and the suit is remanded to the learned Senior Civil Judge, Okara, for trial and decision according to law. The learned Senior Civil Judge, Okara, is directed to give priority to this suit over other cases, dispose it of within six months and report compliance to this Court. The parties have been directed to appear before the Court of learned Senior Civil Judge, Okara, on the 19th April, 1988. The parties are left to bear their own costs.

S.Q./S-221/L Case remanded.