2024 C L C 1293
[Balochistan]
Before Gul Hassan Tareen, J
DIVISIONAL SUPERINTENDENT PAKISTAN RAILWAYS, through
Authority/Authorized Officer----Petitioner
Versus
TAJ MUHAMMAD KHAN----Respondent
Civil Revision No.283 of 2020, decided on 1st August, 2022.
Civil Procedure Code (V of 1908) ---
----Ss.79 & O. XXVII, R. 2---Constitution of Pakistan, Art. 174 ---Court Fees Act (VII of
1870), S.13---Suit for recovery of damages ---Suit against Federal Government ---Non -
impleading of Federal Government ---Court fee, return of ---Question of law, determining of --
-Principle ---Respondent / plaintiff sought recovery of value of his consignment destroyed
due to negligence of government officials ---Suit was concurrently decreed in favour of
respondent / plaintiff by Trial Court and Lower Appellate Court ---Contention of petitioner /
government was that Federal Government was not impleaded as party to proceedings ---
Validity --- Objection under S. 79, C.P.C., was raised in its memorandum of appeal,
nonetheless, Lower Appellate Court overlooked the objection--- Pure question of law which
can be decided without any evidence can be raised at any stage of proceedings ---By ignoring
mandatory statutory provisions, subordinate Court committed material illegality and
irregularity which went to the root of the suit ---High Court set aside judgments passed by
two Courts below and remanded the matter to Trial Court for trial afresh after impleading Federal Government as party in accordance with the provisions of S. 79 read with O. XXVII, C.P.C. and Art. 174 of the Constitution ---High Court directed the office to issue relevant
certificate to petitioner / government for return of court fee stamps as per S. 13 of Court Fees Act, 1870---Revision was allowed accordingly.
Province of Punjab through Secretary Excise and Taxation Department Lahore and
others 2021 SCMR 305 and Government of Balochistan CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Magsi 2010 SCMR 115 ref.
Divisional Forest Officer, Larkana and 3 others v. Ghulam Haier and 8 others PLD
2007 Kar. 392 and Samar Gul v. Mohabat Khan 2000 SCMR 974 rel.
Mushtaq Anjum Rajput for Petitioner.
Moula Dad Barrech for Respondent.
Date of hearing: 29th July, 2022.
JUDGMENT
GUL HASSAN TAREEN J. ----The petitioner has called in question the concurrent
findings passed by the courts of Senior Civil Judge -I, Quetta ("trial Court") in Civil Suit No.
81/2014 and Additional District Judge -I, Quetta ("appellate Court"), in Civil Appeal No.
147/2019, whereby suit of the respondent has been decreed.
2. Brief but relevant facts of the case are that the respondent instituted a civil suit
against the petitioner for payment of Rs. 6,82,000/ - (Rupees six hundreds and eighty two
thousands only), as compensation on account of destruction of his consignment of 273 kilograms of silk seeds. The respondent claimed that he booked 273 kilograms of silk seeds, comprising of 12 packages, from Quetta Railway Station, which were to be collected at
Lahore Railway Station. The consignment had not reached to its destination (Lahore Railway
Station). He claimed to be informed by the petitioner that his consignment was destroyed because the breaks of 23 Down (Akbar Bugti Express) got fire on 28th December, 2013. The respondent further averred that he approached the petitioner for payment of the price of 273 kilograms silk seeds i.e. Rs. 6,82,500/ - but the petitioner delayed to redress his genuine
claim. Finally, the respondent sought recovery of Rs. 6,82,500/ - and Rs. 15000/ - as cost of
litigation.
3. On service of summons, the petitioner submitted contesting written statement.
Petitioner admitted the delivery of consignment and its loading vide PR No. 607688 dated 27th December, 2013. Petitioner, however, defended that the consignment was not destroyed due to its negligent act.
4. On such pleadings, the trial Court framed seven issues. Respondent examined two
private witnesses and one official witness as PW -3 who tendered in evidence Risk- Note
Form "A" as Ex: P/1 -A. Finally, the respondent appeared as his own witness. In rebuttal, the
petitioner through its representative, Muhammad Hanif appeared as its own witness. The representative of the petitioner, in his examination in chief, tendered FIR and extract of law as Ex: D/2 and Ex: D/3 respectively.
5. On conclusion of trial and after hearing parties to the suit, trial Court vide judgment
and decree dated 19th December, 2018, decreed suit of the respondent. The decretal judgment was upheld by the Court of Additional District Judge -I, Quetta vide judgment
dated 05th August, 2020. Petitioner has assailed concurrent judgments through this Revision
Petition.
6. Arguments heard. Record perused.
7. The learned Mr. Mushtaq Anjum Rajput, representing the petitioner, submits that suit
of the petitioner was not competent because of non- joinder of the General Manager of the
Pakistan Railways. The petitioner's counsel in support of his contention cited section 79,
Order XXVII of the Civil Procedure Code, 1908 ("C.P.C") and Article 174 of the Constitution of the Islamic Republic of Pakistan, 1973 ("The Constitution"). He submits that the petitioner (Divisional Superintendent, Pakistan Railways Zarghoon Road, Quetta) was not a necessary party and to his extent, suit was not maintainable in term of mis -joinder of
necessary party. Learned counsel, Mr. Moula Dad, representing the respondent, supported the impugned judgments.
8. Both counsel made submissions on the entire case. That the merits of the case need
only be considered provided the suit was instituted in accordance with section 79 and Order XXVII, C.P.C, because if it was not, the respondent's suit would fail.
9. The contention of learned counsel for the petitioner carries legal weight. For ease of
reference, the cited provisions are reproduced below:
"79. Suits by or against the Government. -- In a suit by or against the Government, the
authority to the 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) -------
"ORDER XXVII
SUIT BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY
1. Suit by or against Government. - In any suit by or against the Government, the
plaint or written statement shall be signed by such person as Government may, be general or special order, appoint in this behalf, and shall be verified by a person whom the Government may so appoint and who is acquainted with the facts of the case."
"Art: 174. The Federation may sue or be sued by the name of Pakistan and a Province may sue or be sued by the name of the Province."
10. In a civil suit, after its institution and registration under Order IV, Rules 1 and 2,
C.P.C, summons are issued against defendant(s) under Order V, Rule 1, C.P.C, to submit
written statement. If relief is being sought against Government without its legal impleadment as a defendant, there would be no proper representation on its behalf. For all practical purposes, it would be a case of ex- parte proceedings.
The Hon'ble Supreme Court of Pakistan in the case of Province of Punjab through
Secretary Excise and Taxation Department, Lahore and others, published in 2021 SCMR 305, held that section 79, C.P.C and Article 174 of the Constitution do not amount to a mere technicality. The relevant portion is reproduced as under:
"15. This Court, in previous matters before it, has held that section 79 of C.P.C. is a mandatory provision, where the State, or the Province, was either not impleaded in compliance with section 79 of the C.P.C. and Article 174 of the Constitution, or the concerned department was not made party to the suit. Reference can be made to the cases of Province of the Punjab through Member Board of Revenue (Residual Properties) v. Muhammad Hussain, (PLD 1993 SC 147), Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner, Khuzdar, (1999 SCMR 16) and Government of Balochistan CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi (2010 SCMR 115)."
11. In this instant case, the respondent has claimed compensation of Rs. 6,82,000/ -
against the department of the Pakistan Railways, whereas suit was instituted against
"Divisional Superintendent Pakistan Railways Zarghoon Road, Quetta". Suit was instituted
against a wrong person. Where a suit is to be instituted against the Government, the authority
against whom the suit has to be filed, is the Federal or Provincial Government and not any of
its functionaries. The Hon'ble Supreme Court of Pakistan in the case of Government of Balochistan CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Magsi,
published 2010 SCMR 115 held that non- compliance of the mandatory provisions of section
79, C.P.C and Article 174 of the Constitution, would render the suit invalid.
12. It is true that the written statement of the petitioner is silent with regard to the
objection raised by learned counsel for the petitioner, but it was an obligation of the trial
Court to examine the plaint whether the same has been instituted in accordance with section 79, Order XXVII, Rule 1, C.P.C and Article 174 of the Constitution. The Court should always not only depend upon the assistance of the parties and whatever law is applicable, the same has to be given effect whether or not same has been relied upon by a party. In this respect, the provisions of Article 112 (1) of the Qanun- e-Shahadat Order, 1984 ("Order
1984") could legitimately be referred to. Said provision is reproduced below:
"112. Facts of which Court must take judicial notice.
(1) The Court shall take judicial notice of the following facts:
(a) All-Pakistan laws.
(b) -----
(c) ---------"
Both the subordinate Courts have failed to take judicial notice under Article 112(1) of
the Order 1984, that the suit was not competently instituted under section 79 of the C.P.C and Article 174 of the Constitution. The Courts below have acted in access of jurisdiction in decreeing a non -maintainable suit.
13. I have also gone through the memorandum of appeal. The objection under section 79,
C.P.C was raised in ground B of the memorandum of appeal, nonetheless, the appellate Court has overlooked it. It is settled proposition of law and case aw, that a pure question of law, which can be decided without any evidence, can be raised at any stage of the proceedings. By ignoring the mandatory statutory provisions, subordinate Courts have committed material illegality and irregularity which go to the root of the suit. Reliance is placed on the case of Divisional Forest Officer, Larkana and 3 others v. Ghulam Haider and 8 others, published in PLD 2007 Kar 392.
The non- joinder of the Pakistan Railways through its General Manager/ Chairman is
not a matter of mis -description of parties, but is non- joinder of a necessary party which,
cannot be termed a curable defect under section 99 C.P.C, which reads as under:
"99. No decree shall be reversed or substantially varied, nor shall any case be
remanded, in appeal on account of any mis -joinder of parties or causes of action or
any error, defect or irregularity in any proceedings in the suit, not effect the merits of the case or the jurisdiction of the Court.
Non-impleading of a necessary party is not a mere defect of procedure. For such legal
reason, section 99, C.P.C does not contain words "non joinder of parties". Non- joinder of
necessary party is not a technicality. The respondent had not impleaded "the Federation of Pakistan, Pakistan Railways through its General Manager/ Chairman", therefore, non impleading of a necessary party, not only effects the merits of the case rather the jurisdiction too.
14. I am conscious of, the time honoured principle of law that "act of Court shall not
prejudice any party", and Order I, Rule 9, C.P.C, which reads as under:
"9. No suit shall be defeated by reason of the mis -joinder 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 actually before it."
15. The subordinate Courts appear to have overlooked section 79, Order XXVII, C.P.C
and Article 174 of the Constitution. The jurisdiction to decree respondent's suit was not vested with the subordinate Courts. Subordinate Courts have exercised a jurisdiction not
vested in t hem by law. As such, the impugned judgments attract section 115 (1)(a) of the
C.P.C. The impugned judgments suffer from the above discussed jurisdictional error. The
impugned judgments, though concurrent, can be interfered with by this Court under section 115 C.P.C, if they are perverse and fanciful. The same cannot be termed as sacrosanct. It is trite law that if the concurrent findings of the courts below are the result of jurisdictional error, it becomes the duty of the High Court/ revisional forum to set the wrong right in accord with its jurisdiction under section 115, C.P.C. Reliance is made on the case of Samar Gul v. Mohabat Khan, published in 2000 SCMR 974.
In view of the foregoing, the Revision Petition is allowed. Impugned judgments are
set aside and case is remanded back to the trial Court (Senior Civil Judge -I, Quetta) with
direction to require an amended suit from the respondent by impleading the correct party, i.e. "Federation of Pakistan through Chairman/General Manager, Pakistan Railways Headquarters Office, Lahore", in accordance with the provisions of section 79 read with Order XXVII, C.P.C and Article 174 of the Constitution, subject to all just and legal exception and then to proceed with the suit in accordance with law. Since it is an old matter, therefore, the trial Court shall decide the suit preferably within six (06) months (excluding winter vacations) from the date of receipt of this judgment. Revision is granted in the above terms. Parties shall bear their own costs.
Since case is remanded, therefore, office is directed to issue the relevant certificate to
the petitioner for return of Court fees stamp (Rs. 15000/ -), per section 13, of the Court Fees
Act, 1870.
MH/120/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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