1. ' Brief facts for the purpose of disposing of these applications are that Mulla Hidayatullah and brothers filed Suit No,906 of 1998 seeking decree for Rs,864,351 outstanding dues and further claimed being Rs,50,000,000 on account of damages suffered by them at the hands of the defendants Messrs Arsalah Khan and Brothers filed Suit No,907 of 1998 seeking decree for the sum of Rs,7,28,859 being outstanding amount with damages of Rs,50,000,000, The said suits were listed for final disposal on 9-2-1999 as defendants had failed to file written statement and following order was passed by the learned Judge:-- ' "Briefly the case of the plaintiffs is that they were awarded contract regarding construction of link road from Super Highway Mile 13.0 to Fruit and Vegetable Market, Karachi by defendant No,4 and executed by defendants Nos.1 to 3. The said contract was carried out by the plaintiff to the satisfaction of the defendants and a substantial portion of the dues of the plaintiffs were paid by the defendants. The payments were made to the plaintiffs on recommendation of defendants Nos.1 to 3. It is further case of the plaintiffs that total amount of the bill was Rs,45,49,493 and the defendants were, however, entitled to adjust/claim a sum of Rs,5,50,000 being the costs of bitumen supplied. They were also entitled to claim/adjust from the plaintiffs a sum of Rs,1,99,974 on account of income tax deductions. The total amount paid by the defendants to the plaintiffs were a sum of Rs,32,50,000 leaving the balance of Rs,5,49,519. The plaintiffs were also entitled to Rs,40,000 lying with the defendants by way of security and an additional amount to Rs,1,39,340 is due against the defendants on account of jungle cutting. The total amount now clue against the defendants is Rs,7,28,859. It is further the case of the plaintiffs that because of withholding of the balance amount they have not been able to bid for other, works with the result their image in the competition is harnished and lost goodwill, reputation and business.
2. ' Notices were issued to the defendants on several occasions which were served but they remained absent and did not file their written statement ultimately on 12-1-1999 the defendants were debarred from filing written statement and the matter case---up for final disposal.
3. ' Today again the defendants were called absent. Therefore, I have no option but to decree the suit of the plaintiff."
4. ' Being aggrieved by the said judgment and decree, passed by the learned Single Judge, Officer, Incharge, Market Committee filed Judicial Miscellaneous No,46 of 1999 against the judgment and decree passed in Suit No,907 of 1998 and Judicial Miscellaneous No,54 of 1999 against the judgment and decree passed in Suit No,907 of 1998. Government of Sindh also filed application under section 12(2), C.P.C. Being Judicial Miscellaneous No,44 of 1999 against the judgment and decree passed in Suit No,906 of 1998 and Judicial Miscellaneous No,45 of 1999 against the judgment and decree passed in Suit No,907 of 1998.
5. ' Summons were issued and it appears that the Additional Registrar on 3-9-1998 granted four weeks' further time to file written statement on an application filed under section 148, C.P.C. By defendant No,3. Again on the application filed by defendant No,3 four weeks' time was granted. On 15-12-1998, no one appeared before the Additional Registrar. However, Additional Registrar (OS) granted final two weeks' time for filing the written statement. On 12-1-1999, the defendant did not appear before the Additional Registrar and they were debarred from filing the written statement.
6. The Additional Registrar ordered that the matters may be fixed in Court for final disposal.
7. ' From the record it appears that on 30-9-1998, when the matter was fixed before the Additional Registrar for the first time, an application under section 148, C.P.C. Was filed by the defendant No,3, Executive Engineer. And on 29-10-1998 and 15-12-1987, again applications were filed by defendant No,3. Which was though signed by the Executive Engineer. Highway, Karachi, but it reflects that he had signed the same for self and for defendant No,2 No Vakalatnama was filed by any Advocate on behalf of the parties nor any appearance has been made from the office of the Advocate- General, Sindh.
8. ' The applicants aggrieved by the judgment and decree filed application under section 12(2). C.P.C.
9. Seeking relief that the judgment and decree passed in the suits may be set aside as the same have been obtained by fraud and misrepresentations.
10. ' Heard Mr. Abdul Ghafoor Mangi, learned counsel for Officer Incharge, Market Committee, Mr. Chaudhry Muhammad Rafique Rajurv, learned Additional Advocate-General. Sindh in Judicial Miscellaneous Nos.44 and 45 of 1999 and Mr. Muhammad Sharif, learned counsel for the plaintiffs Mulla Hidayatullah and Brothers and Arsalah Khan and Brothers.
11. ' Brief facts for the purpose of disposing of these applications are that plaintiffs Mulla Hidayatullah and Brothers and Arsalah Khan and Brothers filed suits and joined and following parties as defendants:-
(i) Chief Engineering Highway, Sindh, Shahbaz Building. Hyderabad.
(2) Superintending Engineer Highway Circle Thatta, Makli, District Thatta;
(3) Executive Engineer Highway, Karachi Division, Sindh Secretariat Building No,77, Karachi; and
(4) Secretary Agriculture. Tughlaq House, Karachi.
12. ' Mr. Abdul Ghafoor Mangi, learned counsel for the applicants in Judicial Miscellaneous Nos.46 and 54 of 1999 argued that the applicant Market Committee has been established under section 7 of the Agriculture Produce Market Act, 1939 and has been assigned with the function of construction of new markets. Market storage accommodation and such other works as may be approved by the Government. The learned Advocate submitted that in discharge of its functions, the applicant had undertaken to construct new vegetable and food market on Super Highway Mile 13/0, Karachi for the benefit of vegetable and food dealers with modern facilities. To construct a link road connecting the vegetable and food market with the Super Highway, the applicant had taken assistance from the Highway Department, Government of Sindh for construction of the said road at the expenses of the applicant. He contended that the plaintiff was engaged as contractor although by Chief Engineer, Highway Sindh, Shahbaz Building, Hyderabad, all the expenses of the construction of the road have been borne by the applicant and all payment were released by the applicant either through the Chief Engineer or directly to plaintiff by the applicant. The applicant stated that on 28-8-1999, applicant for the first time came to know about the ex parte decree passed by this Court and after obtaining copies of plaint, judgment and decree, the applicant came to know that plaintiff had not joined them as one of the parties in the proceedings deliberately and fraudulently and obtained an ex parte judgment and decree against defendants Nos.1 to 4, who are only official functionaries. The learned counsel drew my attention that even the notice issued by the plaintiff about their alleged outstanding amount. While addressing the name to defendant No,1, they endorsed copy of it to applicant. He argued that the fact that the applicant has to bear all the expenses for the construction of the road in discharge of his obligations under Agriculture Produce Market Act, 1939 and that the applicant had undertaken the job for the construction of the link road through Chief Engineer, Highway Sindh was in the knowledge of the plaintiff and plaintiff had deliberately, malafidely and fraudulently did not join the applicant as one of the defendants so as to get an ex parte decree. He argued that the applicant was a necessary party and without joining the applicant as a party, no effective decree could have been passed.
13. ' On the other hand, Mr. Muhammad Sharif, learned counsel for the plaintiff, contended that there is no privity of contract between the plaintiff and the applicant and plaintiff is ready to give undertaking that the plaintiff/decree-holder will not execute the decree against the applicant. The learned Advocate further contended that an application under section 12(2), C.P.C. Can be filed by the person aggrieved form the said order, judgment and decrees and since there is no privity of contract between the decree-holder and the applicant and further decree-holder is not seeking execution of decree against the judgmentdebtor/defendants, the application under section 12(2), C.P.C. Is not maintainable.
14. ' Mr. Chaudhry Muhammad Rafique Rajwary, the learned A.A,.-G. For the applicant, argued that the suit has been filed against office functionaries and not against Government of Sindh as required under section 79, C.P.C. And the decrees have been obtained by fraud and misrepresentations against the applicant as proper parties were not joined deliberately by the plaintiff.
15. ' Mr. Muhammad Sharif, learned counsel for the decreeholder/plaintiff argued that the section 79, C.P.C. Is not mandatory and wrong description of the parties does not make ground to set aside the judgment and decree. The learned Advocate further argued that while dealing with an application under section 12(2), C.P.C. Court cannot scrutinize merits of the order, judgment or decree passed by the Court. In support of his contention learned counsel relied upon cases of Mst.
16. Afroz Jehan v. Mst. Noor Jehan and others 1988 CLC 1318, Province of Sindh through Secretary, Boards of Revenue, Hyderabad and another 1988 CLC 242, Province of Punjab through Collector, Multan and others' v. Muhammad Rashid and others 1988 MLD 2560, N.H.M. Abdul Cader and others v. S.L. Ahamdo Lebbe Marikar and others AIR 1936 PC 31, Central Government of Pakistan and another v. Suleman Khan and others PLD 1992 SC 590, East and West Steamship Co. v. Queensland Insurance Cu. PLD 1963 SC 663, Brig. Saadat Ali Shah v. Muhammad Hanif and 3 others PLD 1993 Lah.
17. 694, Pakistan through Secretary, Ministry of Works, Islamabad v. Mrs. Khalid Nazir 1991 CLC 563, Pakistan v. Ghulam Moinuddin Ahmed PLD 1966 Dacca 570, Muhammad Sharif v. Mahmood and another 1984 CLC 2380, Salima Begum and 4 others v. Mst. Sardaran Bibi and 4 others PLD 1995 SC 406, Syed Yasin Sakaff Shah v. Secretary, Ministry of Health, Labour and Social Welfare Government of Pakistan, Islamabad 1988 MLD 960 and Forest Department and others v. Muhammad Jan Khan 1996 CLC 1190.
18. ' I have gone through the application and have taken into consideration respective arguments of the learned counsel for the parties as well as case-law relied upon by them.
19. ' The point, which requires consideration for the purpose of disposing of these applications, is whether the suit, as instituted against the defendants, can be termed as competently instituted suit and further whether the judgment and decree have been obtained by misrepresentation without drawing the attention of the Court that the proper parties are not before the Court.
20. ' In order to appreciate the point, I would like to reproduce section 79, C.P.C. Which reads as:-- "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; and."
21. ' From a bare reading of section 79, C.P.C., it appears that a suit by or against Government, the authority to be named as plaintiff or defendant. As the Federal Government or Provincial Government, as the case may be.
22. ' Article 174 of the Constitution of Islamic Republic of Pakistan, 1973 also provides that 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.
23. ' Before I deal the matter in detail, I would first like to examine the case-law referred by the learned counsel for the plaintiff/decreeholder.
24. ' In the case of Rehmat Ali v. Additional District Judge, Multan 1988 SCJ 761, the Honourable Supreme Court dismissed the application under section 12(2), C.P.C. As the ground of misrepresentation or fraud available under section 12(2), C.P.C. Were admittedly not invoked. The Honourable Supreme Court further while dealing with the expression "without lawful authority and of no legal effect" held that 'the distinction has to be made in the judgment which stands vitiated on account of "jurisdictional defect" and a judgment which is tainted with resulting from irregular and improper exercise of jurisdiction." For correcting the later kind of deficiencies, the remedy available under law would be different and not to have resort to section 12(2), C.P.C. By invoking the ground of want of jurisdiction.
25. ' In the case of N.H.M. Abdul Cader and others v. S.L. Ahmado Lubbe Marikar and others AIR 1936 PC 51, Privy Council held that "No action shall be defeated by reason of the misjoinder or nonjonider of parties. The Court may in every action deal with the matter in controversy so far as regards the rights and interest of the parties actually before it".
26. ' In the case of Mst. Afroz Jehan v. Mst. Noor Jehan and others 1988 CLC 1318, Mr. Saleem Akhtar, J.
27. (as he then was), held that "a stranger to the proceedings can file an application under section 12(2), C.P.C. If he had been effected by the order of the Court".
28. ' In the case of Province of Punjab through Collector, Multan and others v. Muhammad Rashid and others 1988 MLD 2560, it was held that "decree could not be challenged on merits under section 12(2), C.P.C."
29. ' In the case of Central Government of Pakistan and another v. Suleman Khan and others PLD 1992 SC 590, the Honourable Supreme Court held "that the provisions of Order I, rule 9 is in a mandatory negative form, namely, that no suit shall be defeated by the reason of non-joinder of party and the Court may for every suit deal with the matter in controversy so far as regards the rights and interest of the parties are concerned."
30. ' In the case of Brig. Saadat Ali Shah v. Muhammad Hanif and 3 others PLD 1993 Lah. 694, it was held that non-joinder of party is not fatal on the ground that the petitioner before High Court was not prejudice by the non-implement of Abid Hussain as party to the appeal.
31. ' In the case of Syed Yasin Sakaff Shah v. Secretary, Ministry of Health, Labour and Social Welfare Government of Pakistan, Islamabad 1988 MLD 960, while dealing with section 79, C.P.C. On the objection of the defendant that the suit has been filed against Secretary. Ministry of Health, Labour and Welfare instead of Federal Government of Pakistan is not maintainable, this Court held as under:-- ' ... This contention also is devoid of any force as the stamp papers, which contain the title of the suit-show that Government of Pakistan was defendant. Similarly no doubt the name of the Secretary of Ministry of Health, Labour and Social Welfare is there but the word Government of Pakistan also appears in the title in the plaint. It is, therefore, not proper to dismiss the suit of the plaintiff on this account."
32. ' In the case of Pakistan v. Ghulam Moinuddin Ahmed PLD 1966 Dacca 570. While dealing with the objection that the description of the defendant as 'the Government of Pakistan' instead of simply as Pakistan' is concerned the provisions of section 79 of Civil Procedure Code are to be considered alongwith Article 166 of the Constitution of Islamic Republic of Pakistan, 1956 and on the basis of these facts the Honourable Court held that the description of defendant as ' The Government of Pakistan' instead of merely 'Pakistan' is not fatal and that the phrase ' shall be' in section 79 of the Code of Civil Procedure Code is not mandatory.
33. ' In the case of Pakistan v. Mrs. Khalid Nazir 1991 CLC 563, the Honourable Court held that sections 79 to 82 of Civil Procedure Code . Are procedural in nature.
34. ' In the case of Muhammad Sharif v. Mahmood and another 1984 CLC 2380, while dealing with the objection that the defendant's description as Mohtamim' instead of 'Masjid', it was held that misdescription of the party not effecting merits of the case or jurisdiction of the Court is inconsequential. In the said matter Masjid was properly represented in the proceeding.
35. ' The principles laid down in the above-referred matters are not attracted to the facts of the present case.
36. Section 79 of the C.P.C. Being a procedural section and substantial compliance with the requirement thereof can be termed as sufficient compliance, however, the point which requires consideration is that if a suit is filed against non-juristic person and all of them remained absent and were not represented before Court can in such eventuality it would lie in the mouth of the plaintiff to say that merely because there was some misdescription of parties, ex parte decree should not be set aside, however, in the matters, Court may refuse to set aside the decree/order, when Government has been properly represented even if in strict sense requirement of section 79 has not been complied with.
37. ' In the instant case the plaintiff/decree-holder has joined official functionaries as the defendants against whom suit was not maintainable. Only a person with legal entity could sue or be sued and since official functionaries are not legal entity or corporate sole they cannot sue or be sued. A suit can be filed against a public officer in respect of the act done by him in his official capacity, but it does not mean that one can sue that officer in his official name 9r just as if he is a "corporate sole"
38. In the case of Forest Department and others v. Muhammad Jan Khan 1996 CLC 1190 while deciding the civil revision application on the facts that suit was brought. Against Forest Department through Divisional Forest Officer and Irrigation Department through Executive Engineer, Irrigation, Mardan for declaration to the effect that 95 Sheesham trees standing on the bank of his property belongs to him and defendant's department has no right or authority to bring the trees under their ownership through any demarcation or making proceedings. The defendants were granted time to file written statement and when they failed to file written statement the decree was passed against the department under Order 8, rule 10. The defendants filed an appeal against the said decree, which was dismissed by the District Judge. Against the said order of the District Judge revision was filed before the Honourable High Court and while holding that defendants were acting negligently and irresponsibility the Honourable Judge of Peshawar High Court held:-- ' "Leaving aside the merits of the present revision, I tend to observe and hold suo motu under section 115, C.P.C. The very suit brought by Muhammad Jan Khan against the Divisional Forest Officer and Executive Engineer concerned was bad in law and was in clear violation of section 79(b) read with Order 27, rule 3 of the C.P.C. It was a suit not against Divisional Forest Officer or the Executive Engineer nor was it the property thereof but it was a suit against the Government, the Secretaries whereof ought to have been sued on behalf of the Provincial Government."
39. ' In the case of Morio Goth Welfare Association v. Muhammad Bachal and 6 others 1985 CLC 1680 this Court held as under:-- ' "It is evident from the title of the plaint that the suit was filed against the Deputy Commissioner (East), Karachi and the Mukhtiarkar of Karachi (East). It will further be seen that where no application is made by the Government pleader under sub-rule (2) above 'the case shall proceed as in a suit between the private parties'. In the present case the Assistant Government Pleader who appeared for the defendants (Applicants in Civil Revisions Nos.274 and 275 of 1982) did not make any application as contemplated by sub-rule (2) of rule 8, C.P.C. Quoted above. It is, therefore; apparent that the suit proceeded as if it was a suit between private parties. In the facts and circumstances of the case. It cannot be denied that the Government of Sindh was a necessary party to the suit but was not made to it. Needless to say that when a suit is to be filed against the Provincial Government due regard is to be paid to the provisions of section 79, C.P.C., which in this case has not been adhered to. The learned Courts below exercised the jurisdiction illegally in decreeing the suit against the abovesaid two defendants, which purports to be passed against , them in their official capacity which could not be done without impleading the Government of Sindh as a party to the suit."
40. ' In the case of Secretary, B&R, Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kan 625, a Division Bench of this Court held "suit brought against official designation or titles is bad in form and must fail".
41. ' A judgment/decree passed by the Court can be recalled by the same Court either on an application filed under Order IX, C.P.C. And or on the application filed under Order. XLVII read with section 144, C . P.0 ' A suit when dismissed in consequences of failure of the plaintiff to pay costs or when neither party appeared and suit was fixed for hearing the same, Court can in exercise of power under Order IX set aside the order/judgment/decree if sufficient cause has been shown by the parties for their non-appearance on the date of hearing. Likewise under Order 47, Civil Procedure Code the Court which passed the order can recall or modify the order in case party can establish about discovery of new and important matter for evidence which after exercise of due diligence was not within his knowledge or could not be produced at the time when decree was passed or order made on account of some mistake or error apparent on the face of the record.
42. ' Section 12(2), C.P.C. Has been incorporated by Ordinance X of 1980, by which a new speedy and cheap remedy has been provided to parties to get the order, judgment or decree set aside before the Court, who passed the same instead of filing the separate suit on the ground that the said order, judgment or decree has been obtained by fraud, misrepresentation, or for want of jurisdiction.
43. While dealing with an application under section 12(2), C.P.C. Court cannot sit on the order, judgment or decree passed as a Court of appeal but has to see only whether the order, judgment or decree has been obtained by misrepresentation or fraud.
44. ' The term 'misrepresentation' has been dealt by the superior Courts as well as by this Court in number of cases and even recently in the case of Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050, the Honourable Supreme Court held that "concealment of material fact is also tantamount to misrepresentation calling to exercise the power under section 12(2), C.P.C."
45. In the instant case admittedly suit has been filed against official functionaries without joining necessary parties and the Court passed the judgment/order believing that the proper parties were before the Court. The facts that proper parties are not before the Court has been concealed from the Honourable Court at the time of passing of the judgment and decree in favour of the plaintiff.
46. The matter was fixed before the Court for final disposal without 'first issuing intimation notice to defendants, although offices of defendants Nos.1 and 2 were situated at Hyderabad and Thatta.
47. This fact was also not brought to notice of Court at the time of passing the judgment/decree.
48. ' The suit as framed by itself was not maintainable as all the defendants were official, functionaries, however, suit could not be dismissed on this technical ground of non-joinder of parties or misdescription of the parties.
49. ' For the foregoing reasons the application . Is granted. The judgment and decree dated 9-2-1999 is recalled/set aside.
50. ' The plaintiff is directed to file amended title by joining the parties keeping in view the requirement of section 79 within two weeks from the date of this order. Since necessary parties have preferred application, I direct them that they should file their written statement within three weeks from the date of receiving copy from the learned Advocate for the-plaintiff to avoid delay. The matter may be listed for framing of issues immediately thereafter.