The petitioners (hereinafter referred to as plaintiffs) filed the suit for declaration, injunction and correction of revenue record against the respondents (hereinafter referred to as defendants) with following prayer:--
(i) 'that the plaintiffs are descendants and legal heirs of late fathers/fore-fathers of plaintiffs, hence stopped in their shows, and sought the title of occupancy tenants (bazgars), in respect of lands defined in Paragraph Nos, 2 and 3 of the plaint, lying in Mohal and Mouza Khushkaba Daman Sarkaari, Cricle Saddar, Tehsil Chamn District Killa Abdullah;
(ii) That the plaintiffs may be declared. as owners (Malik-e-Alla) in Column No, 3 of Fard-e-Haqiat, As Misl-e-Haqiat, Mohal and Mouza Khushkaba Daman Sarkari, in Khate No, 1/25, in place of Defendant No, 1, the Central Government; (iii)That to direct the Defendant No, 2 correct and incorporate the required entries in capacity of owners under the names of plaintiffs, in revenue record i,e, in Misle-e-Haqiat of Mohal and Mouza Khushkaba Daman Sarkari, Tappa Saddar, Tehsil Chaman, District Killa Abdullah; (iv)That to direct the defendants to not interfere and interrupt in the title of plaintiffs, as owners in occupation of both physically at the post in respect of the whole of land defined and numerated in Paragraphs Nos, 2 and 3 of the plaint and in respect of Revenue record as well permanently; (v)Any other relief as deemed fit and proper in the circumstances of the case, may also be awarded;"
In response to the notice issued to the defendants one Rehmatullah Patwari appeared before the trial Court, who after obtaining the copy of plaint and annexures did not turn up on the next date of hearing whereupon the defendants were proceeded ex-parte vide order dated 27.4.2002. The plaintiffs in support of their claim filed affidavits of Musa Kalim, Agha Muhammad while the attorney for the plaintiffs Haji Abdul Wahid, Abdul Qayum and Salahuddin filed their join affidavit.
The trial Court on the basis of the averments made in the plaint and the affidavits filed in support of the same passed ex-parte decree on 31.5.2002 to the following effect:-- "Therefore, in view of above mentioned facts circumstances, affidavits of witnesses, Fard-e-Haqiat, receipts and notification entitled the plaintiffs to be incorporated as owners in column of owners in revenue record. In this regard and ex-parte decree be prepared and defendants are directed that the names of plaintiffs be entered incorporated as owners in the column of owners in revenue record."
Subsequently the Respondent No, 2 filed application u/S. 12(2) Cr.P.C. contending that before filing of the suit required notice was not issued to the defendants. Further the Federal Government was sued through Defendant No, 2, who cannot represent Federal Government. The application was resisted by the plaintiffs, meanwhile execution application was filed by the plaintiffs, the learned Civil Judge Chaman after hearing of the parties dismissed the execution application with following observation:-- The plaintiff being aggrieved by the dismissal of their execution application preferred appeal u/S. 104 read with Section 47 CPC. The appeal was also dismissed by means of order dated 23.5.2003., Still being dissatisfied the plaintiffs filed the Revision petition in hand.
Mr. Abdul Aziz Kakar, the learned counsel for the petitioners while being unable to point out any defect in both the impugned orders was also unable to state that how Federal Government was sued through District Executive Officer (Revenue) district Killa Abdullah at Chaman, when the Federal Government is the recorded owner of the property in dispute. Ch. Mumtaz Yousaf, the learned Federal counsel supporting the impugned orders submitted that plaintiffs not only filed a defective suit by non-joinder of necessary parties but compliance of Section 80 of CPC was also not, made, therefore, in such view of the matter the proceedings so drawn from the initial stage cannot sustain and the suit is liable to be dismissed.
The submissions made by the learned counsel for the parties considered, record of the case perused. It is the admitted feature of the case that the Federal Government is recorded owner of the property. The plaintiffs filed the suit and following were made defendants:--
1. Central Government, through District Executive Officer (Revenue) District Killa Abdullah, at Chaman.
2. District Executive Officer (Revenue) District Killa Abdullah at Chaman.
Sections 79 and 80 CPC lays down the procedure in relation to suits by or against the Government.
Section 79 CPC states the authority to be named as plaintiff or defendant as the case may be while Section 80 deals with the procedural pre-condition to the filing of the suit against the Government or public servant hence both the sections heaving bearing on the case in hand are reproduced as under:--
79. Suits by or against the Government.-- 4**** In a suit by or against the 2[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 suit by or against a Provincial Government the Province]; and "80. Notice---(1) A suit may be instituted against the Government or against public officer, in respect of any act purporting to be done by such public officer in his official capacity, after the expiration of two months next after notice in writing has been delivered to or left at the office of.--
(a) in the case of a suit against the 2[Federal] Government, a Secretary to that Government;
(b) (i) in the case of a suit against the Provincial Government other than a suit relating to the affairs of a Railway, a Secretary to that Government or the Collector of the District; and
(ii) in the case of a suit against the 2[Federal] Government relating to the affairs of a Railway, the General Manager of the Railway concerned and in the case of public officer, delivered to him or left at his office stating the cause of action, the name, description of place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) Where any such suit is instituted without delivering or leaving such notice as aforesaid or before the expiration of the said period of two months or where the plaint does not contain a statement that such notice has been so delivered or left, the plaintiff shall not be entitled to any costs if settlement as regards the subject-matter of the suit is reached or the Government or the public officer concedes the plaintiffs claim, within the period of two months from the date of the institution of the suit: Provided that in a suit instituted without such notice, the Court shall allow not less then three months to the Government to submit its written statement]."
In the present case the Federal Government has been sued through provincial functionary which is in clear violation of the provisions of Section 79 CPC. The procedural pre-condition as provided by Section 80 CPC were also not acted upon, although non-compliance of Section 80 CPC does not result in dismissal of the suit but in such an eventuality the Government is to be provided three months time to submit written statement. As stated above the Federal Government was not properly named as required by Section 79 CPC and the service on Defendant No, 2 was deemed to be service on respondent/Defendant No, 1 also. Further on the date of hearing a Patwari appeared before the trial Court who was neither authorized nor could be said to be representative of Federal Government and the trial Court handed over the copies of the plaint and annexures to him.
Thereafter on '27.4.2002 the defendants were proceeded ex parte i,e, only after 27 days of the institution of the suit, and on 31:5.2002 the suit was decreed which speaks of the hasty proceedings carried in violation of the provisions of Section 80 CPC as the defendants were not provided the period of three months for filing of their written statement. The trial Court not only ignored the improper description of defendant but also failed to comply with the legal requirements. Thus, the judgment and decree passed in favour of plaintiffs in such circumstances cannot sustain. Both the Courts below, therefore, have rightly observed that Federal Government was not properly sued and the decree in its present form is not executable. The impugned order being free from any flaw calls for no interference, while judgment and decree dated 31.5.2002 passed in favour of the plaintiffs being in violation of the provisions of law, is set aside. This disposes of the Civil Revision, with no order as to cost.