MUHAMMAD JEHANGIR ARSHAD, J.-----This R.F.A. Calls in question the judgment and decree dated 6-10-1998 passed by Civil Judge 1st Class, Multan, whereby the suit for recovery of Rs.50,00,000 (fifty lacs) as damages filed by the appellant against respondent, was dismissed.
2. Succinctly the facts relevant for the disposal of this R.F.A. Are that appellant claiming himself as owner of land comprising of Khasra numbers, as given in para.1 of the plaint, situated at Chah Thallaywala, Mouza Qutabpur, Multan filed a suit for recovery of Rs.50,00,000 as damages on the ground that respondent No.1 as Managing Director of defunct Electricity Supply Company, installed electricity poles in the said land without his consent, rendering his said land uncultivatable. Further averred in the plaint that due to installation of those poles, the appellant had to initiate several civil suits against the respondent, seeking removal of those poles and during pendency of those civil suits the appellant had to suffer mental torture as well as financial losses and that on account of said poles and the electricity supply lines connecting said poles, the utility and value of the said land of the appellant was materially impaired and thus, he was entitled to claim damages to the tune of Rs.50,00,000 keeping in view the mental torture, financial position and social status in the society, a respectable citizen of the country and also being Barrister with a longstanding enrollment with District Bar, Multan, High Court Bar and also Supreme Court Bar. The suit was contested by respondent No.1 only. In the light of divergent pleadings of the parties, the following issues were framed and the parties were asked to produce their evidence: Issues
(1) Whether the defendant No.1 is a necessary party to the suit? OPP
(2) Whether the Government of Pakistan is a necessary party to the suit? OPD
(3) Whether the plaintiff has got no cause of action to file the suit? OPD
(4) Whether the defendant No.1 is entitled to special costs in case the suit fails, if so, to what amount'? OPD- 1.
(5) Whether the plaintiff is entitled to damages, if so, to what amount'? OPP
(6) Relief.
The plaintiff/appellant produced one Zahoor Hussain as P.W. And by appearing himself as P.W.2 and tendering documents Exh.P.1. To Exh.P.3, he closed his evidence. On the other hand, Muhammad Nawaz D.W.1 appeared as General Attorney of respondent/defendant No.1. On the conclusion of trial, the learned Civil Judge 1st Class, vide impugned judgment and decree dated 6- 10-1998 dismissed the suit, hence, this R.F.A.
3. As none appeared on behalf of respondents despite service, they were as such proceeded ex parte on 19-4-2005 and case was adjourned for ex parte argument. However, through Civil Miscellaneous No.812 of 2005, a prayer for permission to join the proceedings was made on behalf of respondent No.2 and the same was allowed on 7-6-2005.
4. Learned counsel for the plaintiff/appellant has reiterated the appellant's stand by arguing that it was respondent No.1 who was responsible for the installation of poles and connecting electricity supply line, hence the learned trial Court was not right in dismissing the suit of the appellant by holding that same was not maintainable due to mis--joinder of respondent/defendant No.1 and non-joinder of Federal Government as well as Water and Power Development Authority.
5. On the other hand, Rao Riasat Ali Khan, Advocate appearing on behalf of respondent No.2 has vehemently opposed this appeal by supporting the judgment and decree of the learned trial Court.
6. We have considered the arguments of learned counsel for the appellant and have gone through the relevant record with their assistance.
7. Admittedly, the defunct Multan Electricity Supply Company was a limited Company registered under the Companies Act, 1913 and respondent No.1 namely Mughis A. Sheikh being its Managing Director was not liable in his personal capacity for the act of the Company, hence, no suit could be filed against respondent No.1 in his personal capacity and we find force in the findings of learned trial Court while deciding issue No.1 holding that respondent No.1 was not a necessary party and suit could not proceed against him in his personal capacity. Similarly, the said Multan Electricity Supply Company was nationalized through President's Order 1972 (known as Economic Reforms Order, 1972) and assets and liabilities of the said Company were firstly taken over by the Federal Government and later on handed over to Water and Power Development Authority (WAPDA) in terms of M.L.O. No.85 issued on 14-6-1981 and since then WAPDA till date, has been performing the functions of defunct Multan Electricity Supply Company, generally known as MESCO. The appellant neither impleaded the Federation of Pakistan nor WAPDA with its correct nomenclature. It has been held by the Honourable Supreme Court of Pakistan in the case reported in 1999 SCM R 16 that any suit filed against the Federation in violation of either Article 174 of the Constitution of Pakistan or section 79, C.P.C. Was not maintainable and we, therefore, also hold that the learned trial Court correctly decided issue No.2 against the appellant.
8. On merits, we also find that the suit filed by the appellant was not maintainable in view of the provisions of section 14(2) of the Pakistan WAPDA Act, 1958, which runs as under:--- "When any person enters into or upon any land in pursuance of subsection (1), he shall, at the time of entering or as soon thereafter as may be practicable, pay or tender payment for all necessary damage to be done as aforesaid, and in case of dispute as to the sufficiency of the amount so paid or tendered, the dispute shall be referred to the Deputy Commissioner of the District whose decisions shall be final."
PLD 1991 SC 715. Hence, the suit filed by the appellant was also not maintainable in view of the bar contained in section 14(2) of Pakistan WAPDA Act, 1958. This R.F.A. Is, therefore, dismissed being devoid of any merit. However, the above remedy is still available to the appellant and he may, if so advised, approach the competent authority in terms of above referred provisions of Pakistan WAPDA Act, 1958.