Abdul Aziz Respondent No, 1 instituted civil suit against Government functionaries to call in question change of site of construction of a School. Allegedly, it is a suit in representative capacity. Mainly, the dispute relates to two departments of the Govt: of NWFP. As far as the Education Department is concerned, Secretary Education, Schools and Literacy is Defendant No, 1 in the suit, with a few local officers of Education Department who are also defendants in the suit. The second involved Department of the Govt: of NWFP is Works and Services Department, sued through "Deputy Director" and "Assistant Director" Works and Services Department, posted at District Tank.
2. An application for temporary injunction was moved to stop the defendants from shifting the construction of Govt: Girls Primary School, Haleem Koroona Adam Abad, Tank to any other place and a temporary mandatory injunction directing the defendants to avoid delay in construction.
3. The suit was contested by Executive District Officer, Schools & Literacy, District Tank (Defendant No, 5) who submitted written statement and written reply of the application for temporary injunction. It is pertinent to mention here that Deputy Director Works & Services Department, Tank was placed exparte vide order dated 04.6.2008. Arguments on application for temporary injunction were heard and vide order of Mr. Adam Khan Sulemankhel, Civil Judge First Class, Tank, the application for temporary injunction was accepted on 24.6.2008 and defendants were restrained from changing the site of the School or to transfer the same to another place.
4. Defendant No, 5/Deputy Director, Works & Services Department, Tank later on applied for setting aside exparte proceedings against him, which was set-aside on 05.9.2008 on the consent of the counsel for plaintiff, on payment of cost of Rs,100/-. He then submitted written statement and an application for vacation of the order of temporary injunction passed on 24.6.2008, invoking the provisions of Order XXXIX Rule 4. C.P.0 but after hearing, this application was dismissed by the trial Court vide order dated 11.11.2008.
5. Both the orders of trial Court dated 24.6.2008 whereby the temporary injunction was issued and the order dated 11.11.2008 whereby its vacation was refused, were appealed against by the Deputy Director, Works & Services Department District Tank. Learned District Judge, Tank, after hearing, dismissed the appeal in limine vide judgment dated 26.11.2008.
6. Now, the Defendant No, 3/Deputy Director, Works and Services Department, Tank has instituted this revision petition which was admitted for hearing to consider that whether the impugned order of temporary injunction amounts to interference with the public duty of the concerned Department of Provincial Government, not interferable due to bar contained in Section 56 (d) of the Specific Relief Act and hence, temporary injunction could not be issued.
7. I have heard Mr. Muhammad Zahid Khan, Advocate for the. petitioner. Mr. Rustam Khan Kundi, Advocate for contesting respondent/plaintiff Abdul Aziz. Mr. Sanaullah Shamim Gandapur, Deputy Advocate General appeared to look after the governmental interest.
8. At the outset, Mr. Rustam Khan Kundi, Advocate raised a preliminary objection over the competency of revision, petition contending .that the Deputy Director, Works & Services Department, District Tank could not institute a revision petition in his own capacity and it should have been filed through proper channel, by the Office of Advocate General.
9. On the other hand, learned counsel for the petitioner replied that it is the contesting plaintiff- Respondent No, 1 who has put the petitioner in such a difficult situation. On the one hand, he has wrongly sued the petitioner, violating Section 79 C.P.C and Article 174 of the Constitution of Islamic Republic of Pakistan, 1973, a temporary injunction has been got issued against the petitioner from the civil Court. Appeal against it has been dismissed in limine. The revision petition is being objected upon on the ground of maintainability and competency. In such circumstances, how the petitioner would perform his duties when on the one hand, Provincial Government wants shifting of the site of School, under its policy based decision, and on the other hand, the Court is stopping the petitioner from shifting the site. Ultimately, the petitioner would face contempt of Court proceedings as he is to act on the decision of Provincial Government. In order to avoid that situation, he had no other option but to move this revision petition to place the matter before this Court for a decision according to law. He added that in this case the trial Court has not issued a proper summon to Govt: Pleader under Order XXVII Rule 4 C.P.0 and that is why, no application has been moved by the Govt: Pleader under Sub-rule (2) of Rule 8 of Order XXVII C.P.C, therefore, it shall be deemed that the present suit is between the private parties and that is why, the petitioner has instituted the appeal and revision petition accordingly. Hence, objection to competency of revision petition is invalid.
10. Learned D.A.G objected on the practice of local Govt. functionaries of directly pursuing the civil suits wherein the interest of Govt: is involved and submitted that this practice should be discouraged. However, at the same time, he conceded the legal defect in the suit in the light of Section 79 C.P.C.
11.At this juncture, I would not indulge in controversy about the competency of revision petition in view of the objection raised by learned counsel for the contesting respondent-plaintiff because attention to competency of his client's suit is more important in the facts and circumstances discussed above.
12. I, therefore, having come this important controversy in knowledge, opt to take suo-moto cognizance of the matter under Section 115 C.P.C.
13. The primary issue for determination is the competency of the suit of plaintiff-respondent, in the present form. Apart from the fact that the suit allegedly instituted in representative capacity meets with the legal requirements contained in Order I Rule 8 Sub Rules (1) and (2) of C.P.0 or not, fundamenthl infirmity in the suit is violative of the provision of Section 79 C.P.0 read with Article 174 of Constitution of Islamic Republic of Pakistan have not been complied with. Although, policy based decision of the Provincial Govt: of NWFP has been brought in question by filing the suit but District Officers of the Provincial Government in the Works & Services Department, who are public functionaries meant for implementation of that decision of the. Provincial Government, have been arrayed as defendants and not the Govt of NWFP through Secretary, Works & Services Department.
Chain of. authorities are available on this point, of law declaring that such a suit is incompetent.
14. A Division Bench of Sindh High Court has held in para-7 in the case of Secretary BR Govt. of West Pakistan and 4 others Vs. Fazal Ali Khan (PLD 1971 Karachi 625) that when a suit is to be filed against a Provincial Government, the plaintiff should pay due regard to the provisions of Section 79 of the Code of Civil Procedure and Article 213 of the Constitution of Pakistan, 1962 (which was in operation in those days). It has been concluded in Para-13 of this judgment that in view of the case law reported as Sheriff of Bombay. Vs. Hakam Ji Motaji and Co (AIR 1927 Born. 521), Manaham S. Yeshoova. Vs. Union of India and others (AIR 1960 Bom. 1996) and P.B.Shah and Co. and others Vs. Chief Executive Officer and others (AIR 1962 Cal. 283), the suit brought against official designations or titles is bad in form and must fail.
15. Honourable apex Court has decided this issue in the case Province of the Punjab through Member Board of Revenue. Vs. Muhammad Hussain through legal heirs (PLD 1993 SC 147). The relevant paragraph 7 of this respectful judgment is quoted below for ready reference:-- "7. If the trial Court, the appellate Court and the revisional Court had kept in view the requirements of Section 79 of the Civil Procedure Code read with Order XXVII, CPC, they would not have entertained the claim at all with the parties arrayed in the form in which they were arrayed. Section 79 of the Civil Procedure Code requires, and so does Article 174 of the Constitution, that all suits against the Central Government have to be filed in the name of Pakistan and against a Provincial Government in the name of Province. Suing Pakistan, as was done in this case, through the Chief Settlement Commissioner and Member, Board of Revenue was in fact not only a mistake but a diversion of the proceedings materially affecting service and the representation of the concerned defendants. The Chief Settlement Commissioner had ceased to be a legal entity or a functionary after repeal of the evacuee laws in 1974--much before the institution of the suit. Provincial Member, Board of Revenue could not represent Pakistan.
Similar is the position of Deputy Custodian. There was no functionary of the description of Deputy Custodian after the repeal of the evacuee laws.
As regards the Collector of the District, the procedure prescribed was quite a simple--one--a straightforward one, far service on him. It is provided in Order XXVII of the Civil Procedure Code that the Governments and their functionaries can be served through the Government Pleader. No effort at any stage, was made to effect service through the Government Pleader. The Clerk of the Court of Chief Settlement Commissioner who made the appearance and even the lawyer appointed by the Solicitor was supposed to represent the Chief Settlement Commissioner when in fact no such office did exist in the eye of law. The revisional Court was in serious legal error in thinking and assuming the Collector represented ex-officio the Province of Punjab and by impleading him Province stood automatically impleaded. Not only the Collector is not under the law representative of Province but in this particular case the Collector was sued as a functionary refusing to give effect to the Registered Deed and not as a representative of the Province. With the parties arrayed as they were, the suit could not be entertained unless necessary correction had been made. (Note: Underlining is mine).
16. When subordinate Officers of the Govt: of Forest Department were made defendants and exparte decree was obtained by a plaintiff due to their negligence, this Court took a very serious note of that in the case Forest Department and others. Vs. Muhammad Jan Khan (1996 CLC 1190) and the exparte decree was set-aside in suo-moto exercise of powers in terms of Section 115 C.P.C.
Relevant Paragraph No, 6 of the judgment authored by Honourable Mr. Justice Sardar Muhammad Raza Khan is reproduced below for ready reference:-- Leaving aside the merits of the present revision, I tend to observe and hold suo moto under Section 115, C.P.C, that 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) and Section 80(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." (Note: Underlining is mine)
17.There is yet another case Haji Abdul Aziz Vs. Gout: of Balochistan through Deputy Commissioner Khuzdar (1999 SCMR 16), wherein the Honourable Apex Court has expressed the following views in Para-9 of the judgment:-- "It, no doubt, follows from the said observations that the learned Judge in Chambers could have taken notice of the fact that the appeal in the present case had been entertained by the Appellate Court in spite of being barred by 55 days, but it appears that the learned Judge found it necessary to address himself to a more important question as it transpired that the plaintiff had failed to comply with the provisions of Section 79, C.P.C, or Article 174 of the Constitution, both of which require that in a suit filed against the Government, the authority to be named as a defendant is to be the Province. Since the suit was filed in the present case against the Provincial Government, the Province could be sued through the Secretary to the Government. Obviously, there had been no compliance with the said provisions when the suit was initially filed by the appellant. Unless the suit is filed through a proper person, any order directing exparte proceedings against the defendant would be liable to challenge. Reference-in this regard may be made to a judgment of this Court in Province of the Punjab. Vs. Muhammad Hussain (PLD 1993 SC 147), our attention to which has been invited by the learned counsel for the appellant himself in this case, questions raised before this Court for the first time in regard to maintainability of the suit, its valuation or its being within time, which had not received due attention earlier by the Courts below while dealing with the case, were considered by this Court and the judgments and the decrees passed by the Courts below were set aside and the suit filed by they plaintiffs was dismissed a barred by limitation. Therefore, there is no doubt that the learned Judge in the High Court, while exercising revisional jurisdiction, was empowered to take notice of the defects which were apparent on the face of the record. The failure of the appellant to sue through a proper person was a defect which went to the root of the matter and, but for interference by the High Court, serious prejudice would have been caused to the respondent. Therefore, in our view, the order passed by the learned Judge in Chambers is not open to exception. "(Note: Underlining is mine)
18. From the above quoted case law, it is abundantly clear that the very suit of Respondent No, 1/plaintiff appears to be incompetent in its present form. For this reason, he had no prima-facie case and the temporary injunction issued in this case is illegal on this score alone because three ingredients i,e, prima-facie case, balance of convenience and irreparable loss must coexist for grant of temporary injunction. Learned appellate Court has ignored this legal aspect of the case and its order is also illegal. I, therefore, in exercise of suo-moto revisional jurisdiction, set-aside the impugned orders of the appellate Court dated 26.11.2008 and that of the trial Court dated 24.6.2008 and 11.11.2008
19. The case is remanded to the trial Court where the parties shall appear on 28.02.2009 and the plaintiff-respondent shall be allowed to move application within reasonable time for suitable amendment in his, and application for addition of necessary parties and deletion of unnecessary parties, whereafter, the Court, if the suit is competent in the amended form, shall also determine that whether it is properly initiated under Order I, Rule 8, C.P.C, in the representative capacity shall cause the Provincial Government to be served through the Government Pleader under Order XXVII, Rule 4 C.P.0 for further proceedings according to law.