1. This appeal is filed against the judgment and decree passed by the learned District Judge, Muzaffarabad on 29.12.2012.
2. Facts forming the background of the instant appeal are that plaintiff/respondent, , herein, brought a suit for recovery of Rs, 2,30,51000/ in the Court of District Judge, Muzafarabad against Azad Govt. and others on 13.12.2011. It was claimed that land comprising Khasra Nos. 66 min, 99 min, 1357, 1365, 1341, 1339, 1338, 1337, 1105, and 1308 total measuring 48 Kanal 12 marlas is in the ownership and possession of the plaintiff on the basis of sale-desds. It was averred that in the aforesaid land, there are large number of trees of "Deodar" and some of them fell down in 2003 and 2007 due to heavy snow fall. It was stated that the plaintiff wants to utilize the fallen trees for construction of house and also wants to sell some of timber and for that purpose he made several applications to.
3. Defendants No, 2 to 5 and 9 in which it was requested that NOC and permission for issuance of form 25 may be accorded but defendants did not take any proper action. It was alleged that on 13.08.2005, the plaintiff moved an application for utilizing some trees for personal use, upon which 9 trees were sanctioned from Khasra Nos. 1334, 1336 and 1337. The plaintiff deputed labour on spot for extraction of the sanctioned timber but the concerned Range Officer illegally interfered and not allowed the extraction of the timber and fortified 32 Slipers 85 Galies and 4 trees which was subsequently handed over to the plaintiff on 14.07.2008. It was claimed that some of the timber including 205 Nags equal to 993 cft were extracted from Forest but defendants did not issue form 25 due to which the aforesaid timber was spoiled. It was further alleged that plaintiff filed a writ petition before this Court and at the conclusion of the proceedings, a direction was issued to the respondents for issuance of NOC. The plaintiff claimed that he is owner of the land but the defendants are not complying with the provision of law for bringing the aforesaid timber to the local market rather filed bogus case against the plaintiff in which the plaintiff was acquitted. The plaintiff claimed cost of timber as well as other damages listed in Para 11 of the plaint which comes to Rs, 2,30,51000/-. The suit was contested by the defendants by filing written statement in which it was admitted that NOC to the extent of 499.82 cft was issued. The department refuted the claim of the plaintiff and stated that plaintiff has not suffered any loss due to any act of Forest Department.
4. The learned District Judge after receiving the written statement, fixed the case for 22.11.2012 for recording the preliminary statement of the parties. After recording the statements on 13.12.2012 and without framing issues and recording the evidence, the learned District Judge, decreed the claims of the plaintiff and awarded to the tune of Rs, 2,30,51000/-.
5. Raja Amjad Ali Khan, the learned Advocate appearing for the appellant vehemently argued that the judgment and decree passed by the learned District Judge is without jurisdiction and violative of the procedure enshrined in, C.P.C. for trial of the suits, hence, is liable to be recalled. The learned Advocate contended that Forest Officers have been arrayed as defendants in the case in their non-official capacity whereas they have performed in the official capacity, therefore, the suit was not maintainable in view of Section 79 of the, C.P.C. The learned Advocate submitted that preliminary statement of the parties recorded by the learned District Judge hardly furnish any ground for disposal of the suit without regular trial.
6. The learned Advocate appearing for the respondents contended that claim of the plaintiff was admitted by the Forest Department, therefore, there was no dispute between the parties, hence, judgment has rightly been passed by the learned District Judge which does not require any interference. The learned Advocate referred to and relied upon a letter of Conservator Forests as well as the statement of DFO Muzaffarabad and requested for dismissal for the appeal.
7. I have heard the learned Advocates for the parties and gone through the record of the case.
8. Order X Rules 1 and 2 deal with the examination of the parties by the Court. Rule 1 of Order X postulates that at the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admission and denials. A perusal of sub-rules (2) and 3 of, the aforesaid Order reveals that procedure adopted by the Court only for the purpose of clarifying the pleadings of the parties and the general procedure laid down for trial of the suit cannot be dispensed with. In AIR 1931 Privy Council 175, it was, opined that Order. X Rule 2 can be invoked by the Court to obtain information on material questions and not for superseding ordinary procedure at trial. At page 176 the report, it was observed as under:-- "The record before their lordships discloses no justification for this unusual proceedings. No doubt under Order X Rule 2, any party present in Court may be examined orally by the Court at any stage of the hearing, and the Court may if it thinks fit put in the course of such examination questions suggested by either party. But this power is intended to be used by the Judge only when he finds it necessary to obtain from such party information on any material questions relating to the suit and ought not to be employed to supersede the ordinary procedure at trial as prescribed in Order XVIII."
9. A perusal of the plaint reveals that plaintiff claimed cost of 12017 cft timber and also damages listed in Para 12 which comes to Rs,2,30,51110/-. The statement of Divisional Forests Officer, Muzaffarabad was unauthorized because he was only one of the defendants and he was not authorized to make statement on behalf of the defendants especially on behalf of the Government.
10. It also transpires that plaintiff filed suit against Chief Conservator. , Forest and other Officers in their personal capacity whereas fact of the matter was that they were performing as agents and subordinate functionary of the Government, therefore, they were liable to be sued in their official capacity [1971 PLD 625]. The learned District Judge has not considered the aforesaid fact as well as provision contained in Order X Rule 3. Under Section 79 of the, C.P.C. a complete scheme has been provided for institution of the suit against the Government and its Officers. In the present case, the provision of Section 79 and Order XXVII Rule 3 have been violated by the Court. Under sub-rule (2) of Order XXVII only a person who is authorized by the Government as agent in the judicial proceedings instituted against the Government, can make a statement on behalf of the Government. No application was made by the DFO, Muzaffarabad in the terms of Order XXVII Rule 3 for making the statement as agent of the Government, therefore, award of decree mere on the summary statement of DFO was without jurisdictional competence. The learned District Judge, has also not taken into consideration that damages claimed and ownership of the property was a question of fact which cannot be proved without regular trial. The procedure visualized by the Law Departmental Manual, 1984 is also violated and not considered by the learned District Judge. Under Section 28 of the aforesaid manual, in any suit by or against the State the plaint or written statement shall be signed by the head of the department concerned and shall be verified either by him or by any other officer of the department who is acquainted with the facts of the case.
11. In view of above, the judgment and decree passed by the District Judge is hereby set-aside and the case is remanded for fresh trial after framing issues and providing the parties opportunity for leading evidence. It is noticed that Officers, of the Forests Department particularly DFO, Muzaffarabad Division (of the time) has given concession to the plaintiff and conduct of the other officers is also unbecoming because huge amount as well as timber is claimed against the department/Government but they have not bothered to watch the interest of the Government. A copy of this judgment shall be sent to the Secretary Forests to take notice of the aforesaid situation.
12. A body of this order shall also be sent to the Secretary Law for holding the meeting of the Head of Departments for apprising them about the procedure to be followed in the cases on behalf of or against the Govt., with reference to Section 79 and Order XXVII of, C.P.C. and relevant provision of Azad Jammu and Kashmir Law Department Manual, 1984.