IBAD-UR-REHMAN LODHI J.:- This civil revision petition as also Civil Revision No. 213 of 2013 (Taseer Khan vs. Islamabad Electricity Supply Company), Civil Revision No. 255 of 2013 (Amjad Rasheed vs. Islamabad Electricity Supply Company) and Civil Revision No. 345 of 2014 (Amjad Rasheed vs. Islamabad Electricity Supply Company) are to be disposed of together, as similar request was made in all the suits for rejection of the plaints and all such requests were similarly treated, when it were refused by the learned trial court.
2. Precisely, facts relevant for the purposes of disposal of present civil revision petitions are that, the respondent-Islamabad Electricity Supply Company (hereinafter to be referred as "IESCO"), filed suits for recovery of different amounts on account of alleged excess withdrawal of material from the Company's Store and subsequently not using the same in the work assigned to the petitioners and, as such, not only that the same material was wrongfully taken, but subsequently, in the same manner, wrongfully detained the same.
3. The suits in Civil Courts at Attock and Chakwal were filed in the year, 2011, respectively, and at a subsequent stage, by taking certain objections, rejection of the plaints was sought for by the present petitioners by moving independent applications under the provisions of Order VII rule 11 CPC.
4. The learned Senior Civil Judge, Attock, refused to reject the plaint on the application of present petitioners, on 22.01.2013, whereas, the learned Civil Judge 1st Class, Chakwal, did the same thing on 22.03.2014.
5. First objection as to the maintainability of the petition on the touchstone of limitation was raised to the effect that, nowhere in the plaint, the plaintiff-respondent has disclosed as to when, the audit of the work assigned to the petitioners by the Company, was conducted and when it was pointed out through the Audit Report as to the withdrawal of excess material from the Company's Store and subsequently wrongfully detaining of the same by the petitioners.
6. Such contentions of the petitioners gain support from bare reading of the plaints, which, at no place, disclosed that as to when the audit was conducted and when the Audit Team reported that some wrongful has been committed, allegedly by the petitioners.
During arguments, the learned counsel for the respondent-Company was asked to explain such position to which he answered that the audit was conducted way-back in 1992. The omission in mentioning the date of conduct of audit inspection and raising some objection by the Audit Team is understood, as, had the same been pleaded, the plaintiff would have to explain the reason for filing of a suit, after almost two decades.
Now, by adopting the status of Government, the respondent-Company, is taking shelter under the plea that, they had a limitation of 60 years to file such suit in view of the provisions of Article 149 of The Limitation Act, 1908.
7. Section 79 CPC deals with the circumstances as to how suits by or against the Government can be filed, which provides that 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;
(b) in the case of a suit by or against a Provincial Government, the Province.
WAPDA or, a distribution Company, like the plaintiff in the present matter, which is Islamabad Electric Supply Company (IESCO), cannot claim its status to be that of Government.
8. The Hon'ble Supreme Court of Pakistan in case of Maqsood Ahmed Toor and 4 others vs. Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others (2000 SCM R 928) and Civil Appeal Nos.1033 to 1037 of 2004, decided on 30.05.2013, has held that although WAPDA's affairs to some extent are controlled by the government, but for all practical purposes, it is an independent entity and authorized to carry out the business of utilization of water and power resources of the country and to generate electricity and that WAPDA or any distribution Company, like IESCO, is not performing any of sovereign functions of the State, so as to be declared as a body corporate performing functions with the affairs of the Federation.
Elaborating Section 79 CPC, the Hon'ble Supreme Court of Pakistan in case of Province of the Punjab through Member Board of Revenue, (Residual Properties), Lahore and others vs. Muhammad Hussain through Legal Heirs and others (PLD 1993 Supreme Court 147) has held that, even suing Pakistan or a Province through the Departmental Head of the Federal Government or Provincial Government was not only a mistake but a diversion of the proceedings materially affecting the further proceedings on judicial side.
9. The suits in the present matters were filed in the name of IESCO through its Chief Executive, but neither any Resolution of the Company has been pleaded in or annexed with the plaint authorizing any particular person to represent the Company, nor any power was shown to have been extended in favour of Chief Executive of IESCO to file or verify the plaint on its behalf. Further, it is noted that, even the Chief Executive of IESCO has not signed or verified the plaints, rather it is some SDO, who has performed such job.
In such like situation, the Hon'ble Supreme Court of Pakistan in case of Telecard limited through Authorized representative vs. Pakistan Telecommunication Authority through Chairman (2014 CLD 415) has held that, a lis could not be initiated on behalf of the Company, which is a juristic person, without having due authority either in terms of the articles of association or by the Board resolution, which in the reported matter, were conspicuously missing, and when the litigant had not even appended any document to establish that the Chief Executive of the Company, who even in the reported matter put his signatures to the memo of appeal, was not having any authority to do so, the appeal was termed as not maintainable and was dismissed.
10. Article 149 of The Limitation Act, 1908, provides a period of limitation of sixty years for a suit by or on behalf of the Central or Provincial Government, but when this fact is established that IESCO can, in no way, attain the status of either Federal or Provincial Government, the provisions of Article 149 of the Act were of no help to the plaintiff.
11. The suits, like present one, would govern under the provisions of Article 49 of The Limitation Act, 1908, which provides for specific movable property or compensation for wrongfully taking or wrongfully detaining such property and for such suit, a period of three years is provided as limitation and starting point of which is, from when the property is wrongfully taken or injured or when the detainer's possession becomes unlawful.
12. Although in clear terms, in the suits, the starting point of accruing cause of action in favour of the plaintiff has not been pleaded, but now it is established that the audit report, finalized in the year, 1992, has been made basis of the filing of the suits, filed in the year, 2011, as such, the suits, at the time of their filing, were hopelessly barred by time, if adjudged on the touchstone of Article 49 of The Limitation Act, 1908.
13. On both counts, i.e. Limitation and filing and verifying by an incompetent person, plaints in the suits were liable to rejection. The learned trial court has committed illegality, while declining the request of the defendant-petitioner for rejection of the plaints.
14. The plaints in the suits were not proceedable, even at the time of their institution. They were defective and were bound to bury in their inception, but the learned trial court, despite the fact that, inherent defects were pointed out in such plaints, refused to reject the same and in doing so, committed illegality and irregularity. The impugned orders dated 22.01.2013 and 22.03.2014 are not sustainable; the same are therefore, set-aside. The applications, filed by the present petitioners, for rejection of plaint, are allowed and resultantly all the civil revision petitions are allowed and the plaints filed by the respondent-plaintiff are rejected under the provisions of Order VII rule 11 CPC.
There will be no orders as to costs.