SAFDAR SALEEM SHAHID, J.----Against the judgment and decree dated 28.02.2019 passed by learned Civil Judge 1st Class, Lahore, whereby suit filed by respondent No.1/plaintif f for recovery of Rs.6,90,00,000/- as damages against the appellants and Performa respondents Nos.2 to 5 was decreed to the extent of Rs.
2,40,00,000/- instant appeal has been preferred.
2. The brief facts of the case are that appellant No.3 along with Performa respondents Nos.3 to 5 under the directions of Senior Officers inspected the premises of workshop of Ozpak. The respondent No. 1/plaintif f obstructed with the performance of official/public duties. The Inspection Team found a large potential "Larva" and on the complaint of competent authority a criminal case FIR No.817/2013 dated 03.07.2013 under sections 268, 269, 270 and 188, P.P.C. and section 3 of Dengue Act was registered against the respondent No.1/plaintif f who was workshop Incharge, at police station Islampura, Lahore, the aforesaid case was duly investigated and thereafter challan was submitted before the Court of competent jurisdiction . The Health Team was constituted who visited 'the spot and found that FIR was rightly registered. Thereafter Ozpak Company , employer of respondent No.1 vide letter dated 26.09.2013 terminated the services of respondent No.1 w.e.f 31.08.2013 on the grounds that respondent No.1 was found guilty of causing damage to the reputation of Company by not requiring Dengue Squad to take the samples from the Workshop without prior permission of the head office; that respondent No.1 had misbehaved with high officials of the Company and he was not following the orders as well as instructions of the respective higher authorities of the Company; that respondent No.1 was not providing the services upto the desired standard of the Company . Another ground for his termination was of mishandling the lower staff and misbehaving with the person of similar rank. Similarly , writing letters directly to LWMC of returning back of the lower staff despite knowing that he was not authorized to use such a power . It was further alleged that after submission of challan in the Court, respondent No.1 filed an application under section 249-A, Cr.P.C for his acquittal. Learned Magistrate did not frame the charge being baseless or any possibility of conviction as required under section 249-A, Cr.P.C for acquittal but learned Magistrate on sympathetic ground held that respondent No.1 has been terminated from the services of company , his application was allowed.
3. The respondent No.1/plaintif f filed suit for recovery of Rs.6,90,00,000/- in the shape of damages which was contested by the appellants and Performa respondents Nos.2 to 5 and following issues were framed:- ISSUES:
1. Whether the plaintif f has no cause of action to file this suit? OPD.
2. Whether the defendant No.1 is neither proper nor necessary party in this suit? OPD!.
3. Whether the suit is liable to be dismissed in view of preliminary objection No.1 of the written statements submitted by defendants Nos.2 to 7? OPD 2 to 7.
4. Whether the suit is not proceedable in its present form? OPD
5. Whether the plaintif f has not come to the Court with clean hands? OPD
6. Whether the plaintif f is entitled to the recovery of damages amounting to Rs.6,90,00,000/- as prayed for ?OPP
7. Whether the defendants are entitled to recover special cost from the plaintif f under section 35-A, C.P.C. for being the suit false, vexatious and frivolous ?OPD.
8. Relief.
4. After recording the evidence of the parties and hearing the arguments, the learned Civil Judge partially decreed the suit of respondent No.1 to the extent of Rs. 2,40,00,000/- vide judgment dated 28.02.2019 which has been assailed through this appeal.
5. Main grievance of the appellants is that suit was barred by law. Mandatory provisions of section 79, C.P.C. has been violated in the instant case. An application under Order VII, Rule 11, C.P.C. was filed on this ground that legally suit was not maintainable against Civil Servants for action done in good faith in their official capacity and sine the acquittal of respondent No.1 was without notice and without recording of evidence as to how registration of FIR was mala fide or without any probab le cause. In the instant appeal the appel lants took the stance that under section 8 of the West Pakistan Essential Services (Maintenance Act) 1958, no suit prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act or Rules laid therein. The learned Civil Judge did not appreciate the legal aspect of the case during proceedings specifically agitated by the appellants. While dismissing the applica tion under Order VII, Rule 11, C.P.C., learned Civil Judge held that as Issue No.3 has been framed on the basis of preliminary objections, therefore, at this stage, when evidence is to be recorded, application was not maintainable but while deciding the issue No.3 this legal aspect of proposition was neither discussed in the head of issue nor learned Civil Judge passed any remarks that why these propositions are not being taken up in the decision that how these are not applicable to the present proposition. The request of the appellants was to set aside the impugned judgment and decree and to dismiss the suit with costs.
6. On 18.12.2019 respondent No.1/plaintif f appeared before this Court and sought time in order to engage his counsel, but thereafter neither he nor his counsel entered appearance, whereas proforma respondents Nos.2 to 5 have also not entered appearance despit e notices were served upon them, therefore, they are proceeded against ex-parte.
7. Arguments heard. Record perused.
8. The only legal point involved in the proposition was that whether civil suit was proceedable in view of objections raised by the appellants that appellant No.1 acted in an official capacity and all his acts including the lodging of FIR against respondent No.1 was under the official capacity with permission of the authority as required. Section 79 CPC specifically is regard to sue Government Officer/of ficials for act specifically done in an official capacity . The counsel for the appellants has relied upon case reported as "Province of the Punjab through Membe r Board of Revenue, (Residual Properties), Lahore and others v. Muhammad Hussain through Legal Heirs and others"
(PLD 1993 SC 147). In para No.7 of the said judgment, it has been held by august Supreme Court of Pakistan that if requirements of section 79, C.P.C. read with Order XXVII, C.P.C. had been kept in view by the Court they would not have entertained the claim at all with the parties arrayed in the form in which they have arrayed. Section 79 of C.P.C. requires, and so does Article 174 of the Constitution of Pakistan that all suits against Central Government have to be filed in the name of Pakistan and against a Provincial Government in the name of Province. Learned counsel further relied upon case reported as "Haji Abdul Aziz v. Government of Baluchistan through Deputy Commissioner Khuzdar " (1999 SCMR 16) wherein it has been held that section 79, C.P.C. and Article 174 of the Constitution had not been complied with by the plaintif f and suit had been instituted through a wrong person. The authority to be named as defendant is to be the Province as Government officer/of ficials were working on behalf of the Provincial Government and in discharge of their duties they done all acts including the lodging of the FIR against respondent No. 1. Further relianc e has been placed on case reported as "Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others " (2010 SCMR 115). Similar proposition was discussed by august Supreme Court of Pakistan regardin g maintainability of the suit filed against Government officer/of ficials without impleading the Federal Government or Provincial Government; that no suit can be filed against the Provincial Government without impleading the Province as a party and procedural condition is mandatory in nature and no relief can be sought without its strict compliance and suit would not be maintainable.
9. We have observed while deciding the application under Order VII, Rule 11, C.P.C., the learned Civil Judge dismissed the same while observing that since Issue No.3 has been framed on the basis of preliminary objections, therefore, at this moment when evidence is to be recorded application was not maintainable but while passing the judgment under the head of issue No.3 neither a single word regarding objections of appellants and Performa respondents Nos.2 to 5 is mentioned in the judgment nor has given any independent verdict regarding application under Order VII, Rule 1 1, C.P .C.
10. Order XIV, Rules 1 and 2, C.P.C. is clear regarding the framing of issues and issue on law and fact. Issues are to be framed on the basis of material in the shape of pleadings presented. It is the duty of the court to frame proper issues so that the parties may know the controversy , the disputed fact, on which evidence is to be led and to enable an ef fective judgment to be rendered.
Here we will quote the exact language of Order XIV , Rule 2, C.P .C.:- "Where issues both of law and of fact arise.in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issue s of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined".
Furthermore the spirit of Order XV, Rule 3, C.P.C. has not been satisfied by learned Civil Judge through the impugned judgment. Reliance in this regard is placed on cases reported as "Dr. Anjum Habib Vohra v, Waseem Ahmad Khan" (PLD 2006 Lahore 255), "Muhammad Nazir and others v. Muhammad Arif and others" (2006 MLD 187 Lahore) and "Raza Hussain v. Haji Qaisar Iqbal and 7 others " (1996 MLD 55). The relevant caption of latter citation is reproduced as under:- "Issues of law should be tried first if they do not require lengthy and prolonged evidence and could be decided without any delay , and findings thereon were sufficient to decide the whole case without having recourse to issues on facts"
11. It is settled principle that where jurisdiction point or maintainability of the suit is in question the requirement is first to resolve these legal points so to avoid further exercise of lengthy trial which certainly would consume the time and energy of the Court, as well as of the litigants. Another aspect regarding judgment in hand is that provisions of Order XX, Rule 5, C.P.C. has not been legally satisfied. The spirit of above mentioned provision is that the judgment of the learned trial Court should contain the findings on all issues separately . Reliance in this regard is placed on case reported as "Qadir Baksh (deceased) through L.Rs v. Allah Dewaya and another" (2011 SCMR 1 162). The relevant para No. 6 of the judgment is reproduced as under:- "The first contention of the learned counsel that the judgments passed by the Courts below were violative of the provisions of Order XX, Rule 5, C.P.C. is based on misconception. The impugned judgments have dealt with all the points raised and fulfil the requirement of law. Such judgment cannot be called in question merely on the ground that it has not discussed each and every issue separately . We have examined the judgment of the first appellate Court, which has dealt with all the points raised before it and the same has been maintained by the learned High Court in second appeal by a reasoned judgment. The wisdom behind the Rule 5, Order XX, C.P.C. is that the trial Court and the first appellate Court should record findings on all the points and non-recording of findings on each and every issue would not be fatal to the judgment on the strength of the Order XX, Rule 5, C. P.C. The contention of the learned counsel in this respect is without force."
'Further reliance is placed on cases reported as "Ali Muhammad v. Muhammad Hayat and others" (1982 SCMR 816), "Rehmatullah Khan and another v. Ghulam Farid and others " (2009 SCMR 371) and "Asif Hussain and another v . Mst. Bakho alias Bakhto (deceased) through Legal Heirs" (2021 YLR 573 ).
12. Another legal aspect of the, proposition is that section 8 of the West Pakistan Essential Services (Maintenance Act) 1958 clearly provides that no suit prosecution or other legal proceedings shall lie against any person which is done in good faith or intended to be done under this Act. In this regard reliance is placed on case reported as "The State and others v. M. Idrees Ghauri and others " (2008 SCMR 1118) wherein Hon'ble Supreme Court of Pakistan in para No.14 of the judgment observed as under:- "If decision making level officials responsible for issuing order , S.R.O. etc, are not protected for performing their official acts in good faith, the public serva nts and all such officers at the level of decision making would be reluctant to take decisions and/ or avoid or prolong the same on one pretext or another which would ultimately lead to paralysis of State-machinery . Such a course cannot be countenanced by this Court."
Reliance has also been placed on case of "Nadeem Raja v. Additional Sessions Judge and others (2016 MLD 1810 Lahore)" wherein Hon'ble Court in paras Nos.5 and 6 of the judgment observed as under:- "Petitioner is the public functionary and he in the capacity as public functionary performed his official duty after fulfilling all the legal requirements, therefore, he has not committed any offence".
"Act done in good faith, which is not in violation of criminal law and also is not result of criminal motivation, he has no penal consequences--If a person is prosecuted for such an act, there is no repair to the loss caused to him in his body and mind"
Further reliance is placed on case reported as "Sardar Aman Khan and 2-others (2010 YLR 2219 (Peshawar)".
The relevant Para No.7 of the judgment is reproduced as under:- "In the present case, the petitioner was executing the warrant issued against respondent No.1 under section 3(1)
MPO and the provisions of section 12(3) of the Maintenance of public order clearly empower the petitioner to take step under subsection (1) or subsection (2) which includes the power to enter upon any land or other properties whatsoever"
"The rivalry between petitioner and respo ndents Nos.1 and 2 is not based on previous enmity but their differences and civil litigation appears to be the outcome of the acts and the conduct of petitioner in performance of his official duties. Under the law presumption of good faith is attached to official acts committed during discharge of official duties unless proved to the contrary . Thus, by stretch of no legal interpretation it could be held to be tainted with mala fide and in excess of authority/powers amounting to abuse and misuse of authority by the petitioner in the discharge of his legal duties and functions".
Learned Civil Judge failed to appreciate the legal aspect of the proposition regarding the maintainability of the suit.
Without touching the other merits of the case we are of the considered view that suit was not maintainable. Thus, instant appeal is allowed, resultantly suit filed by respondent No.1/plaintif f is dismi ssed as being not maintainable.
No order as to costs.