FIAZ AHMAD ANJUM JANDRAN, J. Through the instant Regular First Appeal (the appeal), appellant impugns order dated 31.07.2018, passed by the learned Senior Civil Judge, Islamabad-W est whereby , while dismissing his application under Order I Rule 10 of the Code of Civil Procedure, 1908 (C.P.C) for impleading of "Elixir (Pvt.)
Limited" and "Elixir Corporation Limited" as defendants 1-a & 1-b, plaint was rejected under Order VII Rule 11 of C.P.C, by treating it without defendants.
2. Essential and relevant facts for adjudication of the appeal are that appellant filed suit for recovery of Rs.105 million against respondents 1 to 3, whereby the latter filed application under Order-I Rule 10 C.P.C for deletion of their names from the array of defendants. Petitioner also moved alike application for impleading "Elixir (Pvt.)
Limited" and "Elixir Corporation Limited" as defendants 1-a & 1-b. The learned Trial Court after hearing the parties allowed application of the respondents 1 to 3, while that of petitioner was dismissed and in the same sequence, rejected the plaint vide dated 31.07.2018 impugned herein.
3. Learned counsel for the appellant contends that the address of the proposed defendants had already been on memo of the plaint; that in response to notice on the same address, defendants/respondents 1 to 3, were served and that plaint was rejected entirely on incorrect premises and contrary to factual position, therefore, impugned order is liable to be set aside. Learned counsel placed reliance upon case laws reported as 2003 SCMR 1246 , PLD 1991 SC 374 , 1995 SCMR 1748 , 1968 SCMR 1403 , and 2003 YLR 1224 .
4. On the other hand, learned counsel for respondents 1 to 3 argued that the subjec t matter and the cause of action pertains to a resident of foreign country and that the respondents cannot be sued in their personal capacity , therefore, appeal is liable to be dismissed.
5. We have heard the learned counsel for the parties and examined the record with their able assistance.
6. Record reveals that application under Order I Rule 10 C.P.C filed by the appellant for addition of defendants 1-a and 1-b (Elixir (Pvt.) Limited & Elixir Corporation Limited) was dismissed on the grounds that same has been filed without any address of the said defendants by considering it as defective for the purposes of summoning the defendants.
7. The main task for adjudication before the Court was in respect of summoning of the defendants or to have their correct address.
8. The Hon'ble Supreme Court of Pakistan in a latest judgment reported as "Province of Punjab v. Murree Brewery Company" ( 2021 SCMR 305 ), has graciously held that:- "23. Therefore, where there is a matter of misdescription of parties, the Court may, either on its own accord, exercising suo moto powers, or after an application being submitted to it, order that the name of any party improperly joined be struck out and the appropriate party whose presence is necessary to do complete justice be added to suit under the powers conferred on it by S.153 and Order 1, Rule 10(2) of the CPC."
'25. The courts are also encouraged to take a proactive approach to matters involv ing the misdescription of parties by exercising authority under S.153 and Order 1, Rule 10 of the CPC and Order XXVII-A C.P.C, which provision is also made applicable to appeals (see Rule (4) ibid). Such misdescription, unless shown to mala-fide, and is not remedied when directed, is not fatal to the suit and the Courts should actively remedy the mistake so made and add Federal or provincial government as a party at any stage of the proceedings . [Emphasis added]
26. This dictum laid down by this Court, in the case of Muhammad Anwar and 8 others v. Muhammad Ashraf also fortifies the principle that a misdescription of parties only amounts to a mere technicality that cannot be allowed to stand in the way of justice , which should be corrected by the Courts . The relevant extract is reproduced below: 'It reflects from the scrutiny of record that Mst. Japan, their guardian ad litem, had two sons with the names of Muhammad Hayat and Qamar Abbas against whom suit had been filed which aspect lends support 'to the fact that factually Umar Hayat was intended to be impleaded as a party . In our conside red view non-mentioning of the correct name, at the best can be consider ed as a lapse or omission and amounts to misdescription of a party and is always subject to correction which can be made by invoking the provisions as contained in section 153, C.P.C. and technicalities should not be allowed to stand in the way of justice because procedure ought not to be used for purpose of defeating justice and technicalities of procedure have to be avoided. "Independent of express jurisdiction conferred on Court by section 153 of Civil P.C., the Court also possessed inherent powers for allowing an incorrect description of a party in the pleading to be corrected." [Emphasis added]
27. The Respondent No.1 was aggrieved by the notification dated 24.6.2015, subject matter of the Writ Petition, which was issued by the Secretary Excise & Taxation. In the title in the ICA's Chief Secretary , Government of Punjab through Secretary Excise and Taxation is shown to be the appellant, instead of province of Punjab, which qualifies under the exception of misconception, as the correct name i.e Provinc e of Punjab through Secretary , Excise & Taxation was not mentioned. Being a mere case of wrong, inaccurate, or misdescription of parties, the Court, being sanctuaries of justice, can rectify the bonafides error by exercising jurisdiction duly vested under S.153, Order 1, Rule 10 and Order XXVII-A of the Code of Civil Procedure, 1908 more particularly so when no prejudice is shown to have been caused to the Respondent, more particularly when the Secretary Excise & Taxation was the concerned Secretary competent authority to represent the Province of Punjab, in the matter in hand.
28. In light of what has been said above, the Petitions are converted into appeal and stand allowed. The impugned judgment is set aside and the matter is remanded back to the Honorable Lahore High Court, Lahore, for decision on merits; The Appellant is directed to file amended title of the ICAs' with proper description of the Appellant in conformity with Section 79 of the CPC and Article 174 of the Constitution."
9. The ratio ibid guides to hold that the provision of Order I, Rule 10 C.P.C is meant to foster the justice instead of to discourage the same. In the view of this Court, non-observance of the same, would not attract rejection of the plaint. The courts are sanctuaries of justice and safeguard the rights of the parties to be adjudicated on merits.
10. The administration of justice demand s that if any procedural limb is not complied with or description of any party is not in line with required format, when, same is mandatory , to be asked from concerned party to describe as per law and to proceed with the matter on merits. When it is evident that no malafide was viewed in that misdescription, penal provision to be invoked, was not an act, which on the part of the court was warranted.
11. Adverting to the facts of instant case, it is observed that if any controversy was raised as in the application filed by the defendants for deletion of their names, same could well be resolved/adjudicated after providing an opportunity to the appellant/plaintif f to provide correct address. The court was armed with the power to requisition an af fidavit in that respect but could not proceed in a manner in which it had proceeded.
12. As for as application filed by the respondents 1 to 3/ defendants for deletion of their names on the basis that although defendants are with similar names but are different entities, is concerned by alleging that Directors/individuals are the same personalities, while some branches of the company are registered in Pakistan and few in foreign countries.
13. Whatever may be the position, if the issue was complex in its nature; same could be resolved by way of framing of an issue on the subject and providing opportunity to both the parties to adduce evidence, pro and contra , oral as well as documentary , to decide the objection.
14. While adjudicating upon the above referred applications, how the learned Trial Court came to the conclusion that the plaint is liable to be rejected as it has become without any defendant?
15. Having examined the case from every angle, it is found that the impugned order is not legally sustainable.
Consequently , instant appeal is allowed , impugned order dated 31.07.2018 is set aside. Matter is remanded back to the learned Trial Court. The learned Trial Court is directed to decide the main suit in accordance with law, in the light of findings in the preceding paras, preferably within a period of 8 months from the receipt of this order .