WIQAR AHMAD, J:-. Through instant civil revision filed under Section 115 CPC, petitioners have challenged impugned order dated 12.03.2020, passed by learned Additional District Judge-III, Kohat, whereby appeal of respondents against judgment and decree dated 27.03.2019 of learned Civil Judge-V, Kohat was allowed.
2. As per contents of instant petition, petitioners (plaintiffs) had filed a suit before learned civil Court Kohat for declaration cum perpetual and mandatory injunction etc against respondents (defendants) to the effect that petitioners had been allottees of respective houses bearing Numbers 40, 42 and 44, measuring 10 marlas (each house), allotted in the name of plaintiff No.1, house bearing No.45 (measuring 05 marlas) in the name of plaintiff No.2, house bearing 41 (measuring 10 marlas) in the name of plaintiff No.3 and house bearing 43 (measuring 10 marlas) in the name of plaintiff No.4 through auction letter No.455/KDA/1 1- 1 1 dated 20.12.2013. They had deposited 114th out of total auction amount in advance as per rules and regulations of respondents (defendants) and were ready to deposit remaining outstanding amount as per ibid terms and conditions but said allotment orders in the names of petitioners (plaintiffs) were cancelled through letter No.924/KDA/1-11 dated 19.11.2015. They had prayed for cancellation of above letter (being ineffective and inoperative upon their rights) as well as restoration of allotment orders in the names of plaintiffs. They also sought directions to defendants to receive remaining amount and hand over possession to plaintiffs. Suit was contested by respondents (defendants) through filing written statement where they raised various legal and factual objections. At conclusion of proceedings, suit of petitioners (plaintiffs) was decreed by learned civil Court vide judgment and decree dated 27.03.2019. Aggrieved from said judgment and decree, respondents (defendants) filed appeal, which was partly allowed by learned appellate Court vide judgment and decree dated 12.03.2020 thereby setting aside judgment and decree of learned civil Court and remanding the case to learned civil Court with directions for obtaining proper written statement (afresh) from respondents (defendants), framing fresh issues and re-deciding the case as per law within five months positively. Petitioners while feeling aggrieved from impugned judgment and decree, has filed instant civil revision petition.
3. Mr. Abdul Samad Khan Advocate, representing petitioners submitted during arguments that learned appellate Court has discussed merits of the case and also remanded case to civil Court at the same time, which was not a proper exercise of discretion by learned appellate Court. Learned counsel added that reasoning given by learned appellate Court that due to defect in filing written statement, the entire proceedings had been vitiated, were also not in accordance with ratio of judgment of Hon'ble Supreme Court of Pakistan rendered in case of "SDO/AM Hasht Nagri Sub- Division PESCO, Peshawar and others" Versus Khawazan Zad" reported as PLD 2023 SC 174.
Learned counsel also contended that respondents had not asked for any amendment in written statement or permission to file fresh written statement but despite that learned civil Court had given them permission to submit new written statement by exercising suo moto jurisdiction and same was not having any backing of law. Learned counsel also relied on the judgment of Hon'ble Supreme Court of Pakistan rendered in case of "Muhammad Akram and another Versus Altaf Ahmad" reported as PLD 2003 SC 688, Abaid Ullah Malik Vs Additional District Judge, Mianwali and others" reported as PLD 2013 SC 239 and contended that an admission made in pleadings could not be allowed to be withdrawn by way of amendment and that such amendment could not be allowed. He also made last fold submission in opposition to the application (CM o.1981-P/2024) filed by respondents before this Court for allowing them to amend their written statement.
4. Mr. Sabah ud Din Khattak Advocate representing Kohat Development Authority, Kohat (hereinafter referred to as KDA) started his arguments by making his submission in respect of his application filed under Order VI Rule 17 CPC, for amendment of written statement. He referred to the provisions of Order VI Rule 14 and Rule 15 CPC and contended that neither written statement nor verification have been signed by the Project Director or any authorized officer of KDA. He also added that in both mentioned places, signatures of counsel have only been available. That counsel had also given a concessional statement therein without being authorized by any officer of KDA for making said concessional statement. He also referred to provisions of Order XXIX Rule 1 CPC and contended that KDA was a body corporate established under Section 15 of Khyber Pakhtunkhwa Urban Planning Ordinance 1978, where authorization of board of KDA was also not available in accordance with abovementioned judgment of supreme Court of Pakistan (PLD 2023 SC 174), and therefore respondents should be allowed an opportunity of removing the technical defects.
5. Although case was listed for hearing via Video link but Mr. Abdul Samad Khan Advocate appeared and submitted that he had superseded earlier counsel and being present in Court, he would argue the case on behalf of petitioners. Thereafter arguments of learned counsel were heard and record perused.
6. Perusal of record reveals that KDA had given a public proclamation indicating its intention for auction of residential plots and some constructed houses mentioned in advertisement wherein a date of 10.12.2013 and alternate date of 11.12.2013 had been given for public auction. The conditions of auction had also been mentioned in advertisement. One of the condition included that 114th of auction money was to be deposited as advance through a call deposit with defendants while remaining 3/4th should be submitted within 60 days of successful bids. Besides relevant provincial and federal taxes were also supposed to be deposited by the successful bidder. It was an admitted position that petitioner had deposited 1/4th of auction money but he had not deposited remaining amount after standing successful in the bids. He also could not deposit the amount of other taxes and leviable duties and thereafter, his bid was cancelled by competent authority vide letter No.924/KDA/1-11 dated 19.11.2015. Said letter was subsequently challenged by petitioners (plaintiffs) through filing their suit before learned Senior Civil Judge, Kohat. In the suits, defendants were summoned, who filed their written statement stating therein that since plaintiffs had not been ready and willing to deposit the requisite taxes therefore, due to their refusal, the department had cancelled their bid. It was further mentioned by learned counsel filing written statement that if the plaintiffs of suit had been willing to pay taxes, then the suit might be decreed. While considering such concessional statement in written statement alongwith other pieces of evidence the suit was decreed by learned civil Court. Learned appellate Court after finding written statement not to have been filed in accordance with Order VII Rule 14 as well as Rule 15 CPC and Order XXIX Rule 1 CPC, had remanded the matter to learned civil Court with direction to allow defendants to file a fresh written statement duly signed and verified in accordance with mandate of said provision of law and to proceed further in accordance therewith. During hearing of instant revision petition against remand order, this Court is also seized with an application moved by respondents (KDA) for allowing them amendment of their written statement.
7. Although observations of learned appellate Court regarding invalidity of entire proceedings for improper signing and verification of written statement cannot be agreed with but decision of remanding the matter to civil Court and allowing defendants (respondents) to file a fresh written statement is not deemed to be improper, unreasonable or illegal in the peculiar circumstances of this case. Signing and verification of written statement was required under Order VI Rules 14 & 15 CPC by a competent officer of the corporate body. There was no denial to the fact that written statement had neither been signed nor verified by any competent officer of corporate body i.e KDA.
Not only so but said body had also disowned the concessional statement given in written statement by counsel submitting and signing written statement. Nothing is available on record that counsel had ever been authorized to give a statement on behalf of KDA to the effect that even after cancellation of bid and proceedings of auction, the KDA had been willing to re-accept the bid on payment of requisite taxes by petitioners (plaintiffs). It was also an admitted fact that petitioners (plaintiffs) had never made any endeavors for deposit remaining bid amount with KDA or in the account of learned civil Court. It was also doubtful whether petitioners (plaintiffs) were ready to deposit amount of leviable taxes and duties on transfer of immoveable property.
8. Learned counsel representing petitioners heavily relied on the ratio of judgment of Hon'ble Supreme Court of Pakistan reported as PLD 2023 SC 174, for bolstering his submission that mere technical flaw or defect in filing written statement had wrongly been taken by civil Court to have vitiated the entire proceedings but it is also apparent from ratio of said judgment that Hon'ble apex Court had held that such defects mmight be allowed to be cured at any subsequent stage. It had also been held by apex Court in said judgment that plaint or written statement could not be verified exclusively by counsel representing the parties, particularly in a case of corporation or other corporate body. However, said objections would not relevant in case of filing appeal or revision. Relevant observations of apex Court are also reproduced hereunder for ready reference:-
5. Under Rule 14 of Order VI, every pleading is to be signed by the party and his pleader (if any); however, where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf While as per Rule 15 of Order VI, every pleading is to be verified on oath or solemn affirmation at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.
The acts of sighing and verifying pleadings (plaint and written statement), therefore, cannot be done by a pleader in terms of Rule 1 of Order III, C.P.C. Rule 1 of Order XXIX, which contains special provisions as to signing and verifying pleadings in suits by or against a corporation, is like a proviso to Rules 14 and 15 of Order VI, C.P.C. It authorizes, in addition to the persons specified in Rules 14 and 15 of Order VI, the secretary or any director or other principal officer of the corporation who is able to depose to the facts of the case, to sign and verify any pleading on behalf of the corporation.
Difference between signing/verifying a plaint and presenting/instituting a suit
6. The notable point is that neither Rules 14 and 15 of Order VI nor Rule 1 of Order XXIX says anything about presenting the pleadings to the court after signing and verifying the same.
Rather, these are Rule 1 of Order IV and Rule 1 of Order VIII which deal with the subject of presenting a plaint or a written statement to the court. Different rules on these two matters make it obvious that there is a difference between the signing and verifying a pleading (plaint or written statement) under Rules 14 and 15 of Order VI, or under Rule 1 of Order XXIX, and the presentation of that pleading to the court under Rule 1 of Order IV (plaint) and Rule 1 of Order VIII (written statement), C.P.C. The act of presenting a plaint to the court under Rule 1 of Order IV is called the institution of the suit,2 and the act of presenting a written statement under Rule 1 of Order VIII constitutes the defence of the suit.3 These acts manifest the will of a litigant to pursue his claim or to defend the claim made against him, in a court of law. By presenting the plaint, a plaintiff sets the machinery of the court in motion for deciding upon his claim while the presentation of the written statement expresses the will of the defendant to defend that claim.
The act of presentation of a plaint or a written statement can, therefore, be done only by the plaintiff and the defendant in person or by their recognized agents or by their duly appointed pleaders, in terms of Rule 1 of Order 111.4 Rules 14 and 15 of Order VI, or Rule 1 of Order XXIX, which relates to signing and verifying the pleadings (plaint and written statement), cannot be referred to for the purpose of establishing the authority of a person to institute, or defend, the suit.
7. As the authority conferred by Rule 1 of Order XXIX, on the specified officers of the corporation to sign and verify any pleading on behalf of the corporation, does not include the authority to institute or defend the suit in their own names, a corporation (like PESCO in the present case) being a juristic person must sue or be sued in its own name. Therefore, the name of the corporation, not the name or designation of any of its officers or employees, is to be mentioned as a plaintiff or a defendant. The phrase "service of summons/notice through its principal officer, so and so" may be added with the name of the corporation, for service of summons/notice as per Rule 2 of Order XXIX, C.P.C. Non-applicability of provisions of C.P.C. relating to signing and verification of pleadings to memorandums of appeal and revision petitions.
Further ahead in said judgment it was also observed that: "Curing of any defect in the authority of a person to sign and verify a pleading, or a memorandum of appeal and revision petition, and to present the same to the court
9. Having examined the scope of the above cited rules of procedure contained in the C.P.C., we must reiterate the principle, which is by now well settled, that 'the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights ... Any system, which by giving effect to the form and not to the substance defeats substantive rights, is defective to that extent.'8 The courts, thus, always lean in favour of adjudicating the matters on merits rather than stifling the proceedings on procedural formalities. The rules of procedure are meant to facilitate the court proceedings for enforcing the rights of litigants, not to trap them in procedural technicalities for frustrating their rights.
They are the tools to advance the cause of justice and cannot be used to cause the miscarriage of justice. The ultimate object of securing the ends of justice, therefore, outweighs the insistence on strict adherence to such rules. The same is the purpose of the rules of procedure discussed above. Any defect or omission in signing and verifying, or presenting, a pleading (plaint or written statement) or a memorandum of appeal or revision petition does not affect the merits of the case or the jurisdiction of the court and is therefore taken to be such an irregularity which can be cured at any stage of the proceedings.9 Likewise, any defect in the authority of a person to sign and verify a pleading filed in a suit by or against a corporation, or to institute or defend such a suit by presenting that pleading to the court, or in signing or filing of a memorandum of appeal or revision petition by a corporation, can also be cured at any stage of the proceedings."
9. The learned appellate Court had allowed curing of the defect. While curing the defect, judgment of learned appellate Court was well in accordance with Para 9 of judgment given in case of "SDO/AM Hasht Nagri Sub-Division PESCO, Peshawar and others" Versus Khawazan Zad" (supra) of Hon'ble Supreme Court of Pakistan (reproduced above). It was also found to be in the interest of justice that corporate body (which was a public sector organization) is allowed to at least present their proper stance before the Court through duly instituted proceedings and filing written statements in accordance with Order VI Rule 14 and Rule 15 CPC. Appeal was continuation of proceedings and the appellate stage was a proper stage for allowing curing of defect in the proceedings.
10. So far as plea of learned counsel for petitioners that an admission made in pleadings cannot be allowed to be withdrawn by way of amendment is concerned, said proposition of law have no doubt been upheld by Hon'ble Supreme Court of Pakistan in its judgments rendered in cases reported as PLD 2003 SC 688 and PLD 2013 SC 239 but said ratio cannot be applied to facts of present case. In case of Muhammad Akram Vs Altaf reported as PLD 2003 SC 688, amendment had been sought on factual side and it had expressly been held by apex Court that although no limitation had been available for seeking amendment in pleadings however factual aspects of the case could not be ignored. The amendment sought was in respect of adding factum of payment of Rs.400,000/- and delay in recollecting of said fact were found to have weakened case of the person seeking the amendment. Subsequent judgment in case of "Abaid Utah Malik Vs Additional District Judge, Mianwali" reported as PLD 2013 SC 239, had been rendered in a case of preemption where after occurrence of contradiction, amendment had been sought so as to overcome said contradiction. Here nothing on factual side is being tried to be removed from written statement.
Only a concessional statement that if the plaintiffs (petitioners) became willing and ready to deposit amount of taxes, then their suit might be decreed, was sought to be disowned through amendment. It was a concessional statement and not an assertion of fact. The concessional statement was also found to have been made on behalf of a public sector corporation without due authorization. For said reasons, ratio of above stated two cases could not be applied to peculiar facts and circumstances of this case. Learned counsel for petitioners was heard at length but he failed to make out a case for interference of this Court in exercise of its revisional jurisdiction. Same was found lacking substance and accordingly dismissed.
11. So far as application (CM No.1981-P2024) filed by respondents (defendants) for amendment in written statement is concerned, same have become redundant for the reason that learned appellate Court had already allowed the Project Director, KDA, to file fresh written statement, which order was also maintained by dismissing instant revision petition and therefore, this CM is disposed of as unnecessary and redundant. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.