' On 20th May, 1980, Messrs Babar & Company, the respondent herein, filed a suit for recovery of Rs, 7.50 lacs against (1) Islamic Republic of Pakistan through Ministry of Finance, Government of Pakistan, Islamabad and (2) Controller of Imports and Exports, Government of Pakistan, Davis Road, Lahore, on account of foreign exchange earning under Export Bonus Vouchers Scheme in respect of furniture supplied by the respondent to Messrs Tarbela Joint Venture. Summonses for settlement of issues were directed to issue to the defendants for 4th June, 1980. On 4th June, 1980, Mr. Saadat Ali, Executive Officer of the Office of Controller, Imports and Exports, put in appearance but no one appeared on behalf of defendant No, 1, viz. Islamic Republic of Pakistan through Ministry of Finance.
Ex parte proceedings were, therefore, ordered against Islamic Republic of Pakistan and defendant No, 2 was directed to file his written statement on 28th June, 1980. On the latter date, the learned counsel for the respondent made a statement to the effect that no relief was claimed against defendant No,
2. Consequently, name of defendant No, 2 i,e, Controller of Imports and Exports, was struck off while the case was adjourned to 30th June, 1980 for recording ex parte evidence against Islamic Republic of Pakistan through Ministry of Finance. Ex parte evidence was recorded on 30th June, 1980 and on 2nd July, 1980, ex parte decree for recovery of Rs, 7.50 lacs was passed in favour of the respondent against Islamic Republic of Pakistan through Ministry of Finance, with costs.
2. On 14th October, 1980 an execution application was filed for the recovery of decrial amount. A notice was issued in respect of the execution application. On 19th March, 1981, a Section Officer of the Ministry of Finance, Government of Pakistan, appeared before the Executing Court and requested for adjournment for the payment of the decretal amount. The matter was adjourned to 6th May, 1981. On the said date, instead of making payment of the decretal amount, an application under section 12(2) of the Code of Civil Procedure was filed on behalf of Islamic Republic of Pakistan challenging the decree, dated 2nd July, 1980 on the ground of fraud and misrepresentation. It was alleged that no notice/summons was served on Islamic Republic of Pakistan. The Ministry of Finance was' not concerned with the case in any manner. The dispute related to the Ministry of Commerce but that Ministry was not impleaded as a party. Controller of Imports and Exports, an officer of the Ministry of Commerce who was impleaded as defendant No, 2, was given up fraudulently to obtain decree against Islamic Republic of Pakistan. The application filed by Islamic Republic of Pakistan under section 12(2) of the Code of Civil Procedure was opposed by the respondent. The learned trial Court, after recording the evidence produced by the Islamic Republic of Pakistan and after hearing the parties, dismissed the application of Islamic Republic of Pakistan filed under section 12(2), C.P.C. On 5th December, 1981.
3. The aforesaid order, dated 5th December, 1981 as also the ex parte decree, dated 2nd July, 1980 have been called in question through the present Civil Revision Petition.
4. It has been contended on behalf of the Islamic Republic of Pakistan i,e, the petitioner herein that by virtue of the provisions of section 80(2) of the Code of Civil Procedure, where a suit is instituted against the Federal Government or a Provincial Government without service of two months' notice, as contemplated by section 80 (ibid), the Court is obliged to allow not less than three months' time to the Government to submit its written statement. In the circumstances of the present case, however, the suit was admittedly instituted without prior service of notice on the petitioner, on 20th May, 1980. Summonses were issued to the petitioner for 4th June, 1980 and ex parte decree was passed on 2nd July, 1980 i,e, before the expiration of the period of three months, evisaged in subsection (2) of section 80, Civil Procedure Code. It has thus been urged that on account of non- compliance of the mandatory provisions of section 80 of the Code of Civil Procedure, the learned Court which passed the impugned decree lacked jurisdiction to do so. It has been next urged that although Bonus Vouchers Scheme was abandoned by way of an Ordinance in 1972, but, nevertheless, the suit in respect of the same could be instituted against the Ministry of Commerce as the Ministry of Finance had nothing to do with the said Scheme. The Controller of Imports and Exports, who was directly concerned with it, was originally impleaded as defendant in the suit but subsequently in order to obtain ex parte decree against Islamic Republic of Pakistan, he was given up fraudulently.
5. In Government of Punjab through Collector, Gujranwala District and another v. Shah Muhammad
(1) it has been held that under section 80(2), Civil Procedure Code, Court should allow not less than three months' time to file written statement and once summonses have been issued by the trial Court requiring the Government to file reply within less than three months and on its failure, has ordered ex parte proceedings against the Government, the order was illegal. Such an order was set aside by the High Court in exercise of its revisional jurisdiction under section 115, Civil Procedure Code. In Vellayan Chettiar and others v. The Government of Madras and another (2) it was observed : "Section 80, according to its plain meaning, requires that there should be identity of the person who issues the notice with the person who brings the suit. Where a notice has been given on behalf of one plaintiff stating his cause of action, his name description and place of residence and the relief which he claims, a suit cannot then be instituted by him and another." In Province of Madras v. Sri Sri Sri Vikrama Deo Varma (3)
(1) PLD 1982 Lah. 115 (2) AIR 1947 P C 197
(3) A 1 It 1943 Mad. 284 ' it was held If in fact notice has to be given as required by section 80 of the Code, and if notice is not given in accordance with the provisions of that section, the Court has no jurisdiction to entertain the suit as against the Provincial Government. The question does not cease to be a question of jurisdiction merely because the lower Court has decided wrongly questions which if decided rightly would have left it without jurisdiction to entertain the suit." In Joy Chand Lal Babu v.
Kamalaksha Chaudhry and others (1), the Judicial Committee of the Privy Council observed with reference to the scope of the provisions of section 115, Civil Procedure Code : "Athough error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under subsection (c), nevertheless if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under subsection (a) or subsection (b) and subsection (c) can be ignored.
6. While repelling the arguments addressed on behalf of the petitioner, the learned counsel for the respondent contended that an ex parte decree is appealable and, therefore, no revision under section 115 of the Code of Civil Procedure is legally competent. This argument would appear to be fallacious for two reasons. Firstly, that the instant civil revision petition is directed against the order, dated 5th December, 1981 whereby application of the petitioner under section 12(2), Civil Procedure Code, was dismissed and not directly against the ex parte decree, dated 2nd July, 1980. Secondly, that the ex parte decree, dated 2nd July, 1980 having been passed without jurisdiction can be set aside in exercise of revisional jurisdiction even if no appeal has been preferred.
7. It has been next urged on behalf of the respondent that the petitioner by its conduct waived the protection under section 80, Civil Procedure Code and, therefore, was estopped from claiming benefit on account of non-service of notice under the said provisions. Reliance has been placed on Gaja and others v. Dasa Koeri and others (2). In this case it was held : "The object of a notice under section 80 is to acquaint the authorities mentioned in the section of the facts and circumstances which are said to necessitate the institution of the threatened suit and afford them an opportunity to take stock of the situation and avoid litigation, if so advised, by settling the claim or making amends. The section is thus intended to grant to such authorities a special protection for their own benefit of which, if they so choose, they may avail. The objection to the entertainability of a suit for want of notice may be waived by the authorities concerned." This authority was based on Vellayan Chettiar v. Government of Madras and another wherein it was held that if the State Government could be said to have waived its objection regarding want of notice by not taking the plea to that effect in a written statement filed by it, it could be said with equal reason that the State Government waived it by filing no written statement at all. In Nani Amma Nanni Amma v. State of Kerala and others (3) it has been held that section 80, Civil Procedure Code is not a provision of a public policy but one for the benefit of particular parties who are competent to waive or disregard it. The indication is clear that the requirements of a notice and expiry of a particular period thereafter are not jurisdictional
(1) PLD 1949 P C 114 (2) AIR 1964 All. 471
(3) AIR 1963 Ker. 114 defects, for jurisdiction cannot be dependent on the consent or waiver of party. In the present case, however, it has been disclosed on behalf of the respondent as to under what circumstances, it can be said that the petitioner waived the protection provided by virtue of the proviso to subsection (2) o section 80 of the Code of Civil Procedure.
8. It has been argued half-heartedly, on behalf of the respondent, that during the course of execution proceedings, a Section Officer put in appearance on behalf of the Federal Government and requested for an adjournment for satisfying the decree. Such a request by a Section Officer of the Federal Government cannot, by any stretch of imagination, be treated as waiver on the part of the Federal Government in respect of the protection provided to it by the provisions of section 80, Civil Procedure Code. The Section Officer put in appearance after the impugned decree was passed while the provisions of section 80 (ibid) come into play before or immediately after the institution of a suit and not after the passing of a decree.
' Nothing has been said on behalf of the respondent to support the respondent's justification, if any, in giving up the Controller of Imports and Exports, Government of Pakistan, and obtaining the impugned decree against Islamic Republic of Pakistan alone.
10. In the light of the above discussion, it is concluded that the learned trial Court acted in utter disregard of the provisions of the proviso to subsection (2) of section 80, Civil Procedure Code while passing the impugned decree, dated 2nd July, 1980 inasmuch as no notice under section 80 (ibid) was served on the petitioner and without allowing three months' time C to the petitioner, the impugned ex parte decree was passed. The trial Court has thus acted illegally. The Civil Revision Petition is accordingly allowed and the impugned ex parte decree, dated 2nd July, 1980 is set aside.
The case is remanded to the learned trial Court with a direction to proceed with the suit in accordance with law.
No order as to costs.