IMDADALLY H. AGHA, J.--This appeal is directed against the judgment and decree dated 25th of August 1965, passed by the Second Additional District Judge, Hyderabad, whereby the suit for damages and injunction brought by Mir Fazal Ali Khan, respondent/plaintiff was decreed against the five appellants/ defendants, who were described in the plaint as "Secretary, Buildings and Roads, Government of West Pakistan"; "Additional Chief Engineer, Buildings and Roads, Hyderabad"; "Executive Engineer, Shah Latifabad Roads Division, Hyderabad"; "Executive Engineer, Health Division, Shah Latifabad, Hyderabad" and "Secretary, Administrative Committee, Shah Latifabad, Hyderabad."
2. The facts forming the background of this appeal briefly stated are these. The plaintiff/respondent owns survey Nos, 103, 104 and 106 to 108 in Deh Gidu, Taluka City, Hyderabad. This land was initially brought under the Shah Latifabad Township Scheme, Hyderabad and was, therefore, acquired by the Government of West Pakistan. Subsequently, this land was excluded from the Scheme and was released from acquisition. Its possession was then restored to the respondent. According to his statement given in this case, on 24.4-1965, officers of the Government were encroaching upon the above-mentioned land in spite of his requests to them not to do so. He made an application to the Deputy Commissioner requesting him to prevent the P. W. D. Officers from encroaching upon his land. The Deputy Commissioner, accordingly, informed the appellants not to do so vide his letter Exh.
44. Despite this the appellants constructed a road in Survey No,
103. Deep excavations between 4 to 8 feet were also made in an area of 30 Ghuntas in Survey No, 106 which, according to the respondent has become totally useless. The construction of the road in Survey No, 108 is also alleged to have caused damage to the land of the plaintiff as earth is said to have been excavated and removed from it and stones are said to have been deposited on it, with the result that this survey number is also stated to have become useless. In Survey Nos, 103 and 104, the appellants are said to have dug ditches and made trenches for the purpose of fixing pipe line and thereby caused damage to these survey numbers. Encroachment is also said to have been made upon an area between 50 and 100 sq. ft. in survey No, 108 by constructing the boundary wall of a bungalow.
The respondent, therefore, filed the above-mentioned suit for damages and injunction.
3. The appellants contested the suit and two written statements were filed, one by all the appellants except No 4 and the other by the latter. In their written statements the defence taken was one of denial of the claim of the respondent, although it was admitted that the suit land was released from acquisition as alleged by the respondent. It was specifically denied that any road had been constructed on the suit land. It was thus contended that the respondent was not entitled to any damages or compensation as claimed by him and also that no cause of action accrued to him to bring the suit. Four other legal pleas were also taken in defence. They were that the suit was not maintainable; that the provisions of section 80 of C. P. C. were not observed; that the suit was bad for misjoinder of appellants as well as causes of action and that it was not in proper form.
4. On the pleadings of the parties the trial Court settled 6 issues which are as follows:-- (1)Have the defendants or their officers made any encroach-ments on the land of the plaintiff by excavations, road construction and laying pipe line? If so, how much area is covered by such encroachments?
(2)To what extent is the plaintiff entitled to compensation for the encroachments?
(3)Is the suit not maintainable?
(4)Is the suit bad for misjoinder of the parties and causes of action.
(5)Is the suit not in proper form?
(6)What should the decree be?
The lower Court decided issues Nos, 1, 3 and 5 in the affirmative. In its finding on issue No, 2, it allowed compen-sation of Rs, 6,000.00 to the respondent, and decided issue No, 4 in thenegative and granted a decree for Rs, 6,000.00 with proportionate costs.
5. The first point raised by learned counsel for the appellant is that in this suit Government of West Pakistan was a necessary party as the appellants have been sued for acts done by them in their official capacity and since that Government was not joined as a party, the suit was bad for non- joinder of a necessary party. In reply to this contention learned counsel for the respondent 'argued that although the said Government was not a party, it should be deemed to be a party because the claim has arisen against the appellants in their official capacity. He relied on the decision in the Registrar, Co-operative Societies, West Pakistan, Lahore v. The Montgomery Flour & General Mills Ltd. . In that case Kaikaus, J., has observed at page 369 as follows:-- "Considering all these matters it appears to me that in a case where the Government undertakes to defend a public officer in respect of an act done by him in his official capacity, the Government is virtually a party to a decree and execution has to be against the Government."
It will be seen that the above observation makes it clear that in a suit against public officers, where the Government undertakes to defend them in respect of acts done by them in their official capacity, the Government may be deemed to be a party to the decree. But this cannot be said to be the case in the present case, In order to resolve this question Order XXVII, rule 8, C. P. C. will be found relevant. The provision is as under :-- "8.--(1) Where the Government undertakes the defence of a suit against a public officer the Government Pleader, upon being furnished with authority to appear and answer the plaint, shall apply to the Court, and upon such application the Court shall cause a note of his authority to be entered in the register of civil suits.1
(2) Where no application under sub-rule (1) is made by the Government Pleader on or before the day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties: Provided that the defendant shall not be liable to arrest, nor his property to attachment, otherwise than in execution of a decree."
6. It will be seen from sub rule (2) of the above rule that where no application is made by the Government Pleader under sub-rule (1), "the case shall proceed as in a suit between private parties." This is exactly what has happened in the present suit. The Assistant Government Pleader who appeared for the appellants in the suit no doubt did conduct the defence on their behalf but he had not made any application such as is provided for under sub-rule (2) of rule 8 cited above.
In these circumstances, it would be obvious that the suit proceeded as if it was a suit between private parties. The reported case, therefore, is of no avail to the respondent. Since the Provincial Government was a necessary party to the suit and was not a party to it, the suit must fail.
7. When a suit is to be filed against a Provincial Government, the plaintiff should pay due regard to the provisions of section 79 of the Code of Civil Procedure and Article 213 of the Constitution of Pakistan (1962). The two provisions are as under :-- "S. 79. 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 Central Government, Pakistan.
(b)in the case of a suit by or against a Provincial Government, the Province; and."
"Article 213. The Central Government of Pakistan may sue and be sued by the name of Pakistan, and the Government of a Province may sue and be sued by the name of the Province."
The Province concerned must be sued by its name. It is erroneous to sue some officers of that Province, that too by mentioning their official title, when it is intended that the Provincial Government be the defendant.
8. The respondent's counsel made an oral request at the Bar for permission to amend the plaint now and, as we understood him, he wanted to make the Provincial Government a party at this stage. He did not move any application indicating the deletion and additions which he desired to make in the plaint, nor was such a written application likely to be accepted because the claim had at that time become barred by time against the Government.
9. The second point which learned counsel for the appellants urged is that the suit brought by the respondent against the appellants in the form in which it was brought was not maintainable. On this question learned counsel has contended that the suit was brought against official designations or titles and not against legal or natural persons which is not possible under the law.
According to him, the appellants could net be sued With reference to their designations for their official acts, unless they were "Corporations sole", whereas they in fact are not. Only legal and natural persons can be sued as defendants in terms of Order I, rule 3, C. P. C. when no statute provides that a public officer shall be a "Corporation sole" and can be sued in its corporate name, as the case here is, he has to be sued under the ordinary law which becomes applicable. In support of his contention the learned counsel for the appellants has cited three decisions which are reported as the Sheriff of Bombay v. Hakamji Motaji & Co., Manahem S. Yeshoova v. Union of India and others and P. B. Shah & Co. and others v. Chief Executive Officer and others .
10.In the first cited case, suit had been brought against the Sheriff of Bombay in his official title and it was held in it as under :- "Because one can bring a suit against a public officer in respect of acts done by him in his official capacity, it does not follow that one can sue that officer by his official name, just as if he was a 'corporation sole'."
11.In the second reported case, suit was brought against the Collector of Customs and it was held2 3 4 in it as follows:- "The Collector of Customs is not a legal entity, but is merely an office occupied by several persons from time to time as appointed by the authorities. Hence a suit cannot be filed against or in the name of the Collector of Customs."
12.In the third reported case the suit was filed against Chief Executive Officer and City Architect of Corporation of Calcutta and it was held in this reported case as follows "Where a statute provides that a public officer shall be a corporation sole and can be sued in his corporate name, the officer may be sued in that name. In the absence of such a provision, the ordinary law applicable to suits must apply. There is no provision, either in the Calcutta Municipal Act, 1951 or in any other statute that the person occupying the offices of the Commissioner, or the Chief Executive Officer and of the City Architect are corporation soles or that they or any of them may sue or be sued by their official titles. From time to time different persons occupy those offices.
Therefore, under Order VII, rule 1(c), if the plaintiff intends to sue the persons who for the time being occupy those offices he must implead those persons by their individual names. In the eye of the law the so-called Chief Executive Officer and City Architect without the individual names of the persons occupying those posts given in the suit title are not really on the record of the case."
13. The learned counsel for the respondent has not been able to offer any counter-arguments in the face of the authorities referred to above and in fact we feel that none can be advanced against the proposition which is embodied in these authorities. On this score also, therefore, the suit of the respondent brought against official designations or titles is bad in form and must fail.
14.We have also heard counsel for the parties on merits of the case. It would, therefore, be proper to refer to the merits of the case as well. The respondent has examined himself and one Noor Muhammad on his behalf. Noor Muhammad, P. W. 1, appears to be an independent witness as he is the Sub-Inspector in the Survey Settlement Land Record Department and under the orders of the trial Court he visited the site and has also prepared a sketch-map of it which he has produced as Exh.
38. P. W. Noor Muhammad in his evidence described the damage to the respondent's land fully.
The respondent himself deposes materially to the same damage in his own statement. According to P. W. Noor Muhammad officers of the Government had encroached upon survey No, 108 to the extent of 19 ghuntas for construction of the road. There is also another encroachment in the same survey number but we are not concerned with it as it is admitted to have been made by a private person who has constructed a boundary wall on the land. In survey No, 106, he found that it was excavated to the extent of 4' to 5' deep and was rendered unfit for cultivation. The area of the excavated part is said to be 23 ghuntas by Noor Muhammad. This witness also found similar excavated portions in Survey Nos, 103, 104 and 106. In Survey Nos, 103 and 104, he also noticed a Nall (drain) but he could not say whether it had been excavated for pipe line or for irrigation purposes.
The learned trial Court has awarded compensation to the respondent by way of damages in the following manner :-- Rs.
(i) Trespass on the land for the construction of the road in an area of 19 ghuntas in Survey No. 1081,000.00
(ii) Encroachment by the compound wall of the bungalow in S. No, 103.. 200.00 (iii)Excavation of 4' to 5' deep in the area of 23 ghuntas in Survey No, 1063,500.00 (iv)Excavation in other survey numbers800.00
(v) Nominal compensation for the unlawful acts of the appellants500.00 Total6,000.00 We must say that we are unable to see any valid reasons why the learned trial Court should have awarded compensation regarding all items. We shall discuss each item and item No, (i) will be discussed last of all. It is not clear from the record of the case regarding the encroachment mentioned in item (ii) as to for whose bungalow this encroachment was made and how the appellants could be liable for this encroachment which was admittedly made for a private bungalow. The respondent is not entitled to damages on this score.
15. With respect to the claim of the respondent with regard to items Nos, (iii) and (iv) if damage is proved, as has been proved in this case by the evidence of P. W. Noor Muhammad, then the proper measure of damages is not the cost of restoring the land to its original condition but the price of the land when, as explained later with reference to item (i), the price of the land is less than the cost of restoring the land to its original condition. See Jones v. Goodday at p. 986 in which the reason is given as follows :- "The plaintiff is entitled, by way of compensation, to what the land was worth to him. If the principle for which Mr. Kelly contends were to be adopted, it would follow that a party who has let the sea in upon the land of another, the land itself being worth only Pound 20, would have to pay, by way of damages, the expense of excluding it again by extensive engineering operations."
See also the following passage in Halsbury's Laws of England, Vol. 10, p. 134, 2nd Edn.:- "Where by the trespass of the defendant the plaintiff has been wholly deprived of his land, he is to be compensated according to the value of his interest, and if he is a freeholder entitled to possession, the damages will be the total selling value of the land.
In respect of injuries done to the land by trespass the measure of damages is the depreciation in the selling value of the land or in the selling value of the plaintiff's interest in it, and not the amount required to put the premises in repair."
As regards the land specified in item (iv) it is in the first place not possible to know the exact area of the excavations made in this land and secondly, the respondent in his evidence has not proved the number of the trucks of earth that would be required to fill them up therefore the damages with respect to this item remain unascertainable.
16.As regards the nominal compensation on item (v) it cannot, in our opinion, be granted because if damages are claimed for each wrongful act of the appellants then there can be no question of granting nominal compensation for them taken together.
17.That brings us to the item No, (i), i,e, damages for the construction of a road on an area measuring 19 ghuntas. The respondent could be entitled to damages in this respect as well as with respect to items Nos, (iii) and (iv), according to the value of the land. The respondent in his own evidence has said that about 450 acres of land of his family was also acquired for the township scheme, in the same area in which the land under discussion is situated, and compensation was awarded ranging from Rs, 50 to Rs, 175 per acre. The mean of these two figures is Rs, 112.50 per acre.
But it is unnecessary to calculate the paltry amount which might have been due to the respondent because in the view which we have taken above of the maintainability of the suit, even this claim cannot be allowed to the respondent.5 18.For the foregoing reasons this appeal is allowed, the judgment and decree of the lower Court is set aside and the suit is dismissed. The appellants shall get the costs of this appeal. PLD 1958 Lab. 366 AIR 1927 Bom. 521 AIR 1960 Bom. 196 AIR 1962 Cal. 283 151 E R 985
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