' SARDAR SAID MUHAMMAD KHAN, J.-This appeal has been directed against the order of the Service Tribunal dated 28-10-1985, whereby the appeal filed by the appellant was dismissed.
2. The brief facts leading to the present appeal are that the appellant joined the Azad Jammu and Kashmir Police Force as Constable on 19-9-1950. Subsequently, he got promotions and finally he was promoted to the rank of Assistant Sub-Inspector on 1-7-1975. He was retired from service on 23-10-1980, under section 12(0 of the Azad Junmu and Kashmir Civil Servants Act, 1976 (hereinafter shall be called the Act). He filed a review petition before the Government against the order of his retirement but it was rejected on 15-5.1981. The appeal filed by the appellant before the Service Tribunal was also dismissed.
' The present appeal, by leave, has been preferred against the order of the Service Tribunal.
3. The learned counsel for the appellant, Raja Muhammad Hanif, has argued that the retirement of the appellant has been ordered under subsection (ii) of section 12 of the Azad Jammu and Kashmir Civil Servants Act, 1976, whereas the order of retirement could only be made under subsection (iii) of section 12 of the Civil Servants Act. According to the learned counsel, as the appellant had admittedly completed 25 years of service qualifying for pension on the date when he was retired, subsection (ii) of section 12 was inapplicable to him ; and it was only subsection (Iii) of section 12 under which his retirement could have been ordered.
4. In reply it has been contended that under subsection (ii) of section 12 of the Civil Servants Act, the order of retirement could be passed by the competent authority and not by the Government. It has been argued that the Government could pass the order under subsection (ii) of section 12 irrespective of the fact whether any public servant has completed 25 years' service qualifying for pension or not. For convenience, it is expedient to reproduce section 12 as it stood on the statute book before its amendment and under which the impugned order was passed "Section 12. Retirement from service.-A civil servant shall retire from service-
(1) in case of a person holding the post of Secretary to Government or an equivalent or higher post on which date, as the competent authority may in the public interest, direct ;
(ii) in the case of a person holding a post lower than the post of Secretary to Government on such date, as the Government may, in the public interest, in consultation with an Advisory Committee as may be constituted in the prescribed manner for the purpose, direct ;
(iii) in any other case, on such date, after he has completed twenty-five years of service qualifying for pension or other retirement benefits, as the competent authority may, in the public interest, direct ; and
(iv) where no direction is given under clause (i) or as the case may be under clauses (ii) and (iii) on the completion of the sixtieth year of his age.
' Explanation.-In this section 'competent authority' means the appointing authority or a person duly authorised by the appointing authority in that behalf, not being a person lower in rank to the civil servant concerned."
5. The perusal of section 12 reveals that under subsection (ii) o section 12 the powers have been vested in the public Government, who in the public interest, in consultation with the Advisory Committee, may direct retirement of a civil servant. The powers are exerciseable by the Government irrespective of the fact whether the civil servant has completed 25 years' service qualifying for pension or not. Evidently, there is no bar to exercise the powers in case of a civil servant who has completed 25 years' service qualifying for pension. The only embargo on exercise of powers under subsection (ii) is that action could be taken only in consultation with the Advisory Committee constituted for the purpose. Under subsection (iii) of section 12, the power is to be exercised by the competent authority which may or may not be the Government. However, it is a condition precedent for the exercise of the power under the aforesaid subsection that civil servant concerned must have completed 25 years of service qualifying for pension. It is clear that under subsection the power vests in competent authority and not the Government and this is exerciseable only in cases where the civil servant has completed 25 years' service with pension. A comparative study of subsections (ii) and (iii) reveals that the power vests in two different authorities ; in one case it vests in the competent authority while in other it vests in the Government. Therefore, the argument that the Government could not exercise its power under subsection (II) of section 12, merely because the appellant had completed his 25 years of service qualifying for pension, is not tenable.
6. It has also been contended by the learned counsel for the appellant that where there are two distinct provisions on the statute book dealing with a situation, the provision which is more beneficial to the person likely to be affected is to be applied to his case. The aforesaid principle will hold good only if the two provisions are more or less identical and if such provisions relate to the exercise of jurisdiction which is exerciseable by one and the same authority. Even otherwise, we are of the opinion that subsection (ii) under which the action has been taken against the appellant is more beneficial to a civil servant because it is obligatory for the Government to consult the Advisory Committee before taking any action against the civil servant ; whereas under subsection,
(iii) the power is exercisaeble by the competent authority without any such consultation. Thus, it is incorrect to suggest that the application of subsection (iii) of section 12 is more beneficial to a public servant as compared with subsection (ii) of section 12. It may be observed here that the impugned order categorically states that it was made under subsection (ii) of section 12 of the Civil Servants Act. The case of the appellant before the Government in review petition as well as before the Service Tribunal was that he was retired under subsection (ii) of section 12 of the Civil Servants Act, but the learned counsel has made a departure from his initial stand and has argued before us that as the appellant had completed 25 years' pensionable service on the relevant date, he shall be deemed to have been retired under subsection (iii) of section 12 of the Act and not under subsection (ii) of section 12. He has built up an argument that under subsection (iii) of section 12 only a competent authority, which in the case of the appellant was the Deputy Inspector-General of Police, could order the retirement of the appellant and not the Government. Thus, according to the learned counsel, the order passed by the Government is without jurisdiction. He has argued that an order under subsection (iii) passed by other than a competent authority is ab initio void.
The learned counsel has referred the following authorities in support of his contention that the order passed by any authority other than the 'competent authority' is void :
(1) Maqbool Ahmed Khan v. Secretary, Ministry of Interior and another 1985 PLC (C. S ) 368.
(2) Sardar Shams AB Khan v. Deputy Collector Central, Excise and Land Customs, Peshawar and others 1965 PLC (C. S.) 1002.
(3) Hafiz Muhammad Jhazi v. Secretary to Government of the Punjab, Forestry and Wildlife Department and others 1983 PLC (C. S.) 354.
(4) Syed Ghulam Jillani Shah and others v. Secretary to Government of Punjab, Irrigation and Power Department and another 1983 PLC (C. S.) 356.
(5) Abdul Karim v. Conservator of Forests (Parks & Wildlife), Punjab and another 1983 PLC 316 and
(6) Abdul Hamid v. Member (Revenue), Board of Revenue, Punjab, Lahore and others 1984 PLC (C.
S.) 1066.
7. It has not been held in any of the abovementioned authorities that if a person has completed 25 years' service qualifying for pension, the Government is debarred to exercise its power vested in it under subsection (ii) of section 12 or any corresponding provision contained in the relevant statute which were promulgated in Pakistan. In all the authorities referred to by the learned counsel for the appellant the orders of retirements were passed by the authority which was not competent authority' within the meaning of relevant provision of law and thus it was held that the order was without jurisdiction. No such eventuality exists in the instant case. As has already been pointed out, the Government passed the impugned order in exercise of its powers under subsection (ii) of section 12 in consultation with the Advisory Committee constituted for that purpose and thus the argument that the order was illegal because it was passed without jurisdiction is without any foundation.
8. The next argument advanced by the learned counsel for the appellant was that the Advisory Committee was not properly constituted as such the proceedings taken by the Committee were without jurisdiction and consequently the order made in pursuance of the recommendations of the Committee, resulting in the retirement of the appellant, is also invalid. According to the learned counsel for the appellant, under subsection (ii) of section 12, the Advisory Committee was to be constituted 'in the prescribed manner'. He has argued that the word 'prescribed' has been defined under section 2(iii)(h) of the Civil Servants Act, to mean 'prescribed under rules'. The learned counsel has contended that first the Rules regarding the constitution of the Committee should have been framed and then the Committee should have been constituted. He has argued that before issuing. The Notification constituting various Committees, including the committee which dealt with the case of the appellant, no Rules with regard to the constitution of the Committee were framed and as such the constitution was invalid. It may be stated that various Committees were constituted for dealing with the cases of civil servants under section 12 of the Civil Servants Act, 1976, on 12-12-1979. For elucidating the point, it is expedient to reproduce the relevant part of the Notification -- Notification ' No, S & GAD/G-127/SO-1/25920-80/79.-In pursuance of section 12 of the Azad Jammu and Kashmir Civil Servants Act, 1976, the President of Azad Jammu and Kashmir has been pleased to constitute the following committees to review the cases of all Civil Servants who have completed or will be completing 25 years of service qualifying for pension on 31-12-1979. The review shall be carried out by the committees set up to look into the cases of civil servants of various grades as follows :- {{TABLE}} Review Committee No, 1 for Civil Servants Grades Nos. 19 and 20
1. .. Chairman
2. Member
3. Member
4. Secretary Review Committee No, 2 for Civil Servants Grades Nos. 17 and 18
1. Chairman
2. Member
3. Member 4.. ................................................................. Secretary Review Committee No, 3 for Civil Servants Grades Nos. 1 to 16
1. . .... Chairman
2. Member
3. Member
4. . Secretary {{TABLE}}
(2) The basis for review of cases shall be guidelines and policy directives to be issued to the Chairman of the concerned Committees from time to time by the Government.
(3) The Committees shall submit the recommendations to the competent authority by 31st January, 1980 positively for orders."
9. According to the learned counsel for the appellant, the above-mentioned Notification does not conform to the requirement of law, because Committees should have been constituted 'in the prescribed manner', i. e., after framing the Rules. His case is that in view of the definition of word 'prescribed' the Rules should have been framed first and then the Committees should have been constituted. When he was asked as to whether by 'rules' he means the rules regarding the working of the Committees or Rules for the constitution of the Committees, the learned counsel replied that he means the rules for the constitution of the Committees and not for its working procedure because that is not the requirement of subsection (ii) of section 12. However, when the learned counsel confronted with the situation as to what should have been the form of the said rules which, according to him, should have been framed for the constitution of the Committee the learned counsel, could not give any answer, except that the rules should have been laid down as to what would be the number of members of each Committee and as to whether there would be any Chairmen of such Committees.
10. It is evident from the above Notification that not only it enumerates the names of the members of each Committee but also shows that the Chairman of each Committee was also appointed by the aforesaid Notification. It may be stated here that the Civil Servants Act does not envisage any special form of the Rules which, according to the learned counsel, should have been framed for the purpose of the constitution of the Committees. The Dictionary meanings of the word 'rule' are principle to which action or procedure is intended to conform. Thus, it cannot be said that the aforesaid Notification does not strictly conform to the requirement of subsection (ii) of section 12 of the Act, because no definite form has been stipulated in the Civil Servants Act with regard to the 'form' of the rules. It may be stated that sometimes these instructions in pursuance of a statute are regarded as 'rules' because the rules are nothing but the principles to which an action or procedure is intended to conform. Even otherwise, assuming for the sake of arguments that the Notification dealing with the constitution of the Committees cannot be regarded 'prescribed manner' envisaged in subsection (ii) of section 12, the constitution of the Committees cannot be held to be defective. If an Act empowers an authority to do an act or to exercise jurisdiction in any matter and also says that such an act would be done according to the Rules framed under such an Act, the act done would not be rendered invalid if it is performed without framing of the Rules.
After all the rules are framed in aid of the Act for achieving its purpose if an Act itself empowers the exercise of powers, the exercise of power without framing rules could not be held to be illegal because the same was exercised without framing the rules on the subject. We are fortified in our view by a case reported as M. U. A. Khan v. Rana Al. Suhan (1). The relevant extract from the aforesaid case is reproduced as under :- ' It is universally recognised that as regulatory statutes have to deal with a variety of situations and subjects, it is not possible for the Legislature itself to make detailed regulations concerning them, and,
(1) PLD 1974 SC 228 therefore, the Legislature delegates its power to specified or designated authorities to make such detailed regulations, consistent with the statute, for carrying out the purposes of the parent legislation. The power so conferred is generally in the nature of an enabling provision, intended to further the object of the statute, and not to obstruct and stultify the same. As a consequence, the failure or omission of the designated authority to frame the necessary rules and regulations, in exercise of the power conferred on it by the Legislature, cannot be construed as having the effect of rendering the statute nugatory and unworkable. Such an eventuality could arise only if the Legislature indicates an intention to this effect in clear and unmistakable terms,.
' In the present case, if the Legislature had intended that the appointment of the Chief Inspector of Mines could not be made at all until such time as rules or regulations had been framed in terms of section 29 (a) of the Act, then section 4 (1) of the Act would have been so worded as to include a stipulation to the effect that 'the appropriate Government may, by notification in the official Gazette, appoint a person qualified in accordance with the regulation made under section 29 (a) of the Act, to be Chief Inspector of Mines.' The relevant section, however, does not contain any such prescription, but contemplates only that the appropriate Government may appoint a 'duly qualified person' to be Chief Inspector of Mines. It is, therefore, clear that effect could be given to the command of the Legislature even without the framing of the regulation under section 29 (a) of the Act. As a result, the failure of the Provincial Government to frame the necessary regulation under section 29(a) of the Act did not have the effect of preventing the appointment of the Chief Inspector of Mines who holds a public office and is called upon to perform duties of a public nature concerning the working of mines in the province.
11. The learned counsel for the appellant has argued that an act should be done according to law or it should not be done at all. He has contended that as subsection (ii) of section 12 stipulates that the Advisory Committee should be. Constituted by framing rules and if the same was constituted without framing such rules, the constitution would be invalid. He has cited the following authorities in support of his contention:-
(1) In re: Reference No, I of 1977 by President Azad Jammu and Kashmir PLD 1978 SC (A J & K) 37.
(2) Mir Dost Muhammad v. Government of Baluchistan and 3 others PLD 1980 Quetta 1.
(3) Ghulam Abbas v. The Additional Commissioner and Election Tribunal, Khairpur Mirs and others PLD 1965 Kar.
625.
12. We have no quarrel with the general principle of law laid down in the aforesaid authorities, that ordinarily an act should be done according to procedure laid down in the statute or Rules framed thereunder. However, every breach of law in that regard would not render all the E proceedings as void. If the breach is committed of provision which is merely directory in nature, the acts done or proceedings taken could not be rendered invalid for such breach. A reference may be made to the following authorities which fortify our views.
' In Chief Commissioner, Karachi v. Jamil Ahmed (1) it was held that provisions contained in City of Karachi Municipal Act (XVII of 1933), under section 280 (1) for re-holding of general elections to be notified is directory and not mandatory and a substantial compliance with this would be enough.
' In Abdul Majid v. Province of West Pakistan (2) it was held that for ascertaining as to whether a statutory provision is mandatory or directory in nature, the intention has to be gathered by carefully attending to the whole scope of the statute or the statutory rules. One general rule, although it may also be found to have its exceptions, is that where a provision is expressed in a negative and prohibitory language, it is considered to be absolute; and the one expressed in an affirmative language may be considered as directory. Where a provision is absolute having an obligatory force, it carries an implied nullification for its disobedience but where it is merely directory, its non-compliance may not be fatal unless the complaining party is able to show that the non-compliance has worked to its prejudice.
' In Tanzeem-e-Mulazamin Baldiya v. Government of West Pakistan (3) it was held that prescriptions imposed in relation to a public duty may well be regarded as intended to be directory and a failure of their strict compliance will not vitiate the result. In James Finlay & Co. Ltd. v. Aminul Islam (4) it was held that in absence of express opinion of the Legislature as to the consequence of non-compliance with certain provision, the Court has to consider the question whether instruction of Legislature is merely directory or mandatory, with reference to object intended to be achieved or other surrounding circumstances.
' In Mir Ghause Bakhsh v. State (5) it was held as to whether a provision of a statute is mandatory or directory in character depends on the language in which it is couched and the purpose it intends to serve.
' In Mafizullah V. Manai Ullah (6) it was held that the Court should ascertain as to whether a provision is directory or mandatory in nature. If mandatory enactment is not strictly complied with, the thing done shall be invalid. On the other hand, if an enactment is merely directory, it is immaterial so far as it relates to the validity of the act done.
13. There may be other eventualities in which the non-compliance of rules may not be fatal to the action taken, as one found in case reported as M. U. A. Khan v. Rana M. Sultan (7) referred to above, wherein it has been held that when statute gives power to do an act and also says that it should be done according to the rules, the act done without framing the rules would not be invalid because the statute, being on a higher padestal than rules, itself empowers the authority concerned to do an act and does not say that the act cannot be performed without framing the rules first. We need not further dilate on the point as we have already held that the Advisory Committee was validly constituted.
14. The learned counsel has also argued that the impugned order
(1) PLD 1961 SC 145 (2) PLD 1964 Lah. 531
(3) PLD 1971 Kar. 535 (4) PLD 1969 Dacca 571
(5) PLD 1968 Quetta 15 (6) PLD 1963 Dacca 318
(7) PLD 1974 SC 228 dated 23-10-1980 does not incorporate that the retirement of the appellant was in the 'public interest' and as such is not sustainable. The perusal of the order shows that it has been clearly mentioned in the order that the same is passed under section 12 (ii) of the Civil Servants Act. The presumption is that the order was passed after fulfilling all the conditions precedent, which were necessary for passing the same under F the relevant provision of law. It is not at all necessity that the order should have been specifically recorded that the retirement of the appellant was being ordered in the 'public interest' when specific reference has been made to the provisions of law under which the action was taken. We are fortified in our view by a case reported as Ameer Ali Barg v. Secretary to Government of Pakistan, Establishment Division, Rawalpindi (1).
15. The learned counsel has also argued that before taking any action under section 12 it is necessary that a show-cause notice should be issued against the concerned civil servant so that he might have shown that his retention in service was not against 'public interest'. The learned counsel has referred to the following authorities in support of his contention :-
(1) Chief Commissioner v. Mrs. Dina Sohrab Katrak PLD 1959 SC 45.
(2) University of Dacca v. Zakir Ahmed PLD 1965 SC 90.
(3) Government of Pakistan v. Aqui! Ahmed PLD 1969 Dacca 930.
(4) Abdus Saboor Khan v. Karachi University PLD 1966 SC 536.
' The case reported as Chief Commissioner v. Mrs. Dina Sohrab Katrak pertains to section 10 (2) of the Sind (Requisition of Land) Act, 1947, wherein it was held that as the relevant law did not deny the appellant's right to an opportunity of being heard, the concerned party should have been heard before passing the impugned order.
' In Government of Pakistan v. Aqui Ahmed it was found that the civil servant was removed from the service as punishment. It was held that the order being one of awarding punishment, an opportunity of hearing should have been given to civil servant concerned.
' University of Dacca v. Zakir Ahmed and Abdus Saboor Khan v. Karachi Uni ersity pertain to disciplinary actions by the Universities against the students, who were awarded punishments, and it was held that as they were not provided an opportunity of being heard, the orders awarding punishments were illegal.
16. The authorities cited by the learned counsel for the appellant pertain to the cases in which either punishment was awarded or orders passed adversely affected the vested rights of concerned parties. In the instant case the action taken under section 12 of the Civil Servants Act cannot be regarded as punishment. The provisions contained in section 12 of the Act are part of the terms and conditions of a civil servant. If the Government or the competent authority, as the case may be, finds that the retirement of a civil servant is necessitated by 'public interest' it can order the retirement of such civil servant without any show-cause notice. As the provisions contained in section 12 of the Civil Servant.
(1) 1983 PLC (C. S.) 142 ' Act are included in terms and conditions of a civil servant, the Government or competent authority can legally form the opinion unilaterally as to whether the retirement of a civil servant is necessitated by public interest or not and there is no question of serving a show-cause notice on the civil servant concerned. We are fortified in our view by a case reported as Ameer Ali Barq v.
Secretary to Government of Pakistan Establishment Division Rawalpindi (1) and Sahibzada Fariduddin Ahmed v. The Province of Punjab (2).
17. It has been argued that in the circumstances of the case, the retirement of the appellant was.
Not in the 'public interest'. We are of the view that under section 12 of the Civil Servants Act Government or the competent authority, as the case may be, is the sole Judge as to whether the retirement of a civil servant is in the public interest or not. It is not possible for the Court to sit on judgment over the view taken by the Government in the matter. The Court would interfere only if a case of mala fide or colourable exercise of power is established. We find support in our view from following authorities:- ' In A. M. Khan Leghari v. Government of Pakistan (3) it was observed that the question whether it is in the public interest to retire a certain public servant under Article 178 of the Constitution or not, is a question of which the competent authority is the sole Judge. The Court cannot enter on a contentious and protracted inquiry on the question of public interest.
' In Lt.-Col. Farzand Ali V. Province of West Pakistan (4) it was observed as under:- ' The compulsory retirement which carries with it no stigma and no vindictiveness against the person concerned is different from removal from service or dismissal. There may be a variety of reasons which may impel a Government to compulsorily retire, an officer on his having completed the period of service qualifying him for pension and Government alone is the best Judge of these reasons. It is not possible for the Court to sit on judgment over the action of Government, if from materials disclosed it does not appear that the action taken was merely in colourable exercise of or in abuse of power. It must of necessity be left to the Government itself to decide as to whether retirement of the officer concerned was in public interest or not. The Government, it is said, has an absolute discretion to retire any of its offices at this stage. In the absence of any words in the statute limiting the discretion of the Government this must be so, for, it is difficult to lay down any yardstick by which 'public interest, can be measured in this connection. There may well be circumstances apart from inefficiency or dishonesty which may be relevant for considering the suitability of an officer for being continued in public service. An over punctilious or over fastidious person may well in certain circumstances be just as unsuitable as a lax or careless officer having regard to the nature of his employment. But this is a matter which the employer alone can determine and
(1) 1983 PLC (C. S.) 142 (2) PLD 1976 Lah..1310
(3) PLD 1967 Lab, 227 (4) PLD 1970 SC 98 therefore, it must of necessity be left to the subjective satisfaction of the employing authorities."
18. The learned counsel has half-heartedly argued that the order of retirement was passed by the Inspector-General of Police on 1- 11-1980 and not by the Government; and as such the Inspector- General of Police being not 'competent authority' in the case of the appellant, the order is also illegal on that score. The perusal of the record shows that the order passed by the Inspector- General of Police on 1-11-1980 was a formal order which was passed in continuation of the order of retirement passed by the Government on 23-10-1980. Even the appellant treated the order of the Government dated 23-10-1980 to be the order by which he was aggrieved and thus was obliged to file review petition before the / Government against the said order and subsequently filed appeal in the Service Tribunal. The appellant never challenged the order of the Inspector General of Police dated 1-11-1980; rather he himself treated it as a formal order and did not choose to challenge it; and rightly so. Thus, the argument being without any substance is hereby repelled.
19. The learned counsel. Has also argued that the order passed by the Government is mechanical and appears to have been passed solely in pursuance of the recommendations of the Advisory Committee and is defective in law. It may be observed here that there is nothing on the record to show that before passing the impugned order the Government did not consider the recommendations of the Advisory Committee and took into consideration the grounds on which the recommendations were based. The presumption is that official act was performed regularly which implies that the Government passed the impugned order after duly considering the report of the Advisory Committee. Therefore, it cannot be said that the order of the Government was passed without applying its mind to the contents of the report made by the Committee. It may be stated here that subsection (ii) of section 12 does not make it obligatory for the Government to accept the recommendations of the Committee; the same may or may not be accepted by the Government.
Moreover, when the appellant had also preferred review petition before the Government, it cannot be said that the impugned order, which was also confirmed while dismissing the review petition, was mechanical and was passed without giving due consideration to the relevant material.
' In the light of what has been stated above finding no force in this appeal, it is hereby dismissed.
Appeal dismissed.
PLD 1986 SC (A J & K) 98 Present : Sardar Said Muhammad Khan and Sher Zaman Chaudhry, JJ JAN MUHAMMAD-Appellant versus MUHAMMAD MUNSIF AND 2 OTHERS-Respondents Civil Appeal No: 19 of 1984, decided on 27th May, 1986.
(On appeal from the order of the High Court, dated 24-12-1983, in Civil Revision No, 24 of 1.983).
0.1) Civil Procedure Code (V of 1908)- - Ss. 26, 28 and Os, VI & VII-Suit-Plaint--Document purporting , to be a plaint, setting forth a cause of action and drawn up substan- tially in accordance with Os.
VI & VII, C. P. C. Is a plaint though it may contain some imperfections. Under section 26 of the C. P. C. a suit is to be instituted by the presentation of a plaint or in such other manner as may be prescribed. Order VII, rule 4, C. P. C. Enumerates the particulars which a plaint must contain. Order VII, rule 11 speaks of eventualities in which the plaint should be rejected ; one of them being the non-disclosure of the cause of action. The fact that if a plaint does not disclose a cause of action it is to be rejected, implies that even the factum of the nondisclosure of the cause of action in the plaint would not take it out of the ambit of 'plaint' as stipulated under the relevant provisions of C. P.
C. The word 'plaint' has no statutory definition but all the same 'plaint' in law is nothing more than a private memorial tendered to the Court in which a person pleads facts and claims a relief on the basis of the said facts. Any imperfection in the plaint caused due to the violation of the provisions contained in Order VII, rule 1 would not take the document filed out of the ambit of the plaint whether such imperfections are the result of bona fide mistake or of negligence. As has already been pointed out, under Order VII, rule 11, a plaint which does not disclose a cause of action may be rejected. This means that if a document purporting to be a 'plaint' is found to have been generally drafted in compliance with the provisions contained in Order VII, rule 1, it does not lose the character of a 'plaint' if one or more patticulars envisaged under Or&,r VII, rule: 1 are missing in it.
Thus, a suit would be deemed to have been instituted as envisaged under section 28 of the C. P. C.
A document purporting to be a plaint, setting fourth a cause of action and drawn up substantially in accordance with the rules contained in Order VI and Order VII of the Code is a plaint though it may contain some imperfections. [p. 101JA Mitusi Bussan Kaisha Ltd. v. Totaram-Bhagwandas AIR 1921 Sind 166 ref.
(6) Civil Procedure Code (V of 1908)- --0. VI, R. 17-Amendment of plaint-Leave to amend plaint can be granted unless applying party is acting mala fide or by its blunder has done some injury to his opponent which cannot be compensated by award of costs-Defect may be allowed to be remedied if no injustice is done to th,e other side irrespective of the fact that original omission arose from negligence, carelessness or by accidental error. Irrespective of the fact as to whether the case falls within the ambit of the bona fide mistake or not, an amendment, if it otherwise does not offend against the well-settled principle of law on the subject, can be allowed, even in case of negligence, provided the opposite-party can be compensated by costs. General rule is that leave to amend ought to be granted unless the applying party is acting mala fide or by his blunder has done some injury to his opponent which cannot be compensated by award of costs,- otherwise, whether the original omission arose from negligence, carelessness or accidental error, the defect ma'y be allowed to be remedied if no injustice is done to the other side. Fp.
1021.8 The amendment of plaint should be liberally allowed extept when causes an injury to the opposite- party which is not compensated by allowing costs. [p. 102]C Union of India v. Shalimar Tar Products (1935) Ltd. AIR 1963 Pat. 131 and Syed Akhlaque Hussain v. Water and Power Development Authority 1977 SCMR 284 ref.
(c) Civil Procedure Code (V of 1908)- -- D. VI, R. 17-Amendment of pleadings-Court has discretion to . Allow amendment in exceptional cases even if amendment tantamounts to institute suit after expiry of period of limitation. Fp. 104Y)
Laid. Megh Raj v. Firm Raghbor Das-Bent Prasad AIR 1938 Lah. 712; Charan Das and others v. Amir Khan and others AIR 1921 P C-50 ; L. J. Leach & Co. Ltd. And another v. Messrs Jardine Skinner & Co.
AIR 1957. SC 357 ; Pirgonda Hongonda Patti v. Kalgondo Shidagonda Patil and others AIR 1957 SC 363 ; Karamat Au and another V. Muhammad Yunus Haji and others PLD 1963 SC 191 and Bhogilal Tarachand Javeri and others v. Jethalal Motilal Kumbhar AIR 1929 Born. 51 ref. Muhammad Ashraf v, Azad Government of the State of Jammu and Kashmir PL D 1985 SC (A J & K) 102 and Mirza Muhammad Saeed V. Shahab-udDin PLD 1983 SC 385 distinguished. Raja Muhammad Siddique Khan- for Appellant.
Maulvi Sirapul-Haq, Advocate assisted by Ch. Munsaf Dad for Respondents.
Date of hearing : 27th May, 1986.
' SARDAR SAID MUHAMMAD KHAN, J.-This appeal, by leave, has been directed against the order of the High Court dated 24-12-1983, whereby the order of the Trial Court allowing amendment of the plaint was set aside in exercise of revisional jurisdiction.
2. The brief facts giving rise to the present appeal are that Muhammad Munsif and Ghulam Ghous, respondents, purchased a piece of land, measuring 4 Kanal 18 Marlas, comprising Survey No, 586, through a registered sale-deed dated 4-11-1981, for a consideration of Rs, 1,50,000 Jan Muhammad, appellant, brought a pre-emption suit on the basis of preferential right of pre-emption in the Court of sub-Judge, Mirpur, on 17-5-1982. The plaintiff-appellant impleaded both Muhammad Munsif and Ghulam Ghous, vendees, and Nek Muhammad vendor, as parties in his suit. However, in the body of the plaint no cause of action was disclosed against Ghulam Ghous nor any relief was claimed against him. The relief was soughht only against Muhammad Munsif who was arrayed in the line of the. Ondants as defendant No, 1, while Ghulam Ghous, vendee, and Nek Muhammad, vendor, were.
Impleaded as defendants Nos. 2 and 3 respectively. In para. 1 of the plaint it is mentioned that only a sum of Rs, 75,000 was paid as price of the land to defendant No, 2 (Ghulam Ghous), but an amount of Rs, 1,75,000 has been fictitiously entered in sale-deed as consideration of the sale It appears that although the ascribe of the plaint mentioned the name of Nek Muhammad, vendor, in the title of the suit as defendant NO. 3, yet while-drafting the main body of the plaint treated Ghulam Ghous, defendant No, 2, as vendor by inadvertence or oversight and thus failed to allege the facts constituting the cause of action against him. In the written statement an objection was raised that as no ,cause of action has been shown to have been arisen against Ghulam Ghous, vendor/defendant, the suit is his by the principle of partial pre-emption and must fail. The plaintiff realising the defect in the plaint filed an application seeking amendment on 13-3-1983, which was opposed by the defendants but the learned sub-Judge allowed the amendment of the plaint vide his order, dated 28-7-1983. A revision petition was filed before the High Court challegning the, order of Trial Court allowing .The amendment. The learned Chief Justice, who heard the revision petition; accepted the same and set saide the order of the Trial Court on the ground that as a valuable right had accrued in favour of the defendants, chore to the lapse of time, the amendment sought could not be allowed. It is against the aforesaid order of the High Court that the present appeal has been preferred.
3. We have heard the arguments and gone through the. Record. It has been contended by Raja Muhammad Siddique Khan, Advocate that the omission to claim relief against Ghulam Ghous, defendant-vendee, was a clerical mistake; and as such the amendment sought was rightly allowed by the sub-Judge. He has argued that the fact that the name of Ghulam Ghous, defendant-vendee, was mentioned in the title of the suit; and the fact that the pre-emptor pre- empted the whole of the land sold show that imperfections in the plaint resulted due to the bona fide omission and were not intentional. He has argued that as ahulam Ghous, defendant-vendee, was impleaded as defendant in the suit at the time of its institution, there is no substance in the argument that the amendment sought cduld not be allowed after the expiry of the period of limitation. The learned counsel has also contended that in exceptional cases the amendmenf can be ,allowed even if the same tantamount to the institution of the suit after the expiry of the period of limitation.
4. In reply it has been contended by Maulvi Sirakul-Haq, Advocate, that the case in hand is not a ,case of a clerical or a bona fide mistake; rather it is a case of gross negligence if not a case of intentional relinqishment of right to sue. He has argued that in view of the contents of the plaint it cannot be said that there is at all any suit against Ghulam Ghous, defendant who had purchised 1/2 of the suit land. He has further argued that more mentioning the name of Ghulam Ghous. In the title of the suit would not imply that the suit was also instituted against the said defendant because no allegation whatsoever has been recorded in the body of the plaint showing that the plaintiff had any cause of action against the defendant. The learned counsel went on to. Argue that the amendment in the instant case, after the expiry of limitation would cause an irreparable loss to the defendant in whose favour a valuable right has accrued due to the lapse of time.
5. The first question which needs determination is as to whether in the circumstances, enlisted above, the suit can be said to have been instituted aginst Ghulam Ghous, defendant. Under section 26 of the C. P. C. a suit is to be instituted by the presentation of a plaint or in such other manner as may be prescribed. Order VII, rule I, C. P. C. Enumerates the particulars which a plaint must contain.
Order VII, rule 11 speaks out eventualities In which the plaint should be rejected; one of the same being the non-disclosure of the cause of action. The fact that if a plaint does not disclose a cause of action it is to be rejected implies that even the factum of the non-disclosure of the cause of action in the plaint would not take it out of the ambit of 'plaint' as stipulated under the relevant provision of C. P. C. The word 'plaint' has no statutory definition but all the same 'plaint' in law is nothing more than a private memorial tendered to the Court in which a person pleads facts and claims a relief on the basis of the said facts. Any imperfection in the plaint caused the to the violation of the provisions contained in Order VII, rule 1 would not take the document filed out of the ambit of the plaint whether such imperfections are the result of bona fide mistake or of negligence.
As has already been pointed out, under Order VII, rule 11 a plaint which does not disclose a cause of action may be rejected. This means that if a document purporting to' be a 'plaint' is found to be have been generally drafted in compliance with the provisions contained in Order VII, rule 1, it does not loss the character of a 'plaint' if one or more particulars envisaged under .Order VII, rule 1 are missing in it. Thus, we art of the view that a suit would be deemed to have been instituted as envisaged under section 28 of the C. P. C., even if such plaint does not strictly conform to,the requirement of Order VII, rule 12 of the C. P. C. We are fortified in our view by a case reported as Mitsui. Bussan Kaisha Ltd. v. Totaram Bhagwandas (1) wherein it has been held that a document, purporting to be a plaint, setting forth a. Cause of action and drawn up substantially in accordance with the rule contained in Order VI and Order VII of the Code is a plaint though it may contain some imperfections.
6. It may be observed here that in the instant case it cannot be said that the plaint does not disclose any cause of action at all, specially so when cause of action is fully disclosed against Munsif Khan, vendee. Thus, we are of the view that' plaintiff intended to sue both he vendees but due to inadvertence the plaint suffered from the imperfections indicated above.
7. The learned counsel for the parties have taken pains to elucidate the point as to whether the mistake in question was a clerical mistake or it was a case of gross negligence. We are of the view that irrespective of the fact as to whether the case falls within the unfit of the bona fide mistake or not, an amendment if it otherwise does not offend against the well-settled principle of law on the, subject can be allowed, even in case of negligence, provided the opposite party can be compensated by costs. We are fortified in our view by a case reported as Union of India v. Shalimar Tar B Products 1985 Ltd. (2) wherein it was held that general rule is that leave to amend ought to be granted unless the applying party is acting mala fide or by his blunder has done some injury to his opponent which cannot be compensated by award of costs; otherwise, whether the original omi4sion arose from negligence, carelessness or accidental error, the defect may be allowed to be remedied if no' injustice is done to the other side.
8. It needs hardly any emphasis that the amendment should be liberally allowed except when causes an injury to the opposite-party which is not compensated by allowing costs. Syed Akhlaque Hussain v. Water and Power Development Authority (3) it was held that amendment should be liberally allowed 'except when it cause injury to the opposite side. It was further observed that the rules of Court are nothing but provisions intended to secure the proper administration of justice; and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always
(1) AIR 1921 Sind 166 (2) AIR 1953 Pat. 131 (3) 1977 SC MR 284 be liberally exercised. In this case WAPDA was allowed to be impleaded as party and other amendments in the plaint necessitated by the impleadment of the said party were also allowed.
' In Lala Megh Raj v. Firm Raghbar Das-Beni Prasad (1) it was that mere introduction of fresh matter does not alter the nature of suit. Alternation affecting case is one wHere original shit is wholly displaced by proposed amendment of where totally inconsistent case is introduced. It was further opined that mere charge in wording of the plaint or the introduction of fresh details does not alter the nature of the suit.
' In Charan Das and others v. Amir Khan and others (2). It was held as under :- "Where the plaintiffs, through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit, they should be at liberty to express their intention in a plainer and less ambiguous manner, and to amend the plaint so as to express the rights which it has been really their intention all along to establish, although the amendment of plaint is sought to be made at a time when the suit itself if instituted then would be time-barred. And though such a power should not as a rule be exercised where its effect is to take away from a defendent a legal right which has accrued to him by lapse of time, yet there are cases where such consideration are out weighed,by the special circumstances of the case."
' In L. J. Leach & Co., Ltd. And another v. Messrs Jardine Skinner & Co. (3), it was held as under "It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interest of justice."
' In Pirgonda Hongonda Patil v. Kalgonda Shidagonda Pall and others -(4) the amendment was allowed in the following circumstances :- "The plaintiff obtained a decree for possession against A, but was obstructed by B in obtaining possession of the suit, properties in execution. His application under Order XXI, rule 97 was dismissed on 12-4-1947 and on 12-3-1948 he instituted a suit under Order XXI, rule 103 against A and B. Apart from the decree obtained in the earlier suit, no particular averments were made in the plaint as to the facts or grounds on which the plaintiff based his title to the suit properties as against B. On 29-3-1960 the plaintiff made an, application for permission to give further and better particulars of the claim made in the plaint. The application was rejected by the trial Court but was allowed in appeal by the High Court. It was contended that the High Court should not have exercised its power to allow amendment because (1) the period of limitation for the suit had already expired before the date on which the application for amendment was made, and (2) the attention of the plaintiff to the defect
(1) AIR 1938 Lab. 712 (2) Al It 1921 P C 50
(3) AIR 1957 SC 357 (4) AIR 1957 SC 363 in the original plaint had been drawn by an application filed on behalf of B on 20-11-1948 and, in spite of that application, no amendment was asked for till 29-3-1950.
' Held : (1) that when B made the application on 20-3-1948, the period of limitation for the suit had already expired and B had very clearly said therein that no permission should be given to the plaintiff to make an amendment thereafter and, therefore, this is was not. a circumstance for not exercising the power of amendment.
(2) that the power exercised was undoubtedly one within the discretion: of the High Court and the discretion was not exercised on a wrong principle. The amendment did not really introduce a new case, and the application filed by B himself showed that he was not taken by surprise ; nor did he have to meet a new claim set up for the first time after the expiry of the period of limitation."
' Similarly, in case reported as Karamat Ali and another v. Muhammad Yunus Haji and others (1) the plaintiff was out of possession but he did not claim the relief of possession ,within the period of limitation. The amendment seeking the relief of possession was allowed by the Supreme Court and following observations were made.
' The Judicial Committee of the Privy Council consistently maintained that it had undoubtedly full power to allow such amendments even where a local right had accrued by lapse of time if the special circumstances of the case outweighed such considerations.- Vide : Md. Zahoor Ali Khan v.
Mst. Thakooranee Rutta Koer ii IVT J A 468 and Charan Das and others v, Amir Khan and others AIR 1921 P C 501. That this Court possesses similar power to do complete justice cannot be disputed. In exercising this power, no doubt, this Court would be reluctant to allow an amendment which would have the effect of totally altering the' nature of the suit or of taking away a valuable right accrued by lapse of time, but where, in the circumstances of a particular case it would be plainly inequitable to refuse such a relief this Court will not hesitate to do what the Judicial Committee' did in the case of Md. Zahoor Ali Kian v. Mst. Thakooranee Rutta Koer 11 M I A 468 ; ' Similarly, the amendment was allowed in case, reported as Bhogilal Tarachand Javeri and others v. Jethalal Motilal Kumbhar (2), in the following circumstances :- "A person S purchased certain property from P, the latter however remaining in possession and wrongfully receiving rents and means profits. S then sold the property to Y who sued P for possession and mesne profits joining S as pro forma plaintiff. In the plaint no relief was claimed in favour of S and it was prayed that the decree should be passed in favour of Y alone An amendment of plaint for relief in favour of was applied for afrer his claim had become time- barred."
It is evident from the above authorities that amendment of pleading should be liberally allowed and a discretion to allow amendment in exceptional cases can be exercised even if the amendment tantamounts to institute the suit after the expiry of the period as limitation.
(1) PLD 1963 SC 191 (2) AIR 1929 Born. 51
10. The learned counsel for the respondents, Maulvi Siraj-ui-Haq, has cited Muhammad Ashraf v.
Azad Government of the State of Jammu and Kashmir (1) and Mirza Muhammad Saeed v. Shahab- ud-Din (2).
' In Muhammad Ashraf v. Azad Government of the State of Jammu and Kashmir it was held that as the parties omitted were necessary parties, the appeal was incompetent and the parties could not be brought on record after the period of limitation. It was further held that the Court while allowing the impleadment of the parties should safeguard not only the interests of the party seeking the amendment but also the interest of the opposite-party with whom a valuable right resides due to lapse of period of limitation.
' In Mirza Muhammad Saeed v. Shahab-ud-Din the facts were that the appeal was filed before a wrong forum due to some misunderstanding of the jurisdictional value of the Court. It was held that the case was one of gross negligence and delay cannot be condoned in the circumstances of the case. It was further observed that if the counsel for a party was negligent such party can sue him for damages or loss ; the argument that the party should not suffer due to the negligence of the counsel was repelled.
11. It is evident from the authorities cited by the learned counsel for the respondent that the facts of those cases are distinguishable from the facts of the case in hand. In the former case the necessary parties were not impleaded in the High Court or in the Supreme Court as such the appeal was dismissed as being incompetent ; and in the other case, i,e, reported as Mirza Muhammud Saeed v. Shahab-ud-Din the question related to the condonation of delay in filing of appeal and not to allow or disallow an amendment. For the reason stated above we are of the view that in special circumstances of the case the trial Court has rightly exercised its discretion in allowing the amendment of the plaint. Consequently, we accept the appeal and set aside the impugned order of the High Court. In the circumstances of the case we make no order regarding costs.
(1) PLD 1985 SC (A J & K) 102 (2) PLD 1983 SC 385 .1=