Shah Alam Khan plaintiff/respondent herein, entered into an agreement with the defendants/petitioners herein, for the purchase of timber and firewood, felled and stacked at Compartment No.l, the detail whereof is given in the agreement dated 6-1-1977 (copy Exh.PWl/1), duly executed between the plaintiff/respondent on the one hand and the Governor N.-W.F.P. On the other, as per terms and conditions enumerated therein. It appears that the plaintiff/respondent did not perform his part of the agreement, resulting in the rescinding of the contract by the Government and in consequence, the forfeiture of his security amounting to Rs.60,000 as well as the demand of further sum of Rs.98,020.96 on account of loss sustained by the Government on account of the re-sale of the timber, as per demand notice No.1027/G, dated 29-10-1979, issued by the Divisional Forest Officer/Petitioner No.3. Shah Alam Khan plaintiff/respondent instituted a suit for declaration challenging the action of the Government/petitioner and also for a perpetual injunction to restrain them from realising the said amount. Summonses were ordered to be issued against the defendants/petitioners vide order dated 2-12-1979 for 15-12-1979, on which date the presence of counsel for the defendants is marked and the case was adjourned for submission of the written statement and replication of the application for temporary injunction. On the next date of hearing viz. 7-1-1980 against the presence of the counsel for the defendants is marked. It is worthwile to mention here that no Wakalatnama, duly signed by the defendants/petitioners in favour of counsel for the defendants, is available on the file. However, an authority letter signed only be S.M. Kaunain DFO in the name of Mr. Muhammad Khan Advocate, authorising him to plead the instant case, has been made a part of the file on 7-1-1980. Written statement only on behalf of Conservator of Forests and Divisional Forest Officer defendants/petitioners Nos.2 and 3 was filed by the counsel, Muhammad Khan Advocate. Issues on the basis of the pleadings of the parties were framed and the parties put on trial. The plaintiff, after securing several adjournments for the production of his evidence rest contented with his solitary statement recorded on 26-6-1981 and closed his evidence. The case was adjourned for the evidence of the defendants and ultimately on 20-5-1982 when nobody appeared on behalf of the defendants nor their evidence was in attendance, the learned trial Judge, ordered ex parte-proceedings against them and passed ex parte decree as prayed for, vide his order recorded on the order--sheet No.22 of the same date.
The defendants/petitioners challenged the same through appeal before.4he learned District Judge, which was also dismissed vide order dated 25-10-1982 'and hence the instant revision petition challenging both the orders of the trial Court as well as that of the appellate Court.
2. I have heard Mr. J.D. Akbarji learned Advocate-General for the petitioners and Mr. Tariq Jamal Khan Advocate for the plaintiff/respondent and have perused the record of the case with their valuable assistance.
3. The thrust of the arguments of the learned Advocate-General is that the defendant/petitioner No.1 namely Government of N.-W.F.P. Through Chief Conservator of Forests, Peshawar, the principal defendant against whom the relief was claimed, has not been properly served; that no summons is available on the file to indicate that any summons was ever issued against .Defendant No.l much less that the provisions of law regarding the service of summons was complied with; that Muhammad Khan Advocate could not legally put in appearance on behalf of the Government without being appointed by a general or special order to that effect; that the entire proceedings having been conducted by the trial Court in the absence and without the knowledge of the Government defendant No.l are not only illegal but against the principles of natural justice and that the order of the learned appellate Court in holding the appeal- as incompetent is also in alter disregard of the provisions of Order 27, C.P.C. The learned counsel for the plaintiff/respondent on the other hand submitted that the officers of the Government had been duly served and that it was their responsibility to inform the Government Pleader to conduct the proceedings on behalf of the defendants/petitioners and that the plaintiff/respondent cannot be deprived of the valuable rights accrued to him on account of the negligence of the functionaries of the Government.
4. 1 have given my anxious consideration to the learned arguments advanced by the learned counsel for the parties. For the proper appreciation of the legal and technical objections raised, it is worthwhile to reproduce the provisions of rules 1 to 4 of Order 27 of the Civil Procedure Code:- "1. Suits by or against Government.--In any suit by or against the Government, the plaint or written statement shall be signed by such person as Government may, by general or special order, appoint in this behalf, and shall be verified by any person .Whom the Government may so appoint and who is acquainted with the facts of the case.
2. Persons authorised to act for Government.--Persons being ex officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be the recognized agents by whom appearance, acts and applications under this Code may be made or done on behalf of the Government.
3. Plaints in suits by or against Government.--In suits by or against the Government, instead of inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall be sufficient to insert the appropriate name as provided in section 79.
4. Agent for Government to receive process.--The Government Pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court."
5.The above provisions of law make it abundantly clear that the Government Pleader is the agent of the Provincial Government to receive processes against the Government issued by any Court and no person other than the Government Pleader can sign and verify any plaint or written statement in any suit filed by or against the Government unless, specifically appointed for the purpose by the Government by general or special order. In the instant case the Government of N.- W.F.P. Defendant/petitioner No.l being the most necessary party, had to be properly served by the learned trial Judge either through the A Government Pleader or the Chief Conservator of Forests N.- W.F.P. Peshawar through whom the Government was sued. No summons is available on the file to show that the service was effected against the Government of N.-W.F.P. Much less through the authorised person i.e. The Government Pleader or the Chief Conservator of Forests Peshawar. Mr. Muhammad Khan Advocate whose attendance is marked on behalf of the Government defendant/petitioner No.l was never authorised in writing to appear and act on behalf of the Government. He has filed the written statement specifically on behalf of Conservator of Forests, Malakand Circle and D.F.O. Defendants Nos.2 and 3 only and has not mentioned the name of the Government defendant/petitioner No.l therein. It is mandatory under Order V, rule 1, C.P.C. That on the institution of a suit a summons must be issued to the defendant to appear and answer the claim on a day to be therein prescribed and in the other Rules of the same Order, the procedure of the service of summons is provided for, including the simultaneous issue of summons to the defendants by registered post acknowledgement due. Since the mandatory provisions regarding the issue and service of summons against the Government defendant/petitioner No.l have not been complied with the entire proceedings taken in the instant suit by the learned trial Court are illegal and materially irregular, with the result that the ex parte decree passed against the Government defendant/petitioner No.l cannot be sustained and since the other defendants/petitioners Nos. 2 and 3 are the functionaries of the Government and their impleadment was just pro forma, the impugned decree dated 20-5-1982 is liable to be set aside.
6. There is yet another aspect of the case too. Written statement on behalf of defendants Nos. 2 and 3 had been filed on the basis of which issues had been framed in the case 'and evidence of the plaintiff/respondent recorded. The trial Judge while ordering the ex parte proceedings against the defendants/petitioners vide imugned order, was bound to record judgment under Order 20 rule 4(2), C.P.C. Which had to contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. As stated earlier, since issues had been framed the Court was bound to state its .Finding or; decision, with the reasons therefore, upon each separate issue as provided. For by rule 5 of Order 20 C.P.C. The learned trial Court has passed the impugned order on the order-sheet without complying with the said provisions of law and on this score too the order cannot be sustained.
7. The learned Appellate Court has held the appeal as incompetent on the ground that, according to its wisdom, the appeal could only be filed by the private counsel namely Muhammad Khan Advocate and that the Government Pleader was not legally competent to file the same. I am afraid this finding of the learned appellate Court is not warranted by any substantive or procedural law.
Rule 2 of Order 27 C.P.C. Provides that persons being ex officio or otherwise authorised to act for the Government in respect of any judicial proceedings shall be deemed to be the recognized agents by whom appearances, acts and applications under the said Code may be made or done on behalf of the Government. The provision of Order 3, Rule 4, C.P.C. Read with section 22, subsection (3), of the Legal Practitioners and Bar Councils Act, 1973 ordains that no Advocate shall appear or act for any person in -any Court or Tribunal unless he has been appointed for the purpose by such person by a document in writing signed by such person or his recognized agent or some other person duly authorised by him to make such appointment, and such document has been filed in Court or Tribunal. However, the Public Prosecutor or any Advocate appointed by the State have been exempted from the purview of the provisions of subsection (3) ibid. Reading the provisions of Order 27 rule 2, C.P.C. And proviso to subsection (3) of section 22 of the Legal Practitioners and Bar Councils Act, 1973 in conjunction, it is manifest that the Government Pleader was not required under the law to file the power of attorney on behalf of the defendants/petitioners along with the grounds of appeal and the learned Appellate Court has illegally held the same as' incompetent. On the merits too the learned Apellate Court has failed to consider the illegalities and irregularities committed by the trial Court and its judgment) cannot stand.
8. Before parting with the judgment I must observe that the trial Courts must see to it before entering upon the trial of the suits that the parties have been properly served and the relevant power of attorney and Wakalatnama are filed by the persons pleading or acting on their behalf, particularly the Government, so that unnecessary complications do not arise in the subsequent stage of the proceedings and the necessity of retrial avoided. Since the Government Pleaders have the statutory obligations to receive summonses on behalf of the Government of N.-W.F.P., it is advised that the trial Courts should, in addition to the summons issued to the persons named in the plaint through whom the Government is sued also serve the Provincial Government through Government Pleader who I normally available in the District Headquarters and service upon him beside' being effective in law shall also help in the expeditious disposal of the cases. .
9. The upshot of the above discussion is that I accept this revision petition, set aside the impugned ex parte decree of the trial Court as well as judgment and decree of the appellate Court and remit the case back to the trial Court (Senior Civil Judge) Swat with the direction to proceed with it after allowing the defendants/petitioners to file written statement. Parties are directed to appear before the learned Senior Civil Judge, Swat on 13-5-1989, and the learned Advocate-General has been advised to direct the Government Pleader to put inl appearance before the learned trial Court on the date fixed.