' MAMOON KAZI, J.--This appeal calls in question the judgment passed by a learned single Judge in chambers dated 1-11-1988 decreeing the plaintiffs suit ex parte under Order VIII, Rule 10, C.P.C.
2. The facts of the case, briefly stated, are that after the plaint in the suit had been filed the summons on the defendants was duly served but they failed to appear before the Court thereafter.
The impugned judgment shows that one Nasrul Haq, Squadron Leader had appeared and requested for adjournment which was granted by the learned Judge but thereafter he too remained absent. Thereafter the matter came up before the Court for further order. The suit was decreed ex parte against the defendants. A period of three months was however, allowed for satisfaction of the decree in accordance with the provision of section 82, C.P.C.
3. Appellants have now assailed the judgment and the decree on the ground that the suit filed by the respondents was not maintainable as no compliance had been made with section 79, C.P.C. As the Federal Government had not been impleaded as a party to the suit. Furthermore, the defendants had been sued by their official designations and the same was not permissible under the law, unless a person was being sued as a corporation sole which the defendants were not.
4. Be that as it may Mr. Abdul Rauf, learned counsel for the respondents has raised a preliminary objection that the appeal filed by the appellants is time-barred. It may be pointed out in this regard that the judgment was passed against the appellants on 1-11-1988. The indorsement made on the certified copy of the judgment shows that a copy of the judgment had been applied for by the appellants on 2-11-1990. The indorsement further shows that on 10-1-1989 the copy was made ready by the office. Similar is the case with the decree as the indorsement made by office on the certified copy of the decree shows that a copy of the same had been applied for on 2-11-1988 and the copy was made ready on 10-1-1989. It may also be pointed out that the date of the signing of the decree is 9-1-1989. We would like to point out that the period of limitation provided under the law for filing a High Court Appeal is twenty days. However, the provisions of section 12 of the Limitation Act would be applicable while computing the period of limitation for the purpose of filing of such appeal. Needless to point out that the time requisite for obtaining a copy of the judgment or the decree is to be excluded. In the present case since a copy of the judgment and the decree was applied for on 2-11-1988 and the copy was made ready on 10-1-1989, 69 days had been taken by the office in making the copy ready. Thereafter, the appeal' was presented before this Court on 26-1-1989. When the time taken between the date of the judgment and presentation of the memorandum of appeal before this Court is calculated the appellants took 85 days in presenting the memorandum of appeal before this Court. Since the time requisite for obtaining copies was 69 days and if this time is excluded the memorandum of appeal was presented before this Court after 16 days, consequently, the memorandum of appeal was presented by the appellants in time. It is pertinent to point out that the appeal had been filed without affixing proper ad valorem court-fee on the memorandum of the appeal. Needless to say that an appeal presented without payment of proper court-fee was not a proper appeal in the eyes of law. The appellants, however, did file an application under section 149, C.P.C. For extension of time which was, however, granted by a learned Division Bench of this Court subject however to all just exceptions. The effect of this order, therefore, clearly was that it was left to be decided subsequently whether the time taken for payment of deficit court-fee should be condoned by the Court.
5. On this point, we have heard Mr. Abdul Rauf, learned counsel for the respondents and Mr. Muhammad Hanif Khan, learned eounsel for the appellants. Mr. Abdul Rauf has invited our attention to the case of H.H.S. Feldman v. The Province of East Bengal PLD 1970 Kar. 295 wherein the Court declined to show indulgence to the appellant who had been sleeping over for eight months without making up the deficiency in payment of court-fee. In another case reported as Government of Pakistan v. Deputy Commissioner, Karachi (1981 CLC 1148) a similar request made on behalf of the appellant was declined by a learned Division Bench of this Court. It may be pointed out that in this case also an application under section 149, C.P.C. Had been filed but the Court declined to exercise its discretion in favour of the appellants. The relevant observations in this regard made by the Division Bench were as follows:-- "As stated above, originally the appeal was presented on 341-1969 and proper court-fee stamp had not been paid. Deficit court-fee was paid only on 24-8-1970 viz. After about 9 months. No explanation whatsoever has been given for such delay in supplying court-fee stamp. Our attention has been drawn to the case of Mst. Sadiqunnisa v. Khan Sahib Agha Muhammad Sultan Mirza and 8 others PLD 1972 Kar. 105 in which the Division Bench had to consider the question arising out of delayed payment of court-fee stamp. The Division Bench in paragraph 5 of its judgment took the view that a memo of appeal cannot be treated as properly presented so long as the proper court- fee is not paid. On such process of reasoning the appeal in that case was found to be barred by time. In another case from the Karachi Bench of the High Court of West Pakistan, namely H.H.S. Feldman v. The Province of East Bengal PLD 1970 Kar. 296 similar question arose and the Division Bench came to the conclusion as the Division Bench in the case of Mst. Sadiqunnissa. The Division Bench went on to observe that the Court should not exercise the discretion under section 149 of the Civil Procedure Code in favour of the party guilty of default for seeking indulgence of the Court. We are in respectful agreement with these weighty pronouncements of the Division Bench. For this reason also we have come to the conclusion that the appeal is barred."
' In Ghulam Sarwar Khan v. Government N.-W.F.P. PLD 1955 Pesh. The Court while once again considering such request declined to exercise discretion in favour of a party when the non- payment of the requisite court-fee on the memorandum of appeal was deliberate and due to the negligence of the Law Officers of the Provincial Government resulting in filing of the appeal beyond the period of limitation prescribed under the law. Reference has also been made by Mr. Abdul Rauf to the cases of Lal Shah v. Muhammad Ishaq (PLD 1977 Lah, 1058) and Khan Muhammad v. Barkat Ali (1984 CLC 582). In the first case, condonation of delay in payment of court-fees on the plea of the party's counsel that he had been informed by another lawyer that special leave to appeal had heen granted by the Supreme Court to consider question of court-fees in such case was held to be hardly furnishing any justification for not to following the law laid down by the High Court as long as such law had not been upset by the Supreme Court. In the second case although it was held that a technical objection in such cases cannot be used as a weapon against an opponent but nevertheless it was held that it is the primary duty of a party to pay proper court-fees at the time of the institution of the suit. It was further held that a deliberate effort to avoid payment of proper court-fee or pay rest of deficit court-fee cannot be ignored specially when it will have the effect of defeating a right accruing in the meanwhile to the opposite party. The last case cited by Mr. Abdul Rauf is reported as Mst. Walayat Khatun v. Khalil Khan (PLD 1979 SC 821). In this case a plaint had been filed in the Court deliberately with an inadequate court-fees of Rs,2 only. The Court allowed extension of time to make up the deficiency by a particular date but the plaintiff failed to comply with the order within time for any valid reason to the satisfaction of the trial Court. Deficiency was, however made up after about 25 days when the time allowed by the Court had already expired. It was held that the trial Court under such circumstances was justified in rejecting the plaint in the exercise of its discretion.
6. We would like to point out that in the present case, as pointed out ealier, the memorandum of appeal was presented on 26-1-1989 and deficit court- fee was deposited on 8-2-1989. The reasons given by the appellants in their application under section 149, C.P.C. Were:--
(1) "That the Federal Government of Pakistan has to arrange the court-fee from Islamabad and request has been made accordingly.
(2) That it may take some time to affix the court-fee as the payment will be made by cheque and for its encashment further one week time will be required."
No doubt, as it is evident from the reasons given by the appellant in the said application, detailed reasons for the non-payment of proper court-fee within the period of limitation have not been stated in the application but at the same time we would like to point out that indulgence should be declined by the Court only if a party is found to be guilty of deliberate negligence or contumacious delay. As is evident from the reasons given by the appellant, the court-fee had to be arranged for at Islamabad when the appeal was to be filed at Karachi. Furthermore, since the payment was to be made by the Federal Government, the amount was to be paid by cheque the encashment whereof would have required further time. From the circumstances as enumerated in the application under section 149, C.P.C. Nothing can be spelt out, which can lead to an inference that the appellants were guilty of any gross negligence although, in our opinion, if they had acted more diligently some time could have been saved by them. However, the Courts have in innumerable cases exercised discretion in favour of a party when the same was not found guilty of gross negligence. We would, therefore, exercise our discretion in favour of the appellants and condone the delay in payment of the deficit court-fee. We would also like to point out that the cases C relied upon by Mr. Abdul Rauf are clearly distinguishable as in these cases the party delaying the payment of deficit court-fee was guilty of deliberate negligence.
7. Turning now to the merits of the case, the first contention raised on behalf of the appellants is that the suit was filed by the respondent without complying with the provisions of the section 79 of the C.P.C. As the Federal Government was not impleaded as a party as required by the said section. The suit had also been filed without complying with the provision of Order I, Rule 3, C.P.C. As the Government officials were sued by their official designations or titles. It may be pointed out that admittedly the contract had been entered into by the respondent with the Federal Government and the officials who dealt with the respondent thereafter had acted in their official capacities.
Both the questions raised by the learned counsel for the appellants have been dealt with under identical circumstances in the case of Secretary, B & R Government of West Pakistan v. Fazal Ali Khan (PLD 1971 Kar. 625). In regard to the first question the observations made by a Division Bench of this Court in this judgment may be reproduced as follows:-- "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 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."
The second point raised by the appellants' counsel appears to be fully covered by the following observations made in the said case. It was observed:-- "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 not 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. (AIR 1927 Bom. 521). Manahem S. Yashoova v. Union of India and others (AIR 1960 Born. 196) and P.B. Shah & Co. And others v. Chief Executive Officers and others (AIR 1962 Cal. 283).
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 held 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 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 persons occupying the offices of the Commissioner or the Chief Executive Officers 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 co-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."
8. We would like to point out that so far as Rule 10, Order VIII, C.P.C. Under which the ex parte judgment was purportedly passed, is concerned, the said rule provides that where any party from whom a written statement is required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. No doubt, the rule vests the Court with discretion to pronounce judgment against the defendant without recording any evidence in the case when the defendant fails to file a written statement as provided in the said rule but where the Court finds that the suit filed by the plaintiff suffers from any infirmity or defect the Court may not pronounce judgment against the defendant straightaway. In the present case the plaint as presented was not a proper plaint conforming to the requirements of law. Consequently, in our opinion, the judgment against the defendant should not have been pronounced unless the defects in the plaint were removed by the plaintiff. So far as the defects in the plaint are concerned, we have already pointed out the same by reference to the judgment of the Division Bench in the case of Secretary, B & R., Government of West Pakistan.
Needless to say that we find ourselves in respectful agreement with the observations made in the said case. We are consequently, of the view that a judgment against the defendant could not be pronounced in the present case unless the defects pointed out in the plaint were removed by the plaintiff.
9. In the result, we accept this appeal and set aside the impugned order and remand the case for fresh disposal in accordance with law. The respondent shall E be at liberty to file an application for amendment of the plaint to bring it in conformity with the law as we have explained in this judgment. The parties are left to bear their own costs in view of the questions raised.