' Muhammad Jan Khan son of Faiz Muhammad of Bacha Killi Mauza Khanmai, Tehsil and District Charsadda brought a suit against Forest Department through Divisional Forest Officer, Mardan and Irrigation Department through Executive Engineer Irrigation, Mardan; for a declaration to the effect that 95 Sheesham trees standing on the bank of his property belonged to him and that the defendant-Department had no right or authority to bring the trees under their ownership through any demarcation or marking proceedings.
2. The defendants were granted time to file written statement and it was exactly three months after the issuance of first notice when they failed to file written statement and a decree was passed against the Department under Order 8, rule 10, C.P.C., on 10-6-1989.
3. The negligent defendants having not taken any interest, instead of filing a regular appeal (the order being appealable), filed an application before the same Court for setting aside the decree.
Faced with his legal embargo the application was withdrawn on 8-10-1989 and an appeal was filed before the District Judge on 4-11-1989 alongwith an application for condonation of dday. The delay was never condoned considering the defendant-Department to be utterly inactive and grossly negligent and thus the appeal was dismissed by the District Judge on 24-3-1991. The Divisional Forest Officer has come up in revision.
4. The conduct of the defendants was so negligent and they had exhibited such irresponsibility qua the property claimed by the Government that they never informed the superiors. They never filed the written statement on time and so was the case with appeal which was rightly dismissed and where the delay was rightly declined to be condoned.
5. The said aspect of the case is, as I am told at the Bar that the plaintiff decree-holder has even cut the trees and the defendants have not bothered to obtain any stay order from the Court. This is a situation where negligence of a defendant-department is tried to be covered by a reference to Court decrees which otherwise are legally passed. This should be seriously taken note of by the authorities concerned.
6. Leaving aside the merits of the present revision, I tend to observe and hold suo motu under section 115, C.P.C. That the very suit brought by Muhammad Jan Khan against the Divisional Forest Officer and Executive Engineer concerned was bad in law and was in clear violation of section 79(b) and section 80(b) read with Order 27, ,Rule 3 of the C.P.C. It was a suit not against Divisional Forest Officer or the Executive Engineer nor was it the property thereof but it was a suit against the Government, the Secretaries whereof ought to have been sued on behalf of the Provincial Government.
7. Consequently, the impugned judgments and decrees are set aside and the case is remanded back to the trial Court with direction that amended plaint shall be invited from the plaintiff where Secretary Forest and Secretary Irrigation, to the Government of N.-W.F.P., shall be implead as defendants. The trial Court immediately with the receipt of this order and record shall summon the plaintiff for the needful. As the plaintiff seems to have cut the trees, he might not feel interested, therefore, the copy of this judgment be sent to the aforesaid Secretaries concerned with direction to not only take notice of the suit but also to take action against the officers concerned. In case the plaintiff does not pursue the case, the trial Court shall call upon him to deposit the price of 95 trees out by him after obtaining a decree against improper parties.