' This second appeal arises in the following circumstances:
1. During the regime of the then Prime Minister of Pakistan Mr. Muhammad Khan Junejo, a Five Points Programme was introduced by the Federal Government; the Member of NA Council was directly financed by the Government, who in turn was arranging the work through the Project Committee, having a project leader. The plaintiffs Abdul Subhan and others, completed 90% of the work of the Basic Health Unit Dirla, through their Project Leader Muhammad Bashir, respondent No,5 herein, and they were partially paid for the work already completed by them. The payment was made to the plaintiffs by defendant No,3 Haji Muhammad Jan and Sahib Khan, Advocate defendant No,4, who succeeded defendant No,3 as member of the Northern Area Council. The plaintiffs were members of the Project Committee, which acquired the land and constructed the building by completing almost 90% of the work, for which they were partially paid by defendants Nos.3 and 4, Haji Muhammad Jan and Sahib Khan. In the meantime, defendant No,4 completed his tenure of membership. The members were, however, not paid their actual amount which they had spent on the work done, which according to them estimated about 12,00,000 rupees.
2. The Director Health Services then sent the said scheme for execution to NAPWD who called tenders for the remaining work and defendant No,6 Muhammad Khurshid was awarded the contract for the remaining work.
3. Aggrieved of this, the plaintiffs Abdul Subhan and others, filed a suit against the Chief Engineer and five others, for the grant of a permanent injunction on three scores; firstly, that the plaintiffs should be given compensation of the work done by them on the spot, secondly compensation of the land should also be given and thirdly, compensation of the material should also be paid to them and till measurement of the work done and payment of the compensation of the work and material lying on the spot, no contract for the remaining work should be given to any person, rather tenders should not be called.
4. This suit was contested by the defendants and the learned Civil Judge during the proceedings of the suit, appointed Mr. Aman Ali Shah, the Assistant Executive Engineer, representative of defendants Nos.1 and 2 as Local Commissioner with the consent of the plaintiffs, to assess the work done and the cost of the material available on the spot. The said Commissioner produced a copy of revised PC-I of the said scheme wherein the work already done during the membership of defendants Nos.3 and 4 was already measured and no fresh assessment was required. The learned Civil Judge faced with this situation held that the plaintiffs have no cause of action against defendants Nos.1 and 2 because they have obtained the contract regarding the work done by them from defendants Nos.3 and 4, who have been impleaded in the suit as (pro forma defendants), therefore, he rejected the suit of the plaintiffs under Order 7, Rule 11 (a), C.P.C., vide his judgment dated 30-6-1993.
' Not content with this judgment and decree the plaintiffs filed an appeal with the District Judge, Gilgit, who accepted the same, set aside the judgment and decree of the Trial Court and remanded the case back to it for affording a chance of option to the plaintiffs. Hence the present second appeal.
5. I have heard the learned counsel for the parties at length and with their assistance have also gone through the record of the case and of the firm view that this appeal must succeed for the short and simple reasons that a perusal of the plaint itself shows that the plaintiffs have impleaded the defendants Nos.3 to 6 as pro forma defendants and have been held by the Trial Court, having no cause of action against defendants Nos.1 and 2, namely Chief Engineer NAPWD, Gilgit and Executive Engineer, Astore, therefore, under the said principle of law no relief can be granted against defendants Nos.1 and 2 and the suit of the plaintiffs was legally and rightly rejected by the Trial Judge under Order 7, Rule 11 (a), C.P.C., which is reproduced as under for the sake of convenience:-- "Rejection of plaint.--The plaint shall be rejected in the following case:-(a) Where it does not disclose the cause of action."
' The plaintiffs were thus rightly required to have filed a fresh suit under Order 7, Rule 13, C.P.C., which runs as under:- "The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiffs from presenting a fresh plaint in respect of the same cause of action."
6. As already pointed out above, the plaintiffs have stated in para. No,6 of their plaint that defendants Nos.3 to 6 are pro forma defendants. They have also cited in para. No,4 of the plaint, that they have left their claim of compensation of the land and that permission for bringing a fresh suit for the compensation of the land used in the Basic Health Unit Dirla may be granted to them.
Thus under the relevant provisions of law, which have been reproduced above, they were required to have filed a fresh suit after the rejection of their plaint by the learned Trial Judge by locating the real defendants and fixing their responsibilities, which they failed to do and instead they have filed the appeal with the learned District Judge.
7. A perusal of the judgment and decree of the learned District Judge would make it clear that he has held in the impugned judgment that "in the circumstances the ground taken by the Trial Judge although seems correct." Yet he has accepted the appeal and remanded the case on the basis of surmises and conjectures, which are not allowed under the law. The best course for the plaintiffs was to locate the real defendants and after fixing responsibilities on them, were to file a fresh suit against them as required under Order 7, Rule 13, C.P.C.
' It is an established principle of law that no relief can be granted against a pro forma defendant.
The facts of the case are very much clear on the point that the plaintiffs were the members of the Project Committee which acquired the land and constructed the building and were paid partially by the defendants Nos.3 and 4. As such defendants Nos.1 and 2 have got nothing to do with the work done by the plaintiffs, therefore, the learned Trial Judge was very much correct in holding that the plaintiffs have no cause of action against defendants Nos.1 and 2, rather the real defendants in the case are defendants Nos.3 and 4, but they were impleaded as (pro forma defendants) against whom no relief, under law can be granted.
8. It may be mentioned here that after the order of remand, impugned in this second appeal by the appellant Muhammad Khurshid, plaintiff Abdul Subhan and others also filed a Revision Petition No,16/93, which was disposed of by the then Hon'ble Judicial Commissioner, who allowed the appellant to continue with the remaining work of the Basic Health Unit, Dirla in the interest of public because the said unit was meant for medical facility of the public. It was clearly recorded in the order by the Hon'ble Judicial Commissioner that the rights of the plaintiffs are protected through the report of the Commissioner dated 21-7-1993 placed on C.R. No,22/93 whereby the value of the material was determined at Rs,11,912. This report of the Commissioner, it may be pointed out here, was accepted by both the parties and their counsel wherein assessments/measurements of the work already done had been shown. As no objection was filed against the said report of the Local Commissioner, therefore, it has attained finality and now no exception could be taken to it. Plaintiffs have demanded compensation of the land, measurement of the work done and the value of the material lying on the spot.
All these 3 claims have been protected by the order of the Court during the proceedings of the case, therefore, no apprehension should be kept in mind by the plaintiffs that their rights would be infringed in any way. They should locate the real defendants from whom they could get the money and then file a fresh suit under Order 7, Rule 13 of the Code of Civil Procedure.
9. Reverting to the application dated 30-10-1993 filed by the plaintiffs for stopping the payment for the work done by the appellant Muhammad Khurshid, suffice it to say that he had obtained a valid contract from the competent authority through his tender which was lowest one, and then started the work especially after the vacation of the injunction in CR No,16/93 vide order dated 29-9-1993, therefore, the said application is without any force.
10. The net result of the above discussion is, that I accept the appeal in hand, set aside the judgment and decree of the learned District Judge Gilgit, dated 23-9-1993, restore the judgment and decree dated 30-5-1993 of the learned Trial Judge. However, I leave the parties to bear their own costs.