' The applicants herein by way of this civil revision under section 115, C.P.C. Have called in question the judgment dated 6-4-1995 and decree dated 18-4-1995 passed by VIth Additional District and Sessions Judge. Hyderabad, dismissing Civil Appeal No,112 of 1994 wherein judgment dated 11-4- 1994 and decree dated 16-4-1994 passed by IInd Senior Civil Judge, Hyderabad in Suit No,33 of 1994, were impugned.
2. Background of the case, briefly stated, is that the respondent/plaintiffwho happens to be a registered Firm dealing in Buildings developing, developing of land, plotting, sale and housing scheme, purchased land admeasurirrg 35 acres situated in Deh Ganjo Takar, Taluka Latifabad, District Hyderabad for Rs,80,000 under a registered sale-deed and after completion of sale, the Revenue Record was mutated in their favour on 14-10-1993, whereafter they floated a scheme titled as "DAMAN-E-KOHISAR" and got the layout plan thereof approved by the Hyderabad Development Authority, after obtaining necessary no-objection certificate. They carved out 661 plots out of which 550 were booked and allotments were issued in favour of purchasers. On 21-11-1993, the Assistant Commissioner, Latifabad, Hyderabad applicant/defendant No,1 issued a letter to the Director, Planning and Development Control, Hyderabad Development Authority, Hyderabad for cancellation of the no-objection certificate issued to the respondents/plaintiffs or to hold it in abeyance on the ground that the entry in record between the parties suffered from shadow of doubt, whereupon the Director, Planning and Development Control, Hyderabad Development Authority, called upon the respondents/plaintiffs to submit Deh Form showing their title. The respondents/plaintiffs challenged the aforesaid action of applicant/defendant No,1 before the Additional Deputy Commissioner-I, Hyderabad applicant/defendant No,2, who called for the comments from applicant No,l. In those comments the applicant/defendant No,1 stated that Entry No,11 of Village Form VII-A was unlawful and doubtful, therefore, the applicant/defendant No,2 in view of those comments passed order on 14-10-1994 allowing the applicant/defendant No,1 to proceed with the matter further observing that the entry be eliminated.
3. Being aggrieved by this order, the respondents/plaintiffs filed a Suit (No,33/94) for declaration and permanant injunction, praying that they may be declared owners and in possession of land in dispute namely unsurveyed No,1 Deh Ganjo Takar, Taluka Latifabad, Hyderabad measuring 35 acres and that the order/letter dated 21-11-1993, 20-1-1994 and 14-2-1994 are illegal, in excess of authority, without jurisdiction etc. They also prayed for consequential relief by way of permanent injunction restraining the applicants/defendants from interfering with their right as owner and possession over the property in question. Summons of the suit was issued to the applicants/defendants which were served on them on 24-2-1994 and 28-2-1994 and on their behalf appearance was made by the Assistant Government Pleader with a request to allow time for filing written statement. On 20-3-1994 a similar request was made whereupon time for filing written statement was extended to 11-4-1994 as a final chance. On 11-4-1994, the matter was called at 9-00 a.m. And it was kept aside to be taken up at 11-00 a.m. For the purposes of filing of written statement. Second call was made at 11-35 a.m. And the following order was passed in the diary:-- "IInd diary 11-35 a.m.
' Plaintiff is present. Clerk of counsel for plaintiff is also present. Defendants are called absent without any intimation. Learned A.G.P. Sent intimation that he is coming but now he is called absent. Today, the suit is fixed for filing of written statement but the absence of defendants and non-filing of written statement within period of more than one month shows their lack of interest to contest the suit. Suit is, therefore, decreed under Order VIII, Rule 10, C.P.C. Judgment.
4. Decree was drawn in terms of the above judgment which both were challenged before the learned Additional District and Sessions Judge who dismissed the appeal, consequently the instant revision application was filed.
5. I have heard learned counsel for the parties and perused the material on record. Learned counsel for the applicants Nos.1 and 2 contended that this is a suit against Government of Sindh (applicant/defendant No,3) and its Public Officers namely Assistant Commissioner, Latifabad, Hyderabad and Additional Deputy Commissioner-I, Hyderabad, applicants/defendants Nos. 1 and 2, challenging their acts done in their official capacity, therefore, within the meaning of section 80, C.P.C. a suit could be instituted against them only after the expiration of two months after notice in writing is delivered to them or left at their office and since no such notice was issued, the Court was required under the proviso to subsection (2) of section 80, C.P.C. To allow not less than three months to the Government to submit its written statement, but the Court decreed the suit of respondent/plaintiff in a period of less than two months in clear disregard of the above mandatory provision and thereby exercised its jurisdiction illegally, therefore, the provisions of section 115, C.P.C.
Were attracted and as such the judgment and decree passed by both Courts below are liable to be set aside. He relied on Pakistan through Secretary, Planning and Development (Population Welfare Division) and 2 others v. Dr. Mrs. Farrakh Sultana and another PLD 1986 Lahore 407.
6. He further contended that in the plaint there is a prayer clause, claiming title over the landed property, therefore, the suit should have been valued and court-fees paid according to the market value but the respondents/plaintiffs have valued their suit at Rs,200, hence their plaint was liable to be rejected.
7. Learned Additional A.-G. Appearing for Government applicant No,3 Sindh adopted the above arguments.
8. Mr. Naimatullah Soomro learned counsel for respondents/plaintiffs argued that the action taken by the functionaries namely applicants/defendants Nos.1 and 2 was mala fide and not in discharge of their public functions/duties and obligations, therefore, suit under section 42 of the Specific Relief Act, without serving notice on them, was competent, and in such matters the Civil Court has jurisdiction under section 9, C.P.C. He relied upon the case Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356 and submitted that even if the jurisdiction of Civil Court is barred and conferred upon Special Tribunal, the Civil Court being the Court of ultimate jurisdiction will have the jurisdiction to examine illegal and mala fide acts. He further contended that proviso to subsection (2) of section 80, C.P.C. Would not help the applicants as time of 90 days is allowed only when it is actually sought but in the instant case there is no request for extension of time. He added that no plea on the basis of section 80, C.P.C. Was taken in the First Appellate Court, therefore, it may not be allowed in revision proceedings. He relied upon the case Azad Hussain v. Haji Muhammad Hussain PLD 1994 SC 874 and submitted that the defendant/applicant has failed to file written statement, therefore, Civil Court was justified in pronouncing judgment under Order VIII, Rule 10, C.P.C. And decreeing the suit. He submitted that no such point was taken before the Appellate Court, hence, it may not be permitted at this stage.
9. I have carefully considered all these contentions and perused the material on record. The Honourable Supreme Court has held in the case Azad Hussain v. Haji Muhammad Hussain (supra) that:- "Under Order VIII, Rule 10, C.P.C. Court has discretionary power to pronounce judgment if defendant, so required to file written statement, fails to do so and if such discretion is exercised after consideration of all the facts and circumstances then such judgment pronounced would be valid and legal though passed without recording any evidence whatsoever."
10. Obviously, in the above authority it is emphasised that discretion under Order VIII, Rule 10, C.P.C.
Is to be exercised after consideration of all the facts and circumstances but in the instant case, the trial Court as well as the First Appellate Court have been oblivious of the most significant aspect of the matter that the defendant No, 3 was Government of Sindh and the defendants Nos.1 and 2 were Public Officers, therefore, the suit was hit by section 80, C.P.C. No doubt, Order VIII, Rule I, C.P.C.
Provides that period allowing for filing the written statement shall not ordinarily exceed 30 days and further as held by the Hon'ble Supreme Court in the case Azad Hussain v. Haji Muhammad Hussain (supra) that the Court has discretionary power to pronounce judgment under Order VIII, Rule 10, C.P.C. But every discretion is to be exercised judiciously and in accordance with law. In the instant case, the trial Court while decreeing the suit has exercised jurisdiction in clear disregard of the provisions of section 80, C.P.C. As the proviso the subsection (2) of section 80 in express terms calls upon the Court to allow not less than three months to the Government to submit its written statement but here the suit has been decreed within a period of less than two months. It is an admitted position that no notice was delivered to or left at the office of applicants/defendants within the meaning of subsection (1) of section 80, C.P.C. Although the averments in the plaint undoubtedly spell out that the purported acts of defendants Nos. 1 and 2 have been performed in their official capacity as public officers.
' The summons of the suit was served on 24-2-1994 and the suit was decreed on 11-4-1994 winding up the entire proceedings within a total period of 47 days in flagrant disregard of proviso to subsection (2) of section 80, C.P.C. Which lays down that the Court shall allow not less than three months to the Government to submit its written statement.
12. Learned counsel for respondents attempted to justify the above order of the trial Court and appellate Court by submitting that the word "allow", used in the above proviso essentially presupposes a request to be made on that behalf so that such move or request is allowed to the extent of three months and not otherwise. This is a misinterpretation of the provision of statute as ordinarily the words are to be given their plain meaning and extraneous considerations are not to be imported to create hardships. There is a clear provision of law which in express terms lays down a mandatory provision that the Court in absence of a notice under section 80(1), C.P.C., shall allow not less than three months to the Government to submit its written statement. The proviso has rightly been interpreted in the case Pakistan through Secretary, Planning and Development Population Welfare Division and 2 others v. Dr. Mrs. Farrakh Sultana and another PLD 1986 Lahore 407 cited by the learned, counsel for the applicants/defendants, Nos. 1 and 2, observing that in view of section 80, C.P.C. After service of summons the Federation or the Province may appear through an authorised agent to make a request for adjournment for filing written statement but nothing adverse could be ordered against them until the period for filing the written statement was exhausted. It has been further observed that if the Legislature in its wisdom has allowed 90 days for filing the written statement; to deny it or to foreclose it, for the defendant's failure to appear, is against both the spirit and letter of section 80, C.P.C.
13. Resultantly, it follows that in case of a suit instituted against the Government or Public Officer in respect of any act purporting to be done by such public officer in his official capacity, if no notice in writing had been delivered to him or left at the office of such Public Officer, two months before filing of the suit, then the mandatory period of three months to be allowed to the Government to submit its written statement, cannot be curtailed on any technical ground whatsoever. In the instant suit the A.G.P. Has been making request for extension of time for filing written statement and even on the crucial date the Court received an intimation that the A.G.P. Was to appear in the matter but since it was 11-35 a.m., the trial Court preferred not to wait for A.G.P. And pronounced the judgment, in the suit. This is clearly an illegal exercise of jurisdiction. The provisions of section 115, C.P.C. Are therefore, fully attracted in this case; and the judgment and decree passed by both Courts below are liable to be set aside.
14. In consequence of the above findings, it is immaterial to dilate upon the question of valuation of the suit and the court-fees paid thereon as the case is being remanded to the trial Court wherein it would be open to the applicants/defendants to raise such pleas; but, it is clarified that the plea of valuation of suit and payment of court-fees, when taken, shall be decided on merits and in accordance with law, alongwith all other points of facts and law involved in the matter.
15. As a result of the above discussion, the impugned judgment and decree of both Courts below are held to have been passed, in exercise of jurisdiction vested in them, illegally and with material irregularity and, as such, are hereby set aside and the matter is remanded to the trial Court for trial of the suit in accordance with law. Revision application is allowed, leaving the parties to bear their own costs.