The findings of the Courts below are at variance. The learned Civil Judge, Gujranwala vide his judgment and decree dated 7-9-1998 had decreed the suit. The learned Additional District Judge, Gujranwala, however, set aside this judgment and decree and remanded the case for fresh trial vide his judgment and decree dated 14-12-1998.
2. This was a suit for declaration read with section 53 of the West Pakistan Land Revenue Act, 1967 for the correction of entries in the Revenue Record.
3. The brief facts of the case are as follows: The petitioners, who were plaintiffs before the trial Court, are said to be bona fide auction- purchasers of approximately 80 Kanals of land which was previously known as the Camping Ground in Gujranwala. The land comprised in Khasra No,2095 and was auctioned by the Federal Government. The petitioners in fulfillment of the conditions of the auction deposited the first instalment which had to be followed by more deposits later on. That the petitioners asked for demarcation of the land to the Province of the Punjab (defendant No,1) and its functionaries who raised a claim that according to the prevalent record of rights defendant No,1 was the owner of the suit property and the respondents Islamic Republic of Pakistan through Secretary, Defence and Military Estate Officers, Gujranwala had nothing to do with the same.
4. The Revenue Record was consequently inspected and it was discovered that after the preparation of the Revenue Record for the year 1971-72 the Province of Punjab was erroneously shown as owner in the relevant column of the record of rights and the Central Government was shown to be in possession.
5. As the petitioner wanted to fulfill his part of the contract he started pursuing the matter with respondent No,2, the Islamic Republic of Pakistan through Secretary Defence, Rawalpindi and the Military Estate Officer, Gujranwala asking them for the correction to be made in their title so that he may perform his part of the contract. That there has been a chain of correspondence between the provincial revenue hierarchy and the aforementioned respondents for the correction of the entries of the Revenue Record but no result came out. When finally the Province of the Punjab asked the respondents Nos.2 and 3 the Islamic Republic of Pakistan through Secretary, Defence and the Military Estate Officers, Gujranwala to seek remedy through the Civil Court.
6. The respondents Islamic Republic of Pakistan and the Military Estate Officer admitted the claim of the petitioners and said that a decree be passed in favour of the plaintiff.
7. A written statement had been filed by the Province of Punjab and this was signed by the Deputy District Attorney, Gujranwala. The learned trial Court gave a finding that there was no written statement of the Provincial Government on the file since it was not verified by the Deputy Commissioner. And he struck off the right of defence of the Province of the Punjab. However, the learned trial Court gave details reflecting the background of the case and decreed the suit.
8. The Province of the Punjab went in appeal when the learned Additional District Judge, Gujranwala, Syed Akhlaq Ahmad, accepted the appeal and remanded the case vide his judgment and decree dated 14-12-1998. Against whose finding this revision petition has been preferred.
9. Order VIII of the C.P.C. Deals with written statement and rule 10 of this Order prescribes a procedure to be followed when a party fails to file a written statement asked by a Court. It reads:--.
"10. Procedure when party fails to present written statement called by Court.---Where any party from whom a written statement is so 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."
10. Order XXVII speaks of suits by or against the Government or Public Officers in their official capacity. Its rules 1 and 2 read as follows:-- "1. Suit 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 appearances, acts and applications under this Code may be made or done on behalf of the Government."
The above provisions of law make it clear that in a suit by or against the Government the plaint or the written statement is to be signed by such persons as Government may by general or special order appoint. And whereas Rule 2 provides that persons who are ex officio authorised to act for the Government are deemed to be recognized agents of the Government. Therefore, where Government does not appoint Special Pleader and decides to contest the case through its District Attorney/Deputy District Attorney, they in their ex officio capacity can act on behalf of the 'Government and can perform all such acts which are required to be performed by the Government in a judicial proceeding. Thus, it was erroneous to insist that the Deputy Commissioner should have verified the written statement. In this connection reliance may be placed on the case of Government of N.-W.F.P. v. Shah Alam 1989 CLC 1542. In which case the act of the Government Pleader of signing or verifying the plaint or written statement was said to be the legal requirement.
11. However, the learned trial Court in this case while striking off the defence completely lost sight of the provisions of Order XXVII, Rule 2 of the Civil Procedure Code and came to an abrupt conclusion under Order VIII, rule 10 of the Civil Procedure Code forgetting that a written statement was Bailable before the Court which only representing the defence of the Province of the Punjab.
12. One also finds in the finding of the learned trial Court narration of facts from the side of the plaintiffs/petitioners without those having been formally proved.
13. According to the learned counsel for the petitioner the appeal before the learned First Appellate Court was belated by 15 days and thus there was no appeal. The perusal of the findings of the learned first Appellate Court reflects condonation of delay on his part on the basis of an affidavit produced by the Deputy Commissioner. He has dealt with the subject in paragraph 15 of the judgment. He has condoned the delay on the ground that valuable rights of the Province of the Punjab were involved and it has been condemned unheard and the delay was only of about 15 days.
14. Any way, this Court is a Court of error and through its visitatorial jurisdiction can take a curative action against a material irregularity committed by its subordinate Courts. This material irregularity has come to the notice of this Court through the revision petition in question and this calls for correction in the best interest of justice.
15. The learned trial Court had acted with material irregularity by striking off the defence of the Province of the Punjab despite the fact that there was a written statement available on the file and while ignoring the provisions of Order XXVII, Rule 2 of the Civil Procedure Code.
16. The judgment and decree given by the learned trial Court is not sustainable in law and mere technicalities of procedure cannot give it any support. It is set aside and the case is remanded to the Senior Civil Judge, Gujranwala with the direction that he will decide the issue afresh inter se the parties while proceeding with the case on a day-to-day basis. Since the petitioners have already suffered on account of an infirmity in the title of the sellers i,e, respondents Nos.2 and 3 in view of entries in the Revenue Record. The learned Senior Civil Judge may consider calling the Deputy Commissioner/District Collector and taking done his statement under Order X of the Civil Procedure Code for purposes of ascertaining the basis of the claim of ownership in this property as was being asserted by the Province of the Punjab. While also ascertaining as to how the change came about in respect of the title after 1971-72 in the revenue papers, the respondent No,1 through the Deputy Commissioner shall make an appearance, without fail, before the Senior Civil Judge with full record.
17. The parties are directed to appear before the learned Senior Civil Judge on 25th July, 1999. The revision petition is disposed of accordingly. No order as to costs.