This order will dispose of the Revision Applications Nos.44 to 60 of 1999 involving the common point of law filed by the Islamic Republic of Pakistan and Collector of Customs and are directed against the impugned orders of the IInd Additional District and Sessions Judge, Karachi West against the judgment and decree in the original suit. The appellants seek redress against the impugned orders.
The facts leading to these revision applications are as under:--
1. That the plaintiff in Suit No.637 of 1996 followed by Revision Application No.44 of 1999 imported consignment of Betel nuts 278 bags, weighing 25 metric ton at the rate of US $775 per metric ton being Cargo of Eagle Integrity under I.G.M No.549/95, dated 27-3-1995 Index No.191 the Bill of Entry filed by the Importer was assessed at value higher than declared by the Importer resulting in payment of extra amount of Rs.30,927 towards increased duties and sales tax.
2. That the plaintiff in Suit No.636 of 1996 followed by Revision Application No.45 of 1999 imported consignment of Rund Balooch Gambie 72 bags weighing 4.75 metric ton at the rate of US $ 2631.55 per metric ton being Cargo Eagle Cape under I.G.M No.1519/94, dated 22-8-1994 Index No.246 the Bill of Entry tiled by the Importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs.36,381 towards increased duties and sales tax.
3. That the plaintiff in Suit No.414 of 1996 followed by Revision Application No.46 of 1999 imported consignment of Betel Nuts 260 bags weighing 25 metric ton at the rate of US $ 775 per metric ton being Cargo of Eagle Integrity under I.G.M No.519/95 dated 27-3-1995 Index No.189 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs.28,760 towards increased duties and sales tax.
4. That the plaintiff in Suit No.710 of 1996 followed by Revision Application No.47 of 1999 imported consignment of Betel Nuts 378 bags weighing 18 metric ton at the rate of US $ 600 per metric ton being Cargo of IBN Abdoue under I.G.M No.1113/94 dated 13-6-1994 Index No.35 the Bill of Entry filed by the importer was assessed at value higher than declared by the Importer resulting in payment of extra amount of Rs.33,520 towards increased duties and sales tax.
5. That the plaintiff in Suit No.413 of 1996 followed by Revision Application No.48 of 1999 imported consignment of Betel Nuts 269 bags weighing 25 metric ton at the rate of US $ 775 per metric ton being Cargo of Eagle Integrity under I.G.M No.477/95, dated 20-3-1995 Index No.216 the Bill of Entry filed by the importer was assessed at value higher than declared by the Importer resulting in payment of extra amount of Rs.30,860 towards increased duties and sales tax.
6. That the plaintiff in Suit No.772 of- 1996 followed by Revision Application No.49 of 1999 imported consignment of Betel Nuts 277 bags weighing 26 metric ton at the rate of US $ 725 per metric ton being Cargo of Eagle Integrity under I.G.M No.625/95 dated 17-4-1995 Index No.271 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs.36,500 towards increased duties and sales tax.
7. That the plaintiff in Suit No.773 of 1996 followed by Revision Application No.50 of 1999 imported consignment of Betel Nuts 288 bags weighing 25 metric ton at the rate of US $ 800 per metric ton being Cargo of Eagle Integrity under I.G.M No.382/95 dated 6-3-1995 Index No.233 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs.31,500 towards increased duties and sales tax.
8. That the plaintiff in Suit No.771 of 1996 followed by Revision Application No.51 of 1999 imported consignment of Betel Nuts 275 bags weighing 25 metric ton at the rate of US $ 795 per metric ton being Cargo of Transcord under I.G.M No.442/95 dated 25-3-1996 Index No.302 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs.58,000 towards increased duties and sales tax.
9. That the plaintiff in Suit No.730 of 1996 followed by Revision Application No.52 of 1999 imported consignment of Betel Nuts 277 bags weighing 26 metric ton at the rate of US $ 750 per metric ton being Cargo of Eagle Integrity under I.G.M No.739/95 dated 8-5-1995 Index No.339 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs.33,821 towards increased duties and sales tax.
10.That the plaintiff in Suit No.770 of 1996 followed by Revision Application No.53 of 1999 imported consignment of Betel Nuts 277 bags weighing 26000 of Kg. at the rate of US $ 725 per metric ton being Cargo of Eagle Integrity under I.G.M No.666/95 dated 24-4-1995 Index No.260 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs.36,300 towards increased duties and sales tax.
11.That the plaintiff in Suit No.719 of 1996 followed by Revision Application No.54 of 1999 imported consignment of Betel Nuts 286 bags weighing 26 metric ton at the rate of US $ 775 per metric ton being Cargo of Eagle Integrity under I.G.M No.625/95 dated 17-4-1995 Index No.286 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs.30,712 towards increased duties and sales tax.
12.That the plaintiff in Suit No.724 of 1996 followed by Revision Application No.55 of 1999 imported consignment of Betel Nuts 199 bags weighing 16 metric ton at the rate of US $ 525 pet metric ton being Cargo of Kotauaganega under I.G.M No.563/96 dated 17-4-1996 Index No.19 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs.71,822 towards increased duties and sales tax.
13.That the plaintiff in Suit No.713 of 1996 followed by Revision Application No.56 of 1999 imported consignment of Betel Nuts 250 bags 12.5 metric ton at the declared rate being Cargo of Lanka Raman under I.G.M No.477/95 dated 17-6-1995 Index No.216 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs.9,000 towards increased duties and sales tax.
14.That the plaintiff in Suit No.712 of 1996' followed by Revision Application No.57 of 1999 imported consignment of Betel Nuts 80 bags weighing 5 metric ton at the rate of Rs.17,000 per metric ton being Cargo of Trade Expansion under I.G.M No.274/95 dated 17-5-1995 Index No.398 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs.9,750 towards increased duties and sales tax.
15.That the plaintiff in Suit 'No.714 of 1996 followed by Revision Application No.58 of 1999 imported consignment of Betel Nuts 209 bags weighing 12.5 metric ton at the rate of Rs.24,000 per metric ton being Cargo of Khabir under I.G.M No.1204/95 dated 5-8-1995 Index No.331 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs.9,600 towards increased duties and sales tax.
16.That the plaintiff in Suit No.521 of 1996 followed by Revision Application No.59 of 1999 imported consignment of Betel Nuts 275 bags weighing 23 metric ton at the rate of US $ 400 per metric ton being Cargo of Eagle Cape under I.G.M No.928/94 dated 16-5-1994 Index No.196 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs.93,000 towards increased duties and \sales tax.
17.That the plaintiff in Suit No.419 of 1996 followed by Revision Application No.60 of 1999 imported consignment of coconut oil 98 drums weighing 3.5, 17.640 at the rate of US $500 per metric ton being Cargo of Naptune under I.G.M No.1286/93 dated 27-6-1993 Index No.45 the Bill of Entry filed by the importer was assessed at value higher than declared by the importer resulting in payment of extra amount of Rs.44,299 towards increased duties and sales tax.
Aggrieved with this levy the aforementioned suits were filed by the plaintiff in the Court of IIIrd Senior Civil Judge. Suits were decided by the judgment, dated 29-5-1998 following the decrees dated 4th July, 1998.
Appeals were filed by the present respondents against the decrees in the Court of District and Sessions Judge, Karachi West. Appeals alongwith an application seeking stay of the operation of the impugned decree were filed. While the appeals were admitted, IInd Additional District and Sessions Judge, Karachi West refused to grant stay vide order, dated 31-5-1999. Aggrieved by this order appellants have filed the present revision applications.
All the cases involve common point of law. Learned counsel states that all the suits were instituted by one Abdul Razzak son of Haji Abdul Sattar as proprietor of the plaintiff firm.
Objection regarding the jurisdiction of the Court was taken by the present appellants before the Trial Court as well as at the appellate stage. The learned Advocate argued that the trial Court as well as appellate Court acted beyond their jurisdictions in impugned judgment, decree and order: The main ground of their attack is that suit against Customs is barred under section 217 of Customs Act (Act IV of 1969) as amended and reads as under:-- (1)No suit, prosecution or other legal proceeding shall lie against the (Federal Government). or any public servant for anything which is done or intended to be done in good faith in pursuance of this Act or the Rules.
(2)No suit shall be brought in. any Civil Court to set aside or modify any order passed, any assessm ent made, any tax levied, any penalty imposed or collection of any tax made under this Act."
Learned counsel further argued that the remedy is available to the importer under section 193 of the Customs Act, 1990 for filing appeal before Collector Appeal which is appropriate forum in this case and competent to decide such matters.
The plaint in all the suits are filed in the name of a proprietorship firm. Rule 1 of Order XXX, C.P.C. provides that any two or more persons claiming or being liable as partners and carrying on business in Pakistan may sue or be sued in the name of the firm, if any, of which such persons were partners at the time of the accruing of the cause of action. Order 30, Rule 10, C.P.C. provides that any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name. Comparative study of Order 30, Rule 1, C.P.C. which deals with suits by a partnership firm permits filing of suits by or against a partnership firm whereas Order 30, Rule 10. C.P.C. which deals with suit in the name of the proprietary concern specifically provides only for filing of suits against a proprietary concern in its name but does not provide for filing of a suit by a proprietary concern as it does not have any legal status/character as distinct from its proprietary. Thus, a proprietary concern can be sued in its name but it cannot sue in its own name. Ismail Haji Sulaiman v. Messrs. Line and another PLD 1961 Dacca 693, Habib Bank Limited v. Iqbal I. Chundrigar 1983 CLC 1964 and Ahan Saz Contractors v. Pak Chromical Limited 1999 M LD 1781.
The learned counsel states that Senior Civil Judge has exercised jurisdiction not vesting in him by law and proceeded with material irregularities in admitting and decreeing the above suits. Having come to a conclusion 29-5-1998 rejected the plaint under Order. VII, Rule 11, C.P.C. and set aside the judgment and decree above mentioned passed in which case appeals pending before the IInd Additional District Judge, Karachi West are dismissed. Accordingly appeals alongwith pending applications are allowed. Since the Revision Applications have been disposed of all the pending applications have become infructuous which are dismissed accordingly.