2002 PLP 1695 (MLD)

This civil revision is directed against the order dated 25‑7‑2001 of the learned Additional District Judge, Lahore, whereby, the appeal filed by the petitioners against the judgment and decree dated 21‑4‑2001 in suit for declaration filed by the respondent-defendants was dismissed.

2. Messrs National Agency and others respondents herein‑plaintiffs filed a suit for declaration and permanent injunction against the Secretary/Chief Purchase Officer, L&DD Department, Punjab, Lahore and four others, seeking a declaration to the effect that the act of the defendants obtaining results at the back of the plaintiff of products of the plaintiff is illegal and unlawful being violative of terms anti conditions of the contract‑tender itself and intention of the defendants to encash Bank Guarantee to the tune of Rs.31,07,906 is illegal and mala fide and has no legal effect on the rights of the plaintiffs in any manner or on any pretexts.

3. From the divergent pleadings of the parties, the following issues were framed by the learned trial Court:‑‑ (1) Whether the contract for supply was complied by the plaintiff firm to the extent of his obligation as per the tender inquiry? OPD. (2) Whether the medicine Levozan plus was tested as required under the law? OPD (3) Whether the results of trial conducted by the defendants are conclusive? OPD (4) Whether the plaintiff is entitled for the prayer made in the plaint? OPP (5) Relief.

4. The learned Civil Judge vide his judgment dated 21‑4‑2001 decreed the suit of the respondents. The appeal filed by the petitioners was dismissed by the learned Additional District Judge on 25‑7‑2001.

5. There are certain illegalities committed by the learned trial Court as well as the learned First Appellate Court in decreeing the suit of the respondents‑plaintiffs and dismissing the appeal which are as follow:‑‑ The suit has been filed by the respondents‑plaintiffs M/s. National Agency against the Secretary, the Senior Purchase Officer, the Director Animal Health Husbandry and Dr. Abdul Qayyum.

6. It is admitted position that defendant No.1 has floated tender on behalf of the Government of the Punjab not in his personal capacity and none of the defendants was personally liable for any action under section

79. In this view of the matter, the suit should have been filed against the Province of the Punjab. Section 79 of the C.P.C. is relevant which reads as follow:‑ "Section

79. Suits by or against the Government.‑‑‑In a suit by or against the Government the authority to be named as plaintiff or defendant as the case may be, shall be‑‑‑ (a) in the case of a suit by or against the Federal Government, Pakistan, (b) in the case of a suit by or against a Provincial Government, the province; and"

7. The suit has been filed in violation of section 79 of the C.P.C. Since the Province of the Punjab has not been impleaded as necessary party, therefore, Order 27, C.P.C. which deals with the suit by or against the Government or public officers in their official capacity has not been followed.

8. The written statement filed by the respondent No.4 would show that the same are the parawise comments by respondents Nos. l and 4 without any legal objection and verification as required under Order 6, rule

15. The written statement has not been verified under the law. Order 6 rule 15 reads as under:‑‑ Order 6, Rule

15. Verification of pleadings.‑‑(1) Save as otherwise provided by any law for the time being in force, very pleading shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verified upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was singed. "

9. The suit has been filed without issuing the notice under section 80 of the C.P.C. to the Government. Both the Courts have failed to advert to the non‑service for notice under section 80.'

10. Since there was no proper pleading from both the sides as the plaintiffs have not filed the suit against the Province of the Punjab in compliance with the section 79 and Order 27 of C.P.C. and there was no written statement by verifying the same, therefore, no proper issues from the divergent pleadings of the parties were framed by the learned trial Court under Order 14 of C.P.C.

11. The suit was on the basis of contract between the parties. The learned Civil Judge as well as the learned First Appellate Court was under legal obligation to see that the suit under section 42 of the Specific Relief Act arising out of the contract was maintainable or not.

12. Since the learned Civil Judge as well as the learned Additional District Judge has failed to advert to the provision of section 79, the Order 27, section 80, C.P.C., Order 6, rule 14, C.P.C., section 42 of the Specific Relief Act and Order 14 for framing the proper issues from the pleadings of the parties, therefore, the learned Civil Judge has illegally passed the judgment and decree dated 2‑6‑2001 and the appeal has also been wrongly dismissed by the learned Additional District Judge by exercising the jurisdiction which was not vested in it.

13. Resultantly this revision petition is allowed. The judgment and decree dated 21‑4‑2001. passed by the learned Civil Judge, Lahore and 25‑7‑2001 of the learned Additional District Judge, are set aside. The case is remanded to the learned Trial Court to decide the case afresh in accordance with law after directing the parties to file the pleading in accordance with law. Parties to bear their own costs. H.B.T./S‑451/L??????????? Revision allowed.