P L D 1993 Supreme Court 147 (PLP)

(On appeal from the judgments of Lahore High Court, Lahore dated ‑1988 passed in Civil Revisions Nos‑1828‑D of 1980 and 1919‑D of 1.980). (a) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑ S.79 ‑‑‑ Constitution of Pakistan (1973), Art.185(3) ‑‑‑ Plaintiff claiming to be the owner of immovable property ‑‑‑ Leave to appeal was granted in matter arising out of ex parte judgment of the Trial Court to examine whether important questions with regard to t ' he maintainability of the suit, its valuation, its being within time and on merits had received due attention of the Courts dealing with the case. (b) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑ S. 79 ‑‑‑ Constitution of Pakistan (1973), Art.174 ‑‑‑ Suit against Central Government has to be filed in the name of Pakistan‑‑‑Suing Pakistan through the Departmental Head of the Federal Government or Provincial ‑Government was not only a mistake but a diversion of the proceedings materially affecting service and representation of the concerned defendants. (c) Civil Procedure Code (V of 1908) ‑‑‑‑

0. XXVII ‑‑‑ Service on Governments and their functionaries through the Government pleader ‑‑‑ Appearance of counsel appointed by solicitor to represent the Chief Settlement Commissioner when in fact no such office did exist in the, eye of law‑‑‑Effect ‑‑‑ Collector of a District whether a representative of Province. (d) Limitatiob Act (IX of 1908)‑‑‑ S.3 ‑‑‑ Dispute as to ownership of land‑‑:‑Revival of cause of action afresh and running of the limitation period over again could not take place either from the date of knowledge or the attornment of the tenant or on. obtaining of possession. Kasem Molla v. Fajel.Shek and others PLD 1952 Dacca 347 ref. (e) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑ O.IX, R.6 [as amended by Law Reforms Ordinance (XII of 1972)1‑ Limitation Act. (IX of 1908), S.3 ‑‑‑ Scope and effect of amendment on proceedings and the powers and duties of tht Court ‑‑‑ Duties of the Court under S.3, Limitation Act, 1908 remain unaffected by the amendment. The words "and pass decree without recording evidence" were inserted in Order IX, Rule 6, C.F.C. by the Law Reforms Ordinance, 1972 and before this amendment the consistent practice of the Courts was to record evidence before decreeing a suit under this rule. This practice of recording evidence could lead to delay and the object of the amendment was to empower the Courts to decide a case without recording evidence. But does this mean that the question was left * to the discretion of the Courts or does it mean, as submitted, that it was incumbent on Courts to decree a suit without recording evidence? Courts would not be compelled to decree patently time‑barred suits or suits which were patently dishonest or which contained absurd and exaggerated claims because the amended rule now reads:‑‑ "...The Court may proceed ex parte and pass decree without recording evidence...." This means that the Court may proceed ex parte and that it may pass a decree without recording evidence. The word "may" here imports discretion and means may, not shall, therefore, when a Court strikes off the defence of a defendant, it has further to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence or without recording evidence, and like all discretions vested in the Courts, this discretion must be exercised judicially. The duties of the Court under section 3 of the Limitation Act remain unaffected by this amendment. It is a duty equally to be exercised by the Trial Court, by the Appellate Court, by the Revisional Court, by all the Courts, for the time being seized of the matter. Shamroze Khan v. Muhammad Amin PLD 1978.SC 89 ref. M.M. Saeed Beg, Advocate Supreme Court instructed by Mian Attaur Rahman, Advocate‑on‑Record for Applicants (in C.M.P. No.157‑R of 1980). . Ch. Khurshid Ahmad and Ch. Inayatullah, Advocates, Tanvir Ahmad and S. Inayat Hussain, Advocates‑on‑Record for Intervenors (in all Appeals).