1986 PLP 1794 (MLD)

‑‑‑Ss.79 & 115 and O.XXVII, R.8‑‑Suit against Government‑‑Government of Pakistan being necessary party was not made party to suit filed against officer of Government‑‑Government Pleader could not file defence on behalf of such officer‑‑As suit was to be deemed to be between private parties, no relief, held, could be granted against official action taken by Government Officer in official capacity in circumstances. P L D 1971 Kar. 625 ref. Anwar Ahmed Qadri for Appellant. Gulab M. Rang for Respondent. Date of hearing: 28th May, 1986. The respondent is the sole proprietor of a Clearing and Forwarding Firm carrying on business under the name and style of Commodity Service Agency ‑under Customs Licence No.352. The applicant by order, dated 8‑7‑1978 suspended the licence of the respondent. The respondent filed Suit No.2174 of 1978 in the Court of Civil Judge, Karachi for declaration and injunction mainly on the allegation that as no show cause was issued the impugned order was illegal and inoperative. The applicant filed written statement pleading that the suit was barred by section 79, C .P . C . as Government of Pakistan was not made a party. It was further pleaded that the respondent had submitted sets of bills of entry alongwith forged import permits which were returned for filing the original permits but the same were not filed and thus the respondent attempted to cause loss to the Government by fraud and forgery. This was a clear contravention of the Customs Rules and consequently the Licence was suspended After framing the issue the parties did not lead any evidence and relied on the documents filed by them. The learned trial Court held that the suit was not maintainable and dismissed it. The respondent filed Civil Appeal No.558 of 1982 which was allowed by the impugned judgment. Mr. Syed Iftikhar Hassan the learned counsel for the applicant has contended that no relief can be granted to the respondent as Government of Pakistan has not been made a party and it has not entered to file defence on behalf of the applicanf It this regard reference has been made to Order XXVII, Rule 8, C:P.C. which provides that where the Government Pleader undertakes the defence of a public officer the Government Pleader should intimate the Court of such fact aid file Wakalatnama on behalf of such an officer From this provision it seems that if the Government Pleader appears and undertakes to defend a public officer the suit becomes an action against the Government but if Government Pleader does not appear and does not undertake to defend on behalf of the public officer, the suit shall be deemed to be pending and decided between two private contesting parties. In the present case there is nothing to show that Government Pleader had appeared and filed an application undertaking to defend the applicant Mr. Syed Iftikhar Hassan the learned counsel for the applicant has retied on P L D 1971 Kar. 625 which clearly 'supports his contention. 'The applicant has been designated as an appellate Authority under the rules which position is occupied by Deputy Collector of Custom or Officer of the Government in Custom Department. This designation as, Appellate Authority does not convert him into a statutory authority having independent right to sue or be sued. He remains an officer of the Government of Pakistan. The learned Appellate Court was completely in error not to have properly considered the judgment relied upon by the applicant and has taken an incorrect view of the provision of Order XXVII, rule 8, C.P.C. As the suit is to be deemed to be between the private parties no relief can be granted against the official action taken by a Government officer in his official capacity. The impugned judgment and decree passed by the learned appellate Court is set aside. The Revision Application is allowed with no order as to costs. H.B.T. Revision Application allowed.