1996 PLP 1510 (MLD)

What is significant to note in this matter, however, is that the Divisional Forest Officer who was not allowed to join the proceedings in the suit-preferred appeal to assail the judgment in that suit. The learned District Judge, Sanghar, who heard the appeal allowed it and dismissed the suit by judgment dated 4‑10‑1994 which has been impugned in this revision application. Mr. Jhamat Jethanand, the learned counsel for the applicants vehemently objected to the maintainability of the appeal by the Divisional Forest Officer. He contended that the said officer was neither a party to the suit nor 'did he have the requisite permission from the relevant quarter to file the appeal. He also submitted that the Divisional Forest Officer was neither a legal person nor a corporate body and, therefore, the appeal could not have been instituted in his official designation. He further called in question the authority of the learned Assistant Government Pleader who presented the appeal on behalf of the District Forest Officer. He also assailed on merits the judgment passed in appeal. He relied upon the judgments reported as Ali Nawaz and another v. The State PLD 1971 Kar. 197, Pakistan International Airlines Corporation v. Messrs Khalid Brothers PLD 1992 Kar. 78 and Syed Ali Nawaz v. Dr. Syed Ali Raza Nawaz and 2 others 1994 SCMR

74. On the other hand, Mr. Dhani Bux Days, the learned Advocate appearing for the Additional Advocate‑General, defended the action of the Divisional Forest Officer as well as of the learned Assistant Government Pleader, and supported the judgments of the learned District Judge, Sanghar. According to him, there was collusion between the parties in the suit and the judgment of the learned Senior Civil Judge was based on no evidence. He placed reliance on the judgments reported as H.M. Sasya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi PLD 1969 SC 65, Pakistan International Airlines Corporation v Messre Khalid Brothers PLD 1992 Kar. 78, Walayat Khan v. Muhammad Sadiq and others PLD 1993 Lah. 90, Muhammad Zubair Qureshi v. Munir Hussain Sharazi and 4 others PLD 1991 Kar. 214 and Federation of Pakistan v. Muhammad Khan and 2 others 1990 CLC 171 and also on an unreported judgment as Muhammad Din and others v. Muhammad Bachal and others (in Civil Revision Application No. 216 of 1982) of this Court decided on 31‑3‑1985. It is important to observe that in the suit, the Government of Sindh and also the Deputy Commissioner, Sanghar, both were the parties. The learned counsel for the applicants referred to section 79, C.P.C. and Order 27, Rule 2, C.P.C. which may be reproduced below: "

79. Suits by pr 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 provipce. " Order 27, rule 2, C.P.C.: "

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. " My attention has also been drawn to the following Notifications issued under Order 27, Rule 2, C.P.C. and Rule 4, C.P,C respectively (reported in PLD 1957 Provincial Statutes 123):‑‑‑ "Civil Procedure Code, 1908 (Notification under Order XXVII, Rule 2): No.8/57/Genl/225, 11th April, 1957,' (Gazette, Extraordinary, 12th April, 1957).‑‑‑In accordance with the provisions of rule 2 of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908 and in modification of the Law Department Notification No. 870‑Law, dated 14th October, 1955 the Governor of West Pakistan is pleased to authorise every Deputy Commissioner and every political agent in West Pakistan and, in his absence from the headquarters, the Senior Assistant Commissioner, Assistant Political Agent or Extra‑Assistant Commissioner, as the case may be, present there to act in virtue of his office for the Province of West Pakistan in respect of any judicial proceedings by or against the province in which he may receive instructions from the Secretary to Government, West Pakistan, Law Department, or from the Solicitor to the Government, West Pakistan." "Civil Procedure Code, 1908 (Notification under Order XXVII, Rule 4): No.8/57/Genl‑226, 11th April,' 1957 (Gazette, Extraordinary, 12th April, 1957).‑‑‑In pursuance of clause (7) of section 2 of the Code of Civil Procedure, 1908 and in modification of the Law Department Notification No. 871‑Law, dated 14th October, 1955 the Governor of West Pakistan is pleased to appoint every Deputy Commissioner and every Political Agent in the Province of West Pakistan to be a Government Pleader in his district for the purposes of rule 4 of Order XXVII and rule 6 of Order XXXII of the First Schedule to the said Code. " It is thus, evident that Deputy Commissioner is the proper person to act on behalf of the Provincial Government and admittedly he was a party in the suit. Apparently, he decided neither to contest the suit nor to challenge the decree by appeal. The learned counsel for the respondent was unable to demonstrate that the Divisional Forest Officer could be a valid substitute for the Deputy Commissioner or that he was otherwise authorised to act for the Government of Sindh under any relevant law and also to file appeal. Thus, in the absence of a valid authorization District Forest Officer could not be said to have the locus standi to file appeal under his designation. Moreover, this issue can also be looked at from another angle. The appeal was filed with reference to official designation and title and not by a legal or natural person. The learned counsel for the applicant, therefore, relied upon .the judgment reported as Secretary, B & R., Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar. 625, wherein a Division Bench of this Court held that "a public p officer is not a corporate sole and cannot be sued by his official name". This being so it follows as a necessary corollary thereto that an appeal can also not be filed with reference to official designation or title. The learned counsel for the respondent while supporting the competence of the appeal relied upon a judgment of the Hon'ble Supreme Court reported as H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65, wherein it was held that a person who is not a party to a suit or proceedings may prefer an appeal if he is effected by the judgment, decree or order of the trial Court. According to this judgment, and moreover the fact that a person should be aggrieved is a desideratum to entitle him to file appeal. As such, the appellant in the relevant appeal i.e. Divisional Forest Officer must show his grievance resulting from the judgment of the trial Court. The fact of the matter is that it is only the relevant Government, which is concerned with the matters pertaining to its affairs. No officer in his official capacity or otherwise can be said to be an aggrieved person in relation to a judicial order regarding the B affairs of a Government. Admittedly, the 6overtiment of Sindh was a party in the suit and it could‑ have preferred appeal if it felt so aggrieved by the decree passed in the suit. In such view of the matter, me Divisional Forest Officer cannot be said to be an aggrieved person and me appeal by him was not maintainable. Reference was also made as noted earlier in this judgment to an unreported judgment of this Court in C.R. No.216 of 1982. In that case the suit out of which the revision application arose was filed without making Province of Sindh as a defendant and in view of this omission this Court found that the suit was not maintainable. The suit was decreed by the trial Court and the persons who filed appeals were not parties thereto. The appellants were granted leave to appeal by the District Judge, but the Additional District Judge who heard the appeals dismissed them as not maintainable and consequently they invoked revisional jurisdiction of this Court. In the special circumstances of the case this Court held that the applicants were aggrieved persons and were also entitled to the relief. The facts of the instant case are quite different and I do ‑trot find that the cited judgment would be applicable here. In the suit filed by the private respondents all the relevant persons including Government of Sindh were parties and they despite being aware of the proceedings neither contested nor pursued the appeal against the decree. The District Forest Officer was neither an aggrieved person not otherwise competent to file appeal. The judgment thus, referred to by the learned State Counsel is of no help to him. Sihce I have come to the conclusion that the appeal by Divisional Forest Officer was not competent, it will not, therefore, be necessary to examine other points raised by the learned counsel of the parties. The upshot of the above I discussion is that this revision application is allowed and the judgment of the learned District Judge, Sanghar, is set aside. However, in the circumstances of the case there will be no order as to cost. A.A./R‑26/K Revision accepted.