1989 PLP 865 (CLC)

The application for temporary injunction is, therefore, misconceived and unsustainable in law. It is accordingly dismissed. C.M. As. Nos.2003 and 2004 of 1988:‑These applications have been presented on behalf the defendant under Order VII, rule 11, C.P.C. and section 151 C.P.C., respectively. The first above noted application seeks the rejection of the plaint on the ground that (a) the suit being bad in law is not maintainable, (b) the suit is under‑valued, (c) it is insufficiently stamped, (d) the plaintiff has no cause of action, and (e) the suit is barred by law. Whereas the other application is for the dismissal of the suit (1) for non‑compliance of section 80, C.P.C. (2) for failure to implead the Government of Pakistan as a party as provided under section 79, C . P . C . , for not exhausting the remedy available under the Insurance Act.. For convenience sake, I propose to dispose of both the applications by this order separately as under:‑ The facts forming the background of the suit in so far as they are relevant for the purpose of deciding these applications are these. The plaintiff is a duly incorporated company under the Companies Act, 1913 (since repealed) and was also registered as Insurer under Insurance Act, 1938 (hereinafter referred to as "the Act"). Consequent to its failure to comply with the demand of making re‑insurance arrangements in respect of the businesses duly notified to it, to their full extent either with the Pakistan Insurance Corporation or any other financially reliable insurer or reinsure, Government of Pakistan, after serving show‑cause notice, dated January; 5/8, 1986, passed an order dated 14‑5‑1986 in exercise of the powers conferred on him under section 4(3)(f) of the Act, thereby canceling the registration of the plaintiff Company pertaining to its Marin and Misc. Insurance business with effect from 1st July, 1986. The defendant also at the same time issued necessary order creating his lien on the plaintiff's amount lying in its bank account with the Chartered Bank, I.I. Chundrigar Road, Karachi. The plaintiff has described the defendant's act of creating the said lien as ‑being patently illegal as, according to it, the said amount in fact represented the loan advance by the relatives of the Directors of the Company to keep it going. The plaintiff further informed the defendant that it had been able to ,find ‑a financier who had promised to undertake all its liabilities, make arrangements with Re‑insurance and arrange sufficient cash to run the company. The defendant was, therefore, requested not to file an application under section 53 of the Act for winding up the plaintiff‑Company. The defendant expressed his inability to accede to the request of the plaintiff, but stated that the Department had no objection if the Court allowed it that facility. The plaintiff has, therefore, filed this suit for the following main reliefs:‑ (a) Mandatory injunction directing the Defendant to release the amount under his lien or restraining the defendant from exercising the lien on the amount of the plaintiff with M/s. Chartered Bank, I.I. Chundrigar Road, Karachi. (b) Restraining the defendant from filing the winding up petition. (c) Cost of the suit. (d) Any other relief which this Hon'ble Court may deem fit and proper." I shall first take the application for rejection of plaint (CMA 2003 of 1988). It was contended by Mr. Umer Qureshi, learned counsel for the defendant that by virtue of section 110 of the Act, the plaintiff was entitled to assail the order of cancellation of registration passed by the defendant by filing an appeal. Having failed to avail and exhaust the departmental remedy, the plaintiff rushed to file this suit, which is not maintainable. The suit was also. the counsel so contended, , not maintainable in law as it seeks to restrain the defendant from exercising his legal right of adopting the legal proceedings for winding up the plaintiff‑company. Lastly, he maintained that the plaint was insufficiently stamped inasmuch as the amount lying with the Bank which is sought to be released from him is not disclosed, but it is much more than Rs.1,01,000 on which the court‑fees has been paid. Mr. A.A. Ashary, learned counsel for the plaintiff, opposed the application. I have given due consideration to the submissions made by the learned counsel for the defendant. I have also perused the entire plaint. It is an undisputed principle of law laid down by authorities that the plaint can be rejected only on the basis of the statements made in the plaint and not on consideration of the averments made in B the written‑statement or in any other documents besides the plaint. From a perusal of the plaint, none of the grounds taken in the application under Order 7, rule 1‑1, C.P.C. appears to be arising therefrom. The application is, therefore, 4eW to be devoid of force and. it is dismissed accordingly. I shall now take up the application (C.M.A. No.2004/‑1988). By this application, as already stated the defendant has prayed for the dismissal of the suit for non‑service of notice under section 80, C . P. C . and for not impleading the Government of Pakistan as party, to the suit. In so far as the first abovenoted ground is concerned, it is sufficient to observe for repelling it as being without circumstances that after the amendment of section 80 in 1962, or as this section C stands today, a suit against the Government be it a Federal or Provincial or a public officer, can be instituted without prior notice and the service of prior notice is no more imperative. In so far as the other point agitated in the application is concerned the fact that in this suit Government of Pakistan was a necessary party as the defendant has been sued for acts done by him in his official capacity and since the Government was not joined as a party, the suit was liable to be dismissed, I find it has much force. Before proceeding further, it would, in my view, be proper to reproduce hereunder the provision of section 79 of the Code of Civil Procedure, as well as Article 174 of the Constitution of Islamic Republic of Pakistan, 1973:‑ Section 79 of the C.P.C. reads as under:‑ "Suit 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." Article 174 of the Constitution:‑ "The Federation may sue or be sued by the name of Pakistan and a Province may sue or be sued by the name of the Province." A bare perusal of the plaint, clearly indicates that the plaintiff has filed the suit against the respondent for seeking the orders/action taken by him in his official capacity. It was contended by Mr. Umer Qureshi, learned counsel for the defendant, that the defendant could not be sued with reference to his official designation. He referred to the provisions of Order 1, rule 3, C.P‑C. to urge that only legal and natural person could be sued. I have given due consideration to the submissions made by the learned counsel for the defendant and I am clearly of the opinion that by no stress of reasoning the defendant No.l can be said to be a legal entity. The suit could not, therefore, be filed against him in his official capacity or in the name of the Controller of the Insurance. There is no provision in the Insurance Act that a person holding they office of the Controller of Insurance may be sued in his official title. In this view of the matter, it was imperative for the plaintiff to have filed a suit by impleading the Government of Pakistan as defendant. It .has admittedly been not done so. The suit, therefore, as brought against the defendant in his official designation is bad in form and deserves to be dismissed as shoe In the result, the application is allowed and the suit is dismissed for want of joinder of necessary party. A . A . /M‑689/ K Suit dismissed.