1999 PLP 16 (SCMR)

Malik Sikandar Khan, A.-G., Balochistan and M.K.N. Kohli, Advocate-on-Record for Respondent. Date of hearing: I I th August, 1998. MAMOON KAZI, J.--this appeal, by leave of the Court, calls into question the order of the learned Judge in Chambers in the Balochistan High Court, dated 11-8-1992.

2. Brief facts of the case are that, that appellant filed a suit before the, learned Qazi, Mashkay against the Government of Belochistan through the Deputy Commissioner, Khuzdar, seeking declaration that the former was owner and in possession of suit lands described by boundaries situated in Camp Jhao and the said respondent had no authority to interfere with the appellant possession or raise construction on the suit lands. The appellant had claimed 5/6 shares of the suit land by inheritance and 1/6th share, according to him, has been purchased by him from one Qadir Dad on 10-9-1987.

3. Initially the suit was dismissed by the trial Court on failure of the, appellant to pay proper court-fee, but on appeal the suit was remanded to the trial Court to decide such question afresh. The plaintiff produced his evidence but no evidence was produced on behalf of the defendant resulting in passing of an ex parte decree dated 15-1-1991, in favour if? the plaintiff. ?

4. The ex parte decree was challenged by the defendant in appeal but admittedly the appeal was barred by 55 days. However, the appeal was allowed purportedly under section 151, C.P.C. on payment of costs of Rs.700 and the decree passed by the trial Court was set aside and the case was remanded for a fresh trial.

5. The said order was challenged by the appellant in revision before the High Court but the revision was dismissed by the learned Judge in Chambers, holding that the provisions of section 79, C.P.C. and Article 174 of the Constitution had not been complied with by the appellant as the suit? had not been instituted through a wrong person.

6. There appears to be no controversy on the point that the suit which had been instituted against the Government of Balochistan through the Doputy, Commissioner, Khuzdar, had not been instituted through a proper party as required by the said provisions of law and Order XXVII, rule 3, C.P.C However, according to the learned counsel for the appellant, in spite of the fact that the suit filed by the appellant suffered from initial defects, the same did not warrant any interference by the High Court in the exercise of its revisional jurisdiction. The second contention of the learned counsel was that the appeal being time-barred by 55 days and there being no request for condonation of the delay, the appeal was liable to be dismissed forthwith. However, according to him, both the learned Appellate Court and the revisional. Court appear to have overlooked this important aspect of the case.

7. Leave was granted to the appellant to examine the aforesaid contentions.

8. Although, there can hardly be any doubt that the question in regard to limitation goes to the root of the matter and it is the duty of the Court to address itself to such question if the same is apparent on the face of the record. In Hakim Muhammad Buta v. Habib Ahmad (PLD 1985 SC 153) decided by this Court, it was observed:-- "

6. It follows that where the question of limitation is not a mixed question of law. and fact or where limitation is apparent on the face of the record, a waiver by the parties would not relieve the Court itself of its duty under section 3 of the Limitation Act and a waiver by the Court of the question of limitation is not contemplated. This Court had in Ahsan Ali v. District Judge (PLD 1969 SC 167) clearly laid down that it was the duty of the Court to notice the point of limitation, whether the plea of limitation was raised or not, and that a waiver 'of the question of limitation is not permissible, even where the period of limitation is prescribed by special or a local law. "

8. In this case (supra) as to the question, whether the High Court in its limited jurisdiction under section 115, C.P. C. can re-open a point abandoned by the respondents in appeal it was held that waiver by the respondents before the Appellate Court and the omission on the part of that Court to decide the question would not deprive the High Court of its power under section 115, C.P.C. to suo motu go into the question if the material already on record was sufficient to establish that the proceedings bad been instituted before the Court beyond time.

9. It, no doubt, follows from the said observations that the learned Judge in Chambers could have taken notice of the fact that the appeal in the present case had been entertained by the Appellate Court in spite of being barred by 55 days, but it appears at the learned Judge found it necessary to address himself to a more important question as it transpired that the plaintiff had failed to comply with the provisions of section 79, C.P.C. or Article 174 of the Constitution, both of which require that in a suit filed against the Government, the authority to be named as a defendant is to be the Province. Since the suit was filed in the present case against the Provincial Government, the Province could be sued through the concerned Secretary to the Government. Obviously, there had been no compliance with the said provisions when the suit was initially filed by the appellant. Unless the suit is filed through a proper person, any order directing ex parte proceedings against the defendant would be liable to challenge. Reference in this regard may be made to a judgment of this Court in Province of the Punjab v. Muhammad Hussain (PLD 1993 SC 147), our attention to which has been invited by the learned counsel for the appellant himself. In this case, questions raised before this Court for the first time in regard to maintainability of the suit, its valuation or its being within time, which had not received due attention earlier by the Courts below while dealing with the case, were considered by this Court and the judgments and the decrees passed by the Courts below were set aside and the suit filed by the plaintiffs was dismissed as barred by limitation. Therefore, there is no doubt that the learned Judge in the High Court, while exercising revisional jurisdiction, was empowered to take notice of the defects which were apparent on the face of the record. The failure of the appellant to sue through a proper person was a defect which went to the root of the matter and, but for interference by the High Court, serious prejudice would have been caused to the respondent. Therefore, in our view, the order passed by the learned Judge 'in Chambers is not open to exception.

10. In the result, the appeal is dismissed but with no order as to costs.