P L D 2004 Karachi 472 (PLP)

1. Taluka Mukhtiarkar, Latifabad Hyderbad .

2. Province of Sindh Secretary Revenue through A.D.C.-I, Hyderabad

3. Shabbir Ahmed s/o Naseeruddin Qureshi Muslim, adult, r/o Bungalow No.C/76, Unit No.9 Mir Fazal Town, Shah Latifabad, Hyderabad

4. Taj Muhammad s/o late Dr. Abdul Razak Muslim, adult, r/o House No.A/1577, Tando Wali Muhammad, Silawat Mohalla Hyderabad

Defendants'. Notices were issued to alt the defendants, including defendants Nos. 1 and

2. Deputy District Attorney put appearance on behalf of the defendants Nos.1 and 2 but no written statement was filed. Defendants Nos.3 and 4 did not put appearance with the result that the suit proceeded ex parte against defendants Nos.1 and 2 initially, and after publication of notice in daily `Nawai Waqt", Karachi, the Suit proceeded ex pane against all the defendants and was decreed. Similar were the circumstances in the above cited case. The suit was decreed ex parte. Appeal as well as revision petition were also dismissed. In the appeal, before the Hon'ble Supreme Court, preferred by the Province of Punjab, arguments were addressed on the point of non-impleading of necessary party, about service on the defendants, about manner in which ex parte order was passed and on the merits of the ex parte order. After hearing the learned advocates for the parties, the Hon'ble Supreme Court observed as follows: "We find that it is one of rare cases in which the judgments rendered at all the levels though laboured and spread over pages impressive in number shows such appalling ignorance and misapplication of law and procedure as is likely to impair the very confidence in the integrity, competence and efficacy of the judicial process in the country, the conduct of the parties to the litigation also not being free from serious blame." The Hon'ble Supreme Court further held as under:--

7. If the trial Court, the Appellate Court and the; revisional Court had kept in view the requirements of section 79-of the Civil Procedure Code read with Order XXVII, C.P.C. they would not have entertained the claim at all with the parties arrayed in the form in which they were arrayed. Section 79 of the Civil Procedure Code requires, and so does Article 174 of the Constitution, that all suits against the Central Government have to be filed in the name of Pakistan and against a Provincial Government in the name of the Province. Suing Pakistan, as was done in this case, through the Chief Settlement Commissioner and Member, Board of Revenue was in fact not only a mistake but a diversion of the proceedings materially affecting service and representation of the concerned defendants. The Chief Settlement Commissioner had ceased to be legal entity or a functionary after repeal of the evacuee laws in 1974- much before the institution of the suit. Provincial Member, Board of Revenue could not represent Pakistan. Similar is the position of Deputy Custodian. There was no functionary of the description of Deputy Custodian after the repeal of the evacuee laws. As regards the Collector of the District, the procedure prescribed was quite simple one a straightforward one, for service on him. It is provided in Order XXVIII of the Civil Procedure Code that the Governments and their functionaries can be served through the Government Pleader. No effort, at any stage was made to effect service through the Government-Pleader. The Clerk of the Court of Chief Settlement Commissioner who made the appearance and even the lawyer appointed by solicitor was supposed to represent the Chief Settlement Commissioner when in fact no such office did exist in the eye of law. The revisional Court was in serious legal error in thinking and assuming that Collector represented ex-officio the Province of Punjab and by impleading him the Province stood automatically impleaded. Not only the Collector is not under the law representative of Province but in this particular case the Collector was sued as a functionary refusing to give effect to the Registered Deed and not as a representative of the Province. With the parties arrayed as they were, the suit could not be entertained unless necessary correction had been made. The Hon'ble Supreme Court after holding that Collector was not representative of the Provincial Government, examined the cited case on merits with reference to the law of limitation and ultimately, set aside the judgment and decree, and dismissed the suit. Mr. Masood A. Noorani has next placed reliance on the judgment of Hon'ble Supreme Court in the case of Haji Abdul Aziz v. Government of Balochistan, 1999 S.C.M.R.

16. In this case the suit was filed against Government of Balochistan through Deputy Commissioner, Khuzdar, seeking a declaration that the plaintiff was owner and in possession of the Suit land. The suit proceeded ex parte against Provincial Government. The order was set aside in appeal and revision preferred before the High Court was also dismissed, for the reason that section 79, C.P.C. and Article 174 of the Constitution were not complied with and the suit was instituted through a wrong person. The Hon'ble Supreme Court held that since the suit was filed against the Provincial Government, the Provincial Government could be sued through the concerned Secretary to the Government. It was further observed that unless the suit is filed through the concerned person, any order directing ex parte proceedings against the defendants would be liable to challenge. After referring the Judgment of the Hon'ble Supreme Court in the case of Province of Punjab v. Muhammad Hussain, PLD 1992 SC 147, the order of Balochistan High Court, dismissing revision application, upholding the setting aside of ex parte judgment and remand for fresh trial was upheld. Mr. Masood A. Noorani has further placed reliance on a recent judgment of a learned Single Judge of Peshawar High Court in the case of Town Municipal Administration v. Rifat Hussain, 2003 CLC 1370. In this case, the Provincial Government was impleaded as party through Secretary, Local Government. It was held that so long as the Secretary, Local Government was not served, there was absolutely no justification whatever to strike of defence or close his right to cross-examine the witnesses. Although, the appeal was barred by time, but in exercise of suo mote revisional jurisdiction, the ex parte judgment was set aside and the case was sent back to the learned trial Judge for de novo trial in accordance with law. Mr. Massod A. Noorani has submitted that issue pertaining to service of summons/notice on the Provincial Government, through Secretary of the concerned Department, already stands settled by the above judgments and in the present case, admittedly, the Provincial Government has not been served, therefore, the ex parte judgment passed by the learned trial Court and the appellate judgment are liable to be set aside, which have caused very serious prejudice and loss to the Provincial Government. On the other hand, Mr. Naimatullah Soomro, learned counsel for the respondent has submitted that Provincial Government was served through Collector. The Law Officer is also empowered to accept summons/notice on behalf of Provincial Government. In this behalf, he has placed reliance on Law Officers Rule. He, has further placed reliance on the Single Bench Judgment of this Court, in the case of the Director General, Coast Guards of Pakistan v. Fazle Ghani Khan, 1988 MLD

586. In this case a plea was taken that the Government of Pakistan should have been sued through Secretary, Ministry of Interior and not through Secretary, Ministry of Defence. It was held by the learned Single Judge that even if wrong Secretary was named in the plaint, it was the duty of that Secretary to forward the case to concerned Secretary for pursuing it in the Court. It was further observed that the Government was impleaded as party and was not declared ex parte at any stage, therefore, it cannot be said that proper party was not before the Court and that consequently suit was not maintainable. I have carefully considered the contentions raised by the learned advocates for the parties and am of the opinion that the ratio of Single Bench Judgment of this Court in the case of the Director General, Coast Guards of Pakistan (supra) is not attracted, for the reason that the Government of Pakistan was sued through Secretary and no ex parte Proceedings were taken. I am of the opinion that after pronouncement of judgments by Hon'ble Supreme Court in two cases, relied upon by Mr.Masood A. Noorani, no further scope is left for this Court to give any finding. The judgments of Hon'ble Supreme Court have binding effect and this Court has no option except to follow the law as laid down by the Hon'ble Supreme Court. Respectfully following the law, as laid down by the Hon'ble Supreme Court, it is held that the service of summons on Provincial Government through A.D.C.-I, and subsequent ex parte proceeding, culminating in ex parte judgment, was not in accordance with law. Thus the ex pane judgment of the trial Court and the appellate judgment are not sustainable in law, which are hereby set aside. The case is sent back to the learned trial Court with the direction that the summons on the Province of Sindh should be served through Secretary Revenue and a fresh opportunity be provided to Province of Sindh to file written statement and thereafter de novo trial be held. The learned advocates for the parties were heard on the point of service of summons on the Provincial Government in the trial Court. It was observed by me vide order dated 23rd April 2004, that if the service of summons on the Provincial Government is held good, then the revision application shall be heard on merits. As the service of summons on the Provincial Government has not been held good, and the judgment of learned two Courts below has been set aside on that account only, therefore, no findings are required on merits. The revision application is allowed as above. M.B.A./T-8/K Application allowed.