1988 PLP 2286 (CLC)

Ghulam Hussain Gulshan for Petitioner. Ijaz Ahmad for Respondent. Date of hearing: .7th October, 1987. This civil revision is directed against judgment and decree, dated 12‑11‑1985 of the learned Additional District Judge, Gujrat, whereby the petitioners‑defendants' appeal was dismissed.

2. The respondent sued the petitioners namely, Chairman WAPDA and their Revenue Officer for damages to the tune of Rs.10,

000. His allegation was that he was served with a bill dated 29‑10‑1980 containing bogus claim to the extent of Rs.583.13, that he challenged the same before a civil Court which allowed him a temporary injunction on its prior deposit; that notwithstanding the injunction the petitioners continued to repeat the demand each time that he visited the petitioner Revenue Officer each month for making correction in the bill, but he despite knowledge of the order of the Court persisted in repeating the same. He alleged that by this torturous act of the petitioners he suffered in reputation, incurred considerable expenditure in visiting the offices of the petitioners, lost time and underwent physical inconvenience as also mental agony for which he had a right to be compensated.

3. The suit was resisted maintaining that it did not lie for want of a notice under section 80, C.P.C. and that it was hit by section 3 of the WAPDA Act whereunder WAPDA and not its Chairman could sue or be sued. It was further alleged that the respondent did not complain about the inaccuracy of the appeal.

4. Appropriate issues were framed and tried by the Court of the first instance. The suit was decreed with costs. The appeal also failed

5. Ch. Ghulam Hussain, counsel for the petitioners reiterated that the suit against the 'Chairman WAPDA' did not conform to the provisions of section 3 of the WAPDA Act and that it should have been dismissed by the trial Court. This objection was taken up before the learned Additional District Judge, who probably on the last day accepted an application of the respondent to amend his plaint. The Chairman was dropped and the suit was allowed to continue as against WAPDA. Mr. Gulshan submitted that this order was passed without giving an opportunity to the WAPDA to oppose the amendment and that in any event it had the effect of impleading WAPDA on the date the lower appellate Court passed the order when the suit had become barred by time. Reliance in this behalf was placed on Niamatullah Khan and 8 others v. Ghulam Sarwar and 14 others P L D 1979 Pesh. 31 pointing out that the proper course was to have asked for condonation of time in making the request. He added that the period prescribed for the suit under Article 36 of the Limitation Act was two years from the date the act of malfeasance was committed and that the same having already elapsed without condonation, the amendment could not have been allowed to adversely affect the petitioners' right to oppose it. The order simply directed omission of the 'Chairman' from the headnote as he was quite different from the Authority itself.

6. Ch. Ijaz Ahmad for the respondent in reply contended that it was not a case of adding a new plaintiff, and instead was only correction of a little misdescription. He relied upon Shah Nazar Khan v. Assistant Commissioner and S.D.M. Malipur etc. P L D 1977 Kar. 582, Rivers Steam Navigation Co. Ltd. and others v. District Council, Bakarganj and another P L D 1967 Dacca 426 and Ghulam Nabi v. Sardar Nazir Ahmad 1985 S C M R 824 in support of his view. He observed also that since the petitioners had been represented through lawyers all along, they could not say that they had been wrongly described and for this view cited Hakim Muhammad Saleem v. Government of Azad J&K and others P L D 1968 AJ&K 48.

7. Describing' the defendant authority as 'Chairman WAPDA' obviously was a misdescription. Otherwise WAPDA was effectually arrayed although technically Chairman was not synonymous with it. This is what section 3 of the WAPDA Act provides for. The WAPDA can itself sue or be sued in its own name. Adding the word 'Chairman' was only a surplusage or so to say supererogation which could conveniently be omitted. There was no question of freshly impleading WAPDA by replacing it for the 'Chairman'. It was nothing but misdescription of a party and the amendment will date back to the inception of the suit. The authorities relied upon by counsel for the respondent are more akin to the facts of the present case. Since it was not an addition of a new defendant, no harm was caused to any valuable right of the petitioners. The order was passed in presence of their counsel albeit on the last date of hearing of the appeal. It needed no elaborate hearing and was rightly settled in presence of, counsel for both the parties.

8. Mr. Gulshan lastly contended that the mistake in repeating a wrong claim in successive bills was committed by a Clerk and not the petitioner‑Revenue Officer. His argument was that damages could have been obtained against the functionary who acts mala fide and, therefore, the concerned Clerk should have been sued. I regret, I am not persuaded. It was a case of vicarious liability., not only o the WARDA but also the Revenue Officer who was immediately incharge of the disobedient Clerk. Any way it will be open for them to settle the account between themselves.

9. There is no substance in the revision petition and the same is dismissed leaving the parties to bear their own costs of the present petition. H.B.T./W‑34/L Revision dismissed.