1994 PLP 1607 (CLC)

‑‑‑‑S. 9, 0.1, R. 9 & O.VII, R.11‑‑‑Rejection of plaint‑‑‑Suit for recovery of amount illegally recovered from plaintiff ‑‑‑Non‑joinder of party‑‑‑Effect‑‑‑Suit for recovery of amount illegally recovered by defendant from plaintiff as property tax, was resisted by defendant on ground that suit was bad for non joinder of Province of Punjab as a party to suit‑‑‑Province of Punjab was not a necessary party to suit inasmuch as suit had been filed by plaintiff against defendant in his personal capacity‑‑‑Even if Province of Punjab was required to be impleaded as party, plaint could not have been rejected on that ground, but direction could have been given to plaintiff to implead Provincial Government as party‑‑‑Order of Trial Court rejecting plaint simply for not impleading Province of Punjab as a party to suit, was erroneous especially when Trial Court had not at all determined as to whether Province of Punjab was a necessary or a proper party‑‑‑Merely because defendant was a public servant, it could not be said that plaint itself should be rejected‑‑‑Such objection could be raised by defendant in his written statement and could be tried alongwith other merits of suit. Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356 ref. Shamirii Abbas Bokhari for Petitioner. Rafiq Ahmed Malik for Respondent. Date of hearing: 4th October, 1992. Sardar Muhammad respondent of this civil revision filed a suit for payment of recovery of property tax which was allegedly recovered illegally by the Aqeel Ahmad petitioner of the present civil revision as well as for payment of damages in the Court of learned Civil Judge, Toba Tek Singh. This suit is contested by the defendant‑petitioner inter alia on the ground that the Civil Court has no jurisdiction to try the suit and that Province of Punjab was necessary party to the suit, therefore, the suit is not competent. Learned Civil Judge framed following preliminary issue. "Whether the Civil Court has no jurisdiction to try the suit? OPD" After hearing the arguments, learned trial Court vide judgment and decree dated 20‑3‑1991 rejected the plaint on the ground that Civil Court has no jurisdiction to try the suit as there is, a bar of jurisdiction contained in section 22 of the West Pakistan Urban Immovable Property Tax Act and further that the suit is bad for non‑joinder of Province of Punjab as a party to the suit. Aggrieved by the. said judgment and decree, respondent filed Regular First Appeal in District Court, Toba Tek Singh which was accepted by the learned Additional District Judge, Toba Tek Singh on the ground that in case Province of Punjab was necessary party, instead of rejecting the plaint; the plaintiff could have been directed to implead Provincial Government as party. Consequently, setting‑aside the finding of the learned trial Court on the issue decided against the respondent‑plaintiff, the suit was remanded by the learned Additional District Judge for decision on merits. It may be mentioned that the learned Additional District Judge did not decide as to whether Civil Court has jurisdiction to try the suit or not although this was the only issue which had been framed as a preliminary issue and finding whereon were redered against the respondent. Judgment and decree dated 18‑9‑1991 was not challenged by the defendant in the present civil revision.

2. In support of this civil revision, learned counsel for the petitioner has argued that the petitioner is a public servant and, therefore, the suit for damages could not have been filed against him. Learned counsel further argued that the petitioner is not an assessing authority, therefore, he performed his duty by collecting the amount of tax and, therefore, it could not be said that he committed any illegal act as a result whereof the respondent shall have a cause of which to claim damages. Learned counsel argues that it is the Excise and Taxation Officer who is assessing authority and at any rate without impleadment of Provincial Government as a party the suit was incompetent therefore, the plaint has rightly been rejected under Order 7, Rule 11 of C.P.C. Learned counsel further argued that civil Court has no jurisdiction to try the suit inasmuch as determination of the dispute falls within the exclusive jurisdiction of the authorities provided under West Pakistan Urban Immovable Property Tax Act. Learned counsel further argued that findings recorded by the Civil Judge has not been specifically dealt with by the learned Appellate Court and, therefore, a proper judgment has not been written. In reply to the arguments addressed by the learned counsel, the learned Counsel for the respondent has argued that a suit has been filed against the petitioner in his personal capacity and, therefore, it was not necessary at all to implead the Provincial Government as a party. Learned counsel has further argued that even if Government is necessary party plaint could not have been rejected merely on the ground of non‑joinder of the Province of Punjab as party to the suit. Learned counsel has further argued that the dispute raised in the suit basically relates to the recovery of amount which has illegally been recovered as tax by the petitioner which has never been imposed by any competent authority. Learned counsel further argued that the suit is also for the payment of damages and hence the dispute raised in the suit does not fall within the jurisdiction of the authorities provided under West Pakistan Urban Immovable Property Tax Act. Learned counsel has argued that the Civil Court being a Court of general jurisdiction, unless the jurisdiction is specifically excluded, it cannot be said that the Civil Court has no jurisdiction to try the lis. Learned counsel has argued that merely because the learned District Judge has not rendered a specific finding on the question of jurisdiction will not make any difference inasmuch as the civil Court does have jurisdiction to try the suit and this question can be decided by this Court as well. In support of the proposition that the civil Court has jurisdiction to try the suit, the learned counsel relied upon 1914 SCMR 356, Hamid Hussain v. Government of West Pakistan and others.

3. I have considered the arguments addressed by both the learned counsel of the parties and have also gone through the contents of the plaint. It is quite clear that the suit is not against the imposition of tax but is for the recovery of the amount which has allegedly been recovered by the petitioner and also for payment of damages. This type of suit is definitely beyond the scope of jurisdiction of the authorities provided under the Act. It is a dispute which could only be tried by the civil Court and, therefore, the learned trial Court has incorrectly held that the civil Court has not jurisdiction to try the suit. Consequently, the findings of the learned Civil Judge to the effect that the Civil Court has no jurisdiction to try the suit is erroneous and the same is set aside. With regard to the objection of impleadment of Provincial Government as a party, I feel that keeping in view the contents of the plaint, Province of Punjab is‑ not a necessary party to the suit inasmuch as the suit has been filed against to petitioner in his personal capacity. At any rate, even if, Province of Punjab is to be impleaded as party, the plaint could not have been rejected and a direction could have been given to the respondent to have impleaded the Provincal Government as party. Therefore, the findings of the learned Additional District Judge is correct to the effect that the plaint was not liable to be rejection for want of impleadment of the Province of Punjab as a party to the suit. It is also clear that the learned Civil Judge has not at all determined as to whether the Province of Punjab is a necessary party or a proper party, and therefore, the learned Civil Judge could not have rejected the plaint while deciding the issue with regard to the jurisdiction of the Civil Court. Argument of the learned counsel that the petitioner has a protection under the law against any suit for damages and, therefore, the order passed by the learned Additional District Judge is not maintainable is also misconceived inasmuch as at his stage, it is the contents of the plaint which are to be seen and as the same does disclose a cause of action and also disclose that the Civil Court has the jurisdiction to determine the dispute. Merely because the petitioner is a public servant it cannot be said that the plaint itself should be rejected. This objection can be raised by the petitioner in the written statement and can be tried alongwith other merits of the suit. Even otherwise, it is a remand order which is quite just and fair and I do not deem it proper to interfere in exercise of the revisional jurisdiction of this Court. In view of the above discussion, I hold that the order passed by the learned Civil Judge is illegal and the order passed by the learned Additional District Judge is lawful and requires no interference. Civil revision is, therefore, dismissed, with no order as to costs. H.B.T/M‑1474/L. Revision dismissed.