2016 C L C 686
2016 C L C 686
[Gilgit Baltistan Chief Court]
Before Muhammad Alam, J
MEDICAL SUPERINTENDENT DHQ HOSPITAL GILGIT and 4 others----Petitioners
Versus
ALI----Respondent
Civil Revision No.89 of 2014, decided on 10th August, 2015.
Civil Procedure Code (V of 1908)---
----S. 79, O. VI, R. 17 & O. XVII, R. 3---Suit against government---Closure of evidence---Scope---Private defendants and official defendant were proceeded against under O.XVII, R.3, C.P.C. on different dates of hearing by the Trial Court---Private defendants filed appeal wherein official defendant was not impleaded---Official defendant moved a petition under O.VI, R.17, C.P.C. which was dismissed by the Appellate Court---Validity---Defendants were officials of the government having no independent claim or interest in the suit property---Proceedings of Trial Court under O.XVII, R.3, C.P.C. were wrong in the eye of law---Impugned order against the government splitting up defendants in two different sets was a mistake on the part of Trial Court---Interest or claim of private defendants to the suit property was not in clash with the government---Trial Court as well as Appellate Court must have not accepted private defendants as separate set of defendants from the government---Actual contesting party to the case was the government and not the private defendants---Impugned order was set aside and case was remanded to the Trial Court with the direction to afford Government a chance for filing written statement and then to resume the trial proceedings---Revision was allowed in circumstances.
Addl. A.G. for Petitioners.
Musrat Wali for Respondent.
ORDER
MUHAMMAD ALAM, J.--- Through this petition, petitioners have challenged order dated 12-08-2014 passed by the learned District Judge Gilgit. Through impugned order, learned first appellate court dismissed appeal (C.F.A. No.38/2013).
2. Respondent filed a civil suit in the trial court seeking declaration of the suit land to the effect that he is owner of the same on the basis of gift of the same in his name from one Mr. Roshan Ali, father-in-law of respondent/plaintiff. In the plaint of the said suit, respondent arrayed petitioners as defendants. Later on, the Provincial Government was also added as defendant No.6. Petitioners and the said defendant No.6 filed 2 separate written statements and contested the suit. Learned trial court framed issues and recorded evidence of respondents/plaintiffs. Case adjourned for defendants' evidence but defendants did not produce evidence and petitioners were proceeded under Order XVII, Rule 3, C.P.C. through order sheet dated 01-07-2008. Petitioner No.1/defendant No.1 did not file any appeal or revision against said order sheet. On 02-09-2013, the learned trial court proceeded under Order XVII, Rule 3, C.P.C. against the Provincial Government/ defendant No.6 and adjourned the case for arguments. Petitioners filed appeal (CFA No.38/2013) against said order. Provincial Government/defendant No.6 was not impleaded as appellant to the said appeal. Later on, Provincial Government/defendant No.6 filed a petition under Order VI, Rule 17, C.P.C. for adding him as party to the said appeal. Through impugned order, the learned first appellate court dismissed the said appeal holding that:--
"The present appellants 1 to 5 have questioned validity of order dated 02-09-2013 which is not passed against appellants/ defendants 1 to 5 as their right to produce evidence had already been struck off on 01-07-2008 by the trial court and they are also not allowed to produce evidence by the trial court on 27-04-2013 when the case was fixed for evidence of defendant No.6 only as last chance therefore appeal by appellants 1 to 5 is legally incompetent.
As to the application of learned DA filed under Order VI, rule 17, C.P.C. today for adding/ impleading provincial government as party to the appeal the grant or otherwise dismissal of the application has no bearing on the fate of the appeal firstly because limitation for filing appeal has started against defendant No.6 to run from the date of the impugned order and appeal filed by appellants 1 to 5 against an order not affecting their interest will not cover the limitation required for filing of appeal by defendant No.6 even after inclusion of appellant No.6 as party and secondly Order VI, rule 17, C.P.C. provides for amendment of pleadings and not governs matters of impleading of parties.
In the circumstances application of appellants filed under Order VI, rule 17, C.P.C. is hereby declined and the appeal in view of aforesaid is legally incompetent and not maintainable therefore liable to be dismissed.
Consequent upon the above appeal and application stand dismissed. Record of learned trial court be returned to them for their proceedings and this file after due completion be consigned to record."
Announced
12-08-2014
sd/xxx
District Judge, Gilgit
Feeling aggrieved from the above order, petitioners have filed this petition.
3. I have heard learned counsel for respondent. I did not give any hearing to the petitioners or the learned Additional Advocate General, as they did not comply order of this court dated 08-05-2015. I have gone through the record also, and after giving thoughtful consideration to the arguments of the learned counsel for respondent, I have come to the conclusion that the complex position of the case in hand is because of mis-appreciation of the relevant law and facts by the learned trial court. It is not disputed that the petitioners are officials of Provincial Government/defendant No.6, therefore, have no independent claim or interest to the suit property. So, proceedings of the learned trial court through order dated 01-07-2008 are wrong in the eye of law. On 02-07-2013, the learned trial court must had set aside ex parte order dated 01-07-2013. In fact, the order dated 01-07-2013 amounted to an order against Provincial Government/defendant No.6 as splitting up defendants in two different sets is a mistake on the part of trial court as the interest or claim of petitioners to the suit property is not in clash with Provincial Government/defendant No.6. Even filing of the suit against petitioners is wrong. Instead of adjourning the case for evidence of Provincial Government/defendant No.6 even on costs, the learned trial court proceeded under Order XVII, Rule 3, C.P.C.. Moreover, the trial court as well as the first appellate court must have not accepted petitioners as separate set of defendants from Provincial Government/ defendant No.6. The actual contesting party to the case is the Provincial Government and not the petitioners. In this connection, provisions of section 79 read with Order XXVII, C.P.C. are very clear, wherein, it is provided that a suit can be filed only against the Provincial Government or the Federal Government. For ready reference, I reproduce section 79, C.P.C. hereunder:--
79. Suits 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]; and
4. In sequel of above discussion, I accept this petition, set aside impugned order, order sheet dated 01-07-2008 of the trial court and order dated 02-09-2013 of the trial court. Case remanded to the trial court with direction to afford the defendant No.6, a chance for filing written statement and then to resume the trial proceedings. No order as to costs. Parties to appear before the trial court on 17-10-15 for further directions. Copy of this order be sent to trial court. This file be consigned to record.
ZC/122/GB Case remanded.
[Gilgit Baltistan Chief Court]
Before Muhammad Alam, J
MEDICAL SUPERINTENDENT DHQ HOSPITAL GILGIT and 4 others----Petitioners
Versus
ALI----Respondent
Civil Revision No.89 of 2014, decided on 10th August, 2015.
Civil Procedure Code (V of 1908)---
----S. 79, O. VI, R. 17 & O. XVII, R. 3---Suit against government---Closure of evidence---Scope---Private defendants and official defendant were proceeded against under O.XVII, R.3, C.P.C. on different dates of hearing by the Trial Court---Private defendants filed appeal wherein official defendant was not impleaded---Official defendant moved a petition under O.VI, R.17, C.P.C. which was dismissed by the Appellate Court---Validity---Defendants were officials of the government having no independent claim or interest in the suit property---Proceedings of Trial Court under O.XVII, R.3, C.P.C. were wrong in the eye of law---Impugned order against the government splitting up defendants in two different sets was a mistake on the part of Trial Court---Interest or claim of private defendants to the suit property was not in clash with the government---Trial Court as well as Appellate Court must have not accepted private defendants as separate set of defendants from the government---Actual contesting party to the case was the government and not the private defendants---Impugned order was set aside and case was remanded to the Trial Court with the direction to afford Government a chance for filing written statement and then to resume the trial proceedings---Revision was allowed in circumstances.
Addl. A.G. for Petitioners.
Musrat Wali for Respondent.
ORDER
MUHAMMAD ALAM, J.--- Through this petition, petitioners have challenged order dated 12-08-2014 passed by the learned District Judge Gilgit. Through impugned order, learned first appellate court dismissed appeal (C.F.A. No.38/2013).
2. Respondent filed a civil suit in the trial court seeking declaration of the suit land to the effect that he is owner of the same on the basis of gift of the same in his name from one Mr. Roshan Ali, father-in-law of respondent/plaintiff. In the plaint of the said suit, respondent arrayed petitioners as defendants. Later on, the Provincial Government was also added as defendant No.6. Petitioners and the said defendant No.6 filed 2 separate written statements and contested the suit. Learned trial court framed issues and recorded evidence of respondents/plaintiffs. Case adjourned for defendants' evidence but defendants did not produce evidence and petitioners were proceeded under Order XVII, Rule 3, C.P.C. through order sheet dated 01-07-2008. Petitioner No.1/defendant No.1 did not file any appeal or revision against said order sheet. On 02-09-2013, the learned trial court proceeded under Order XVII, Rule 3, C.P.C. against the Provincial Government/ defendant No.6 and adjourned the case for arguments. Petitioners filed appeal (CFA No.38/2013) against said order. Provincial Government/defendant No.6 was not impleaded as appellant to the said appeal. Later on, Provincial Government/defendant No.6 filed a petition under Order VI, Rule 17, C.P.C. for adding him as party to the said appeal. Through impugned order, the learned first appellate court dismissed the said appeal holding that:--
"The present appellants 1 to 5 have questioned validity of order dated 02-09-2013 which is not passed against appellants/ defendants 1 to 5 as their right to produce evidence had already been struck off on 01-07-2008 by the trial court and they are also not allowed to produce evidence by the trial court on 27-04-2013 when the case was fixed for evidence of defendant No.6 only as last chance therefore appeal by appellants 1 to 5 is legally incompetent.
As to the application of learned DA filed under Order VI, rule 17, C.P.C. today for adding/ impleading provincial government as party to the appeal the grant or otherwise dismissal of the application has no bearing on the fate of the appeal firstly because limitation for filing appeal has started against defendant No.6 to run from the date of the impugned order and appeal filed by appellants 1 to 5 against an order not affecting their interest will not cover the limitation required for filing of appeal by defendant No.6 even after inclusion of appellant No.6 as party and secondly Order VI, rule 17, C.P.C. provides for amendment of pleadings and not governs matters of impleading of parties.
In the circumstances application of appellants filed under Order VI, rule 17, C.P.C. is hereby declined and the appeal in view of aforesaid is legally incompetent and not maintainable therefore liable to be dismissed.
Consequent upon the above appeal and application stand dismissed. Record of learned trial court be returned to them for their proceedings and this file after due completion be consigned to record."
Announced
12-08-2014
sd/xxx
District Judge, Gilgit
Feeling aggrieved from the above order, petitioners have filed this petition.
3. I have heard learned counsel for respondent. I did not give any hearing to the petitioners or the learned Additional Advocate General, as they did not comply order of this court dated 08-05-2015. I have gone through the record also, and after giving thoughtful consideration to the arguments of the learned counsel for respondent, I have come to the conclusion that the complex position of the case in hand is because of mis-appreciation of the relevant law and facts by the learned trial court. It is not disputed that the petitioners are officials of Provincial Government/defendant No.6, therefore, have no independent claim or interest to the suit property. So, proceedings of the learned trial court through order dated 01-07-2008 are wrong in the eye of law. On 02-07-2013, the learned trial court must had set aside ex parte order dated 01-07-2013. In fact, the order dated 01-07-2013 amounted to an order against Provincial Government/defendant No.6 as splitting up defendants in two different sets is a mistake on the part of trial court as the interest or claim of petitioners to the suit property is not in clash with Provincial Government/defendant No.6. Even filing of the suit against petitioners is wrong. Instead of adjourning the case for evidence of Provincial Government/defendant No.6 even on costs, the learned trial court proceeded under Order XVII, Rule 3, C.P.C.. Moreover, the trial court as well as the first appellate court must have not accepted petitioners as separate set of defendants from Provincial Government/ defendant No.6. The actual contesting party to the case is the Provincial Government and not the petitioners. In this connection, provisions of section 79 read with Order XXVII, C.P.C. are very clear, wherein, it is provided that a suit can be filed only against the Provincial Government or the Federal Government. For ready reference, I reproduce section 79, C.P.C. hereunder:--
79. Suits 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]; and
4. In sequel of above discussion, I accept this petition, set aside impugned order, order sheet dated 01-07-2008 of the trial court and order dated 02-09-2013 of the trial court. Case remanded to the trial court with direction to afford the defendant No.6, a chance for filing written statement and then to resume the trial proceedings. No order as to costs. Parties to appear before the trial court on 17-10-15 for further directions. Copy of this order be sent to trial court. This file be consigned to record.
ZC/122/GB Case remanded.
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