ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

R. A. No. S – 76 of 2007

Date of hearing

Order with signature of Judge

1. For orders on CMA No.477/2016

2. For hearing of CMA No.478/2016

3. For hearing of CMA No.153/2008

4. For hearing of main case

5. For hearing of CMA No.506/2007

22.10.2018

Mr. Abdul Ghaffar Memon State Counsel.

O R D E R

MUHAMMAD SHAFI SIDDIQUI, J. This matter was heard at length on the last date of hearing and the applicants’ counsel concluded his arguments. Today, while arguing the merits of the case Mr. Memon appearing on behalf of official respondents besides arguing the merits of the case has taken me to the question of maintainability of the suit. He submits that in terms of Section 79 CPC and Article 174 of the Constitution of Islamic Republic of Pakistan, 1973, the Federal Government and the Provincial Government is to be sued as required in terms of aforesaid provision. The language he relied as apparent in Section 79 CPC is that in case the suit is against a Government, the Province is to be sued through Secretary. The learned State Counsel in this regard has relied upon the judgment of Haji Abdul Aziz V/S Government of Balochistan through Deputy Commissioner, Khuzdar, 1999 SCMR 16, judgment of Divisional Forest Officer, Larkana and 3 others V/S Ghulam Haider and 8 others, PLD 2007 Karachi 392 and judgment of Government of Balochistan, CWPP&H Department and others V/S Nawabzada Mir Tariq Hussain Khan Magsi and others, 2010 SCMR 115. Besides, learned State Counsel has further, insofar as merits of the case is concerned, has taken me to the second last page of the judgment which disclosed the first entry in the name of Muhammad Chhutal somewhere in the year 1951-52 to 1961-62, however, what remains untraceable is the history as to how such entries were made in the Revenue record.

2. I have heard the learned State counsel and perused the material available on record. Today, learned counsel for the applicant though remained absent, however, he concluded his arguments on the last date of hearing.

3. Insofar as merits of the case is concerned, no doubt such entries were disclosed to have been maintained in the Revenue record but that is not sufficient for the discharge and satisfaction of title of the applicants’ predecessor. Such entries in respect of the Government land / Forest land as claimed to have been transferred to applicants’ predecessor should have been supported by some title documents either lease or sale deed etc. Such documents are lacking to substantiate the entries as made in the relevant time in the year 1951-52 to 1961-62. They may have been occupying the land in question but their entitlement on the basis of entry is not sustainable. The applicants were required to establish beyond reasonable doubt that such land was ever lawfully leased out / allotted or passed on to the applicants’ predecessor which fact is seriously lacking in the matter.

4. On behalf of plaintiffs in the suit one Allah Bux as attorney recorded evidence for himself and on behalf of others. In examination-in-chief, he admitted that the suit land was owned by the Government and their father in equal share. He further deposed that the area of the land was increased to 32-37 acres from 24-20 acres. In this deposition he has not been able to show as to how the land was jointly owned by Government and predecessor of the plaintiffs / applicants.

5. In addition to the above, the suit was filed by the applicants against the Government through Deputy Coordination Officer. He relied upon the case of Haji Abdul Aziz (supra), which concluded that in terms of Article 174 of the Constitution of Islamic Republic of Pakistan, 1973, suit against Provincial Government could only be filed through concerned Secretary to the Government. High Court in exercise of the revisional jurisdiction was held empowered to take notice of such defects which were apparent on the face of it. The Hon'ble Supreme Court went on to observe that the defect of such nature which goes to the root of the case, can be taken into consideration being legal, preliminary question. On a query this point was not raised before the trial Court and appellate Court, learned State Counsel has relied upon the case of Divisional Forest Officer, Larkana (supra) that such being an error which is apparent on the face of it and legal question can be raised at this revisional stage as well. The relevant para of the judgment is reproduced as under:

“In the above reported case the issue with regard to non-maintainability of the suit was raised before the High Court in revisional jurisdiction. Since both the courts below by overlooking the provisions of law have committed illegality and have also failed to exercise the jurisdiction vested in them properly and in consonance of law, I set aside both the judgments and decrees passed by the learned trial Court as well as the appellate Court. However, keeping in view the facts and circumstances I direct the Member, Board of Revenue to hold enquiry in the matter and after hearing the parties decide the matter without taking into consideration the decree passed in Suit No.26 of 1962.”

6. Insofar as the merit of the case is concerned, there is no cavil to the proposition that the entries were neither substantiated before trial Court nor before appellate Court and there was no reason to have relied upon those entries which have no basis as far as title is concerned and the appeal was rightly allowed and consequently the suit was dismissed. Similarly, taking into consideration the contentions of the learned State counsel regarding maintainability of suit, such being a question which is apparent on the face of it such as defect which is not curable and since it is legal, can be raised at any stage including revisional and appellate stage. There is no cavil to the proposition that Government functionaries / authorities are to be sued as required in terms of Article 174 of the Constitution of Islamic Republic of Pakistan, 1973 as well as Section 79 CPC. In these proceedings, the Provincial of Sindh was sued through Deputy Commissioner which is not in consonance with the judgment of (1) Haji Abdul Aziz and (2) Government of Balochistan (supra) which provides a mechanism of suing the Government through Province of Sindh and through concerned Secretary to the Government. Commissioner under the hierarchy does not represent the Province in the manner as highlighted in the plaint and as such the objection raised by the learned State Counsel also goes on to prove that the suit at the very inception should have been buried as the legal mandatory formalities in terms of Section 79 CPC and Article 174 of the Constitution have not been complied.

7. In view of the above facts, merit of case and legal contentions raised by learned State counsel, the revision has no merits and is dismissed along with listed applications.

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J U D G E

N.M.