ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Suit No.982 of 2008
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Date Order with signature of Judge.
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1. For hearing of CMA No.9789/2012.
2. For examination of the parties/settlement of issues.
Date of hearing: 30.9.2013
Date of order: 21.10.2013
M/s. Shaikh Jawed Mir & Zulfiqar Haider Shah, Advocates for the Plaintiff.
Mr. Asim Iqbal, Advocate for the Defendants.
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Muhammad Junaid Ghaffar, J:- Through this order the application listed at Serial No.1 will be disposed of which has been filed on behalf of the Defendants under Order VII Rule 11 read with Section 151 CPC, whereby it has been prayed that the instant suit be rejected/dismissed with cost/compensation.
2. Briefly, facts of the case are that the Plaintiff claims to be a respectable businessman and is engaged in the running of petrol and CNG service stations in Karachi as well as in the interior of Sindh and the present dispute relates to a petrol/CNG station being run by the Plaintiff on Plot No.4/17, Firdous Housing Society, Nazimabad Karachi, which is named and styled as M/s. “Farman Taj Petroleum & CNG Service Station”. It is the case of the Plaintiff that the Defendants supply Gas to its CNG station wherein a Gas Meter No. M 0516075 with Consumer Account No.5668990000 has been installed. It is stated by the Plaintiff that he is regularly paying the gas bills to the Defendants without any default and has never indulged in any mal-practice nor any tempering with the gas supply. It is averred that the Plaintiff made the complaints to the Defendants regarding low pressure on 23.5.2007 and 11.6.2007, vide complaint Nos. 5668990361 & 5668990191 respectively, where after the representative of Defendant No. 1 visited the site and after inspection of the gas meter failed to fix the fault of low pressure. It has been further stated that on 02.08.2007 the staff/employees of the Defendant No. 1 had changed the meter for the purpose of testing and installed a new meter bearing No.0719652 in place of the previous one. The Plaintiff has further stated that at the time of replacement of this meter, nothing wrong was found and the same was taken into custody by the staff/employees of the Defendant No. 1.
3. In short, the case of the Plaintiff is that the Defendants vide their letter dated 07.07.2008 have raised a demand of Rs.3,597,439/- towards the claim for alleged tempering of gas meter to be paid within 15 days. This demand of the Defendants has been challenged by the Plaintiff in this suit, wherein M/s. Sui Southern Gas Company Ltd., has been arrayed as Defendant No.1 and the Chief Manager, Surveillance & Monitoring, the Deputy Manager Operation, Surveillance & Monitoring and the Deputy Chief Engineer Coordination, Surveillance & Monitoring have been arrayed as Defendants No.2 to 4 respectively. The Defendants have filed a joint written statement on 14.10.2008 and subsequently on 13.09.2012 Defendants have filed the instant application i.e. CMA No.9789/2012 under Order VII Rule 11 CPC, on which notices were issued and the Plaintiff has filed its counter-affidavit.
4. It is the case of the Defendants, that the suit can only be filed against a natural or legal person and not against an official title or designation like the one which has been done in the instant case. It is the case of the Defendants that under Order VII, Rule 19 CPC, every plaint or original petition shall be accompanied by a proceeding giving an address at which service or notice, summon or other process may be made on the Plaintiff or petitioner, and Rule 21 of Order 7 CPC, provides “Where a Plaintiff or petitioner fails to file an address for service, he shall be liable to have his suit dismissed or petition rejected by the Court Suo Moto or any party may apply for an order to that effect..” (Sic)
5. According to the Defendants, in the instant case, the Plaintiff has failed/neglected to file the mandatory proceedings of address and therefore, the suit is liable to be dismissed. It is further stated that the matters relating to Order {sic} and Rules 10 & 11, may be disposed of by the Court even Suo Moto before the issue of summons at its inception, or at the earliest date, so that a still born suit may be buried without wasting of time, energy and money and the concerned party may be able to retrace its steps. It is further stated by the Defendants that they had previously filed a similar application under Order VII Rule 11 CPC, which was assigned CMA No.7902/2008 and for non-payment of cost the same was struck off and not decided on merits. Subsequently instant application was filed.
6. While arguing the application the learned counsel for the Defendants contended that the law requires in terms of Order I Rule 3 CPC that the Defendants could not be sued in their official designations as they are not legal or juristic persons and hence the plaint is liable to be rejected in terms of Order VII Rule 11 CPC. However, while arguing the application, the learned counsel for the defendants has not pressed the other legal objections taken in the application filed before this Court. On query by this Court, as to whether this application is being pressed on behalf of all the Defendants, including the Defendant No.1, (Sui Southern Gas Company Ltd.), or not, to which the learned counsel for the Defendants candidly conceded that he will press the instant application only to the extent of Defendants Nos.2 to 4 only. In support of his arguments he has relied upon the case of Secretary B & R Government of West Pakistan V/s Fazal Ali Khan (PLD 1971 Kar 625), Bore Muhammad V/s Mst. Aziza Begum (2001 CLC 701), Nagina Bakery V/s Suit Southern Gas Limited (2001 CLC 1559), and Ghulam Rasool & others V/s The Board of Revenue (SBLR 2010 Sindh 1390).
7. Conversely, the learned counsel for the Plaintiff has argued that the listed application is meritless and is liable to be dismissed. He has referred to Annexure “F” to the plaint and has submitted that this notice was issued by the officers of the Defendants in their official capacity and designation and hence they have been arrayed as Defendants in their official names. He has further contended that the case of the Plaintiff is primarily against the Defendant No.1, which is a legal and juristic person under the law and as such this objection by the Defendants could not be sustained. He has further argued that the Defendants, instead of filing an application under Order 1 Rule 10 CPC have filed the instant application, as the plaint could not be rejected in parts. The learned counsel further argued that the matter pertains to the year 2008 and after filing of written statement, issues have been framed by this Court and the matter is pending for recording of evidence, whereafter this application has been filed to delay the proceedings. Finally he has also raised an objection, that similar application previously filed on behalf of the Defendants has been dismissed and hence this application is not maintainable.
8. I have heard both the learned counsels and also perused the record. Firstly, I will take up the preliminary objection raised by the learned counsel for the Plaintiff that a similar application filed earlier by the Defendants was dismissed for non-prosecution and hence application filed subsequently, is not maintainable and cannot be entertained. I have gone through the order sheet and on perusal of the same it transpires, that in so far as the dismissal of an earlier application is concerned, the same is not on record. However, since this fact, as to the filing of a similar application previously, is admitted by the Defendants in the instant application, I have gone through the diary sheet of the Assistant Registrar, from which it transpires that an application under Order VII Rule 11 CPC, was filed and on 16.10.2008 it is recorded that notice of CMA No. 7902/2008 has not been issued on the ground of non-payment of cost, and the matter was adjourned to 31.10.2008. Subsequently, the same was struck-off on 31.10.2008 under Rule 128 of Sindh Chief Court Rules (OS). After going through the diary sheet of Assistant Registrar, it appears that the previous application was never dismissed for non-prosecution by the court, (as it was never placed before the court) and was only struck off by the Assistant Registrar for non-deposit of cost. Further, the court had ordered that notices be issued on the subsequent application; as such the preliminary objection is over-ruled by holding that the present/subsequent application is maintainable.
9. Learned counsel for the defendants while arguing the instant application has mainly focused on a sole ground, that since the Defendants No. 2 to 4 have been arrayed/sued in their official designations, therefore, the plaint was liable to be rejected. However he has admitted/conceded that he was pressing the instant application on behalf of Defendants No. 2 to 4 and not Defendant No. 1. The only argument advanced by the learned counsel for Defendants was in respect of title of the plaint in which Defendants No. 2 to 4 were arrayed in their official names/designations. However, in so far as the Defendant No. 1 was concerned the learned counsel admitted that the same was properly arrayed as Defendant No. 1, being a company incorporated under the Companies Ordinance 1984 and is a legal or juristic person.
10. From the perusal of the plaint, it is evident that the case of the Plaintiff, is primarily against Defendant No. 1 for declaration, injunction and damages and the cause of action accrued to the Plaintiff is on the basis of the acts being performed by the Defendants No. 2 to 4 in discharge of their services being rendered to Defendant No. 1. Therefore, it is an admitted position as of now, that even if the objections as raised by the learned counsel for Defendants are up-held, the plaint cannot be rejected against Defendant No. 1 at least, and the suit will proceed against the said Defendant. It is a settled law that a plaint cannot be rejected in parts or piecemeal. The provision of Order VII Rule 11 CPC is procedural in nature and has to be exercised only in exceptional circumstances and in cases where the court comes to the conclusion, that even if all the allegations are proved, the Plaintiff will not be entitled to any relief. It is only to be seen by the court that whether any cause of action has been disclosed, and it is immaterial for the court at this stage of the case to see that whether the Plaintiff will be able to prove it or not, which in any case cannot be decided without framing of issues and recording of evidence. In all fairness, in fact the case as set up on behalf of the Defendants No. 2 to 4 is not at all covered by the provisions of Order VII Rule 11 CPC, as none of the situations stipulated in clauses (a) to (c) are applicable in the instant matter. In so far as the provision of clause (d) is concerned, wherein it has been provided that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law, the learned counsel for the Defendants has not been able to point out any law under which the plaint could be held to be barred except that the Defendants No. 2 to 4 have been arrayed in their official names and designations and as such the same is not in accordance with the provisions of Order I Rule 3, CPC, (this objection will be dealt with in the latter part of the order). However for the time being, prima facie it appears that the Defendants No. 2 to 4 had no cause of action so as to attract the provisions of Order VII Rule 11 CPC, as none of the clauses of this provision are attracted in the facts and circumstances of the instant case.
11. It is also an admitted position that Defendants have filed their written statements whereafter, proposed issues were filed by the Plaintiff as well as the Defendants and this court vide its order dated 13.8.2012 has adopted the issues proposed by the Plaintiff and issues No. 1 & 2 as proposed by the Defendants. Interestingly, while filing their proposed issues, the Defendants have not raised any objection as to the maintainability of the suit in so far as Defendants No. 2 to 4 are concerned. However, subsequently after adoption of issues they have filed the instant application under Order VII Rule 11 CPC on 13.09.2012.
12. I have also seen Annexure “F” annexed with the plaint and noticed that the demand for recovery of the alleged short billed amount was issued by these officers of Defendant No.1, acting only as and on behalf of the company (SSGC) and for this reason they have been arrayed as Defendants with official designations, which to me, seems to be a right and proper course of action. In fact the case of the Plaintiff is against the Defendant No. 1 primarily and in substance, and not against the officials of the Defendant No.1, as such the Plaintiff has acted in a correct and proper manner. It is a settled law that even otherwise a party cannot be denied relief on the grounds of mis-joinder or non-joinder. The court is required to adjudicate the controversy as to the rights and interest of the parties before it and further the court is also empowered to add or strike-out the parties and must not stress on deciding the issues/cases on technicalities. Since in this matter, as already observed and conceded by the learned counsel for the Defendants that the suit will continue against Defendant No. 1, even if the listed application is allowed, therefore, at the most, the Plaintiff could be directed to file an amended title with proper name and designation, if so advised. It is also a settled law that no proceedings in court could be ipso facto defeated just because of Non-joinder or Mis-joinder of parties and the court always enjoys ample powers to add or delete or transpose parties to a suit depending upon the nature of the case. In the instant matter, the proper course would be to provide the plaintiff to correct the technical defect, if any, and not to dismiss or reject the plaint on this issue. There is also another reason to justify this observation, as all along it is the Defendant No. 1 against whom the main relief is being claimed, and the Defendants No. 2 to 4 have been arrayed as Defendants, being officers and or employees of the Defendant No. 1. The case of the Plaintiff against the Defendants No. 2 to 4 is not in their private, but in the official capacity, as such ultimately if the Plaintiff succeeds in the matter, it is the Defendant No. 1 who has to own the acts of the Defendant Nos. 2 to 4, as it is their act (of issuing demand notices for recovery) which has been brought under dispute by the Plaintiff. In so far as the acts of the Defendants No. 2 to 4 are concerned, prima facie they have all along acted under the authority of the Defendant No. 1, and as such, are immune from any personal liability. The duty of the court is to administer justice and not to thwart grant of rights to the people and the court must avoid all technicalities unless essentially required to be followed. In the instant case the Plaintiff can maintain its suit against the Defendant No. 1 within its own rights; hence the plaint cannot be dismissed or rejected as prayed for, by the Defendants No.2 to 4 on the ground of Mis-joinder. The objection of the Defendants, in respect of Order I Rule 3 CPC, (left unanswered earlier by me) is not maintainable in view of a decision of the Hon’ble Supreme Court reported in PLD 1992 SC 590 (Central Government of Pakistan and others V/s Suleman Khan and others) wherein their Lordships have held that no suit shall be defeated by reason of non-joinder or mis-joinder of parties. The relevant observation is as under;
Order I, rule 9; C.P.C. gives also, very strong support for the foregoing approach regarding interpretation and application of Order I, rule 10, C.P.C. This provision (Rule 9) is in a mandatory negative form; namely, that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties are concerned.
This has been followed by a division bench of this court in a judgment reported in 2007 MLD 508 (MUHAMMAD YOUNUS VS. COREX ENTERPRISE), and has held that the plaint in the suit could not be rejected either in part or as a whole just for the reason of Non-joinder or Mis-joinder of parties.
13. The Defendants have also taken a long time to bring the instant application, as they have filed the written statement jointly after which the proposed issues filed by them have been adopted by the court and surprisingly no such issue has been proposed by them in respect of the maintainability of the suit which is now being agitated though the instant application. It is a settled law that the objection as to the joinder, mis-joinder or non-joinder must be taken at the earliest, failing which the same shall be deemed to have been waived. If any authority is needed then one can refer to the case of Muahmmad Arif and others V/s District & Sessions Judge, Sialkot and others, reported as 2011 SCMR 1591.
14. In so far as the case law referred to, by the learned counsel for Defendants is concerned, on perusal of the same it transpires that the facts of all the cases referred to, are materially different and hence distinguishable. In the case of Bore Muhammad (Supra) the plaintiff in addition to a private defendant, had arrayed/sued the Government Officials in their official capacity in a land dispute and it was held by a learned single judge of this court, that if the Plaintiff is offended by any act or action of such defendants in their personal capacity, they can be sued in their personal name and consequently the names of Defendants No. 3 to 7 were stuck off, but while holding so, the court also allowed the plaintiff to join proper party in the proceedings, and such observation does not help the case of the present Defendants No. 2 to 4. The second case of Nagina Bakery (Supra) relied upon by the learned counsel for the Defendants, is in fact not at all relevant to the facts of the present case as the same pertains to maintainability of Constitutional Petition against M/s Sui Southern Gas Limited and hence need not be considered. The facts of the case of Secretary B & R Government of West Pakistan (Supra) are also materially different to the facts of the present case. In the said case, in fact a suit was filed against Government officials in their official capacity without impleading the Government as a party and since the pleader appearing for the officials had not made any application in terms of Order XXVII Rule 8, to undertake the defence of the suit against them, as such the suit was deemed to have been proceeded against the Officials as a suit against private parties. It can be seen that the facts in the instant case are entirely different; as such the same is not applicable. The last case of Ghulam Rasool (Supra) has in fact relied upon the case of Secretary B & R Government of West Pakistan (Supra); as such the same is also not relevant.
15. Therefore, in view of what has been discussed hereinabove, the listed application bearing CMA No.9782/2012 filed by defendants under Order VII Rule 11, CPC is hereby dismissed.
Dated 21.10.2013 J U D G E