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Civil Revision No. 212 of 2013.

H C J D A 38

JUDGMENT SHEET
IN THE LAHORE HIGH COURT
RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT

Civil Revision No. 212 of 2013.

(Taseer Khan vs. Islamabad Electricity Supply Company)

J U D G M E N T

Date of hearing. 19th of November 2015.

Mr. Zaheer Ahmed Qadri, Advocate for the petitioner
Petitioners by in Civil Revisions No.212, 213 and 255 of 2013.
Malik Sardar Khan, Advocate for the petitioner in Civil
Revision No. 345 of 2014.
Respondent by Malik Fazal-ur-Rehman, Advocate.

IBAD-UR-REHMAN LODHI J.:- This civil revision petition as also

Civil Revision No. 213 of 2013 (Taseer Khan vs. Islamabad Electricity
Supply Company), Civil Revision No. 255 of 2013 (Amjad Rasheed vs.
Islamabad Electricity Supply Company) and Civil Revision No. 345 of 2014
(Amjad Rasheed vs. Islamabad Electricity Supply Company) are to be
disposed of together, as similar request was made in all the suits for rejection
of the plaints and all such requests were similarly treated, when it were
refused by the learned trial court.

2. Precisely, facts relevant for the purposes of disposal of present civil

revision petitions are that, the respondent-Islamabad Electricity Supply
Company (hereinafter to be referred as “IESCO”), filed suits for recovery of
different amounts on account of alleged excess withdrawal of material from
the Company’s Store and subsequently not using the same in the work
assigned to the petitioners and, as such, not only that the same material was
wrongfully taken, but subsequently, in the same manner, wrongfully
detained the same.
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Civil Revision No. 212 of 2013.

3. The suits in Civil Courts at Attock and Chakwal were filed in the year,
2011, respectively, and at a subsequent stage, by taking certain objections,
rejection of the plaints was sought for by the present petitioners by moving
independent applications under the provisions of Order VII rule 11 CPC.

4. The learned Senior Civil Judge, Attock, refused to reject the plaint on
the application of present petitioners, on 22.01.2013, whereas, the learned
Civil Judge 1st Class, Chakwal, did the same thing on 22.03.2014.

5. First objection as to the maintainability of the petition on the

touchstone of limitation was raised to the effect that, nowhere in the plaint,
the plaintiff-respondent has disclosed as to when, the audit of the work
assigned to the petitioners by the Company, was conducted and when it was
pointed out through the Audit Report as to the withdrawal of excess material
from the Company’s Store and subsequently wrongfully detaining of the
same by the petitioners.

6. Such contentions of the petitioners gain support from bare reading of

the plaints, which, at no place, disclosed that as to when the audit was
conducted and when the Audit Team reported that some wrongful has been
committed, allegedly by the petitioners.

During arguments, the learned counsel for the respondent-Company

was asked to explain such position to which he answered that the audit was
conducted way-back in 1992. The omission in mentioning the date of
conduct of audit inspection and raising some objection by the Audit Team is
understood, as, had the same been pleaded, the plaintiff would have to
explain the reason for filing of a suit, after almost two decades.

Now, by adopting the status of Government, the respondent-

Company, is taking shelter under the plea that, they had a limitation of 60
years to file such suit in view of the provisions of Article 149 of The
Limitation Act, 1908.
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Civil Revision No. 212 of 2013.

7. Section 79 CPC deals with the circumstances as to how suits by or

against the Government can be filed, which provides that 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;

(b) in the case of a suit by or against a Provincial

Government, the Province.

WAPDA or, a distribution Company, like the plaintiff in the present

matter, which is Islamabad Electric Supply Company (IESCO), cannot claim
its status to be that of Government.

8. The Hon’ble Supreme Court of Pakistan in case of Maqsood Ahmed

Toor and 4 others vs. Federation of Pakistan through the Secretary to the
Government of Pakistan, Ministry of Housing and Works, Islamabad and
others (2000 SCMR 928) and Civil Appeal Nos.1033 to 1037 of 2004,
decided on 30.05.2013, has held that although WAPDA’s affairs to some
extent are controlled by the government, but for all practical purposes, it is
an independent entity and authorized to carry out the business of utilization
of water and power resources of the country and to generate electricity and
that WAPDA or any distribution Company, like IESCO, is not performing
any of sovereign functions of the State, so as to be declared as a body
corporate performing functions with the affairs of the Federation.

Elaborating Section 79 CPC, the Hon’ble Supreme Court of Pakistan

in case of Province of the Punjab through Member Board of Revenue,
(Residual Properties), Lahore and others vs. Muhammad Hussain through
Legal Heirs and others (PLD 1993 Supreme Court 147) has held that, even
suing Pakistan or a Province through the Departmental Head of the Federal
Government or Provincial Government was not only a mistake but a
diversion of the proceedings materially affecting the further proceedings on
judicial side.
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Civil Revision No. 212 of 2013.

9. The suits in the present matters were filed in the name of IESCO
through its Chief Executive, but neither any Resolution of the Company has
been pleaded in or annexed with the plaint authorizing any particular person
to represent the Company, nor any power was shown to have been extended
in favour of Chief Executive of IESCO to file or verify the plaint on its
behalf. Further, it is noted that, even the Chief Executive of IESCO has not
signed or verified the plaints, rather it is some SDO, who has performed
such job.

In such like situation, the Hon’ble Supreme Court of Pakistan in case

of Telecard limited through Authorized representative vs. Pakistan
Telecommunication Authority through Chairman (2014 CLD 415) has held
that, a lis could not be initiated on behalf of the Company, which is a juristic
person, without having due authority either in terms of the articles of
association or by the Board resolution, which in the reported matter, were
conspicuously missing, and when the litigant had not even appended any
document to establish that the Chief Executive of the Company, who even in
the reported matter put his signatures to the memo of appeal, was not having
any authority to do so, the appeal was termed as not maintainable and was
dismissed.

10. Article 149 of The Limitation Act, 1908, provides a period of

limitation of sixty years for a suit by or on behalf of the Central or Provincial
Government, but when this fact is established that IESCO can, in no way,
attain the status of either Federal or Provincial Government, the provisions
of Article 149 of the Act were of no help to the plaintiff.

11. The suits, like present one, would govern under the provisions of
Article 49 of The Limitation Act, 1908, which provides for specific movable
property or compensation for wrongfully taking or wrongfully detaining
such property and for such suit, a period of three years is provided as
limitation and starting point of which is, from when the property is
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Civil Revision No. 212 of 2013.

wrongfully taken or injured or when the detainer’s possession becomes

unlawful.

12. Although in clear terms, in the suits, the starting point of accruing
cause of action in favour of the plaintiff has not been pleaded, but now it is
established that the audit report, finalized in the year, 1992, has been made
basis of the filing of the suits, filed in the year, 2011, as such, the suits, at the
time of their filing, were hopelessly barred by time, if adjudged on the
touchstone of Article 49 of The Limitation Act, 1908.

13. On both counts, i.e. limitation and filing and verifying by an

incompetent person, plaints in the suits were liable to rejection. The learned
trial court has committed illegality, while declining the request of the
defendant-petitioner for rejection of the plaints.

14. The plaints in the suits were not proceedable, even at the time of their
institution. They were defective and were bound to bury in their inception,
but the learned trial court, despite the fact that, inherent defects were pointed
out in such plaints, refused to reject the same and in doing so, committed
illegality and irregularity. The impugned orders dated 22.01.2013 and
22.03.2014 are not sustainable; the same are therefore, set-aside. The
applications, filed by the present petitioners, for rejection of plaint, are
allowed and resultantly all the civil revision petitions are allowed and the
plaints filed by the respondent-plaintiff are rejected under the provisions of
Order VII rule 11 CPC. There will be no orders as to costs.

JUDGE

Approved for reporting

JUDGE

*M.AYYUB*