Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑S. 162‑‑‑Civil Procedure Code (V of 1908), S.79. & O.VII, R.11‑‑ Constitution of Pakistan (1973), Art. 174‑‑‑Bar of suits in Civil Courts‑‑ Suit filed against Government Officials‑‑‑Maintainability‑‑‑Suit was filed against Government Officials in their official capacity without impleading "Pakistan" as a defendant was bad in form and not maintainable under the law‑‑‑Suit was also barred under S.162 of the Income Tax Ordinance, 1979‑‑‑Application under O.VII, R.11 of the Civil Procedure Code, 1908 was granted and plaint was rejected being not maintainable and barred under the law on both counts‑‑ Remaining applications also stood disposed of having become infructuous.

Batala Engineering Company Ltd. v. ITO, Lahore 1973 SCMR 282; Releigh Investment Company Ltd. v. Governor‑General-in‑Council PLD 1947 PC 19; Commissioner of Income Tax, West Punjab v. Tribune Trust PLD 1947 PC .247; Secretary, B. and R. Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar. 625, Manahem S. Yeshoova v. Union of India and others AIR 1960 Born. 196 and Province of Punjab through Member, Board of Revenue, Lahore and others v. Muhammad Hussain through his Legal Heirs and others PLD 1993 SC 147 rel.

Plaintiff and his Counsel (absent).

Raja Muhammad Iqbal for Defendant No. 1.

Muhammad Farid for Defendant No.2.

Date of hearing: 16th September, 2002.

JUDGMENT

In this suit for declaration and injunction the plaintiff has prayed for the following reliefs:‑‑

(a) declare that no amount as claimed by the defendants Nos. 1, 2 and 3 stated to be the dues of Network Television Marketing (Pvt.) Ltd., are payable by the plaintiffs;

(b) to declare that the notices, dated 23‑10‑1999 and 25‑10‑1999 are unlawful, and void ab initio, and direct the defendants to withdraw the same;

(c) to declare that all duties, taxes, charges, if payable by the NTM are payable by the defendant No.4;

(d) to restrain the defendants Nos. 1, 2 and 3 their subordinates or any person or persons acting for them or on their behalf, by way of a perpetual injunction from recovering any money from the plaintiff or to employ any coercive methods for recovery of the same in any, manner whatsoever;

(e) to direct the defendants Nos. 1, 2 and 3 to recover the money from PTV other genuine creditors of NTM, and to direct the PTV or other genuine creditors to pay the assessed dues of NTM to the defendants Nos. 1, 2 and 3;

(f) pass' such Order/Orders as this Hon'ble Court‑ may deem necessary in the facts and circumstances of the present case.

An application under Order VII, Rule C.P.C. (C.M.A. No.9698 of 2000) has been filed on behalf of defendant No.2 for rejection of the plaint in view of section 162 of the Income Tax Ordinance, 1979 which bars the filing of the civil suit in Civil Courts against any order made under the Income Tax Ordinance, 1979. Reliance has been placed on the case of Batala Engineering Company Ltd. v. ITO, Lahore 1973 SCMR 282 wherein it has been held that in the first place prima facie suit does not lie under section 67 of the Income‑tax Act. 1922 which itself is a complete code and any grievance in regard to the assessment can be remedied within the four corners of that Act: Reliance has also been placed on the case of Releigh Investment Company Ltd. v. Governor‑General‑in‑Council (PLD 1947 PC 19) and Commissioner of Income Tax, West Punjab v. Tribune Trust (PLD 1947 PC 247). No counter‑affidavit or objections have been filed on behalf of the plaintiff.

2. On the last date of hearing it was also pointed out to the learned counsel for the plaintiff as to how this suit could be considered to be maintainable in view of non‑compliance of section 79, C.P.C.

3. I have heard Messrs Raja Muhammad Iqbal, Advocate for defendant No. 1 and Muhammad Fareed, Advocate for defendant No. 2. The plaintiff and his counsel are called absent. No efforts have been taken on behalf of the plaintiff to seek any amendment in the plant so as to bring the suit in proper form. While taking up the point regarding non‑compliance, of section 79, C.P.C. and its consequence, I would like to reproduce section 79, C.P.C., which reads as below:‑‑

"79. Suits by or against the Government.‑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 suit by or against the Federal .Government, Pakistan;

(b) in the case of a suit by or against a Provincial Government, the Province; and----------------"

A bare reading of the above‑referred section clearly shows that in a suit by or against Federal Government the authority to be made as plaintiff or defendant shall be "Pakistan"; and in case of a suit by or against the Provincial Government it will be the concerned `Province'. Consequence of filing of a suit only, against Government functionaries in their official capacity and their official designation without compliance of section 79 was thoroughly examined by a Division Bench of this Court in the case of Secretary, B. and R., Government of West Pakistan and 4 others v. Fazal Ali Khan (PLD 1971 Kar. 625) wherein the rule has been laid down that a suit brought against official designation or title is bad in form and must fail. Case of Manahem S. Yeshoova v. Union of India and others (AIR 1960 Bom. 196) was also referred and relied upon by the Division Bench, which reads as follows:‑‑‑

"The Collector of Customs is not a legal entity, but is merely an office occupied by several persons from time to time as appointed by the authorities. Hence his suit cannot be filed against or in the name of Collector of Customs."

The present suit has been filed against the Central Board of Revenue, the Income Tax Recovery Office and two others without impleading "Pakistan" as a party/defendant. The Hon'ble Supreme Court of Pakistan in case of Province of Punjab through Member, Board of Revenue, Lahore and others v. Muhammad Hussain through his Legal Heirs and others (PLD 1993 SC 147) has also clarified the position once again in the following words:‑‑‑

"Section 79 of the Civil Procedure Code requires, and so does Article 174 of the Constitution, that all suits against the Central Government have to be filed in the name of Pakistan and against a Provincial Government in the name of Province."

Thus, it will be seen that due to non‑compliance of section 79, C.P.C. and Article 174 of the Constitution the suit is not maintainable in the present form and the plaint is liable to be rejected.

4. The suit also appears to be barred under section 162 of the Income Tax Ordinance, 1979 (old section 67 of the Income‑tax Act, 1922 in view of the rule laid dawn in (1) Batala Engineering Company Ltd. v. I.T.O., Lahore 1973 SCMR 282, (2) Releigh Investment Company Ltd. v. Governor‑General‑in‑Council (PLD 1947 P.C. 19) and (3) Commissioner of Income Tax, West Punjab v. Tribune Trust (PLD 1947 PC 247) as referred above. On this count as well the plaint is liable to be rejected.

5. The upshot of the discussion made above leads to the conclusion that present suit which has been filed against the Government officials in their official capacity without impleading "Pakistan" as a defendant is bad in form and not maintainable under the law. The suit is also barred under section 162 of the Income Tax Ordinance, 1979. Resultantly, this application under Order VII, Rule 11, C.P.C. is granted and the plaint is rejected being not maintainable and barred under the law on both counts as discussed above.

The remaining listed applications also stand disposed of having become infructuous.

C.M.A./I‑78/K Applications disposed of.