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Civil Appeal No. 15 of 1954, decided on 14th December, 1954 under O. XLIII, r. 1 (u) of the C. P. C.

O. XXVII, r. 4---Crown pleader not served-Order passed in Crown pleader's absence ultra vires.

Muhammad Arif, for Appellant.

Muhammad Ashraf, for Respondent.

-This appeal has been lodged on behalf of the Federation of Pakistan under the provisions of Order 43, rule 1, C. P. C. read with section 32 of the British Baluchistan Courts Regulation.

The brief facts of the case show that the respondent Mir Mohim Khan filed a suit in the Court of the Senior Sub-Judge in Baluchistan, Quaetta against the Federation of Pakistan claiming that a rifle and certain cartridges, which belonged to him and which had been confiscated by an order of the Collector of Customs, Chagai, who was also the District Magistrate, should either be returned to him or that in lieu thereof he was entitled to Rs. 2,000 denoting the price of the arms and ammunition so confiscated.

The learned Senior Sub-Judge came to the conclusion that no Civil Court had jurisdiction to query the order of confiscation passed by the Collector of Customs/ District Magistrate in this respect and accordingly dismissed the suit.

An appeal against this order was lodged in the Court of the District Judge in Baluchistan who came to the conclusion that the order of the Senior Sub-Judge was incorrect in holding that a suit against the Federation of Pakistan did not lie. In consonance with his finding, the learned District judge remanded the case to the lower Court for disposal on merit.

The grounds on which the appeal has been lodged before me are that notice as required by Order XXVII, rule 4 of the C. P. C. was not given to the Government pleader and that the order of the lower appellate Court was improper, in that opportunity to contest the appeal on behalf of the Federation of Pakistan had not been given.

In examining the order of the lower appellate Court, I observe that the case has also been remanded with a direction that the Government pleader should be given opportunity to contest the case in the light of the provisions of Order XXVII, rule 4 of the C. P. C. It is, however, significant to observe that when disposing of the appal, the lower appellate Court itself did not apparently give proper opportunity to allow the Government Pleader to appear and has given certain findings with regard to the question of jurisdiction of a Civil Court without hearing the Government pleader.

On the same analogy as the lower Court has remanded the case to the original Court for disposal I consider that this case must equally be remanded to the lower appellate Court. Order XXVII, rule 4 of the C. P. C. is a mandatory provision of law which requires that a process must be served upon the Government pleader in any case in which the Crown or the Federation of Pakistan is involved, It is insufficient that a notice has been served upon the Collector of the District concerned, for it is Government pleader alone who is competent to receive processes issued against the Crown. If opportunity is not given, any order passed by a Court must be considered as ultra vires.

In these circumstances, the correct course is for me to set aside the order of the lower appellate Court and to remand the case to it for fresh decision on the merits of the appeal, after notice has been issued to the Government pleader in terms of Order XXVII, rule Q of the C. P C. I order accordingly. The court-fee to be refunded.

A. H. Case remanded.

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