IN THE SUPREME COURT OF PAKISTAN  
(Appellate Jurisdiction) 
 
 
PRESENT:  
MR. JUSTICE MUSHIR ALAM 
MR. JUSTICE SARDAR TARIQ MASOOD 
MR. JUSTICE YAHYA AFRIDI  
 
 
CIVIL PETITIONS NO.1369-L & 1370-L OF 2019  
(Against the judgment dated 19.2.2019 passed by Lahore 
High Court, Lahore in I.C.As. No. 1206 & 1207 of 2016)  
 
 
Province of Punjab thr. Secretary Excise & Taxation 
Department, Lahore, etc (in both cases) 
 
…Petitioner(s) 
                                        VERSUS 
 
 
Murree Brewery Company Ltd (MBCL) 
Sindh Wine Merchants Welfare Association  
(in CP 1369-L/19) 
(in CP 1369-L/19) 
…Respondent(s) 
 
 
For the Petitioner(s): 
 Ch. Faisal Fareed, Addl. A.G. Punjab 
MR. Rizwan Akram Sherwani, Dir. Excise 
& Taxation, Lahore 
Mr. Nadeem Salah-ud-Din, Sr. Law 
Officer, Excise Taxation & Narcotics 
Control Dept.  
 
 
For the Respondent No.1: 
(in both cases) 
Ms. Ayesha Hamid, ASC  
 
 
Date of Hearing: 
24.11.2020 
 
JUDGMENT  
 
Mushir Alam, J.- The Notification No. SO(E&M)/2-3/2011 dated 
24.06.2015 was issued by Secretary Excise & Taxation, Government of 
the Punjab which provided a cause of action to Murree Brewery 
Company Ltd (MBCL) [Respondent] to challenge the levy of export 
duty on the goods manufactured by them and consumed outside of 
the Province of Punjab under Article 199 of the Constitution of the 
Islamic Republic of Pakistan, 1973 [The Constitution]. The 
Constitutional Petition filed before the Honorable High Court was 
accepted vide judgment dated 19.02.2019 and the impugned 
notifications were declared ultra-vires for violating of the freedom of 
trade enumerated under Article 151 of the Constitution.  
 
CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 
 
2 
2. 
 
The Chief Secretary, Government of Punjab, through 
Secretary Excise & Taxation preferred Intra-Court Appeals which were 
dismissed 
for 
being 
non-compliant 
with 
Article 
174 
of 
the 
Constitution, read with S.79 of the Code of Civil Procedure, 1908 
(CPC), whereby it is stated that the case has to be filed in the name of 
the Federal or Provincial Government, as the case may be, and not 
through any of its functionaries. The Honorable High Court could not 
find any plausible explanation as to why the appeals were not filed in 
the name of the Province of Punjab but were instead instituted in the 
name of ‘Chief Secretary, Government of Punjab, through Secretary 
Excise & Taxation, Punjab Secretariat, Lahore’. The Honorable High 
Court also remained unconvinced by the argument that S.79 of the 
CPC amounted to a mere technicality. 
 
3. 
 
Another aspect that the Court found peculiar was that the 
appeals were filed by the Chief Secretary, Government of Punjab 
through Secretary, Excise and Taxation Department, Government of 
Punjab but the Memorandums of Appeals were signed by Deputy 
Secretary, Excise and Taxation Department, Government of the 
Punjab. There was nothing on record to show that the Secretary, 
Excise and Taxation Department, Government of Punjab was the 
authorized authority to file appeals on behalf of the Chief Secretary, 
Government of Punjab, nor could anything be presented to show that 
the Deputy Secretary, Excise and Taxation Department, Government 
of Punjab was authorized to execute the documents on behalf of the 
Chief Secretary, Government of the Punjab. The Court, on the basis of 
the grounds noted above, dismissed the Intra-Court Appeals without 
dilating upon the merits of the case. Therefore, the Government of 
Punjab, through Chief Secretary has preferred an appeal to this Court 
against the impugned judgment dated 19.02.2019. 
 
4. 
 
Arguments heard. Record Perused. 
 
5.  
 
The controversy can be devolved into three fundamental 
questions. The first question is whether S.79 of the CPC amounts to a 
mandatory provision or directory provision. The second question is 
whether non-compliance with this provision could prove fatal to the 
CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 
 
3 
case. The third question is whether any circumstances exist that 
would act as an exception to the general rule.  
 
i. WHETHER S.79 OF THE CPC IS A MANDATORY OR 
DIRECTORY PROVISION: 
 
a. The test for Mandatory or Directory Provisions: 
6.  
 
The test to determine whether a provision is directory or 
mandatory is by ascertaining the legislative intent behind the same. 
The general rule expounded by this Court is that the usage of the word 
‘shall’ generally carries the connotation that a provision is mandatory 
in nature.1 However, other factors such as the object and purpose of 
the statute and inclusion of penal consequences in cases of non-
compliance also serve as an instructive guide in deducing the nature 
of the provision.2  
 
7. 
  
This Court opined in the case of The State Through 
Regional Director ANF v. Imam Baksh and Others3 that: 
“To distinguish where the directions of the legislature 
are imperative and where they are directory, the real 
question is whether a thing has been ordered by the 
legislature to be done and what is the consequence, if 
it is not done. Some rules are vital and go to the root 
of the matter, they cannot be broken; others are only 
directory and a breach of them can be overlooked 
provided there is substantial compliance. The duty of 
the court is to try to unravel the real intention of the 
legislature. This exercise entails carefully attending 
to the scheme of the Act and then highlighting the 
provisions that actually embody the real purpose and 
object of the Act. A provision in a statute is 
mandatory if the omission to follow it renders the 
proceedings to which it relates illegal and void, while 
a provision is directory if its observance is not 
necessary to the validity of the proceedings. Thus, 
some parts of a statute may be mandatory whilst 
others may be directory. It can even be the case that 
a certain portion of a provision, obligating something 
to be done, is mandatory in nature whilst another 
part of the same provision, is directory, owing to the 
guiding legislative intent behind it. Even parts of a 
single provision or rule may be mandatory or 
directory. "In each case one must look to the subject 
                                       
1 (1995) 1 SCC 133. Paragraph 5. 
2 2017 SCMR 1427. Paragraph 6. 
3 2018 SCMR 2039. Paragraph 11. 
CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 
 
4 
matter and consider the importance of the provision 
disregarded and the relation of that provision to the 
general object intended to be secured." Crawford 
opined that "as a general rule, [those provisions that] 
relate to the essence of the thing to be performed or to 
matters of substance, are mandatory, and those 
which do not relate to the essence and whose 
compliance is merely of convenience rather than of 
substance, are directory." In another context, whether 
a statute or rule be termed mandatory or directory 
would depend upon larger public interest, nicely 
balanced with the precious right of the common man. 
According to Maxwell, "Where the prescription of 
statute relates to the performance of a public duty 
and where the invalidation of acts done in neglect of 
them would work serious general inconvenience or 
injustice to persons who have no control over those 
entrusted with the duty without promoting the 
essential aims of the legislature, such prescriptions 
seem to be generally understood as mere instructions 
for the guidance and government of those on whom 
the duty is imposed or in other words as directory 
only. The neglect of them may be penal indeed, but it 
does not affect the validity of the act done in 
disregard of them." Our Court has held while 
determining the status of a mandatory or directory 
provision that "perhaps the cleverest indicator is the 
object and purpose of the statute and the provision in 
question." And to see the "legislative intent as 
revealed by the examination of the whole Act." 
 
8.  
 
The Supreme Court of India has also dilated upon this 
issue in the case of Lachmi Narain v Union of India,4 which was upheld 
in the case of New India Assurance Co. Ltd. v. Hilli Multipurpose Cold 
Storage Pvt. Ltd.5, that: 
“If the provision is couched in prohibitive or negative 
language, it can rarely be directory, the use of 
peremptory language in a negative form is per se 
indicative of the interest that the provision is to be 
mandatory”. 
 
 
 
 
 
 
 
                                       
4 (1976) 2 SCC 953. 
5 (2020) 5 SCC 757. 
CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 
 
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9.   
 
The Indian Supreme Court has also laid down certain 
non-exhaustive precepts in the case of May George v. Special Tehsildar 
and Ors.6 that: 
a) “While determining whether a provision is mandatory 
or directory, somewhat on similar lines as afore-
noticed, the Court has to examine the context in 
which the provision is used and the purpose it seeks 
to achieve; 
 
b) To find out the intent of the legislature, it may also be 
necessary to examine serious general inconveniences 
or injustices which may be caused to persons 
affected by the application of such provision; 
 
c) Whether the provisions are enabling the State to do 
some things and/or whether they prescribe the 
methodology or formalities for doing certain things; 
 
d) As a factor to determine legislative intent, the court 
may also consider, inter alia, the nature and design 
of the statute and the consequences which would 
flow from construing it, one way or the other;  
 
e) It is also permissible to examine the impact of other 
provisions in the same statute and the consequences 
of non-compliance of such provisions; 
 
f) Physiology of the provisions is not by itself a 
determinative factor. The use of the words 'shall' or 
'may', 
respectively 
would 
ordinarily 
indicate 
imperative or directory character, but not always.  
 
g) The test to be applied is whether non-compliance with 
the provision would render the entire proceedings 
invalid or not. 
 
h) The Court has to give due weight age to whether the 
interpretation intended to be given by the Court 
would further the purpose of law or if this purpose 
could be defeated by terming it mandatory or 
otherwise.” 
 
10.    
S.79 of the CPC is reproduced below: 
“79. * * * In a suit by or against the Government) the 
authority to be named as plaintiff or defendants as 
the case may be, shall be: 
a) in the case of a suit by or against the Central 
Government, Pakistan]; 
b) in the case of a suit by or against a Provincial 
Government, the Province; and” 
 
                                       
6 (2010) 13 SCC 98; (2011) 9 SCC 354, Paragraph 20. 
CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 
 
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11. 
 
The aforementioned Section has to be read in conjunction 
with Order XXVII of the CPC that reads as follows: 
“ORDER XXVII 
 
SUITS BY OR AGAINST [THE [GOVERNMENT]] OR 
PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY: 
1) In any suit by or against [the [Government]], the 
plaint or written statement shall be signed by 
such person as [the [Government]] may, by 
general or special order, appoint in this behalf, 
and shall be verified by any person whom [ the 
[Government]] may so appoint and who is 
acquainted with the facts of the case. 
… 
3) In suits by or [against the [Government]] 
instead of inserting in the plaint the name and 
description and place of residence of the 
plaintiff or defendant, it shall be sufficient to 
insert [the appropriate name as provided in 
section 79.” 
 
 
12. 
 
The terminology contained in S.79 of the CPC does, in 
fact, contain the usage of the word ‘shall’. While this may ordinarily 
indicate a mandatory provision, we shall also be considering other 
factors.  
 
13. 
 
The integral factor that is to be considered is the 
legislative intent and the purpose that was to be achieved by the 
application of this provision. The purpose to be achieved by S.79 of the 
CPC and the operation of Article 174 of the Constitution was aptly 
explained by the Honorable Sindh High Court in the case of Gul 
Ahmed Textile Mills Ltd. v. Collector of Customs (Appraisement) and 2 
others7 which states: 
“In a Civil Suit after its admission, summons as 
prescribed are issued against all defendants to file 
their written statements. Now if some relief is being 
sought against Government without its proper 
impleadment as a Defendant, there would be no 
proper assistance or representation on its behalf, 
rather it would be a case of Ex-parte proceedings for 
all practical purposes…” 
 
 
                                       
7 2019 MLD Sindh 144. Paragraph 10. 
CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 
 
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14. 
 
Therefore, the legislative intent and the purpose of the 
operation of this provision is for the State, or the Province, to be 
adequately represented and defended through the impleadment of the 
proper department. This purpose cannot be achieved if the concerned 
and proper department is not made a party to the suit, nor can it be 
achieved if the State, or Province, are not named in the suit.  
 
15. 
 
This Court, in previous matters before it, has held that 
S.79 of CPC is a mandatory provision where the State, or the Province, 
was either not impleaded in compliance with S.79 of the CPC, and 
Article 174 of the Constitution, or the concerned department was not 
made party to the suit. Reference can be made to the cases of Province 
of the Punjab through Member Board of Revenue (Residual Properties) v. 
Muhammad Hussain8, Haji Abdul Aziz v. Government of Balochistan 
through 
Deputy 
Commissioner, 
Khuzdar9, 
and 
Government 
of 
Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq 
Hussain Khan Magsi10.  
 
ii. THE CONSEQUENCE OF BREACH OF S.79 OF THE CODE OF 
CIVIL PROCEDURE, 1908: 
 
16. 
 
The general rule regarding the mandatory nature of S.79 
of the CPC and Article 174 of the Constitution was explained in the 
Indian Supreme Court case of Chief Conservator of Forests, Govt. of 
A.P. v. The Collector11: 
“It is not merely a procedural formality but is 
essentially a matter of substance and considerable 
significance. That is why there are special provisions 
in the Constitution and the Code of Civil Procedure as 
to how the Central Government or the Government of 
a State may sue or be sued. So also, there are special 
provisions in regard to other juristic persons 
specifying as to how they can sue or be sued.” 
 
 
 
This Court also held in the case of Government of 
Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq 
                                       
8 PLD 1993 SC 147. 
9 1999 SCMR 16, Paragraph 9. 
10 2010 SCMR 115, Paragraph 7.  
11 AIR 2003 SC 1805. Paragraph 12. 
CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 
 
8 
Hussain Khan Magsi12 that non-compliance of a mandatory provision 
would render the suit invalid as reproduced below: 
 
“Due to non-compliance of the mandatory provisions 
as enumerated in section 79, C.P.C. and Article 174 
of the Constitution of Islamic Republic of Pakistan, a 
suit against the functionary only is not maintainable 
as has been done in this case” 
 
17. 
 
In light of what has been discussed above, as a matter of 
general principle, S.79 of the CPC is a mandatory provision to the 
extent where the Government is wrongly impleaded or the concerned 
and proper department is not made party to the suit. Such actions will 
render the suit invalid. However, it does not close the right of the 
person filing the proceeding to file the case afresh, subject to 
limitation, by impleading the correct Respondents in accordance with 
the provisions of S.79 of the CPC. 
 
iii. THE EXCEPTION TO THE GENERAL RULE: 
 
b. 
Misdescription or Misjoinder of a Party would not prove fatal 
to a case: 
18. 
 
In this instant case, the Intra-Court appeals were filed as 
‘Chief Secretary, Government of Punjab, through Secretary Excise & 
Taxation, Punjab Secretariat, Lahore’, whereas, the appropriate title, 
as filed in this Court is, ‘Province of Punjab through Secretary Excise 
& Taxation Department, Civil Secretariat, Lahore, etc’.  The point of 
contention remained that where a suit is to be instituted against the 
Government, the authority in whose name the suit has to be filed is 
the Federal or Provincial government, and not any of its functionaries. 
Similarly, an appeal to the Honorable High Court should have been 
filed in the name of the Province through the head of the concerned 
functionary.  
 
19. 
  
However, where the Government itself files the Appeal, 
albeit with the wrong description, the provisions of S.79 of the CPC 
amount to mere nomenclature, which, if not followed, do not render 
the suit unmaintainable. The rationale being that, as mentioned above 
in paragraph 13, the object and purpose of S.79 of the CPC is for the 
                                       
12  Supra Note 10. Paragraph 7. 
CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 
 
9 
Government to be properly represented and defended. The same 
purpose is still achieved where the Government themselves file an 
appeal, as in this case. While such misdescription is a contravention of 
S.79 of the CPC, it is not fatal to the case when it is indeed the 
Government filing the appeal themselves.   
 
20. 
 
A similar matter was adjudicated upon by the Indian 
Supreme Court in the case of Secretary, Ministry of Works & Housing 
Govt. of India and Ors. v. Mohinder Singh Jagdev and Ors.13, wherein, 
even though the Appeal was filed by the Secretary, on behalf of the 
Union, the Court held that the case was maintainable. Such action 
would amount to merely a misdescription that can be remedied by the 
powers vested in the Court. The relevant portion has been reproduced 
below: 
“Having given due consideration to the contentions of 
the counsel and having gone through the facts and 
circumstances of the case, first question that arises 
is: whether the appeal has been competently laid? It 
is not disputed and cannot be disputed that the 
Union of India can lay the suit and be sued under 
Article 300 of the Constitution in relation to its affairs. 
Under Section 79 read with Order 27 Rule 1, Code of 
Civil Procedure, in a suit, by or against the Central 
Government, 
the 
authority 
to 
be 
named 
as 
plaintiff/defendant shall be Union of India. The 
Secretary, Ministry of Works and Housing is a limb of 
the Union of India transacting its functions on behalf 
of the Government under the concerned Department 
as per the business rules framed under Article 77 of 
the Constitution. Therefore, the appeal came to be 
filed by the Secretary, though wrongly described. The 
nomenclature given in the cause title as Secretary 
instead of Union of India, is not conclusive. The meat 
of the matter is that the Secretary representing the 
Government of India had filed the appeal obviously 
on behalf of Union of India. Accordingly, we reject the 
first contention. 
 
 
 
 
 
 
 
 
                                       
13 (1996) 6 SCC 229. Paragraph 5.  
CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 
 
10 
21. 
 
The Indian Supreme Court, in the case of Chief 
Conservator of Forests, Govt. of A.P. v. The Collector,14 also further 
clarified two distinctions for cases where the compliance of S.79 of the 
CPC would not prove fatal to the case as: 
“In giving description of a party it will be useful to 
remember the distinction between misdescription or 
misnomer of a party and misjoinder or non-joinder of 
a party suing or being sued. In the case of 
misdescription of a party, the court may at any stage 
of the suit/proceedings permit correction of the cause 
title so that the party before the court is correctly 
described; however, a misdescription of a party will 
not 
be 
fatal 
to 
the 
maintainability 
of 
the 
suit/proceedings. Though Rule 9 of Order 1 of C.P.C. 
mandates that no suit shall be defeated by reason of 
the misjoinder or non-joinder of parties, it is important 
to notice that the proviso thereto clarifies that nothing 
in that Rule shall apply to non-joinder of a necessary 
party. Therefore, care must be taken to ensure that 
the necessary party is before the court, be it a 
plaintiff or a defendant, otherwise, the suit or the 
proceedings will have to fail. Rule 10 of Order 1 
C.P.C. provides remedy when a suit is filed in the 
name of wrong plaintiff and empowers the court to 
strike out any party improperly joined or to implead a 
necessary party at any stage of the proceedings.” 
 
22. 
 
This Court has also adjudicated on this matter in the case 
of Government of Balochistan, CWPP&H Department and others v. 
Nawabzada Mir Tariq Hussain Khan Magsi,15 wherein, it has been held 
that S.79 of CPC cannot be made the ground for a technical knockout. 
The relevant portion has been reproduced below: 
“We may mention here at this juncture that the 
provisions as contemplated in Section 79, C.P.C. 
cannot be made a ground for technical knockout and 
wrong description of a Secretary as functionary of the 
Government is always 'subject to correction’. In this 
regard we are fortified by the dictum laid down by 
this Court in case titled WAPDA v. Alam Khan16.” 
 
23. 
 
Therefore, where there is a matter of misdescription of 
parties, the Court may, either on its own accord, exercising suo moto 
powers, or after an application being submitted to it, order that the 
name of any party improperly joined be struck out and the appropriate 
party whose presence is necessary to do complete justice be added to 
                                       
14 Ibid. 
15 Supra Note 10. Paragraph 6. 
16 PLD 1991 SC 374. 
CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 
 
11 
the suit under the powers conferred on it by S.153 and Order 1, Rule 
10(2) of the CPC.  
24. 
In the case cited as Uday Shanker Triyar Vs. Ram Kalewar 
Prasad Singh17, learned bench of the Indian Supreme court was 
confronted firstly whether the presentation of a Memorandum of 
Appeal by an counsel without any authority in the shape of a 
vakalatnama is a valid presentation or not. The bench also incidentally 
considered the question whether such defect could be permitted to be 
rectified or not.  While attending to such question learned bench of the 
Supreme court with approval relied on following dictum of Bowen 
L.J.18 
"The object of Courts is to decide the rights of parties and 
not to punish them for mistakes which they make in the 
conduct of their cases by deciding otherwise than in 
accordance with their rights ... Courts do not exist for the 
sake of discipline, but for the sake of deciding matters in 
controversy." 
If therefore there was an inadvertent technical violation of 
the rule in consequence of a bona fide mistake, and the 
mistake is subsequently remedied the defect need not 
necessarily be fatal." 
The Supreme Court after comparing the provisions of Order XLI, 
Rule 1, CPC, Order III, Rule 4, CPC and Order VI, Rule 14, CPC, held 
in paragraph-16 and 17 of its decision as follows: - 
"16. An analogous provision is to be found in Order VI, 
Rule 14, CPC, which requires that every pleading shall be 
signed by the party and his pleader, if any. Here again, it 
has always been recognised that if a plaint is not signed 
by the plaintiff or his duly authorised agent due to any 
bona fide error, the defect can be permitted to be rectified 
either by the Trial Court at any time before judgment, or 
even by the Appellate Court by permitting appropriate 
amendment, when such defect comes to its notice during 
hearing." 
17. Non-compliance with any procedural requirement 
relating to a pleading, memorandum of appeal or 
application or petition for relief should not entail automatic 
dismissal or rejection, unless the relevant statute or rule 
so mandates. Procedural defects and irregularities which 
are curable should not be allowed to defeat substantive 
rights or to cause injustice. Procedure, a hand-maiden to 
justice, should never be made a tool to deny justice or 
perpetuate injustice, by any oppressive or punitive use. 
The well recognized exceptions to this principle are :- 
                                       
17  2006 (1) SCC 75, 
18 Cropper v Smith (1884) 26 Ch. D. 700 (CA) 
CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 
 
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i) where the Statute prescribing the procedure, also 
prescribes specifically the consequence of non-compliance. 
ii) where the procedural defect is not rectified, even after it 
is pointed out and due opportunity is given for rectifying it; 
iii) where the non-compliance or violation is proved to be 
deliberate or mischievous; 
iv) where the rectification of defect would affect the case 
on merits or will affect the jurisdiction of the court. 
v) in case of Memorandum of Appeal, there is complete 
absence of authority and the appeal is presented without 
the knowledge, consent and authority of the appellant; 
 
25. 
 
The courts are also encouraged to take a proactive 
approach to matters involving the misdescription of parties by 
exercising authority under S.15319 and Order 1, Rule 10 of the CPC 
and Order XXVII-A C.P.C, which provision is also made applicable to 
appeals (see Rule (4) ibid). Such misdescription, unless shown to 
mala-fide, and is not remedied when directed, is not fatal to the suit 
and the Courts should actively remedy the mistake so made and add 
Federal or provincial government as a party at any stage of the 
proceedings 
 
26. 
 
This dictum laid down by this Court, in the case of 
Muhammad Anwar and 8 others v. Muhammad Ashraf20 also fortifies 
the principle that a misdescription of parties only amounts to a mere 
technicality that cannot be allowed to stand in the way of justice, 
which should be corrected by the Courts. The relevant extract is 
reproduced below: 
“It reflects from the scrutiny of record that Mst. 
Japan, their guardian ad litem, had two sons with 
the names of Muhammad Hayat and Qamar Abbas 
against whom suit had been filed which aspect lends 
support 'to the fact that factually Umar Hayat was 
intended to be impleaded as a party. In our 
considered view non-mentioning of the correct name, 
at the best can be considered as a lapse or omission 
and amounts to misdescription of a party and is 
always subject to correction which can be made by 
invoking the provisions as contained in section 153, 
C.P.C. and technicalities should not be allowed to 
                                       
19 PLD 1993 SC 363. 
20 PLD 2001 SC 209. 
CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 
 
13 
stand in the way of justice because procedure ought 
not to be used for purpose of defeating justice and 
technicalities of procedure have to be avoided. 
"Independent of express jurisdiction conferred on 
Court by section 153 of Civil P.C., the Court also 
possessed inherent powers for allowing an incorrect 
description of a party in the pleading to be corrected.” 
 
 
26. 
 
The Respondent No.1 was aggrieved by the notification 
dated 24.6.2015, subject matter of the Writ Petition, which was issued 
by the Secretary Excise & Taxation. In the title in the ICA’s Chief 
Secretary, Government of Punjab through Secretary Excise and 
Taxation is shown to be the appellant, instead of province of Punjab, 
which qualifies under the exception of misconception, as the correct 
name i.e Province of Punjab through Secretary, Excise & Taxation was 
not mentioned. Being a mere case of wrong, inaccurate, or 
misdescription of parties, the Court, being sanctuaries of justice, can 
rectify the bonafides error by exercising jurisdiction duly vested under 
S.153, Order 1, Rule 10 and Order XXVII-A of the Code of Civil 
Procedure, 1908 more particularly so when no prejudice is shown to 
have been caused to the Respondent, more particularly when the 
Secretary Excise  & Taxation was the concerned Secretary competent 
authority to represent the Province of Punjab, in the matter in hand. 
 
27.  
 
 In conclusion, as a matter of general principle, the 
provision of S.79 of CPC is a mandatory provision which is applicable 
where the correct and appropriate department is not made party to the 
suit and/or the Government is wrongly impleaded. Such non-
compliance will render the suit invalid for the want of necessary party.
 
 
 
28. 
  
In light of what has been said above, the Petitions are 
converted into appeal and stand allowed. The impugned judgment is 
set aside and the matter is remanded back to the Honorable Lahore 
High Court, Lahore, for decision on merits; The Appellant is directed to 
file amended title of the ICAs’ with proper description of the Appellant 
in conformity with Section 79 of the CPC and Article 174 of the 
Constitution. 
 
CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 
 
14 
29. 
 
The above are the reasons for our short order dated 
24.11.2020, which reads as follow: 
 
“For the reasons to follow, these petitions are 
converted into appeals and allowed. The 
impugned judgment is set aside and the matter 
is remanded to the learned High Court for 
decision on merits  in accordance with law.” 
 
 
 
 
 
 
Judge 
 
 
 
Judge 
 
 
 
Judge 
ISLAMABAD 
24th November, 2020. 
“Approved for reporting”