Proforma defendantsProforma defendants

Proforma defendants are those who are named in a legal action but are not expected to be active participants in the litigation. They are included because they may have an interest in the subject matter or because their involvement is necessary for a complete adjudication of the issues.These citations collectively reveal a legal principle that proforma defendants must be included in Pakistani legal proceedings when their interests might be affected by the outcome of a case. However, they must be properly served, and their roles must be clearly defined to ensure fairness and procedural correctness. Courts in Pakistan have demonstrated

In the context of Pakistani law, the attitude of courts towards proforma defendants—individuals named in a lawsuit where no actual relief is sought against them—can be discerned through various judgments. Proforma defendants are typically included in legal proceedings for ensuring that all parties affected by the litigation are present to represent their interests, even if the outcome of the case may not directly affect them.

The Peshawar High Court in the case of Khanzada Muhammad Rafique Khan v. Hussain-ur-Rehman (2023 YLR 74) addressed the matter of limitation and the rights of usufructuary mortgagees. Here, the court held that the respondents, who stepped into the shoes of the previous mortgagees through mutations, initiated a new period of limitation from the date of subrogation. The court established that the receipt of produce was considered an acknowledgment of the mortgage, providing a fresh cause of action to the mortgagor at every harvest. This judgment underscores the principle that “once a mortgage, always a mortgage,” asserting that the Limitation Act’s provision on the extinguishment of rights after 60 years is contrary to the Injunctions of Islam, thus invalidating any prescriptive rights accrued to mortgagees based on time alone.

In Haji Muhammad Yunis (Deceased) v. Mst. Farukh Sultan (2022 SCMR 1282), the Supreme Court of Pakistan discussed the role of a proforma defendant in the withdrawal of a suit. The Court held that if a party withdraws their challenge to a sale mutation, they lose the right to re-agitate the matter, either as a co-plaintiff or a proforma defendant. However, they may still defend their stance as a defendant, highlighting the nuanced distinction between active claims and defensive positions in legal suits.

Furthermore, the Peshawar High Court in Junaid Khan Babar v. Mst. Farhad Begum (2022 MLD 259) illustrated the transposition of parties from plaintiffs to defendants when a conflict of interest arises during proceedings. This case demonstrates the court’s flexibility in maintaining the procedural integrity of a trial by reassigning party designations to reflect their actual interests in the dispute.

The Islamabad High Court in Salah Uddin Khan v. Public Procurement Regulatory Authority (2022 CLC 497) delved into the issue of non-impleading a necessary party. The Court deemed that the respondents against whom no relief was sought were proforma defendants, and the petition was dismissed for non-joinder of necessary parties. This case reflects the principle that legal actions must be directed against those who have the legal capacity to be sued, and the failure to implead a necessary party is a fatal flaw.

In Mohammad Nazir v. Alim Deen (2022 MLD 1320), the High Court of Azad Kashmir laid out that civil cases are decided based on the preponderance of evidence. The court maintained that parties in whose favour the evidence tilts should prevail, and the failure to implead necessary parties may result in the dismissal of the suit.

In Phool Zeb Khan v. Additional Deputy Commissioner/Collector Mansehra (2017 YLRN 152), the Peshawar High Court stressed the importance of impleading all legal heirs in a suit for declaration of inheritance. The omission to do so could lead to the dismissal of the revision petition.

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Similarly, the case of Masih-ud-Din Khan v. Iftikhar-ud-Din (2016 CLCN 144) showcased how a proforma defendant, who was not properly represented in the suit due to alleged insanity, could affect the outcome of a case involving gift mutations.

In Abdul Shakoor v. Mst. Asghari Begum (2009 YLR 1435), the Lahore High Court found that the defendant’s title documents were forged, and thus, the plaintiff’s claim was decreed. This ruling reiterates the court’s commitment to upholding justice even when proforma defendants are involved.

The Supreme Court of Azad Kashmir in Muhammad Akbar Khan v. Azad Government (2000 YLR 2762) emphasized that the failure to properly serve proforma defendants could result in the dismissal of the suit or appeal. This highlights the importance of ensuring that all necessary parties are part of the proceedings, regardless of their role.

In Birgis Jahan Bajiga Malik v. Muhammad Hasan and Others (1964 PLD 202), the Dhaka High Court addressed the issue of a proforma defendant not setting up a right to property as a defence, indicating that they could not claim such a right during the execution of a decree for specific performance.

The case of Aswini Kumar Bhattacharjee and Another v. Afiluddin Ghazi and Others (1963 PLD 115) from the Dhaka High Court touches upon the procedural aspect of litigation involving the government as a proforma defendant. The court clarified that the absence of notice under Section 80 of the Code of Civil Procedure 1908, which is a requirement before instituting a suit against the government or a public officer, does not affect the maintainability of the suit against other defendants who are not part of the government. This decision is significant because it separates the procedural requirements for suing the government from those for suing private parties.

Section 80 mandates that no suit shall be instituted against the Government or against a public officer in respect of any act purported to be done by such public officer in his official capacity until the expiration of two months after notice in writing has been delivered. However, this case establishes that when the government is named as a proforma defendant—essentially a nominal party without a direct interest in the case’s outcome—the requirement for notice does not invalidate the proceedings against other defendants who are the actual parties in interest.

In practice, this means that while a case may be procedurally defective with respect to the government due to lack of notice, it does not necessarily impede the case’s progression against other defendants. The ruling underscores the courts’ interest in ensuring that technicalities do not obstruct the administration of justice where substantive rights are to be determined between the parties actually in dispute.

Summary of relevant cases

From the 2023 YLR 74 Peshawar High Court case, we understand that proforma defendants can be involved in matters of limitation and acknowledgment in mortgages. In this instance, it was ruled that a usufructuary mortgage where the original plaintiffs were enjoying the possession since the inception of such mortgage and receiving produce was an acknowledgment. This acknowledgment during the persistence of the mortgage would give a fresh cause of action to the mortgagor on every harvest. Hence, proforma defendants in this context are critical for establishing the continuity of interest and acknowledgment in a mortgage, impacting the limitation period for actions related to the mortgage.

The 2022 MLD 259 Peshawar High Court case illustrates the process of transposing plaintiffs to defendants when their positions become hostile or conflicting during proceedings. Proforma defendants can thus be created from among the original plaintiffs when it is necessary to realign the parties to reflect their true interests in the dispute. This ensures that the litigation accurately represents the contentious relationships between parties and facilitates a fair process where each party’s claims and defenses can be appropriately considered.

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In the 2022 CLC 497 Islamabad case, the court highlighted the importance of impleading the necessary and correct parties to a suit. Here, the failure to include a necessary party (the Gas Pipelines Company) while instead naming its officials who had no legal standing as independent parties, resulted in the petition being dismissed. The case underscores that proforma defendants must be more than just nominal parties; they must have a direct interest or role in the matter at hand.

The 2022 MLD 1320 High Court Azad Kashmir case delves into the consolidation of suits and the principle of preponderance of evidence. It does not explicitly discuss the role of proforma defendants but implies their involvement in the consolidation process and the importance of their presence for a comprehensive adjudication of interconnected claims.

The 2000 YLR 2762 Supreme Court Azad Kashmir case provides insight into the procedural implications of impleading proforma defendants. It clarifies that proforma defendants or respondents can be impleaded for various reasons and that the absence of process service on them can affect the integrity of the proceedings. In this case, the indivisibility of the claim between the plaintiffs and the proforma defendants meant their presence was necessary, and failure of service would affect the proceedings as a whole.

Finally, the 1963 PLD 115 Dhaka High Court case speaks to the procedural aspect concerning government bodies as proforma defendants. It indicates that the lack of notice under the relevant section does not necessarily invalidate the suit against other defendants. This suggests that the role of proforma defendants can be somewhat flexible and procedural requirements may vary depending on the nature of the defendant’s involvement.

In summary, proforma defendants are crucial in legal proceedings for accurately reflecting the real interests at stake, ensuring that no necessary party is excluded, and maintaining the integrity of the legal process. They can influence the course and outcome of litigation, particularly in the context of limitation periods, acknowledgment in mortgages, and the correct alignment of parties. Each case must be assessed on its facts to determine the necessity and the role of proforma defendants.

For hearing of CMA No.10508/2012 Mari Gas Company Ltd vs. Byco Petroleum Pakistan Ltd.& another                  Date of hearing   25.02.2013

The case in question revolves around an application brought under Order 1 Rule 10 of the Civil Procedure Code (CPC) by proforma defendant Pakistan Petroleum Limited. The main issue is whether this defendant should be struck off from the array of defendants in a suit initiated by Mari Gas Company Ltd against Byco Petroleum Pakistan Ltd.

From the facts of the case and the application of Order 1 Rule 10 CPC, several key legal principles arise:

  1. Necessary and Proper Parties: Under Order 1 Rule 10 CPC, two kinds of parties can be joined to a suit: necessary and proper. A necessary party is one without whom no effective order can be passed by the court, whereas a proper party is one whose presence would help in completely and conclusively settling the questions involved in the suit. This is in line with the citation from AIR 1963 SC 786 (Udit Narain Singh v. Board of Revenue).
  2. Cause of Action: The principle that a cause of action must be clearly stated in the plaint is stressed here. The court refers to Order 7 Rule 1 CPC, highlighting the importance of proper pleadings to constitute a cause of action against a defendant. Without a cause of action, a plaint is not valid in the eyes of the law.
  3. Striking Off Improperly Joined Parties: The court has the power, either suo motu or on application, to strike off any party improperly joined. This is executed if the court believes that no effective decision can be rendered in the absence of that party, as per Order 1 Rule 10 CPC.
  4. Judicial Discretion: The court has the judicial discretion to add or delete parties at any stage of the proceedings to enable complete and effective adjudication.
  5. Duty of the Court: It is the court’s duty to ascertain that only those parties who are necessary or proper for the effective and complete adjudication of the issues are joined to the suit. This is in line with PLD 1965 Dacca 266 (Lal Mohan Saha v. Krishnalal Saha & others), where the court criticised the lower court for failing to exercise its jurisdiction appropriately.
  6. Interest in the Suit: The party to be joined should have an interest that is likely to be affected by the suit. This does not extend to general or indirect interests.
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In this case, the court ultimately allowed the application under Order 1 Rule 10 CPC and struck off the name of the proforma defendant No.2 from the array of defendants. The reasoning was that this defendant was neither a necessary nor a proper party to the suit, and no relief was sought against them.

The case serves as a practical illustration of how courts apply the rules and principles laid down in the CPC to determine the correct array of parties to a civil suit.The case also provides valuable insights into the concept of proforma defendants within the context of Pakistan’s Civil Procedure Code (CPC), specifically under Order 1 Rule 10. In this case, Pakistan Petroleum Limited was arrayed as a proforma defendant, meaning that it was named in the suit but no specific relief was claimed against it by the plaintiff, Mari Gas Company Ltd.

  1. No Relief Claimed: The court emphasized that the proforma defendant was included in the suit even though no relief was claimed against it. This was a crucial factor leading to its removal from the array of defendants.
  2. No Cause of Action: The court pointed out that not only was no relief claimed against the proforma defendant, but also that there was no cause of action against it. This made it neither a necessary nor a proper party to the suit, leading to its exclusion.
  3. Presence Not Necessary for Adjudication: The court found that the presence of this proforma defendant was not essential for a complete and conclusive adjudication of the questions involved in the case. Therefore, it did not meet the criteria to remain a party to the suit.
  4. Implications for the Plaintiff: Although the plaintiff argued that the proforma defendant should be included because it had a role in the events leading to the suit, the court found this reasoning insufficient. The court suggested that if the plaintiff needed to rely on any facts or events involving this party, it would be more appropriate to call them as a witness rather than include them as a defendant.
  5. Court’s Power to Strike Off: The court exercised its judicial discretion under Order 1 Rule 10 CPC to strike off the name of the proforma defendant, reinforcing the principle that the court can, either on its own or upon an application, remove any party improperly joined.

In summary, the case underscores that being a proforma defendant is not sufficient grounds for being included in a suit. For inclusion, the party must be either a ‘necessary’ or ‘proper’ party as defined under Order 1 Rule 10 CPC. The case serves as a cautionary example for plaintiffs about the potential pitfalls of including proforma defendants without a solid legal basis for doing so.

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