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.

2021 SCMR 305 

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.

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 the suit under the powers conferred on it by S.153 and Order 1, Rule 10(2) of the CPC.

The courts are also encouraged to take a proactive approach to matters involving the misdescription of parties by exercising authority under S.153 19 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 .

2021 SCMR 305