' Brief facts out of which present civil revision petition arises are that the respondents filed a suit for recovery of amount in the sum of Rs,20,200,000 for damages against the petitioner before the learned Additional District Judge, Lahore. The petitioner-defendant filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the following issues were framed by the learned Additional District Judge, Lahore:--
(1) Whether the plaintiff is entitled for the recovery of Rs,20,200,000 by way of damages, loss compensation for passing off infringement of trade mark and permanent injunction? OPP
(2) Whether the suit is not maintainable? OPD
(3) Whether the suit has been filed with mala fide? OPD
(4) Whether this Court lacks jurisdiction to try the suit? OPD
(5) Relief.
(5A) Whether the suit" has been filed by a person duly authorized to do so by the resolution passed by the Company's Board of Directors? OPP
2. During the pendency of the suit, the petitioner filed application under section 151, C.P.C. For deciding the aforementioned Issue No,5-A before recording the evidence of the petitioner- defendant. The application was dismissed by the learned Additional District Judge, Lahore vide order dated 2.6-2003, hence the present revision petition.
3. The learned counsel of the petitioner submits that the respondent-plaintiff filed a suit for recovery of a sum of Rs,20,200,000 by way of damages, loss compensation for passing off infringement of trade mark and permanent injunction through its company's Secretary, who was not authorized by the Board of Directors by passing resolution. He further submits that P.W.3 Naosheen Ahmad, Company's Secretary admitted in her statement that the Board of Directors of the respondent-plaintiff has not passed any resolution regarding the case in hand. He further submits that the fact was admitted by P.W.3 in her statement, therefore, the petitioner-defendant is not required to produce any evidence to prove the contents of Issue No,5-A. He further submits that the learned Additional District Judge, Lahore, erred in law to decide Issue No,5-A against the petitioner which is not in accordance with the mandatory provisions of Order XXIX, rule 1 of C.P.C. And law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:-- ' Khan Iftikhar Hussain Khan v. Messrs Ghulam Nabi Corporation PLD 1971 SC 550.
' Messrs Muhammad Siddique, M. Umar v. The Australasia Bank PLD 1966 SC 684.
' Government of Pakistan v. Premier Sugar Mills and others PLD 1991 Lahore 381 ' Millat Tractors v. Ch. Tawakallah NLR 1991 AC 432.
4. I have given my anxious consideration to the contentions of the learned counsel of petitioner and perused the record.
5. It is better and appropriate to reproduce the relevant paragraphs of plaint, written statement, application, written reply of the application, General Power of Attorney Exh.P.7, relevant portion of statement of P.W.3 and Order XXIX, rule 1, C.P.C. To resolve the controversy between the parties:-- ' "Paragraph No,1 of plaint ' That the plaintiff is a subsidiary company of an international company registered under the Company's Laws of Pakistan as a public company limited by shares and is enlisted on the stock exchanges of the country. The present suit is being filed through the Company's Secretary of the plaintiff, who is duly authorized and is well conversant with the facts of the case.
' Paragraph No,1 of written Statement ' That from the facts narrated in the plaint and copies of the documents attached and relied upon, it is manifest that the suit though on behalf of the public limited company has not been filed by a person duly authorized to do so by the resolution passed by the Company's Board of Directors.
' Paragraphs Nos.1 and 2 of application
(1) That the defendant in their written statement had taken preliminary objection to the effect that suit in hand had not been filed by the plaintiff by a person duly authorized to do so by the resolution passed by the Company's Board of Directors and additional Issue No,5 as struck by this Honourable Court on the application of the defendant.
(2) That P.W.3 the Secretary of the company has admitted in her statement that the Board of Directors of the plaintiff-company has not passed any resolution regarding the case in hand.
' Paragraph No,2 of written reply and on merits Nos. 1 and 2.
(2) That without prejudice to the above, the instant application is against the facts as appearing on the record vis-a-vis the law on the subject. It is respectfully submited that the suit has been filed through a duly authorized person of the plaintiff pursuant to the 'resolution dated 1-9-1999 passed by the Board of Directors of the plaintiff-company. This factum is apparent from the contents of the general power of attorney dated 14-9-1999 having been duly placed on record of this Honourable Court. In this manner; the requirement of Order XXIX, rule 1 of C.P.C. Has been duly complied with.
' On Merit Paras.1 and 2
(1) The contents of para. Under reply are not denied to the extent that the defendant took a frivolous objection with regard to the filing of suit by a person not duly authorized by the plaintiff company. As has been submitted in the Preliminary Objection No,2, above, the plaintiff-company having resolved in the Board meeting dated 1-9-1999 duly constituted and appointed its general attorney and the company's Secretary namely Miss Naosheen Ahmad, who is lawfully .Appointed Secretary of the company and duly authorized under Articles 11, 12, 14 and 21 of the General Power of Attorney dated 14-9-1999.
(2) The contents of para. Under reply are misconceived inasmuch as a bare reading of the general power of attorney dated 14-9-1999 having been granted to P.W.3 does not require the company to have passed a special resolution. The plaintiff-company has in fact delegated the power to the said P.W.3 for instituting the civil or criminal action by or against the company. It is further submitted that the general power of attorney has been granted in favour of P.W.3, pursuant to the resolution passed by the Board of Directors of the plaintiff on 1-9-1999. The general power of attorney is in force having not been revoked, altered or withdrawn."
' Contents_ of General Power of Attorney.
' By this general power of attorney ICI Pakistan Limited a company incorporated in Pakistan having its registered office at ICI House, 5-West Wharf, Karachi, hereinafter called the company, in pursuance of Board resolution dated 1-9-1999, does hereby make, constitute and appoint Miss Naosheen Ahmed General Manager, Legal and Secretariat Affairs and Company's Secretary to be its lawful attorney in its name and on its behalf to do, act, and perform all or any of the following acts, deeds, and things in connection with business of the company namely.
' Para. No,11 ' To commence, prosecute, enforce, answer or oppose all actions, suits and legal proceedings and demands whatsoever relating to the business of the property or interests of the company and for all such purposes to appear for and represent the company in any Court or Tribunal, whether Civil Court, Criminal, Industrial, Revenue or Income-tax or before any Central or Provincial Government, semi-Government or other Competent Authority and if thought fit to compromise, compound, refer to arbitration, withdraw or confess judgment in any such proceedings as aforesaid.
' Para. 12 ' To make statement, sign and verify all plaints or receive written statement, fill memorandum of appeal, petitions for review or revision, any document or applications for review or revision, any document or application whatsoever, in all suits and proceedings in any Court, Tribunal or other authority, whatsoever, in which the company may be a party or may concerned."
' Relevant portion of P.W.3 in examination-in-chief ' Present suit has been filed by me, signed and verified by me. I produce the original General Power of Attorney granted to me by General Board of Directors of Pakistan. The attested photocopy of which is placed as Exh.P.7 (original seen and returned). The said power of attorney has not yet been revoked till todate.
' Relevant portion of P.W.3 in cross-examination ' It is correct that Board of Directors of plaintiff-company has not passed the peculiar resolution regarding this case. It is correct that Exh.P.7 is not registered with the Sub-Registrar concerned.
' Order XXIX, rule 1 "Subscription and verification of pleading: ' In suits by or against a corporation, any pleading may be assigned and verified on behalf of the corporation by the Secretary or by any Director or other principal officer of the corporation who is able to depose to the facts of the case."
' The aforesaid Order of C.P.C. Provides only in suit by or against corporation pleadings may be signed and verified on behalf of corporation by the Secretary, or by any Director or other principal officer of corporation, who is well conversant with the facts of the case and is able to depose the facts of the case, meaning thereby the aforesaid rule provides only for the subscription of signatures to and verification of pleadings by the specified person in suit by or against the corporation. In other words, the specified persons are not further authorized to institute suit on behalf of the corporation. It merely authorizes those persons to sign and verify the pleadings on behalf of a corporation. The Order XXIX, rule 1 of C.P.C. Reveals that the authority given by the said rule to the Secretary, Director or principal officer of corporation, sign and verify on its behalf, does not authorize to institute suit on behalf of Company without authority to institute suit conferred on him through Company Resolution. In such situation, the suit was not competently filed as per law laid down by Honourable Supreme Court in Messrs Muhammad Siddique, Muhammad Umar v. The Australasia Bank Ltd. PLD 1966 SC 684 and Khan Iftikahr Hussain Khan v. Messrs Ghulam Nabi Corporation PLD 1971 SC 550."
6. The proposition of law was considered in Emirates Bank International Ltd v. Super Drive-in Ltd.
And others 1990 MLD 538. The relevant observation is as ' follows:-- "It was next that the Article of Association of the Union Bank Ltd of Middle East provided that the Executive Committee may exercise all the powers and do all the acts on behalf of the company as is authorized to do by the Board of Directors. The power of attorney in this case was not given by the members of the Executive Committee but by two Assistant General Managers. Hence, the attorney of the plaintiff, who had filed this suit, had no power to do so. Reliance was placed in PLD 1966 SC 684--Muhammad Siddique Muhammad Umar v. Australasia Bank Lid., where it was held as follows:-- `It was apparent from the pleadings that the suit was being instituted by a constituted attorney of a public limited company. He could only do so, if he was duly authorized in that behalf and occupied one or other of the offices mentioned in rule 1 of Order XXIX of the Civil Procedure Code. A copy of the power of attorney had been produced which showed that Muhammad Khan had been empowered in that behalf but the question still remained to be ascertained as to whether those who gave him that power were competent to do so, as the authority was on behalf of a public limited company. For this purpose a reference to the Article of Association of the Company was certainly necessary to see whether the Directors were competent to delegate such power. It was not necessary to see whether the Directors had in fact approved of the giving of such power of Attorney Lo the person who presented the plaint. This was, however, proved by the production of the resolution of the Board of Directors as a matter of abundant caution. The additional evidence was to that extent, therefore, in our opinion, rightly admitted. This was all that was required. It was not necessary , to call the Managing Director as the Court calling for the additional evidence itself realized subsequently. Even the production of the resolution could have been dispensed with, as it was not strictly necessary."
' From the above observation of the Supreme Court, it would appear that it was neither necessary to produce the 'resolution nor to summon the Managing Director. All that was to be seen was whether he was duly authorized in that behalf and occupied one or other of the offices mentioned in rule 1 of Order 29, C.P.C. Which provides that pleadings may be signed and verified on behalf of the corporation by the Secretary or by any Director or other principal officer of the Corporation, who is to depose the facts of the case. It would, therefore, appear that this defence is also not plausible."
7. The question of law has also been considered in Modern Cotton Ginning and Pressing Factory (Pvt.) Ltd. Of Sarhari, District Sanghar, Sindh v. Eastern Federal Union Insurance Company Ltd. 1996 CLC 1064. The relevant observation is as follows:-- "Hence the words duly authorized in Order 6, rule 14, C.P.C., need not be restricted to mean authorized by proper written authority or by power of attorney, as further held. Hence a Secretary or a Director of a Corporation, filing the suit on behalf of such corporation need not be specially authorized to do so. In the same case it was held that the plaint must be verified by the plaintiff or one of the plaintiffs or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case and that even omission to verify a pleading was a mere irregularity because the verification can take place even after filing of the suit. In the case of Khan Iftikhar Hussain Khan of Mamdot PLD 1971 SC 550 exception was taken to the fact that a suit filed on behalf of company was instituted by a person, who was not validly authorized to institute the suit and who was neither Director nor Secretary of the Company. In view of this, the cited cases are distinguishable from the instant case where the suit was filed by a Director of the appellant."
8. According to the contents of power of attorney mentioned above, read with relevant portion of statement of P.W.3, clearly reveals that the Board of Directors through its resolution dated 1-9-1999 authorized the Secretary to file a suit and written statement; whereas the suit was filed by the respondent on 31-10-2000. P.W.3 Company's Secretary in his examination-in-chief, stated that General Power of Attorney was executed in her favour by the Competent Authority on the basis of Resolution dated 1-9-1999 by the Board of Directors. The General Power of Attorney has not yet been revoked till date, therefore, it is not necessary by the respondent/plaintiff to pass execute fresh special power of attorney with regard to file the present suit through Company's Secretary.
The onus was shifted upon the petitioner after the statement of P.W.3 to rebut the statement of P.W.3 that P.W.3 was not authorized by the Board of Directors through Resolution dated 1-9-1999 on the basis of which General Power of Attorney was executed by the Chief Executive in his favour.
9. In view of above mentioned circumstances, the impugned order is valid as per law laid down in Zahoor Asif's case 1989 ALD 380(2) and I do not find any illegality or infirmity in the impugned order of the learned Additional District Judge, Lahore. It is settled law that each and every case is to be decided on its own peculiar circumstances and facts. The case-law cited by the learned counsel of the petitioner, are distinguished on facts and law on the ground that in the present case, the Secretary authorized to file a suit through General Power of Attorney on the basis of Resolution, passed by the Board of Directors on 1-9-1999 before filing of the suit, therefore, the case-law relied by the learned counsel of the petitioner, have no nexus to resolve the present controversy.
' In view of what has been discussed above, this revision petition has no merit and the same is dismissed.