' The order dated 23-5-1996 of the learned Additional District Judge, Lahore before whom a suit under Order XXXVII of the Code of Civil Procedure filed by the petitioner is pending has been assailed in this revision petition. The relevant facts may be noted hereunder.
'2. On 30-7-1995, the petitioner filed a suit under Order XXXVII of the Code of Civil Procedure for the recovery of an amount of 1,75,000 US Dollars with mark-up and costs against Messrs Topworth Investments (Macau) Ltd. (defendant No,1), Messrs Harvest International (Pvt.) Limited (defendant No,2), Mr. Yiu Wai Ming William (defendant No,3), Mr. Lee Kim Wo (defendant No,4), Mr. Leving Hing Tak (defendant No,5) and Mr. Shahrukh Saeed (defendant No,6).
3. The case of the plaintiff-petitioner in the plaint was that defendant No,2 opened his business office at Lahore to transact the business of opening foreign currency accounts in collaboration understanding and arrangement with Topworth Hong Kong. The plaintiff opened foreign exchange Account No,8257. However, Messrs Topworth Investments Ltd. (Hong Kong) informed the plaintiff that for certain reasons the account will be held by Topworth Investments Ltd. (respondent No,1) and, therefore, plaintiffs account was taken over. It was averred that on 6-7-1995, the plaintiff had to his credit an amount of US Dollars 175,371.38. On the demand of the petitioner for settlement of his account, respondents Nos.3 to 6 expressed their inability to make the payment forthwith on which defendants Nos.3 to 5, acting as authorized agents of respondent No,1, executed a promissory note on 7-7-1995 in the sum of US Dollar, 1,75,000. The said promissory note was duly presented on 10-7-1995 at the office of respondents Nos.1 and 2 but they refused to make the payment. The incident was reported to the Notary Public immediately who noted the fact of the pronote being dishonoured. On 30-7-1995 summons were issued to the defendants in the suit for 14-9-1995, meanwhile on 9-8-1995 an application for leave to appear and defend was filed through Mr. Ihsan-ul-Haq Bhalli, Advocate and Mr. Sana Ullah Khan Kakar, Advocate. It was not signed by any of the defendants in the suit. However, it was accompanied with the affidavit of Mr. Gulrez Mir. It may be noted here that defendant No,2 in the suit was sued through Gulrez Mir as its Chairman/Chief Executive and Director of the said Company.
4. On 14-9-1995 when the case came up for hearing before the learned trial Court, apart from Gulrez Mir, Shahrukh, defendant No,6 (wrongly described as defendant No,3 in the said order) were also present in person. The petitioner-plaintiff raised an objection that the Power of Attorney submitted on behalf of respondent No,1 was vague and incomplete. Accordingly, Gulrez Mir was directed to produce a proper Power of Attorney on behalf of respondent No,
1. It appears that respondents Nos.3, 4 and 5, who were sued in their individual capacity, had not been served. The telegrams addressed to them were also not served on them with report of the postal authorities that the addressees had left without leaving their addresses. In the order dated 14-9-1995 it was noted that defendants Nos.3 to 5 were not being represented properly. Respondents Nos.2 and 6, however, submitted that they will procure power of attorney on behalf of respondents Nos.3 to 5.
The case was adjourned for filing the powers of attorney to 20-9-1995. On 16-8-1995, defendants Nos.3 to 5 executed special powers of attorney in favour of Gulrez Mir, photocopies of which are on the record. In the order dated 7-5-1996, the learned trial Court noted that photocopies of powers of attorney and resolution were placed on record while the originals were returned. At this stage the learned counsel for the petitioner had objected that these documents should be impounded because these did not bear any stamp. Copy of the resolution dated 15-9-1995 of respondent No,1 appointing Mr. Gulrez Mir as its attorney and original special power of attorney dated 16-8-1995 by respondent No,1 in favour of Mr. Gulrez Mir is also on the record. Copy of another resolution dated 12-4-1996 is also on the record of the trial Court whereby the Directors of respondent No,1 affirmed appointment of Mr. Gulrez Mir as attorney of respondent No,l.
5. It may also be noted here that while the case was pending before Mr. Abdul Qadir Shad, learned Additional District Judge, the petitioner sought transfer of the case from his Court on which vide order dated 6-11-1995, the learned District. Judge, Lahore transferred the case to the Court of Mr. Muhammad Aslam Zia, learned Additional District Judge. The petitioner, feeling still aggrieved, approached this Court in Civil Revision No,2270 of 1995 which was disposed of vide order dated 2- 4-1996 and the case was transferred to the Court of Mr. Shafqat Ahmed, learned Additional District Judge. While disposing of the said revision petition, this Court observed that the question whether the pleadings have been signed and verified by a duly authorized person as also the related question as to whether the learned counsel appearing on behalf of the respondents had lawful authority to file any pleadings as also to defend the suit will be considered at the trial. Meanwhile, on 5-10-1995 an application was moved by the petitioner before the trail Court under Order XXXVII, rule 2(2) read with section 151, C.P.C. Seeking a decree against ,the defendants on the ground that application for leave to appear was not filed by a duly authorized person. This application was, however, rejected vide order dated 23-5-1996 which has been impugned in the present petition.
6. The learned counsel for the petitioner has raised the following contentions:--
(1) The application for leave to appear and defend was not signed by any of the respondents nor verified. Thus the provisions of rules 14 and 15 of Order VI of the Code of Civil Procedure were violated.
(2) The affidavit of Mr. Gulrez Mir filed with the application for leave to appear and defend was also attacked with the contention that it did not disclose whether he was filing the application for leave to appear on his own behalf or on behalf of other defendants as well and that it was not claimed that the deponent was fully conversant with the facts of the case.
(3) The verification of the affidavit was also challenged on the ground that it did not indicate the paragraphs which were true to the knowledge of the deponent and the contents of paragraphs which were true according to his information and thus the provisions of rule 15 of Order VI and rule 3 of Order XIX of the Code of Civil Procedure were violated.
(4) The Wakalatnamas dated 9-8-1995 in favour of Mr. Ihsan-ul-Haq Bhalli, Advocate and in favour of Mr. Sana Ullah Khan Kakar, Advocate dated 8-8-1995 were signed by a person who did not disclose his own capacity and the capacity in which he was competent to authorize the said Advocates to file application for leave to appear and defend on behalf of the respondents.
(5) The person signing the power of attorney had no authority whatsoever for any of the respondents. Even as far as respondent No,2 is concerned, his objection was that he was not authorized by a special resolution of the Company to move the application for leave to appear and defend on behalf of respondent No,2 even if the Memorandum and Articles of Association of respondent No,2 authorized him. Further these were not produced before the learned trial Court.
Regulation No,49 of Table-A was also referred to.
(6) Provisions of Order III, rule 4 of the Code of Civil Procedure and rule 4 of Chapter 1-C of Volume I and rules, 2, 4 and 5 of Chapter 6-B of Volume V of the High Court Rules and Orders were also pressed in support of the contention that the Wakalatnamas purporting to have been filed by respondent No,2 was in violation of the aforesaid provisions and the learned trial Court should have refused to recognize the lawyer. Thus, according to him no valid application for leave to appear and defend was filed on behalf of any of the respondents.
(7) As far as defendant No,6 is concerned, no power of attorney was produced on his behalf alongwith the application for leave to appear and defend and only before this Court power of attorney executed by him in favour of Mr. Ihsan-ul-Haq Bhalli, Advocate for prosecuting the matter before the trial Court was placed on the record of this revision petition.
(8) That the power of attorney filed in the case was objected to as noted in the order dated 14-9- 1995 and respondent No,2 was directed to produce the power of attorney on behalf of respondent No,
1. According to him the trial Court did not recognize the authority of Gulrez Mir to represent respondent No,
1. And, in any case on 14-9-1995 Gulrez Mir had no authority to represent respondents Nos.3 to 5. The aforesaid order dated 14-9-1995 not having been complied with, the application for leave to appear at least to the extent of respondents Nos.1, 3, 4 and 5 could not be considered.
(9) The powers of attorney, on the record filed on behalf of respondents Nos.1, 3, 4 and 5 are photocopies which were executed on 16-8-1995 and 15-9-1995 while application for leave to appear and defend was filed on 9-8-1995. The powers of attorney having been filed after expiry of the period prescribed by Article 159 of the Limitation Act, the application moved on 9-8-1995 could not be treated as having been filed on behalf of respondents Nos.1, 3, 4 and 5.
(10) That the learned trial Court erroneously applied the principle of ratification. According to him the powers of attorney did not specifically ratify the act of filing of application for leave to appear and defend by Gulrez Mir on behalf of respondents Nos. 1, 3, 4 and 5. Further, section 200 of the Contract Act was ignored by the learned trial Court according to which ratification could not affect the right or interest of the petitioner to claim a decree at least against respondents Nos.1, 3, 4 and 5.
According to him no retrospective ratification was possible.
(11) Resolution dated 12-4-1996 by respondent No,.1 was also referred to which authorized Mr. Gulrez Mir to appoint legal practitioner in future and, therefore, on 9-8-1995, the date of application, Mr. Gulrez Mir had no authority to act on behalf of respondent No, 1.
(12) The powers of attorney by respondents Nos.1, 3, 4 and 5 in favour of Mr. Gulrez Mir were special powers of attorney which were required to be filed in original and, therefore, on the basis of the photocopies, Mr. Gulrez Mir had no authority to act for respondents Nos.1, 3, 4 and 5 even after the date of execution of the said powers of attorney.
(13) Even if the original powers of attorney were produced (and returned by order of the Court), these could not be acted upon as these were not attested by two witnesses as required by Article 17 of the Qanun-e-Shahadat Order, 1984 and not attested in accordance with Article 95 of the said Order.
(14) The powers of attorney were not attested by a Notary Public as required by the provisions of Notaries Ordinance No,19 of 1961. According to him the Notaries of foreign countries were not included in Article 95 of Qanun-e-Shahadat Order, 1984.
(15) He also submitted that the powers of attorney did not bear the court-fee stamp as required by Item No,48(g) of the Schedule of the Stamp Act and, therefore, were inadmissible by virtue of section 35 of the Stamp Act.
(16) On 30-7-1995 summonses were also sent through registered post, telegram, courier service and fax, therefore, the defendants in the suit shall be deemed to have been duly served and during the time contemplated by Article 159, no application for leave to appear having been filed, the suit of the petitioner ought to have been decreed.
(17) Under sections 451, 452 of the Companies Ordinance, 1984 a foreign company was required to submit certain documents and returns to the Registrar of the Companies and the consequence of non-compliance of the said provisions as provided by section 456 of the said Ordinance, was that respondent No,1 was under a total disability to institute any legal proceedings and, therefore, even with the authority later given to Mr. Gulrez Mir, no application for leave to appear and defend could be filed on behalf of respondent No,1. According to him provisions of section 456 were mandatory.
(18) Sections 455 and 48 of the Companies Ordinance were also relied upon to contend that process issued for the service of respondents Nos.1, 3, 4, 5 and 6 was due service and the failure of the said respondents to apply for leave to appear and defend within the time prescribed by law was fatal.
(19) Mr. Gulrez Mir, on the date of application, was neither the duly constituted attorney nor even a recognized agent of respondent No, 1 .
(20) Respondent No,2 being a limited Company oral authorization or ratification was not sufficient to authorize Gulrez Mir to act on behalf of respondent No,2. Gulrez Mir claimed to be holder of a Power of Attorney on behalf of respondent No,1 and, therefore, he could not claim to be its recognized agent.
(21) Agreement of agency produced before this Court was challenged on the ground that it was not produced before the trial Court and, therefore, could not be filed before this Court. He submitted that, at some stage arguments in the revision petition were concluded and thereafter this agreement of agency was filed before this Court. It was for a period of two years commencing 10-9-1993 and expired on 9-9-1995.
(22) The transaction was entered into with Topworth Hong Kong while the special power of attorney was executed by Topworth Macau in favour of Mr. Gulrez Mir.
(23) A lis is to be decided in accordance with law and when a legal provision was explicit and clear, principles of equity or substantial justice cannot be imported, when a mandatory provisions of law is violated.
7. The learned counsel for the petitioner placed reliance on the following judgments:--
(1) Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1.
(2) Aziz Khan Commander (E) v. The Government of Pakistan and others 1991 CLC 334.
(3) Punjab Livestock Dairy and Poultry Development Board v. Sh. Muhammad Younus 1980 CLC 1932.
(4) Muhammad Hussain v. Bashir Ahmed and others PLD 1987 Lahore 392.
(5) Muhammad Mehrban v. Sadr-ud-Din and another 1995 CLC 1541.
(6) Muhammad Imran Barni v. Federation of Pakistan through Ministry of Communication and Information, Islamabad and 4 others 2001 YLR 2666.
(7) Qurban Hussain and 2 others v. Hukam Dad PLD 1984 SC (AJ&K) 157.
(8) Government of Pakistan v. Premier Sugar Mills and others PLD 1991 Lahore 381.
(9) Sheikh Muhammad Shafique v. Humayun Kabir and 3 others 1981 CLC 1248.
(1.0) Abubakar Saley Mayet v. Abbot Laboratories and another 1987 CLC 367.
(11) Bankers Equity Ltd. Through Attorney and 5 others v. Sunflow Cit-Russ Ltd. (formerly known as Sunflow Juices Ltd.) through Managing Director PLD 1999 Lahore 450.
(12) Azad Jammu and Kashmir Government thrdugh its Chief Secretary at Muzaffarabad and 4 others v. Sardar Muhammad Azad Khan 2000 YLR 2662.
(13) Notified Area Committee, Okara v. Kidar Nath and others AIR 1935 Lahore 345.
(14) Messrs Standard Hotels (Private) Ltd. v. Messrs Rio Centre and others 1994 CLC 2413.
(15) Khan Iftikhar Hussain Khan of Mamdot (represented by 6 Heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550.
(16)Messrs Ideal Life Insurance Co. Ltd. And another v. Mst. Khairunnisa A.G. Mirza. 1980 CLC 1375.
(17)Devk Sports Ltd. v. Silver Stars Ltd. And others 1989 MLD 3493.
(18)F. Kanematsu & Co. Ltd. v. S. Nazir Hussain Puri PLD 1957 (W.P.) Karachi 832.
(19) Bank of Baroda v. Messrs Surendra Udyog (1989) 2 CCC 132 (this book is not available).
(20)Muhammad Umar Mirza v. Waris Iqbal and others 1990 SCMR 964.
(21)O.A.P.R.M.A.R. Adaikappa Chattiar v. Thomas Cook & Son (Bankers) Ltd. AIR 1933 Privy Council 78.
(22)National -Bank of Pakistan and others v. Karachi Development Authority and others PLD 1999 Karachi 260.
(23)Murid Hussain and others v. Muhammad Sharif through his Legal Heirs 1996 CLC 161.
(24) Pakistan Cement Industries Ltd., Rawalpindi v. Teekayee Trading Co. PLD 1971 Lahore 522.
(25) Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344.
(26) Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 811. .(27) Pakistan Tanneries Ltd. v. Sardar Hidayat Ullah Mokal and 5 others PLD 1972 Lahore 880.
(28)Mst. Musarrat Bibi and 2 others v. Tariq Mahmood Tariq 1999 SCMR 799.
(29)Punjab Zamindars Bank Ltd. v. Madan Mohan Singh and others AIR 1936 Lahore 321.
(30)Babu Muhammad Aslam v. Mst. Rehana Parveen PLD 1989 Peshawar 185.
(31)Zia-ud-Din Siddiqui v. Mrs. Rana Sultana and another 1990 CLC 645.
(32) D. Sardar Singh v. Seth Pissumal Harbhagwandas Bankers AIR 1958 Andhra Pradesh 107.
(33) S.M. Khalil v. Biswa nth Basak 1971 DLC (Rev.) 62.
(34) Haji Yousuf v. Jalal-ud-Din and another 1986 CLC 363.
(35) Munir Hussain v. Mst. Mehrun Nisa (through her Legal Heirs) PLD 1982 Karachi 71.
(36) Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678.
(37) Board of Control for Cricket in Pakistan v. Karachi Development Authority through Director- General and 51 others 1997 CLC 795.
(38) Walton Tobacco Company (Pvt.) Ltd. And others v. Azad Government of the State of Jammu and Kashmir and others 1993 CLC 66.
(39) Shahab-ud-Din and others v. Mst. Mariam Bibi and others 1995 MLD 45.
8. On the other hand, Mr. Ihsan-ul-Haq Bhalli, Advocate defended the impugned order. According to him respondent No,1 was a foreign company while respondent No,2 was registered in Pakistan.
Respondent No,2 was the agent of respondent No,
1. Mr. Bhalli made submissions on the merits of the case by attacking the pronote and authority of respondents Nos.3, 4 and 5 to execute the pronote on behalf of respondent No,1 but these facts not being relevant to the controversy being raised in this petition, it is not considered necessary to note them. As far as respondent No,2 is concerned, he invited my attention to the plaint in which the said respondent has been sued through Mr. Gulrez Mir its Chairman/Chief Executive and Director. He also referred to paragraphs 1 to 4 of the plaint to contend that in fact it was conceded that respondent No,2 was the agent of respondent No,
1. Apart from the special power of attorney executed by respondent No,1 in favour of Gulrez Mir, he pressed provisions of clause (b) of rule 2 of Order III of the C.P.C. To contend that respondent No,2, acting through its Director/Chief Executive, qualified as a recognized agent of respondent No,
1. About respondents Nos.3, 4 and 5 he submits that even according to the case set up in the plaint, they acted for and on behalf of respondent No,1 as authorized agents of respondent No,1 and had appointed Gulrez Mir as their special attorney. As far as defendant No,6 is concerned it was contended that he was a Director of respondent No,2 and had executed a power of attorney in his favour which could not be inadvertently filed before the learned trial Court which was, however, filed before this Court with an application. He also referred to Article 71 of the Articles of Association of respondent No,2, which specifically empowers the Chief Executive to institute, prosecute, defend etc. Any legal proceedings by or against the Company or its officers or otherwise concerning the affairs of the Company. On the basis of the said Article he submits that Gulrez Mir, could defend the suit against respondent No,6 on the basis of the aforesaid power. The returns filed by respondent No,2 before the Registrar of Companies were also referred to. He submits that as noted in the order dated 14-9-1995 service of respondents Nos.3 to 5 was dispensed with by the Court with the direction that powers of attorney on their .Behalf should be filed. According to him defendants Nos.1, 3 to 5 were not served and if authority of Mr. Gulrez Mir to represent respondents Nos.1,
3. To 5 was being questioned, proper service of respondents Nos. 1, 3 to 5 should have been procured. Affidavit of Shahrukh Saeed, respondent No,6, filed before this Court, was also relied upon in which he affirmed having appointed Mr. Ihsan-ul-Haq Bhalli, Advocate as his counsel. He next contended that any defect in the Wakalatnama or even non-filing of Wakalatnama with the application was only a curable defect. According to him the authority of the agent could be disputed only by the principal. He further contended that the objections as to the validity of the power of attorney raised by the learned counsel are only hypertechnical. Not only his authority to represent them has been affirmed by all the respondents, no prejudice is otherwise caused to the petitioner because 1,75,000 US Dollars already stand attached. He submits that the technicalities, unless offer insurmountable hurdles, cannot be allowed to defeat the ends of justice.
He also relied upon the agreement of agency to contend that respondent No,2 was a duly constituted agent of respondent No,1 and Mr. Gulrez Mir validly acted not only on behalf of respondent No,2 but also on behalf of respondents Nos.1 and 6. He further submits that there is no express form for ratification. It could be expressed or implied and the execution of special powers of attorney by respondents Nos.3 to 5 in favour of Gulrez Mir had the effect of ratifying the appointment of Mr. Bhalli as their counsel. According to him mere non-disclosure of the capacity in which Gulrez Mir signed the affidavit was of no consequence. He also contended that the original powers of attorney and the resolution dated 12-4-1996 were duly produced in original before the trial Court. These were inspected by the Court, the originals returned and the photocopies thereof retained on the record. As far as respondent No,1 is concerned the original power of attorney was on the record of the learned trial Court. He next contended that if the trial Court was not satisfied that the application for leave to appear and defend was not filed through an authorized person, the issue could only be resolved by providing opportunity to the respondents to produce evidence to show that application for leave to appear and defend was competently filed by a duly authorized person. He also controverted the contentions of the learned counsel for the petitioner based on the provisions of the Companies Ordinance or the Qanun-eShahadat Order and rules 14 and 15 of Order VI of the Code of Civil Procedure.
9. In support of his submissions he placed reliance on the following judgments:--
(i) Muhammad Fayyaz and another v. Director, Procurement Army and others 1997 CLC 88.
(ii) Muhammad Munshi and another v. Mst. Rakiya Bi 1990 CLC 301. .(iii) Ghulam Qadir and another v. Abdul Sattar and another PLD 1984 SC 12.
(iv) Ismail and another v. Mst. Razia Begum and 3 others 1981 SCMR 687.
(v) Mst. Azra Begum v. Piran Ditta PLD 1967 Lahore 807.
(vi) Mst. Karam Nishan v. Mehrban Ali Shah PLD 1959 (W.P.) Lahore 946.
(vii) Abdul Wadud v. The State PLD 1964 Dacca 543.
(viii) Ibrahim Ismail v. Brig. (Retd.) S.H.A. Gardezi PLD 1983 Karachi 154.
(ix) Abdul Ghaffar v. Jamaluddin 1986; CLC 747.
(x) Khyam Films and another v. Bank of Bahawalpur Ltd. 1982 CLC 1275.
(xi) State Life Insurance Corporation of Pakistan v. Mst. Maroof Jan and others PLD 1986 Peshawar 121.
(xii) Australasia Bank Ltd. v. Abdul Aziz Jan and others PLD 1983 Peshawar 64.
(xiii) Imtiaz Ahmed v. Ghulam Ali and 2 others PLD 1963 SC 382.
(xiv) Lt.-Col. (Retd.) P.G. Braganza v. The Border Area Allotment Committee and another 1984 CLC 1479.
(xv) Messrs Government Employees Cooperative Housing Society Ltd. And another v. Province of Punjab and others 1995 CLC 765.
(xvi) Mst. Aziza Begum and 5 others v. Muhammad Hussain Khan and 4 others 1995 CLC 1578.
(xvii) Toor Gul v. Mst. Mumtaz Begum PLD 1972 SC 9.
(xviii) Mst. Shanaz Begum and 4 others v. Ashiq ' Hussain Bhatti and 2 others 1995 CLC 327.
(xix) Sirbaland v. Allah Loke and others 1996 SCMR 575.
(xx) Muhammad Khaliq v. Abdullah Khan and 4 others 1997 CLC 1366.
10. I have considered the submissions made by the learned counsel for the parties and had the benefit of going through a large number of precedent cases cited at the bar by the learned counsel. Before respective contentions of the learned counsel for the parties are examined, I will like to refer to the following observations of the Honourable Supreme Court made in the case of Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213:-- "It is well-settled that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of expressions which may be found there are not intended to the expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found (Quinn v. Lenthem 1901 AC 495, 506).
' The following observations in the case of Quinn (supra) were also noted with approval: "A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it.
' The judgments cited at the bar have been considered by me keeping in view the aforesaid principles.
11. As far as the first contention of the learned counsel for the petitioner based on rules 14 and 15 of Order VI of the Code of Civil Procedure is concerned, rule 14 requires that every pleading shall be signed by the party and his pleader, if any, and rule 15 requires verification. An application for leave to appear and defend under Order XXXVII, rule 3, C.P.C. Is being assumed as a 'pleading' for the purpose of rules 14 and 15 ibid. This is a mistaken assumption of law because 'pleading' as defined in rule 1 of Order VI means 'plaint or written statement'. This definition is exhaustive and, therefore, an application C under rule 3 of Order XXXVII, C.P.C. Does not fall within scope of said definition to attract the provisions of rule 14 or 15 of Order VI of the Code of Civil Procedure. Even otherwise, in the cases of Muhammad Fayyaz (supra) and Muhammad Munshi (supra) relied upon by the learned counsel for the respondents a defect of verification was considered to be a mere irregularity. In the case of Ismail and another even the absence of the signatures on the plaint was considered to be a mere irregularity. Therefore, the first contention has no merit.
12. As far as the second contention is concerned Gulrez Mir had sworn the affidavit. He is the Chief Executive of respondent No,2 and where there are more defendants than one, affidavit of even one of the defendants alongwith application for leave to appear and defend was sufficient compliance of rule 3 of Order XXXVII of the Code of Civil Procedure.
13. As far as the third contention is concerned, neither rule 15 of Order VI nor rule 3 of Order XIX of the Code of Civil Procedure was attracted, the objection has no merit.
14. As far as the fourth contention is concerned, Wakalatnamas dated 9-8-1995 and 8-8-1995 respectively in favour of Mr. Ihsan-ul-Haq Bhalli, and Mr. Sana Ullah Khan Kakar, Advocates were signed by Gulrez Mir. He was described as Chairman, Chief Executive and Director of respondent No,2 in the plaint itself.
15. As far as the fifth and sixth contentions are concerned, respondent No,2 was sued through Gulrez Mir. Certified copy of the Articles of Association was placed on the record of this revision petition which I have taken into consideration. Clauses (n) and (q) of Article 71 specifically authorize the Chief Executive, to combat, prosecute, defend, compound, settle, compromise, adjust, to refer arbitration, withdraw, the legal proceedings by or against the Company or its officers concerning the affairs of the Company or to appoint a counsel. The said Article confers specific authority on Gulrez Mir to act for respondent No,2. In the case of Abu Bakar and Saley Mayet suit was filed by Manager and Principal Officer, who had no authority according to the Articles of Association. The power of attorney executed in his favour subsequently did not authorize him to file the suit. In the case of Punjab Livestock Board supra, the Project Manager had executed Wakalatnama in favour of the counsel who moved an application for setting aside the ex parte decree. It was held that the Project Manager was not authorized to appoint a counsel. In the case of Government of Pakistan (supra) out of nine plaintiffs eight were limited companies while plaintiff No,9 was an Association. It was observed that it was not shown that the suit on behalf of the companies was filed by duly authorized persons. It was observed that even a person Incharge of the affairs of the Company was not competent to file a suit unless he was authorized by the Board of Directors. As far as plaintiff No,9 was concerned, this Court noted that suit on behalf of the said plaintiff was filed through the Secretary who was not competent to file it in accordance with the Articles of Association. In the case of Bankers Equity (supra) application for leave to appear and defend was filed by the Purchase Manager of the Company. It was held that he was not authorized by the Articles of Association to file the application for leave to appear and defend. In this case it was also observed that authorization beyond limitation was not valid although it was noted that till the date of decision of the said case no action was taken to ratify the act of the Purchase Manager.
In the case of Dumez Boric (supra) suit filed by an attorney on behalf of registered firm was held to be incompetent with the observation that he could only sign and verify the plaint. In the case of Messrs Standard Hotel (supra) it was observed that persons mentioned in Order XXIX, C.P.C. Can sign and verify the pleadings and not institute the suit. In the said case suit was filed by the Director on the basis of unamended Articles of Association which authorized a Director to file the suit but on the date of institution of the suit that Article had been deleted. It was found that in the absence of a resolution of the Board of Directors the Director could not institute the suit. In the case of Khan Iftikhar Khan Mamdot (supra), suit filed by a Director without a legal and valid resolution of the Company was held to be incompetent. In the case of Ideal Life Insurance Company, the plaint was signed and verified by the General Manager and Secretary of the Company who was held to be incompetent. In case of Davk Sports Ltd., suit filed by the Director without proper authority was held to be incompetent. It was noted that the Articles of Association were not produced.
16. Except in the case of Bankers Equity (supra) all the precedent cases cited by the learned counsel were the cases in which suits were instituted by unauthorized persons. The authority to institute a suit by person on behalf of the Company is to be found either in the Resolution of the Board of Directors or the Articles of Association. The obvious wisdom behind it is that while initiating a suit on behalf of the Company, it should not be involved in unnecessary litigation. While situation in a suit filed against the Company is entirely different because, the suit has to be defended by the Company and in this case it was being defended by a duly authorized person i.e. Chief Executive of the Company.
17. The other judgments cited by the learned counsel for the petitioner on the question that when a suit is filed by an unauthorized person, it was liable to be dismissed, may also be noted. In the case of Muhammad Hussain, supra, pre-emption suit was filed by the attorney, but the power of attorney did not authorize him to file the suit. In the case of Muhammad Mehrban, supra, suit for posession was filed by an attorney. It was found that the attorney had no authority to file the suit, it wai further observed that a power of attorney to be valid must fulfil the requirements of sections 32 and 33 of the Registration Act as also of Article 95 of the Qanun-e-Shahadat Order. In the case of Qurban Hussain, supra, a gift was made by the attorney, on behalf of the Principal who was in England. The Principal had himself challenged the authority of the attorney'. In the case of Sh.
Muhammad Shafique, supra, an attorney had appointed an Advocate, who entered into a compromise. It was held that since agent had no authority to compromise, it could not be delegated to the lawyer by the attorney. In the case of Azad Jammu and Kashmir, supra, the power of attorney executed in favour of the counsel did' not authorize him to make the statement settling the dispute. The case of O.A.P.R.M.A.R. Adaikappa Chettiar explains the principles of interpretatim of a power of attorney. In the case of National Bank of Pakistan, supra, it was held that the plaintiff- Bank had failed to prove that the suit was filed by duly constituted attorneys. The case of Muhammad Hussain supra arose out of a preemption matter. It was found that the attorney, who had filed a suit was not duly authorized in the terms of the power of attorney and it was observed that power of attorney required strict construction. In the case of Notified Area Committee, the Secretary had filed the suit on behalf of the Notified Area Committee and it was found that under the Punjab Municipal Act, the Notified Area Committee could not delegate the authority to the Secretary. In the case of D. Sardar Singh, sale was made by the attorney, it was observed that at the time of registration of sale-deed, the Registrar was bound to satisfy himself that the power of attorney fulfilled the requirement of section 32(c) of the Registration Act. The case of Munir Hussain, supra, arose out. Of an ejectment petition. It was observed that the special power of attorney did not authorize the attorney to verify, sign or present the ejectment petition. In the case of Board of Control for Cricket, supra, the suit was filed by Honorary Secretary who was held to be incompetent to file the suit. In the case of Walton Tobacco Company, supra, it was observed that when a suit is filed by the Company, it should accompany the Articles of Association and the Resolution and the names of Directors who participated in the meeting should also be indicated. In the case of Shahab-ud-Din, etc. Supra, the principle that power of attorney required strict construction was reiterated. In case of Haji Yousaf, supra, sale was made by the attorney, the owner of the property has himself challenged the sale-deed and execution of the power of attorney. It was held that neither the original was produced nor execution of the power of attorney was duly proved.
18. None of the judgments relied upon by the learned counsel for the petitioner is applicable in the facts and circumstances of the case because by virtue of Article 71 of the Articles of Association, Mr. Gulrez Mir was fully competent to defend the suit on behalf of respondent No,2 and respondent No,2, acting through Gulrez Mir could lawfully act as a recognized agent of respondent No,1.
19. As far as the seventh contention is concerned, the affidavit of respondent No,6 alongwith the power of attorney dated 9-8-1995 executed by respondent No,6 in favour of his learned counsel for prosecuting the case before the learned trial Court was placed on the record With the explanation that it could not be inadvertently filed. In his affidavit, he has affirmed having appointed Mr. Bhalli as his counsel in the trial Court. In the case of Ghulam Qadir (supra), failure to file power of attorney alongwith petition was not considered to be fatal. This objection is also only hypertechnical in nature. It is being asserted, and not without any basis, that respondent No,6 is also a Director of the Company and the matter concerns the affairs of the Company and, therefore, by virtue of Clause (n) of Article No,71, Gulrez Mir, could even defend the suit on his behalf as well.
However, in view of the affidavit of respondent No,6 that he engaged Mr. Ihsan-ulHaq Bhalli, Advocate before' the trial Court, the objection has no merit.
20. Contentions Nos.8 and 9 being co-related are being discussed together. As observed above, as far as application for leave to appear and defend on behalf of respondents Nos.2 and 6 is concerned, I have already expressed my opinion. As far as respondent No,1 is concerned, apart from the original power of attorney and the Resolution of the Board of Directors which are, however, later in point of time than the date of filing of the application for leave to appear and defend, the learned counsel for the respondents relied on clause (b), rule 2 of Order. III of the Code of Civil Procedure. The said rule authorizes the recognized agents of the parties to appear and act besides the persons holding powers of attorney. Clause (b) of the said .Rule provides that person carrying on trade and business for and in names of parties not resident within the local limits of the jurisdiction of the Court can appear and act in the matter connected with such trade and business where no other agent is expressly authorized. Although agreement of agency was not produced before the learned trial Court yet from the contents, particularly of para. 1 of the plaint, it is established beyond any doubt that respondent No,2 was the agent of respondent No,1. According to paragraph 1 of the plaint, respondent No,2, in collaboration understanding and arrangement with each other, respondent No,2 and Messrs Topworth Limited (Hong Kong) started business of opening foreign exchange account of customers in the business premises , of respondent No,2. According to paragraph 2 of the plaint Messrs Topworth Limited Hong Kong informed the plaintiff that the accounts will be taken over and held by Messrs Topworth Investments Macau which arrangement was accepted by the petitioner. It may also be noted that the. Pronote in question was purportedly executed 'by respondents Nos.3 to 5 on behalf of respondent No,1. Respondent No,2 has been impleaded in the suit on the basis of averments in para. 1 that it was doing business in collaboration with respondent No,l. But for this averment, respondent No,2 would not even be a necessary party to the suit. These facts clearly qualified respondent No,2 as a recognized agent of a respondent No,1 for the purpose of clause (b), rule 2 of Order III of the Code of Civil Procedure. It may be observed, that in view of the time constraint for making an application for leave to appear and defend, the provisions of clause
(b) of rule 2 of Order III of the Code of Civil Procedure are required to be liberally construed since these are beneficial provisions and intended to safeguard the interest of the foreign companies.
21. As noted above, the Wakalatnama was filed alongwith the application for leave to appear and defend by Gulrez Mir, who could competently act on behalf of respondents Nos.1 and 2: However, as far as respondents Nos.3, 4 and 5 are concerned, as noted in the order dated 14-9-1995, the petitioner/ plaintiff had himself pointed out that respondents Nos.3 to 5 were not being properly represented, which was conceded by the learned counsel for respondents Nos.2 to 6 who had stated that he will procure the powers of attorney on behalf of respondents Nos.3 to 5. In these circumstances, the service of respondents Nos.3 to 5 was dispensed with. The original powers of attorney on behalf of respondents Nos.3 to 5 were produced for the inspection of the Court and were returned while photocopies were retained on the record. The filing of the powers of attorney on behalf of respondents Nos.3 to 5 was under the abovesaid arrangement to which the learned counsel for the petitioner had agreed before the trial Court. It may be noted that unless the Principal disputes the authority of the attorney, even subsequent filing of power of attorney is only an irregularity. Further, a perusal of the pronote shows that respondents Nos.3 to 5 purportedly acted on behalf of respondent No,
1. The photocopy of the pronote produced on the record does not indicate that respondents Nos.3 to 5 bound themselves in their personal capacity and even the case in the plaint has been that respondents Nos.3 to 5 acted as authorized agents of respondent No,
1. It may also be observed that since, it has been found that application for leave to appear and defend was competently filed on behalf of respondent No,1, in the peculiar facts and circumstances of the case, the objection that powers of attorney on behalf of respondents Nos.3 to 5 were filed subsequently after the expiry of the period of limitation is of no significance.
22. As far as the tenth contention is concerned, the controversy is not determinative of the fate of the case in view of my findings recorded above. It may, however, be noted that although the powers of attorney executed by respondents Nos.3 to 5 do not expressly ratify the act of filing the application for leave to appear and defend on their behalf yet it may be observed that according to section 197 of the Contract Act ratification may be express or implied. But for the representation of respondents Nos.3 to 5 by Mr. Ihsan-ul-Haq Bhalli, Advocate before the trial Court, they were required to be properly served since according to report received in connection with the telegrams they had left the place of residence. Mr. Ihsanul-Haq Bhalli, Advocate not only represented, respondents Nos.3 to 5 before the trial Court but he is also representing them before this Court.
Therefore, to my mind the principle of section 197 of the Contract Act was fully attracted. It may be noted that unless the principal gives notice of his dissent to the unauthorized act of the agent within a reasonable time it raises a presumption of ratification. As far as the exception provided in section 200 is concerned it is not applicable in the facts and circumstances of the case because the said section contemplates that if the act was done with the authority, it would have effect of subjecting a third person to damages or of terminating any right or interest of a 3rd person.
Defence of the suit on behalf of respondents Nos.3, 4 and 5 through the learned counsel could not possibly subject the petitioner to any damages or terminating any right or interest of the petitioner.
The judgments relied upon by the learned counsel for the petitioner on this question have been considered. In the case of Punjab, Zamidara Bank, the suit was filed by the Manager, who had no authority to file the suit and the ratification made by the Directors after the expiry of limitation for filing of the suit was not held to be valid. In the case of Babu Muhammad Aslam, supra, ejectment petition was filed by the attorney in whose favour power of attorney was subsequently executed, it was noted that the principle of ratification was not attracted, if the authority was given to the attorney to act in future. Reference may be made to the case of Muhammad Munshi and another, supra in which the following observations were made:-- "The relationship of a client and a counsel is recognized in law at the level of relations of principal and an agent. In such a situation, when an agent acts on behalf of the principal, even though he is not authorized in the prescribed manner for acting as such at the relevant time, the principal is vested with the authority to ratify the act of his agent with retrospectivity. On this principle, it is permissible to hold that action of Chaudhry Muhammad Hanif, Advocate by signing and verifying the pleadings and institution of the suit, could be ratified' by the plaintiff with retrospective effect."
23. As far as Contention No,11 is concerned, the resolution dated 12-4-1996 authorized Mr. Gulrez Mir to appoint a legal practitioner in future, however, in view of my findings recorded above that respondent No,2, through its Chief Executive could competently act in the matter as a recognized agent of respondent No,1, this contention has no merit. .24. As far as Contention No,12 is concerned the original power of attorney on behalf of respondent No,1 in favour of Gulrez Mir is on the record, while photocopies of the powers of attorney on behalf of respondents Nos.3 to 5 were submitted. As noted above, the original powers of attorney were produced before the Court for inspection and were returned and copies thereof retained on the record and no objection was raised by the petitioner at that time. Therefore, respondents Nos.3 to 5 could not be penalized for the act of the Court.
25. As far as Contentions Nos.13 and 14 are concerned, power of attorney is not a document required by law to be attested by two witnesses and, therefore, Article 17 of the Qanun-e-Shahadat Order, 1984 was not applicable. As far as applicability of Article 95 is concerned it only raises a presumption if attested in accordance with the provisions of the said Article, but it does not requir that a power of attorney to be valid must be attested by the persons mentioned in the said section.
The powers of attorney on behalf of respondents Nos.1, 3, 4 and 5 bear a notarial stamp but it is in the language which is not understandable because these were attested in a foreign country in a language other than English. In any case unless respondents Nos.1, 3 to 5 had disputed the authority of their counsel to represent them, the objection of the learned counsel for the petitioner based on. Article 95 is not sustainable. As observed above, since respondent No,1 was being duly represented by a recognized agent, and basically the claim of the petitioner-plaintiff was against respondents Nos.1 and 2, application for leave to appear and defend could be validly considered on behalf of respondents Nos.3 to 5.
25-A. As far as Contention No,15 is concerned, merely because the powers of attorney did not bear the stamp, these were not invalid and the defect was curable under section 35 of the Stamp Act as observed by the Honourable Supreme Court in the case of Sirbuland, supra.
26. As far as Contentions Nos. 16 and 18 are concerned; the question whether respondents Nos. 1 to 6 had duly been served is not relevant because of my findings that the application for leave to appear and defend was competently filed onaheir behalf.
27. As far as Contention No,17 is concerned, a foreign company, who has not complied with the provisions of sections 451 and 452 of the Companies Ordinance, 1984, remains liable for any contract, dealing or transaction and liable to be sued in respect thereof. However, the said section provides that the company shall not be entitled to, bring inter alia, any 'legal proceedings' in respect of any such contract, dealing or transaction. A perusal of the aforesaid section shows that such a Company can be sued but cannot sue or bring any 'legal proceedings' in respect of any such contract, dealing or transaction. According to the learned counsel, application for leave to appear and defend filed on behalf of respondent No,1 amounted to taking 'legal proceedings' within the meaning of section 456. It is not possible to agree with the contention because it is not a case where respondent No,1 has instituted any legal proceedings in respect of any contract or transaction. The Company (respondent No,1) is defendant in the suit and can legitimately defend it.
It may also be observed that making of an application for leave to appear and defend is step for defending the suit and does not amount to institution of any legal proceedings by respondent No, 1.
The learned counsel for the petitioner relied on the cases of Karim Bibi, Lahore Improvement Trust and Pakistan Tanneries Ltd., supra, inter alia, explaining the terms 'Proceedings', 'Legal Process' and 'Any'. In the first case the Honourable Supreme Court was examining the issue with reference to the proviso to section 3(2) of the Law Reforms Ordinance, 1972 as to maintainability of an Intra-Court Appeal in a settlement matter. In the case of Lahore Improvement Trust, acquisition of land by the Trust was involved. The case of Pakistan Tanneries Ltd. Also arose out of a settlement matter. None of the aforesaid judgments advances the case of the petitioner that making of an application for leave to appear and defend by respondent No,1 amounted to taking any legal proceedings by it. As a defendant, the said respondent had right to defend it and take such actions as were necessary to defend the suit.
28. Contentions Nos. 19 and 20 have already been attended to. The claim of Mr. Gulrez Mir that he also held a power of attorney on behalf of respondent No,1 did not detract from the position of respondent No,2 as a recognized agent of respondent No,1 by virtue of clause (b), rule 2 of Order III of the Code of Civil Procedure.
29. As far as Contention No,21 is concerned, the agreement of agency was for a period of two years.
Notwithstanding non-production of the agency agreement before the trial Court, it could still be considered by this Court. It shows that it was for a period of two years from 10-9-1993 to 1-9-1995, while application for leave to appear and defend was filed on 9-8-1995, during the subsistence of the said agreement. It may also be observed that in accordance with the Article 125 of the Qanun- eShahadat Order, when certain persons are principal and agent and they have been acting as such, the burden of proving that such relationship has ceased is on the person, who so asserts.
30. Contention No,22 is equally without any merit. The original transaction, as claimed by the petitioner was with Topworth, Hong Kong and according to the averments of the plaint Topworth Macau had taken over the accounts of Topworth Hong Kong. Topworth, Hong Kong has not even been sued. In fact, the contention goes against the petitioner because if it is accepted, it would mean that a necessary party was not before the Court. Further, the petitioner has sued Topworth, Macau, and the power of attorney in favour of Gulrez Mir was executed by Topworth, Macau. The transfer of accounts by Topworth, Hong Kong to Topworth, Macau having been, accepted by the petitioner, the objection is not available to him.
31. As far as the Contention No,23 is concerned, both the parties have cited various judgments. The consensus of opinion has been that technicalities should not be allowed to defeat the ends of justice. The learned counsel for the petitioner strenuously relied on the observations made in the case of Manager, Jammu and Kashmir State Property, supra to the effect that "principle of equitable construction agreeable to justice and reason is too well-known to be elaborated subject of course to the equally well-established principle that equitable justice and interpretation should not induce Judges to do violence to the language". The said case had its own peculiar features. In the said case the suit instituted by the respondents was decreed against which an appeal was filed which was dismissed for non-prosecution, an application for readmission of the appeal was also dismissed for non-prosecution and an application for restoration of the application was also dismissed. Instead of pursuing the remedy of readmission of the appeal the Manager, Jammu and Kashmir State Property filed second appeal before the High Court. It was converted into a revision petition and was dismissed in limine. Against that order, an appeal was taken before the Honourable Supreme Court which was allowed and the rule laid down in the case of Imtiaz Ahmed supra was affirmed with the following observations:-- "The proposition could hardly be disputed that the principal object behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of modern society and the conflict between equity and law in judicial history.
It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fide. Over a period of time this development of codes and rules led to the evolution of what is called 'jurisprudence of conception' a system of logical deduction from fixed premises."
32. I may respectfully add that while considering a matter the primary consideration for a Court should be whether non-compliance of a procedural provision has caused any prejudice to the opposite-party. It is a case in which the petitioner desires a technical knock-out of the respondents on the basis of technical and even hypertechnical objections which will plainly defeat the ends of justice.
33. It may also be noted that on a Court query the learned counsel for the petitioner had also cited judgments in support of the plea that a promissory note was not required to be attested by two witnesses and also as to the effect of service by post. I have not considered it necessary to note and examine the said judgments because the question of admissibility of a pronote and service of the respondent are not relevant to the controversy raised in this revision petition.
34. For what has been stated above, I find no force in this revision petition, which is dismissed. No order as to costs. The record of the learned trial Court shall be immediately returned.