1. ' MRS. YASMIN ABBASEY, J.- Facts leading to this appeal are that applicant M/s Pioneer Cables Limited filed a suit for recovery of Rs.500,000 against M/s S.G. Rayon Mills. It was decided on 13-12- 2001 in appeal preferred against this order. Judgment of the trial Court was set aside with the observation that the plaint as presented by the applicant/plaintif was verified by the person having no power of attorney on behalf of applicant that order of learned appellate Court dated 28th March, 2002has been assailed in this Civil Revision.
2. ' Point for consideration in the above revision is that:- ' Whether the suit 'filed by the Applicant bearing No.799 of 1996 was not maintainable as the plaint was not signed by applicant's authorized representative as required under Order XXIX, rule 1, C.P.C.
3. Contention of learned counsel for the applicant is that by moving an application under Order VII, rule 11, C.P.C. 27-7-1998 in Suit No.799 of 1996 with the same ground respondent had attempted to get rejected the plaint but could not succeeded and his application was dismissed on 16-10-1999.
4. Thus now respondent is estopped from raising the same plea at later stage to support his arguments he has referred PLD 1973 Lahore 878 holding that "the party Should not to be vexed twice over for the same cause is acknowledged in sections 10 and 11 of C.P.C. And even where section 11 does not in terms apply the general principle of res judicata have always been invoked by the Courts of law to achieve finality in litigation."
5. AIR 1952 Travancore Cochin 316, wherein it is observed that: "the principle of section 105 C.P.C. Can be extended to interloutory orders passed in executing proceedings. Hence where the executing Court passes a wrong order granting interest on mesne profits and the order is not _ appealed against still it can be challenged in an appeal against the final order passed in the execution provided it is made a ground of objection in memorandum of appeal. If the appellant has not raised it in the memorandum of appeal it will not be allowed to be raised by the appellate Court."
6. ' There is no denial to the principle laid down in the above citations but the same are not applicable in the matter, as order dated 16-10-1999 on application under Order VIIr rule 11, C.P.C. Reveals that the application was not disposed of finally but was deferred, for want of evidence sought for the purpose.
7. ' Anyhow it is clarified by learned counsel for the applicant that the plaint was verified' by Hanif Ismail Lakhani as attorney and company's Secretary of applicant. He was fully empowered by the company to initiate proceedings on behalf of company and to do needful from time to time in the suit against M/s S.G. Rayon Mills Limited, Authority assigned to him on 13th November, 1996 has been placed on record in Appeal No.l of 2002. Subsequent thereto Asif A. Sattar who deposed in the matter on behalf of the company was also holding power of attorney given to him by the company to adduce evidence in the matter. Hence apparently there appears no illegality in filing the suit or proceeding the case on behalf of the applicant company, as Order XXIX, rule 1, C.P.C. Do not impose condition precedent on the corporation that his Secretary, Director or Principal Officer of him must hold power of attorney on behalf of corporation before proceeding with the case. The only requirement as is sought under Order XXIX, rule 1, C.P.C. Is that the Secretary, Director or other principal officer whosoever may appears on behalf of the corporation be able to depose to the facts of the case.
8. ' With this proposition to argue that the persons who appeared and pursued the case on behalf of corporation were not duly empowered in accordance with the Attorney Act, cannot be borne out.
9. ' Still standing on his objection learned counsel for the respondent argued that as resolution date 5-10-1996 was not filed by the applicant at the trial stage and the case was proceeded without seeking permission from Court therefore, it was not maintainable. Though no proper provision of law has been quoted anyhow even it be, as argued then also, at the best, it can be said to be a technical defect, on account of which suit cannot be dismissed. As it is a settled principle of law that technicalities should not be allowed to come in the way of dispensation of justice. The authority cited by learned counsel for the respondent is 2005 CLC 731 (Sabah Shipyard (Pakistan)
10. Limited v. Riaz Ahmed Saqib, Gohar & Company) is not applicable in the matter as the non- maintainability of suit in context to the non-compliance of Order XXIX, rule 1, C.P.C. Is discussed, where in that case there was condition precedent of - having a resolution of the Board in accordance to the Memorandum of Association of that particular company and in those circumstances it was held that:- "I find force in the contentions of Mr. M. Akram Zuberi learned counsel for the defendant so far the objection regarding maintainability of the suit is concerned. Indeed, this suit has been filed on the basis of a power of attorney executed by a Director of the plaintiff Company in favour of Mr. Samina Siddiqui and other. Advocate in exercise of the power conferred upon him under Article 80 of the Memorandum and Articles of Association of the plaintiff's company, but the fact remains that there is no resolution which appears to be necessary even under Article 80, which has been referred by the learned counsel for the plaintiff. Opening words of Article 80 show that the powers to be exercised under the said Article are ."subject to any resolution of the Board". Thus it appears that a resolution of the Board is sine qua non before exercise of the powers under Article 80 of the memorandum and Articles of Association of the plaintiff's by its Chief Executive."
11. Where in the present case, it is not the case of respondent that any Article of Memorandum of Resolution of applicant's company make it incumbent to any of its member as referred in OrderXXIX rule 1 to hold power of attorney prior in hand, before filing a suit on behalf of company or deposing on its behalf.
12. ' Almost the same, like observation with the same nature of facts are appearing on the other citation referred by learned counsel for the respondent 2000 SCMR 472 (Habib Bank Limited v.
13. Zalins Limited) wherein it is observed that:- "These were cases where authority of the persons who insLiiuted the rent proceedings, on behalf of the bank had been specifically challenged, and in such a situation burden was on the bank to prove that ejectment application had been competently instituted. Either power of attorney (or its copy) in favour of Ibrahim Bawani and Ghulam Muhammad, who had instituted the ejectment applications ought to have been filed showing that they had power on behalf of the bank to institute the ejectment proceedings or a resolution of the bank authorizing them to institute such proceedings produced in evidence. If this was not done some document of the Bank could have been produced showing that the Bank had authorized the filing of the ejectment applications against the respondents or had ratified the filing of the applications. This was also not done and, despite the finding of the Rent^ Controller on the maintainability of the ejectment applications having gone against the bank, in the appeals before the High Court also neither power of attorney in favour of Ibrahim Bawani and Ghulam Muhammad nor copy of any resolution of the Bank was produced. Even before this Court no such power of attorney or resolution has been produced. No document of the bank has been produced ratifying the action of Ibrahim Bawani and Ghulam Muhammad to file the ejectment application." With due respect to the observation, the same are not applicable in the present case, as in that matter due to the incompetency of person who instituted ejectmen proceeding without having any authority of bank which even at later stage was neither confirmed by the bank nor rectified it, it was observed that rent application was not maintainable. Whereas in the instant case, it is not questioned that suit was instituted without consent and permission of applicant/corporation. The only question is that they were not duly authorized which as discussed above is not a requirement under Order XXIX, rule 1 C.P.C. The only condition is that the person appears be conversant with the facts and is able to depose which has not been disputed by respondent.
14. I am fortified to my view with the citations referred by the learned counsel for the applicant as 1996 CLC 1064 (Modern Cotton Ginning and Pressing Factory (Private) Limited of Sarhari District Sanghar (Sindh) v. Eastern Federal Union Insurance Company Ltd.) PLD 1973 Note 33 (Shafiq Metal Works and 5 others v. The Bank of Bahawalpur Ltd., (Gujranwala) and PLD 1983 Pesh. 64 (Australasia Bank Ltd. v. Abdul Aziz Jan and others).
15. ' So far the factual aspects of case are concerned neither they were touched and challenged by the respondent in Appeal No.4 of 2004, thus they need not to reopen again.
16. ' In view of the reasons discussed, I hereby allow the revision of the applicant as prayed and decree the Suit No.799 of 1996.