1. ' MUNIB AHMAD KHAN, J.---This application (C.M.A. No,170 of 2008) under Order VII Rule 11 read with section 151, C.P.C. Has been filed by the defendants Nos. 1 to 4 on the ground that the plaintiff has no cause of action while the suit from the statement of plaint appears to be barred by law and the instant suit has not been filed by an unauthorized person.
2. ' Taking the first point in respect of the cause of action, the plaintiff has explained that the defendant No,5 contracted it for transportation of certain cargo and for that purpose he has engaged the defendant No,1 but during the course of voyage the goods were damaged and the claim was raised by defendant No,5 and since the cargo was insured, therefore the insurance company has paid the amount to defendant No,5, therefore, it is expected that the insurance company will now file a case against the plaintiff for recovery of insured amount, which is paid to the defendant No,5.
3. ' Mr. S. Ali Haider, learned counsel for defendants Nos. 1 to 4, has argued that some strange prayers have been taken in the plaint as the plaintiff is requested to be transposed the defendant No,5 as plaintiff No,2, which has no cause of action against the present defendant as its claim stand satisfied the insurance company. He has further submitted that impliedly the plaintiff wants that the defendant No,5 should file a suit against the defendants Nos.1 to 4 since the defendant No,5 is not inclined to file the suit after being satisfied from the insured amount, therefore, the suit has been filed in a way that the decree be passed in favour of the defendant No,5 after transposition of it as a plaintiff.
4. ' Mr. S.Tariq Ali, learned Standing Counsel appearing for Defendant No,5 also submits that the Government is not inclined to file a suit and its claim was against the plaintiff and if the insured amount has been paid as stated by other two counsel then the cause of Government will be nowhere.
5. ' After hearing the arguments of learned counsel for the parties, it appears that the suit has merely been filed on apprehension that insurance company may file a suit for recovery of the amount against the plaintiff which is said to have been paid or being paid to defendant No,5 but that situation has not yet come if the insurance company files a suit then the plaintiff will take proper measure by making an application to bring the necessary party on record so the responsibilities of each other be settled by the Court but at this stage and in a form in which the suit has been filed, same is not maintainable and the application is liable to be rejected.
6. ' The issue that the suit is barred by law, has not properly been pressed as no law has been pointed out while it seems that the said issue has been added on the ground of no cause of action, which has been answered above.
7. ' The third issue is in respect of non-authorization for filing of the instant suit, learned counsel for the defendant, has cited the case laws reported as 2006 CLD 440, PLD 1999 Karachi 260, 2004 CLD 1733 and PLD 1971 SC 550. Learned counsel has pointed out that the suit has been filed by one Captain Khawaja Imran Manzoor but there is no resolution or authority with him, therefore, the suit is not maintainable.
8. ' On the other hand, Mr. Adeel Abid, learned counsel for plaintiff submits that all the above authorities have been given after recording of evidence, therefore, a chance be also given to the plaintiff to submit the authorization of person who has filed the suit. In support of his contention, learned counsel has further cited an unreported judgment dated 14-9-2006 passed by a learned Division Bench of this Court in H.C.A. No,331 of 2005 titled as Danakos Shipping Co. Inc, v. The Trustee Karachi Port Trust and others and pointed out the following paragraph:-- "Question as to authority of a person or recognized agent is a question of fact challenge to the authority of a person to file, institute or defend the proceedings must be raised at the first available opportunity, rational being to enable and provide the adversary an opportunity to produce evidence as produced the documents under which he derives the authority."
9. ' After hearing the learned counsel, it appears that Order XXIX is in respect of filing of suit by the Corporations and Rule 1 of the said order is as follows:--
(1) "Subscription and verification of pleading.- In suits by or against a corporation, any pleading 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 able to depose to the facts of the case."
10. (2)
11. (3)
12. In the light of above rule, there is no mandatory provision for a corporation to submit a resolution of Board of Directors or an authority letter at the time of filing of suit but that can be submitted at the time of evidence while the instant case is at initial stage. It has also been noted that the suit was filed in 2006 and company being a corporation itself is not disputing the authority of the signatory rather has appointed an Advocate to pursue the matter, therefore, under section 196 of the Contract Act it amounts to validation of the authority to some extent in the absence of any dispute.
13. Moreover, the same can be questioned after the evidence is recorded. In such a situation, this issue is decided in favour of the plaintiff and the plaint cannot be rejected in terms of Order VII Rule 11 C.P.C. On that count. Anyhow on the issue of no cause of action the plaint stands rejected.