' AMIN-UD-DIN KHAN, J.---Through this appeal, appellant has challenged the order dated 16-1-2007 passed by learned Civil Judge 1st Class, Gujranwala, whereby the plaint of suit for pre-emption filed by the appellant was rejected under Order VII Rule 11 of the C.P.C., which amounts to a decree.
2. Briefly, the facts as leading to this appeal are that the plaintiff-appellant is a private limited company filed a suit on 17-5-2005 to preempt the sale of land in favour of defendants Nos.1 to 4 by defendant No,5 through sale deed No,9 registered on 18-1-2005 with regard to the suit property mentioned in the plaint. The defendants on 4-10-2005 filed an application under Order VII, Rule 11 of the C.P.C. For rejection of plaint on the ground that suit has not been filed by the authorized person and also it is barred by law and 1/3rd amount has not been deposited within 30 days from the date of filing of suit. The record shows that plaintiff Moved two applications under Order VI, Rule 17 of the C.P.C. For permission to amend the plaint. The reply was filed. Learned trial court after hearing the arguments of learned counsel for the parties vide order dated 16-1-2007 while rejecting the plaint has also dismissed both the applications for permission to amend the plaint.
3. We have heard the learned counsel for the parties on 13-6-2013 and 18-6-2013 and case was reserved for announcement of judgment. However, during the course of dictating judgment it transpired that some important points far reaching consequence require clarification, therefore office was directed to fix the case for rehearing on 27-6-2013 after notice to learned counsel for the parties. On 27-6-2013 while noting the facts of case as well as arguments of learned counsel for the parties we framed the following questions:--
(a) Whether a juristic person can file a suit for possession through pre-emption under the Punjab Pre-emption Act, 1991?
(b) How a juristic person can make Talbs?
(c) Whether Chief Executive of the Company or any other employee of the Company can make Talb-e-Muwathibat on behalf of the Company and what is its procedure under law and Islamic jurisprudence?
(d) Whether the fact regarding authorization of making Talbs on behalf of the juristic person should mandatorily be mentioned in the plaint like other details of Talb-e-Muwathibat, that is, date, time, place and name of witnesses.
' On the above said date we also made request to Messrs Mian Hameed-ud-Din. Kasuri and Sh.
Naveed Shehryar, Senior Advocates, Supreme Court of Pakistan to assist this Court as Amicus Curiae, who accepted our request and today both the learned Amicus Curiae have given assistance to this Bench on the above mentioned points. First of all; we have heard the learned Amiens Curiae and then learned counsel for the parties.
' It is necessary to note here that in case in hand the juristic person is a private limited company and we have been assisted with regard to company as juristic person only, therefore to this effect we are dilating upon the questions framed and to the extent of other juristic persons the matter will be considered in an appropriate case.,
4. (a) Whether a juristic person can file a suit for possession through pre-emption under the Punjab Preemption Act, 1991?
' Learned both the Amicui Curiae are of the opinion that yes, the juristic person can file a suit for possession through pre-emption as a juristic person can hold and acquire the property. They state that this question has been considered by the learned Single Judge of Sindh High Court in case reported as "PLD 1997 Karachi 276 (SIRAJUDDIN PARACHA and 12 others v. MEHBOOB ELAHI and 3 others)" but the question has not been decided. Learned Amicus Curiae have their opinion that the juristic person can file suit for possession through pre-emption.
5. (b) How a juristic person can make Talbs?
Learned both the Amicui Curiae have the opinion that the juristic person can make Talbs through authorized person by way of resolution of Company in accordance with the procedure, memorandum and article of Association of the Company. They are of the opinion that there must be specific power given to the authorized person for making all the Talbs i,e, specifically Talb-e- Muwathibat, Talb-e-Ishhad and Talb-e-Khasumat. Without specific authority by the Company no Talbs can be made on behalf of the Company by any person, he may be the Chief Executive of the Company.
' In the opinion of Sh. Naveed Shehryar, Advocate/Amicus Curiae that on the basis of principles of section 14 of the Punjab Preemption Act, 1991, Attorney appointed by the Company can make demands. Mian Hameed-ud-Din Kasuri, Advocate/Amicus Curiae has referred Explanation II of section 235 of Mahommedan Law by Mulla to express his opinion that Talbs can be made by the person authorized by the Company. Both the learned Amicus Curiae have referred "PLD 2013 Supreme Court 190 (UNAIR ALI KHAN and others v. FAIZ RASOOL and others)" to state that the authorization must be specific with regard to making of every Talab.
6. (c) Whether Chief Executive of the Company or any other employee of the Company can make Talb-e-Muwathibat on behalf of the Company and what is its procedure under law and Islamic jurisprudence?
' Learned both the Amicui Curiae are of the opinion that the Chief Executive or other employee of the Company cannot make Talb-iMuwathibat on behalf of Company without prior authorization by the Company for making Talbs. They have referred "2012 YLR 2666 (Messrs AUJLA AND ASSOCIATES through Chief Executive v. ADDITIONAL DISTRICT JUDGE, GUJRANWALA and 2 others)".
' In the opinion of Sh. Naveed Shehryar, Advocate/Amicus Curiae the resolution for authorization of making Talbs can be made after the sale comes in the knowledge of Company through any means and then just after passing the resolution of authorization, authorized person can immediately make demand of Talb-e-Muwathibat but in the opinion of Mian Hameed-ud-Din Kasuri, Advocate/Amicus Curiae there must be prior resolution of authorization in favour of authorized person of Company for making Talb-e-Muwathibat before the knowledge of sale to the Company. Both the learned Amicus Curiae state that it is a very difficult question and there is no legislation upon this question. It is needed that there must be some legislation upon this point.
7. (d) Whether the fact regarding authorization of making Talbs on behalf of the juristic person should mandatorily be mentioned in the plaint :like other details of Talb-eMuwathibat, that is, date, time, place and name of witnesses?
' Learned Amicui Curiae are of the opinion that it is must that authorization of Talbs on behalf of juristic person should be mandatorily mentioned in the plaint like other details in the light of Order VI Rule 14 of the CPC. They have referred "PLD 2004 Karachi 17 (ABDUL HAMEED KHAN v. Mrs. SAEEDA KHALID KAMAL KHAN and others), PLD 1997 Karachi 276 (SIRAJUDDIN PARACHA and 12 Others v.
MEHBOOB ELAHI and 3 others) and 2009 CLD 194 (MUHAMMAD AYUB AND BROTHERS through Partner v. PROVINCE OF SINDH through Secretary Irrigation and Power Department, Karachi and another)."
8. After hearing the learned Amicui Curiae we have heard the learned counsel for the appellant. He argues that in the light of section 182 of the Contract Act, 1872 there is no need of agency, rather Chief Executive himself can make Talbs on behalf of the Company without any prior resolution.
States that mentioning of authority of making Talbs and filing suit in the plaint is also not necessary.
9. On the other hand, learned counsel for the respondents-defendants while referring section 196 of the Companies Ordinance, 1984 argues that it is not automatically within the powers of Chief Executive or a Director to make Talbs; that the resolution is must in accordance with section 172 of the Companies Ordinance, 1984; that when no Taibs were made by the authorized person, therefore suit was barred by law and as such the plaint has rightly been rejected. On facts learned counsel argues that even there is no mention of any resolution of Company in the plaint nor any such resolution is mentioned in the list of documents produced with the plaint or in the list of documents relied by the plaintiff. Further states that even in the reply of application under Order VII, Rule 11 of the C.P.C. There is no mention of resolution; that first application for amendment of plaint was filed wherein the resolution dated 17-12-2005 was mentioned and another application for amendment was filed wherein it was stated that actually the date of resolution is 17-12-2004 instead of 17-12-2005. Relies upon "PLD 2013 SC 239, Abaid Ullah Malik v. Addl. District Judge, Mianwali and others to state that no amendment was permissible.
10. We have heard the learned counsel for the parties as well as learned Amicus Curiae at full length and also gone through the record and also case-law referred by them minutely.
11. First we take point "(a) Whether a juristic person can file a suit for possession through pre- emption under the Punjab Preemption Act, 1991?"
12. We see what is the juristic person? The definition has been given in Article 260 of the Constitution of the Islamic Republic of Pakistan, 1973 which is as under:-- "Person, includes any body politic or corporate."
According to Black's Law Dictionary: "Artificial person (juristic person). An entity, such as a corporation, created by law and given certain legal rights and duties of a human being; a being, real or imaginary, who for the purpose of legal reasoning is treated more or less as a human being."
According to the online free dictionary" M "An individual or group that is allowed by law to take legal action, as plaintiff or defendant. It may include natural persons as well as fictitious persons (such as corporations). Blackstone."
' Black's Law Dictionary, Ninth Edition, By Bryan A. Garner Editor in Chief, Page No,1258. http://www.Thefreedictionary.Com/Juristic +person.
13. There is consensus on this point that a juristic person can file a suit for pre-emption. We are also of the view that a juristic person can file a suit for pre-emption because a juristic person can hold property and can also acquire property. A suit for pre-emption is filed on the basis of right in the property sold on the basis of property already held by the pre-emptor. In accordance with section 6 of the Punjab Pre-emption Act, 1991 it vests in "Person" in case of Shafi Sharik and Shafi Jar, whereas in case of Shafi Khalit the word "Participator" in the special rights attached to the immovable property sold has been used.
We have gone through the judgment of august Supreme Court "PLD 2009 Supreme Court 183 (Malik Bashir Ahmad Khan and others v. Qasim Ali and others)" whereby in Para 5 of the judgment the apex Court has held that a suit of pre-emption can be filed against a living, natural or a legal person only with reference to "PLD 1971 Karachi 625 (Secretary, B & R, Government of West Pakistan and 4 others v. Fazal Ali Khan)"/ In view of the principle laid down by the august Supreme Court a suit can be filed against a juristic person, therefore same is the position that a juristic person can also file a suit to pre-empt the sale of land. Further we have gone through the judgment of learned Single Judge of Sindh High Court reported as "2003 MLD 178 (Abdul Rahim Khan v. Asif All and others)" wherein with regard to the discussion on the basis of Islamic Law of Pre-emption a reference has been made by the judgment of Full Bench of Allahabad High Court. "Dwarka Das v.
Hussain (1878) ILR (Allahabad) 564". In the words of Mr. Justice Mahmood,' an eminent jurist of his time, that the right of pre-emption under Muhammdan Law partakes strongly of the nature of an easement right, the "dominant tenement" and the "servient tenement" of the law of easement being analogous to "pre-emtional tenement". The right of preemption is not a personal right, it being in the nature of a limitation on the power of the vendor, enforceable, on sale, which is a condition precedent not the existence of the right but to its enforceability. It is not a right of repurchase either from the vendor or from the vendee but it is simply a right of substitution entitling the pre-emption by reason of a legal incident which the sale itself was subject to stand in the shoes of the vendee in respect of all the rights and obligations ensuing from the sale.
' In these circumstances, we are of the considered view that as there is no bar of filing the suit for pre-emption by a juristic person, therefore juristic person can file the suit to pre-empt the sale of land under Punjab Pre-emption Act, 1991.
14. Now we come to the question "(b) How a juristic person can make Talbs?"
' We have been assisted by the rich arguments advanced by both the learned Amicui Curiae. The opinion of both the learned Amicui Curiae is that the juristic person can make Talbs through the authorized person. In the opinion of Sh. Naveed Shehryar, Advocate/Amicus Curiae, these are synonymous to section 14 of the Punjab Prc-emption Act, 1991. Whereas in the opinion of Mian Hameed-ud-Din Kasuri, Advocate/Amicus Curiae, these can be made in accordance with Explanation II of section 235 of Mahommedan Law by Mulla. In reliance of "PLD 2013 Supreme Court 190 (UNAIR ALI KHAN and others v. FAIZ RASOOL and others)" both the learned Amicus Curiae opined that there must be specific authorization to the authorized person by the juristic person for making Talbs. We have also taken light from the judgment referred supra that the Talbs can be made by the juristic person through authorized person who must have specific authorization for making each of the Talbs.
15. Now the question is "(c) Whether Chief Executive of the Company or any other employee of the Company can make Talb-eMuwathibat on behalf of the Company and what is its procedure under law and Islamic jurisprudence?"
' Both the learned Amicui curiae have the opinion that in case of Company, the Chief Executive of Company or any other employee of the Company has no authority to make any Talb without the specific authorization by the Company in accordance with the Procedure of authorization in his favour. There is further difference of opinion between both the Amicus Curiae. In the opinion of Sh.
Naveed Shehryar, Advocate/Amicus Curiae, the authorization can be made after the knowledge of sale to the Company and after authorization the juristic person can make Talb-e-Muwathibat through authorized person. In the opinion of Mian Hameed-ud-Din Kasuri, Advocate/Amicus Curiae, there must be prior authorization in favour of the person making the Talbs, if the sale comes in the knowledge of Company after that no process of authorization can be made. We also observe on the basis of discussion supra that it is a very difficult question and there is no legislation by Law Maker of the Punjab Pre-emption Act, 1991. With this regard there must have been some legislation to resolve this question. It can be inserted in Section 14 of the Punjab Pre-emption Act, 1991 that how a specific authorization can be made by the juristic person for making Talbs. As there is no codified law on this point, in our opinion the person making the Talbs must have authorization on behalf of the juristic person prior to making of Talb-e-Muwathibat, Talb-eIshhad and Talb-e-Khasumat.
Further we are of the opinion that there must be specific authorization by the juristic person before the knowledge of sale in favour of authorized. Person for making Talab, otherwise it will be impracticable that after knowledge of sale to the Company, the. Company goes for process of convening meeting for authorizing a person for making the Talbs in accordance with law.
Therefore, we are of the considered view that there must be prior authorization in favour of authorized person by the juristic person for making Talbs in accordance with law.
16. Now we come to the last question "(d) Whether the fact regarding authorization of making Talbs on behalf of the juristic person should mandatorily be mentioned in the plaint like other details of Talb-e-Muwathibat, that is, date, time, place and name of witnesses?"
' In the opinion of learned both the Amicui Curiae there also must be specifically mentioned in the pleading that how an authorized person who is making each of the Talbs including filing of suit. Has the authority to make Talb and file the suit on behalf of juristic person. As without disclosing this fact and documents of authorization how the Court and the defendant will be able to check the valid performance of Talbs including filing of suit without specific pleading the same, therefore we are of the considered view in the light of case-law "PLD 2004 Karachi 17, PLD 1997 Karachi 276 and 2009 CLD 194" referred supra under Order VI Rule 14 of the C.P.C. That there must be specific pleading with regard to authorization for making- Talbs and for filing suit for pre-emption.
17. Now we come to the facts of case in hand. The juristic person has filed the suit through Muhammad Asif Khan showing him Chairman/Chief Executive, There is no mention of any resolution authorizing said Muhammad Asif Khan for making Talbs or filing the suit, the mention of which was necessary if there was any prior resolution for authorization of making the Talbs and filing the suit. Even we have noticed that them is no mention of any resolution in the list of documents placed with the plaint as well as list of documents relied upon. The two applications for amendment of plaint were filed subsequent to the application filed by the defendants under Order, VII Rule 11 of the C.P.C. For rejection of plaint. Even in the first application the date of resolution was mentioned as 17-12-2005, whereas in the subsequent application further amendment was sought for permission to mention the date of resolution as 17-12-2004 without appending any copy of the resolution with these applications. We have further observed that even in Para 4 of the plaint the time of knowledge of sale has been mentioned by the said Muhammad Asif Khan, Chief Executive of the Company as 10/11-00 a.m., as there is a difference of at least one hour in the time of knowledge of sale pleaded by the plaintiff, therefore it is not a specific time in the light of judgment reported as "PLD 2007 Supreme Court 302 (Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs, and others)". There is a difference of at least one hour in the time of knowledge and making the demand by Muhammad Asif Khan. In this view of the matter, we cannot disagree with the order passed by learned trial court rejecting the plaint. Learned counsel for the appellant has not been able to show any illegality or material irregularity in the impugned order passed by learned trial court.
18. In the light of what has been discussed above, we see no force in this appeal, which is hereby dismissed leaving the parties to bear their own costs.
' Before parting with this judgment we want to express our special gratitude for both the learned Amicui Curiae who have ably assisted us. The office is directed to send copy of this judgment to the Legislation Wing of Provincial Ministry of Law for consideration.