CH. MUHAMMAD IQBAL, J: Through this RFA, the appellant/plaintiff has challenged the judgment and decree dated 30.11.2005 passed by the learned Senior Civil Judge, Khushab whereby the suit for recovery of compensation and arrears of rent amounting to Rs.1,42,78,000/-, filed by the appellant, was dismissed.
2. Brief facts of the case are that in June 1991, the respondents/defendants without any intimation/notice started the work of digging a drain known as "Bola Drain" on the land of the appellant/plaintiff measuring 32-kanals 9-marlas situated within the revenue estate of Mouza Hadali, Tehsil and District Khushab whereupon the appellant/plaintiff through his personal staff stopped the work but subsequently on the basis of oral private negotiations, on 31.7.1991 the appellant/plaintiff permitted the respondents/defendants to carry out the work. After completion of the work at the site, when the appellant/plaintiff claimed compensation, the respondents/defendants denied his said request whereupon the appellant/plaintiff filed a petition before the Federal Ombudsman, who vide order dated 7.12.1996 dismissed the same with the direction to the appellant/plaintiff to approach the Court of competent jurisdiction. Hence, the appellant/plaintiff filed a suit for recovery of Rs.1,42,78,000/- against the respondents/defendants.
The respondents/defendants appeared before the learned trial Court and filed contested written statement. Out of the divergent pleadings of the parties, the learned trial Court framed the following issues: - 1) Whether the land mentioned in the head note of the plaint is commercial/industrial in its nature and the plaintiff is entitled to recover Rs.1,42,78,000/- as compensation and rent of the suit land at the rate of 25% per annum? OPP 2) Whether the plaintiff has got no cause of action and locus standi to bring the suit? OPD 3) Whether the suit is not maintainable in its present form? OPD 4) Whether the plaintiff is estopped by his own words and conduct to being the suit? OPD 5) Whether the suit is barred by time? OPD 6) Whether this Court lacks jurisdiction to entertain and try this suit? OPD 7) Whether the defendants are entitled to recover special costs from the plaintiff? If so to what extent? OPD 7A) Whether the Admin. Manager Muhammad Nawaz Janjua is competent to file this suit on behalf of Pak Kuwait Mills Ltd.? OP parties 7B) Issue No.7A is answered in the negative, its effect? OP parties 7C) What was the market value of the suit land at the time of excavation of the Sem Nala i.e. at the time when the impugned property was purchased by the defendants in the year 1991? OP parties 8) Relief.
Both the parties in support of their respective stance produced their oral as well as documentary evidence. Later on, the learned trial after hearing both the parties and examining the evidence dismissed the suit of the appellant vide judgment and decree dated 30.11.2005. Hence, this RFA.
3. It has been contended by the learned counsel for the appellant/plaintiff that the impugned judgment and decree is against the law and facts, which has been passed in hasty manner; that the impugned judgment and decree is the result of misreading and non-reading of the evidence; and that while passing the impugned judgment and decree, the learned trial Court has not applied its judicious mind and erroneously non-suited the appellant/plaintiff on the ground that the suit is barred by time, as such, the impugned judgment and decree is liable to be set aside.
4. On the other hand, the learned counsel for the respondents has supported the impugned judgment and decree dated 30.11.2005 by contending that the learned trial after applying its judicious mind to the facts and circumstances of the case and carefully adjudging the evidence led by the parties has passed the impugned judgment and decree; that the suit was filed by an unauthorized person; that no confidence inspiring evidence has been produced by the appellant/plaintiff to prove the case; that on 24.3.2000, the appellant/plaintiff received two cheques bearing Nos.562387 and 262388 amounting to Rs.40,312/50 and Rs.1,34,687/50 respectively (total Rs.1,75,000/-) with the undertaking that after encashment of the said cheques, he will deposit the amount in the Court but till to date, the appellants/plaintiff has not deposited the same; that the appellant/plaintiff did not mention the name of the witnesses in whose presences the negotiations were made between the parties of the lis, as such, the impugned judgment and decree is not called for any interference.
5. Heard. Record perused.
6. It is an admitted fact that the appellant/plaintiff is a public limited company, registered under the Companies Ordinance 1984. The suit was filed by Raja Muhammad Nawaz Janjua, Admin.
Manager, without any resolution or authority. The authority letter dated 1.9.1999, given by the Executive Director, only authorizes him to attend and participate in the proceedings of the case and not to file the suit against the respondents/defendants. For the facility of ready reference, the authority letter dated 1.9.1999 is reproduced as under: - "Certified that Mr. Muhammad Nawaz Janjua son of Rajad Bukhsh Admin & Personnel Officer M/s Pak Kuwait Textiles Ltd. Jauharabad is hereby authorized to attend and to participate in the proceedings of case Pak Kuwait Textiles Vs WAPDA SCARP in the Court of Civil Judge Ist Class Jauharabad"
The suit was dismissed on 30.11.2005 whereas the resolution was passed on 24.1.2006 after dismissal of the suit and under the law, this rectification is not permissible at a belated stage.
Further during the pendency of the suit, the appellant/plaintiff after knowledge of preliminary objections in the written statement of the respondents/defendants has not filed any rectification regarding authorizing the said Raja Muhammad Nawaz Janjua to file the suit, as such, the learned trial Court while deciding issues No.7A and 7B has rightly observed that the suit was filed by an incompetent person and has not committed any illegality or irregularity as it is settled principle of law that no person can file a suit on behalf of the company unless he is so authorized by a resolution passed by Company?s Board of Directors.
In this regard, reliance is placed on the case of "Khan Iftikhar Hussain Khan of Kamdot (represented by 6 heirs) Vs Messrs Ghulam Nabi Corporation Ltd. Lahore" (PLD 1971 SAC 550), "Pak American Commercial (Pvt) Ltd. through Director VS umayoun Latif and 7 others" (PLD 2008 Karachi 540) and "Telecard Limited through authorized representative VS Pakistan Telecommunication Authority through Chairman" (2014 CLD 415).
7. During pendency of the suit, the respondents/defendants deposited two cheques bearing Nos.562387 and No.262388 amounting to Rs.40,312/50 and Rs.1,34,687/50 respectively (total amounting to Rs.1,75,000/-) in respect of assessed compensation which were received by the appellant/plaintiff on 24.3.2000 with the undertaking that after encashment of the said cheques, he will deposit the said amount in the Court. The order dated 24.3.2000 is reproduced as under: - {{URDU TEXT}} The appellant/plaintiff, after encashment of the said cheques, did not deposit the amount either in the trial Court or before this Court till-todate, which means that the appellant/ plaintiff has not come to this Court with clean hands and violated the undertaking given before the learned trial Court.
8. According to the appellant/plaintiff?s version, the respondents/defendants started the work of digging the drain in June 1991 and completed the same within a year whereas the appellant/plaintiff filed the suit on 2.9.1999 i.e. after the lapse of about eight years one month and two days and under Article 39 of the Limitation Act, 1908 the suit for compensation for trespass upon immovable property can be filed within three years from the date of trespass, as such, the suit filed by the appellant/plaintiff was hopelessly barred by time. This fact is corroborated from the admission of PW-1 in his cross-examination wherein he stated that according to contents of paragraph No.3 of the plaint on 31.7.1991 an oral agreement was arrived at between the parties and the project of digging the drain was completed within a year and during this intervening period, the respondents/ defendants refused to honour the said oral agreement and except the instant suit, they have not filed any other suit for violation of the said agreement. Hence, the learned trial court has rightly decided issue No.5 against the appellant/plaintiff by holding that the suit is barred by time. Reliance is placed on the case of "The Province of West Pakistan VS Altaf Hussain Shah [PLD 1960 (W.P.) Karachi 958], "the Cantonment Board Murree VS Muhammad Sharif [PLD 1961 (W.P.)
Lahore 378] and "Nooruddin and othersVS Pakistan and others (1997 CLC Karachi 1971).
9. Raja Muhammad Nawaz Janjua, Admin. Manager appeared as PW-1 and stated that "in 1991 the respondents/defendants without getting the permission of the appellant/plaintiff started the work of digging in their land, which was stopped by me and after oral negotiations, I gave permission to the respondents/defendants to carry out the work. Thereafter, the respondents/defendants assessed the rate of compensation of the land in question at agricultural rate which was rejected.
Then, we filed a petition before the Federal Ombudsman which was dismissed with the direction to approach the court of competent jurisdiction. We have industrial electricity connection. The land measuring 29-kanals 9-marlas was affected due to digging, for which, the appellant/plaintiff suffered loss of lacs. Our total claim is Rs.1,71,00,000/-". In cross-examination, he admitted that; that the respondents/defendants assessed the compensation at the rate of Rs.50,000/- per acre for agricultural land and Rs.80,000/- for urban land and the purpose of digging the drain is to save the said area from Saim and Thore?.
The learned counsel for the appellant/plaintiff produced certain documents in documentary evidence as Exh.P-1 to Exh.P-16, Exh.P-18 and Exh.P-19.
Rana Liaquat Ali, Land Acquisition Collector appeared as DW-1 and stated that on 29.4.1997, a Committee was constituted for private negotiations with the land owners of effectees of Hadali drain as per Exh.D-1.
Muhammad Farooq, SDO WAPDA appeared as DW-2 and stated that in the year 1986, I was posted at Khushab Division and in the year 1990-1991 a survey regarding the Bola drain was conducted, according to which, land measuring 28-kanals of the plaintiff was to be used and in this regard initially a Notification under Section 4 of the Land Acquisition Act was published but later on, the said proceedings were stopped under the instructions of the Government and through private negotiations the compensation was assessed as Rs.50,000/- per acre according to Exh.D-1; and that the appellant/ plaintiff is entitled to receive Rs.1,75,000/- as compensation which has already been deposited in the Court.
From the above resume of evidence, it is established that except PW-1, no other witness has been produced by the appellant/plaintiff to prove the oral agreement. In this way, the appellant/plaintiff has failed to prove his case and the learned trial Court has rightly decided issue No.1 against him after discussing all the oral as well as documentary evidence. Further the appellant/plaintiff has already received two cheques amounting to Rs.1,75,000/- on 24.3.2000 with the undertaking that after encashment of the said cheques, he will deposit the amount in the Court but the appellant/plaintiff has not deposited the same before the learned trial Court coupled with the fact that the appellant/plaintiff has concealed this fact in the instant appeal. Even otherwise, the appellant/plaintiff received the said amount without any protest which shows that he is satisfied regarding the assessm ent of the compensation by the respondents/defendants.
10. For what has been discussed above, no illegality or irregularity has been committed by the learned Senior Civil Judge while passing the impugned judgment and decree dated 30.11.2005, therefore, the same is upheld and the instant RFA is dismissed being devoid of any merits.