KHADIM HUSSAIN M. SHAIKH, J.---Through this Civil Revision Application, the applicant has called in question the judgment dated 01.10.2009 and decree dated 01.10.2009, passed by the learned VIth Additional District Judge, South Karachi, in Civil Appeal No.84/2005 re-Messrs Utility Stores Corporation of Pakistan (Pvt.) Limited v. Miss Shazia Noor and another, whereby the said appeal has been dismissed, maintaining the judgment dated 20.04.2005 and decree dated 21.05.2005, passed by IInd Senior Civil Judge, Karachi South, in Civil Suit No.21 of 1997 re-Messrs Utility Store Corporation of Pakistan (Pvt.) Ltd. (hereinafter will be referred to as the plaintiff-corporation) v. Miss Shazia Noor and another, whereby the said suit was dismissed.
2. Briefly the facts of the case are that in the year 1997, the plaintiff-corporation filed a Suit for recovery of Rs.2,21,293.05 against Miss Shazia Noor and Saeed Ahmed Qureshi. The case of the plaintiff-corporation was that defendant Miss Shazia Noor who was employed as Assistant Sales- Girl in the year 1991-92 and was lastly posted as Incharge of Utility Store, Bath Island, Karachi, during the period of five days from 21.05.1996 to 25.05.1996, allegedly embezzled/misappropriated a sum of Rs.2,21,293/05. She was charge sheeted for having caused shortage/loss. It is averred that defendant No.2 Saeed Ahmed Qureshi stood surety for her. An FIR was also lodged against the defendants on 01.07.1996 and then on 02.07.1996 the defendant No.1 was called upon to make the loss good within fifteen days, but to no avail. After conducting inquiry a final show-cause notice as issued to the defendant No.1, who then filed a suit against the plaintiff-corporation and its officers i.e. Regional Manager and others. Then the subject suit for recovery of the aforesaid amount was filed on behalf of the plaintiff-corporation against the defendants.
3. On service of summons, defendant No.1 filed her written statement in which she denied all the allegations and claims of the plaintiff-corporation. It is further averred therein that she has not embezzled or misappropriated any amount. The statement of account prepared by the plaintiff's Accounts Section is bogus and concocted one, having been prepared for some unlawful gain. She also denied to have caused any shortage or loss as alleged and she also denied liability on her part. It is averred that the plaintiff was required to reconcile the account within four days of taking the charge from the defendant No.1 as per rules and regulations of the plaintiff corporation, but for some ulterior motives the account was prepared on 26.06.1996 and whereas the charge was given by the defendant No.1 finally on 25.05.1996. It is further averred that the officials of the plaintiff- corporation were bent upon to play fraud with the defendant No.1 and, therefore, the FIR was lodged against the defendants during operation of the status-quo order, passed in the Suit No.638/1996, filed by the defendant No.1 against the plaintiff and others. The inquiry conducted being not in accordance with law was unwarranted. The defendant No.1 also took the legal and additional pleas that no cause of action had accrued to the plaintiff to file the suit against the defendants; the suit is not maintainable being mala fide and frivolous; and, the suit has not been filed by any competent person as required under the law and articles of the plaintiff-corporation.
The defendant No.2 had filed his separate written statement wherein he raised preliminary objections, stating that the suit is not maintainable as plaint did not disclose any cause of action against him and that he has been falsely and improperly joined as a defendant. He never guaranteed for defendant as alleged. The character certificate, issued by him in favour of defendant Miss Shazia Noor, cannot be equated as a personal guarantee for consideration. There is no term in law as guarantee certificate for any of the acts and of the person for whom the character certificate is issued. The defendant No.2 further stated therein that he is not in any way responsible for the alleged embezzlement and misappropriation of public money. It is further averred that the allegation in FIR against him is mala fide, vexatious, and concocted and no cause of action ever accrued to the plaintiff against him.
4. On the divergent proceedings of the parties, the learned trial Court framed the following ten issues:-- 1.Whether the suit is maintainable and it disclose a cause of action for the recovery of Rs.2,21,293.05?
2.Whether the defendant No.1 was an employee of the plaintiffs and whether defendant No.2 was her surety?
3.Whether defendant No.1 was informed about the shortage at the time of handing over the charge by defendant No.1 and such inventory prepared or not?
4.Whether audit was conducted during the charge of the store with the defendant No.1?
5. Whether the inquiry of shortage was conducted according to the rules and regulations of plaintiff corporation?
6. Whether the accounts were prepared on 26.06.1996 by plaintiff physically in absence of the defendant No.1, who already had handed over the charge one month before the preparation of such bogus and false account at the instance of one Bashir Baber?
7. Whether the defendant No.1 was the only person to control, receive, manage the records, checking and selling and receiving the payments and issuing receipts of the cash received from the customers/concerned?
8. Whether the guarantee executed by the defendant No.2 is a performance guarantee with regard to money or it is a character certificate?
9. Whether the defendant No.2 is liable to pay any amount to the plaintiff on the basis of the character/guarantee certificate?
10.What should the decree be against defendants Nos.1 and 2?
5. One Muhammad Javed Khan, was examined on behalf of the plaintiff-corporation as Ex-P/1, who produced charge sheet, letter of dismissal and authority letter as Ex-P/2, Ex-P/3 and P/4, respectively and then the side of the plaintiff-corporation was closed vide statement dated 08.12.2004. The defendant No.1 namely Miss Shazia Noor examined herself as Ex-D/1 and she produced reply to the charge sheet as Ex-D/2 and then her counsel closed her side vide statement dated 26.02.2005. Then the defendant No.2 namely Saeed Ahmed Qureshi examined himself as Ex- D,2 and his counsel closed his side vide statement dated 26.02.2005.
6. Learned trial Court after hearing the parties' counsel dismissed the suit, vide judgment dated 20.04.2005 and the decree thereof was drawn on 21.04.2005. Having felt aggrieved from the s?id judgment and decree, passed by the trial Court, appeal being Civil Appeal No.84/2005 was filed on behalf of the plaintiff-corporation in the Court of District Judge, Karachi (South), which was ultimately decided by the learned VIth Additional District Judge, Karachi (South) vide judgment and decree dated 01.10.2009, whereby the civil appeal was dismissed, maintaining the aforementioned judgment and decree, passed by the trial court, hence this revision application.
7. Learned advocate for the applicant has contended that although the suit of the plaintiff- corporation was maintainable, 'yet the learned Courts below have held it to be not maintainable; that there was sufficient evidence showing involvement of the defendant No.1/respondent No.1 in the embezzlement and misappropriation alleged against her; that the suit filed on behalf of the plaintiff-corporation, which ought to have been decreed, was dismissed by the learned trial Court; that the learned appellate court also made error while dismissing the appeal and maintaining the impugned judgment and decree, passed by the learned trial court, and, per him, the judgments and decrees, passed by both the learned Courts below suffer from misreading and non-reading of the evidence and are illegal. He, therefore, prays that the impugned judgments and decrees, passed by the both the learned courts below may be set aside, allowing this revision application and decreeing the suit as prayed. He, however, placed his reliance on the cases of Muhammad Saeed and 7 others v. Muhammad Ayub and another (1990 SCMR 475), Baqa Muhammad v.
Muhammad Nawaz and others (PLD 1985 Lahore 476), Sheikh Muhammad Bashir All and others v.
Sufi Ghulam Mohi-ud-Din (1996 SCMR 813), Anwar Zaman and 5 others v. Bahadur Sher and others (2000 SCMR 431), Sarwar All Shah and 5 others v. Mst. Aasia Bibi and 2 others (2005 YLR 2446 ([Lahore]), Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others (2000 SCMR 346), Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another (2000 SCMR 314), Muhammad Rashid Ahmed v. Muhammad Siddi9ue (PLD 2002 Supreme Court 293), and Aziz Ullah Khan and others v. Gul Muhammad Khan (2000 SCMR 1647).
8. No one was present for the respondents to address the arguments on their behalf as they chose to remain absent despite service of process upon them by way of publication in newspaper daily "NAWA-E-WAQAT" Karachi dated 12.01.2011.
9. I have considered the arguments advanced by the learned counsel for the applicant and have also gone through the material available on record.
10.Record reflects that defendants in their respective written statements have categorically denied all the allegations and claims leveled in the plaint of the subject suit filed on behalf of the plaintiff-corporation. The respondent No.1 Miss Shazia Noor has denied to have embezzled or misappropriated any amount, having also denied to have caused any shortage or loss. and any liability on her part. It is further the case of defendant No.1 Miss Shazia Noor that the plaintiff was required to reconcile the account within four days of taking over the charge from her as per rules and regulations of the plaintiff-corporation, which was taken over from her on 25.05.1996 and whereas the account was prepared on 26.06.1996 i.e. after one month. She also attacked the maintainability of the suit, stating that it is frivolous and vexatious, having not been filed by any competent person as required under the law and articles of the plaintiff-corporation. The defendant No.2 also denied all the allegations and claims leveled on behalf of the plaintiff- corporation and he also denied his liability to pay any amount. In the wake of such specific and categorical denial, the burden was upon the plaintiff-corporation to establish its case by some concrete and tangible evidence.
11.Record further reveals that out of the ten issues framed in this case, issue No.1 was about thaintainability of the suit. Since the question of maintainability of the suit had been raised, therefore, it was to be decided first, on which the suit could be disposed of.
12.Muhammad Javed Khan, who was examined on behalf of the plaintiff-corporation, in his cross-examination has stated that:-- "The Regional Manager has filed the present suit. I have filed the present affidavit in evidence. It is correct that the suit is filed by Bashir Ahmed Babar Ex-Regional Manager. Further says that he has filed this suit without authority. It is correct that no authority or power of attorney is filed alongwith the plaint."
13.A perusal of the record reveals that nothing has been produced on behalf of the plaintiff- corporation to establish that Bashir Ahmed Babar, who signed and verified the plaint of the subject suit on behalf of the plaintiff-corporation, was in fact a Regional Manager of the plaintiff- corporation and that he was duly authorized to institute the suit on behalf of the plaintiff- corporation; and, there is also nothing available on the record to prove that Muhammad Javed Khan, who was examined on behalf of the plaintiff-corporation, was a duly authorized person to adduce evidence in the subject suit on behalf of the plaintiff-corporation.
14.Admittedly, the plaintiff is a corporation (Pvt.) Limited. On a query the learned counsel for the applicant-corporation has submitted that the Utility Stores Corporation is a private limited company duly registered under the Companies Ordinance, 1984, having its Articles of Association.
The provisions of filing a suit by or on behalf of a body corporate are contained in Order XXIX Rule 1 of Code of Civil Procedure, 1908, which reads as under:--
1. Subscription and verification of pleading. - In suits by or against a corporation, any pleading made 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.
15.From plain reading of the above provision of law, it would be seen that it only deals with the subscription to and verification of the pleadings in suits by or against the corporation, and does not deal with the frame of the suit.
16.The legal proposition, arose before the Hon'ble Supreme Court of Pakistan, was considered in the case of Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd.
(PLD 1966 SC 684) and subsequently in the case of Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd., Lahore (PLD 1971 SC 550). Moreover, in case of Abdul Rahim and 2 others v. Messrs United Bank Ltd. of Pakistan (PLD 1997 Kar. 62), detailed examination of case law was made by the Hon'ble Division Bench of this court with reference to the scope and applicability of Order XXIX, Rule 1 of Code of Civil Procedure, 1908 and the effect of the suit filed by a person not duly authorized on behalf of the company; and, after analyzing the case law on the said point certain principles were extracted in the said judgment. It would be advantageous to reproduce here the following observations made by the Hon'ble Division Bench of this Court:-- "It is settled that the business and affairs of a company are to be conducted strictly in consonance with the articles of association subject of course to the operative laws. The business and affairs of a company include the power, competence and authority to institute legal action (see H.M. Ebrahim Saith v. South India Industries Ltd. AIR 1938 Mad. 962). By deduction, the factum of competence and authority to institute legal proceedings would also have to be determined strictly in consonance with the Articles of the Company. Such interpretation would also be in consonance with Muhammad Siddique and Central Bank of India wherein it has been categorically stated that where the competence to institute legal action is challenged reference has to be necessarily envisaged to the articles. Where the articles of the company confer power on a particular person or director to institute legal action and that person or director institutes the suit there can be no additional requirement of a resolution of Board of Directors for the. simple reason that such power is to be exercisable by a real person. However, where the power to institute the suit is conferred upon an artificial person or body e.g. the Board of Directors or a Committee (as in Premier Sugar Mills (supra) the requirement to produce and prove the resolution passed by that artificial person or body cannot be dispensed with since such a person can only take a decision as a body through a resolution passed in a duly convened meeting and not otherwise. The above principles would also become applicable in the case of delegation or subdelegation of powers i.e. in case the delegator is a real person (when articles confer the powers to institute legal action on a real person) all that would be required would be to scrutinize the articles and then the power of attorney to see whether it has been properly executed and confers the power so claimed. There would be no requirement to produce or prove the resolution from the Board of Directors in this regard. If on the other hand, the delegator is an artificial person/body (when the articles confer the power to institute legal action on e.g. the Board of Directors or some Committee) the resolution passed by that artificial person/body i.e. the Board/Committee shall become indispensable. However, there would be no-requirement to produce or prove a separate power of attorney. In this backdrop we would venture to reconcile Muhammad Siddique, Ifitkhar Mamdot and Central Bank of India by presuming that in Muhammad Siddique and Central Bank of India the articles conferred the power to institute or defend legal proceedings to a real person i.e. a director. Thus the requirement to produce or prove a resolution from the Board of Directors was dispensed with. However, in Iftikhar Mamdot the articles conferred the power to institute or defend legal proceedings upon an artificial person/body i.e. the Board of Directors in view whereof the requirement to produce and prove the resolution thereof authorizing institution of the suit was found to be indispensable."
17. In view of the above, I am of the humble view that in case there is any defect in institution of the suit such as it has been instituted unauthorizedly and incompetently, the said defect is incurable.
The competency and authority to institute legal proceedings would also have to be determined strictly in accordance with the Articles of Association, for a suit to be validly instituted, it must have been instituted by a person duly authorized in this behalf in accordance with the memorandum of the Articles of the Association etc. and the person, who is being examined on behalf of a Corporation/Company, must be duly authorized and competent person to do so. The burden to establish such facts was upon the plaintiff-corporation.
18.From a perusal of the record it would be seen that the cross-examination of Muhammad Javed Khan, who was examined on behalf of the plaintiff-corporation, was recorded on 08.12.2003, and although the period of more than 13 years has elapsed, yet no such document and/or authority has been produced by the plaintiff-corporation to establish that in fact Bashir Ahmed Babar alleged Ex-Regional Manager of the plaintiff-corporation, was a duly authorized person to institute the subject suit on behalf of the plaintiff-corporation nor Memorandum of the Articles have been produced till date so as to appreciate if the subject suit was instituted on behalf of the plaintiff-corporation by a duly authorized and competent person, and the evidence adduced on behalf of the plaintiff-corporation through a duly authorized person, hence the presumption about the incompetency of the suit could legitimately be drawn against the plaintiff-corporation, in view of Article 129(g) of Qanun-e-Shahadat Order, 1984.
19.In view of the above, I am of the considered opinion that the suit was not maintainable and the contention of the learned counsel for the applicant that the subject suit was maintainable is untenable.
20.Even otherwise, the learned trial Court after appreciating the evidence adduced by the parties, has given its findings on each issue separately in its judgment dated 20.04.2005.
21.The learned appellate Court after reappraisal of the evidence adduced by the parties, concurring the findings of the learned trial Court, dismissed the appeal vide judgment and decree dated 01.10.2009. The relevant paragraph of the judgment, passed by the learned appellate Court, is reproduced here for the sake of convenience and ready reference:-- "I have given my anxious consideration, to the arguments advanced by the learned counsel for the respective parties and also gone through the material available on record. Re-appraisal of the evidence is that the appellant/plaintiff filed suit for recovery of an amount of Rs.2,21,293/05 against the respondents/defendants Nos.1 and 2 as such the allegations against the respondent/defendant No.1 are that she being sales girl embezzled the amount and the respondent No.2 was her guarantee. This suit was filed through Regional Manager but he did not come forward to adduce his evidence rather he executed power of attorney in favour of one Muhammad Javed Khan and such witness filed affidavit in evidence on behalf of the appellant/plaintiff and he was put under cross-examination and the appellant/plaintiff closed its side of evidence, subsequently the respondent/defendants Nos.1 and 2 led their evidence. It was the duty of the appellant/plaintiff to prove its case against the respondents/defendants Nos.1 and 2 by producing quality evidence and in this regard the evidence of PW-1 Muhammad Javed Khan was recorded and he stated that the respondent/defendant No.1 embezzled the amount of Rs.2,21,293/05 and an enquiry was conducted, subsequently final show-cause notice dated 12.8.1996 was issued to the respondent/defendant No.1 on 02.7.1996 for making the losses good but failed ?to do the same. During cross-examination such plaintiff witness admitted in explicit manner that "it is correct that list of inventory was made when defendant No.1 taken over the charge but the same has not been produced in court." Further-more the plaintiff witness admitted in cross-examination that "The sale amount was being deposited daily in the bank account maintained at branch of HBL situated near by the Utility Store." From the period 21.5.1996 to 25.5.1996 there was no sale, it is the period of handing and taking over the charge, therefore,- no question. arises to produce the bank statement of such period. I have not produced any bank statement alongwith my affidavit in evidence. The stock debit was not being made in store by its Incharge. "It is correct that stock note is not produced in the court. It is correct that store was audited and audit report is not produced. The plaintiff itself carried the audit. It is correct that in paragraph No.4 the mis-prepared amount is Rs.2,21,293/05. It is correct that no list of deficient articles is produced in evidence." Such evidence of the PW-1 is apparent on record and from perusal of such cross-examination it appears that the claim of plaintiff is in oral form and no particular and relevant document was produced which may justify that the respondent No.1 had mis-appropriated and embezzled the amount of appellant/ plaintiff. The charge of taking over the articles lying in the utility store for sale was not produced which could have justified that any. articles/items were put in the charge of the respondent No.1 for sale and subsequent to that shortage of any item for articles has not been produced which could have proved the liability of the those items/articles which .would have been probably sold out or used for any purpose by the respondent No. 1. Moreover if any audit was conducted by the plaintiff but that audit report was not produced in evidence. The attendance of the respondent No.1 was more important on specific dates at utility store but in this regard the PW-1 Muhammad Javed Khan replied in cross- examination that "it is correct no attendance sheet is produced in evidence." On the contrary the evidence of respondent No.1 is obvious wherein she has categorically denied all the allegations against her and during her cross-examination the testimony of the respondent No.1 was not shaken. The evidence of respondent No.2 was also recorded but the case of the appellant revolves around the acts of respondent No. 1.The appellant/plaintiff was under obligation to prove the case against the respondent No.1 at first then to claim the liability lies upon the respondent No.2. The evidence available on record, no-where suggest that the appellant/plaintiff proved the case against the respondent No.1 as evident from the admission of the appellant/plaintiff s evidence in the shape of statement of PW-1 Muhammad Javed Khan. No documentary evidence was produced as such the case of the appellant/plaintiff pertains to the documentary evidence but such documentary evidence was not produced by the appellant/plaintiff. Moreover, the oral assertion of only witness was not sufficient, unless corroborated with other piece, of evidence, which admittedly has not come on record therefore, the findings of the learned trial court are consistent with the evidence available on record and re-appraisal of such evidence requires no interference at all for the reasons that mere producing charge sheet and letter of dismissal from the service is not sufficient to prove the case against the respondent No.1 and the case law cited by the learned counsel for the appellant is distinguishable to the facts and circumstances of the present case. Under these circumstances, I find no merits in this appeal which is hereby dismissed with no order as to costs. The Civil Appeal is hereby' disposed off accordingly."
21.From the material available on record, it would be seen that only copy of charge sheet and dismissal order of the defendant No.1 was produced in evidence on behalf of the plaintiff- corporation and that too through Muhammad Javed Khan, who has not been proved to be an authorized person as discussed supra, and no material documents as discussed in the impugned judgments, passed by the learned Courts below, have been produced by the plaintiff-corporation to prove its case and thus, I am of the considered view that there is no evidence worth consideration available on the record to substantiate the case of the plaintiff-corporation for recovery of the alleged amount against the defendants.
22.From the above discussion it is crystal clear that both the learned Courts below, considering and appreciating the evidence brought on record, have reached to the concurrent findings of the facts while dismissing the suit and the appeal and, therefore, I am of the view that the concurrent findings of the facts reached by the learned Courts below based on evidence cannot be disturbed by this Court in view of the well settled law. Reference can be made to the case of Malik Katoo and 3 others v. Allah Bakhsh and 2 others (1986 SCMR 1363), wherein the Hon'ble Supreme Court of Pakistan while refusing the leave, maintained the decision of the High Court Lahore, dismissing the second appeal on the ground that a concurrent finding of the fact could not be disturbed, if the same is based on evidence and the case of Fazal Elahi v. Sarfraz Khan (1987 SMCR 312), was involving a concurrent finding of the Courts below based on appreciation of evidence and the Hon'ble Supreme Court of Pakistan while refusing leave to appeal, has held that High Court was justified in not interfering with this finding.
23. Out of the nine cases relied upon by the learned counsel for the applicant-corporation, three cases, being distinguished on facts and circumstances, are not applicable to the case one in hand and whereas the remaining six cases are against the applicant, for in case of Muhammad Saeed (supra), the matter was involving question of pre-emption .right coupled with question of jurisdiction of Civil Court, in case of Baqa Muhammad (supra), the question relating to superior right of preemption was involved and during pendency of suit the question arising from the pleadings was decided and settled under order of revisional court and the second appeal was dismissed by High Court Lahore, in case of ABDUL RAHIM (supra),. the question of genuineness etc. of a gift and mutation in the revenue record relating to the property was involved, in the case of MUHAMMAD RASHID AHMED (supra), both the parties had filed suits against each other over dispute on agreement to sell etc. relating to the landed property and the order, passed by the learned High Court Lahore, interfering with the concurrent findings of two Courts below, was set aside by the Hon'ble Supreme Court, in the case of AZIZ ULLAH KHAN (supra), the Hon'ble Supreme Court of Pakistan refused leave and dismissed the petition filed against the judgment, passed by the learned High Court Lahore, declining interference in the judgments, passed by the Courts below, in case of ALTAF HUSSAIN (supra), the Hon'ble Supreme Court of Pakistan allowed the appeal and set aside the impugned judgment of the Lahore High Court whereby the concurrent judgments of the trial and the appellate Courts were interfered with, in case of Sheikh MUHAMMAD BASHIR ALI (supra) the Hon'ble Supreme Court of Pakistan has held:-- "8. The above enunciation of the scope of the revisional power vesting in the High Court clearly shows that no interference was called for in this case and upsetting the conclusions of the Courts below virtually on the question of fact by way of re-examination of the evidence at revisional stage it has overstepped the limits or its jurisdiction".
In case of Anwar Zafhan (supra) the Hon' ble Supreme Court of Pakistan has held that:-- "7. From what has been discussed above, the findings of the trial Court and the first appellate Court that both the sale-deeds were not genuine documents were based on elaborate, careful and correct appraisal of evidence which do not suffer from any misreading, as such, could not legally be interfered with under section 115, C.P.C., therefore, the impugned judgment of the High Court is not sustainable."
In case of Sarwar Ali Shall (supra) the learned High Court Lahore while dismissing the civil revision application has observed that:-- "10. After evaluating and appreciating evidence of the parties, both the Courts below concurrently gave findings on question of fact and this Court on its own appraisal of evidence cannot set aside the findings of the two Courts below and in such circumstances no interference can be called for as laid down in the case of Sh. Muhammad Bashir Ali (supra)."
24. In view of what has been discussed above, I am of the considered opinion that the findings of the learned trial Court, which have been affirmed by the learned appellate Court, based on appraisal of the evidence available on record, suffering from no illegality, do not call for any interference. The learned advocate for the applicant has also not been able to point out any illegality or misreading or non-reading of the evidence by both the Courts below in passing the impugned judgments and decrees and he has also not been able to point out any jurisdictional defect in exercise of jurisdiction by the Courts below, attracting provisions of section 115 of the Code of Civil Procedure, 1908, therefore, this revision application being devoid of merits, is dismissed with no order as to costs.