IRFAN SAADA T KHAN, J.---This High Court Appeal has been filed against the judgment and decree dated 31.08.2005 passed by the learned Single Judge in Suit No.302 of 1982.
2. Briefly stated, the facts of the case are that on 07.08.1982 the present appellant (plaintif f in suit) filed a suit for specific performance of contract, cancellation of sale deed, possession and damages against the respondents (defendants in suit), namely Muhammad Irfan Azad, Muhammad Ashfaq and Haji Shabbir Sohail. Muhammad Irfan Azad has expired so also Haji Shabbir Sohail, whose legal heirs were thereafter brought on record not only in the suit but also in the present High Court Appeal. It was the claim of the appellant that the respondent No.1, who has expired subsequently , owned and possessed a plot bearing No.301/A/2, Survey Sheet No.19, Artillery Maidan Quarters, Shahrah-e-Liaquat, Karachi, measuring 435 square yards with construction thereon (hereinafter referred to as the "subject property "). That on 23.01.1982 the respondent No.1 agreed to sell the said property to the appellant for a sum of Rs.8,70,000/- free from all encumbrances on the terms as mentioned in the agreement of sale. The appellant then came across a public notice published in "Daily Jang" dated 21.04.1982 by one Syed Hassan Zafar Advocate, whereby he informed that his client has entered into an agreement with the respondent No.1 to purchase the subject property and if anyone has any objection, he may notify to him. That on 27.04.1982 the appellant through their counsel notifi ed Syed Hassan Zafar Advocate that the appellant has already entered into a sale agreement with the respondent No.1 and asked them to refrain themselves from purchasing the said property otherwise they will have to face consequences of it at their own cost and risk.
3. The appellant then contacted the respondent No.1 who informed that after entering into sale agreement with the appellant, he was persuaded by the respondents Nos.2 and 3 and he then entered into a sale agreement with them for selling the subject property at a much higher figure of Rs.12,00,000/- and that the respondent No.1 is ready to pay back the earnest money amounting to Rs.1,00,000/- to the present appellant. The appellant tried to stop the transfer of the subject property by the respondent No.1 in favour of the respond ents Nos.2 and 3 but when the appellant came to the conclusion that a sale deed has been executed between the respondents thereafter he filed a suit bearing No.302 of 1982 for cancellation of said sale deed, specific performance of contract executed between the appellant and the respondent No. 1. The matter proceeded before the learned Single Judge of this Court. The respondents Nos.2 and 3 have filed their written statement, wherein they have denied the contents of the plaint and further claimed that they have purchased the subject property from the respondent No.1 through sale agreement /sale deed. The learned Single Judge has framed as many as ten (10) issues, which are reproduced herein below: 1) Whether defendant No.1 entered into an agreement with the plaintiffs for sale of suit property on 23-1-1982?
2) Whether the agreement of sale dated 23-1-1982 was bogus and signatures of defendant No.1 thereon were forged?
3) What payment, if any, was received by defendant No.1 from the plaintiffs in assurance of agreement of sale dated 23-1-1982?
4) Whether the defendants 2 and 3 entered into an agreement of sale of the proper ty in suit with defendant No.1 on 31-3-1982 and took possession of the property in suit? If so, what is its effect?
5) Whether the sale consideration agreed to be paid by defendants 2 and 3 was adequate?
6) Whether the defendants 2 and 3 purch ased the property in suit on 12-6-1982 through registered sale deed with notice of agreement of sale between the defendant No.1 and the plaintiffs?
7) Whether defendant No. 1 committed breach of contract dated 23-1-1982?
8) Whether the plaintiffs are entitled to cancellation of sale deed dated 12-6-1982 executed in favour of defendants 2 and 3 by defendant No.1?
9) Whether the plaintiffs are entitled to specific performance of agreement of sale dated 23-1-82?
10) Whether the plaintiffs are entitled to damages? If so, how much and from which of the defendants?
11) Relief.
4. The learned Single Judge on the basis of material available on record, including evidence led by the respective parties, decided the matter against the present appellant on the ground that there was no resolution passed by the Board of Directors of the plaintif f Company M/s. Abdullah Ltd. (appellant herein) to authorize its Managing Director , namely , Ashton Hussain, to file the suit against the defendants (respondents herein) hence the suit was dismissed being not maintainable.
5. Mr. Shaiq Usmani Advocate has appeared on behalf of the appellant/plaintif f and stated that the judgment passed by the learned Single Judge in the suit is not in accordance with law as the learned Single Judge without entering into the merits of the case has non-suited the present appellant on a hyper technical aspect that there was no resolution in favour of the Managing Director , who had filed the suit. He state d that the order of the learned Single Judge was per incuriam and his only payer is that the matter may be remanded to the learned Single Judge for deciding the same on the merits of the case. In the alternative, he further stated that the present appellant, whose Managing Director has signed the plaint, was fully authorized to file the suit and other documents on its behalf. He stated that a perusal of the impugned judgment would reveal that no issue was framed regarding maintainability of the suit, hence the dismissal of the suit by the learned Single Judge in pursuance of non-existed issue was erroneous and thus it is liable to be set aside.
6. The learned counsel further stated that the provisions as provided under Order XIV, Rule 1, C.P.C. as well as under Order VIII, Rule 5, C.P.C. were totally ignored by the learned Single Judge while deciding the matter . He further stated that even parameters of Order XIV, Rule 5, C.P.C. with regard to framing of additional issue were not considered by the learned Single Judge and to utter surprise of the appellant (plain tiff) the suit was dismissed on a hyper technical aspect, therefore, he prayed for sending back the matter to the learned Single Judge for a fresh decision on the merits of the case. He stated that the learned Single Judge has incorrectly placed reliance on the decisions in the cases of Khan lftikhar Hussain Khan of Mamdot (Represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore (PLD 1971 SC 550) and Messrs Muhammad Siddiq Muhamma d Umar and another v. The Australasia Bank Ltd. (PLD 1966 SC 684) as much water has flown under the bridge after these two judgments and it is now a well settled proposition of law that a suit on the basis of this hyper technical aspect could not be dismissed, as firstly , according to him, the Managing Director , who has filed the plaint, was fully authorized to do so and secondly if there was no resolution by the Company , that was a curable defect, which could be rectified, had the office or the Court asked the appellant to do so, which according to him has not been done.
7. The learned counsel further stated that Article 44 and Article 48 of the Memoran dum and Articles of Association of the Company have fully authorized the Managing Director to manage the business of the Company and thus the learned Single Judge was not justified in non-appreciating the above Articles of the Memorandum and Articles of Association. In support of his above contentions, the learned counsel has placed reliance on the following judgments: 1) Fasihuddin Khan and others v . Government of Punjab and others (2010 SCMR 1778 )
2) Sardar Gulab Singh v. Punjab Zamindara Bank, Ltd., Lyallpur through Sardar Desa Singh, Manager and others (AIR (29) 1942 Lahore 47)
3)H. M. Ebrahim Sait v . South India Industrials Ltd. (AIR 1938 Madras 962)
4) Ram Ragubhir Lal and others v . United Refineries (Burma) Ltd. (AIR 1931 Rangoon 139)
8. The learned counsel further stated that dismissal of the suit as a whole by the learned Single Judge on this technical aspect is not at all justified, as the learned Single Judge instead of giving the decision on the merits of the case has dismissed the suit on a technical aspect and it is a settled proposition of law that the decision should be given on the merits of the case and not on the basis of some technical aspects, which aspects are always to be ignored to foster the ends of justice. The learned counsel further submitted that failure of the counsel to properly assist the court should not be an excuse for dismissing a suit as a Judge is required to wear all laws of the country on sleeves of his robe and placed reliance upon the decisions given in the case of Government of NWFP and others v . Akbar Shah and others (2010 SCMR 1408 ).
9. The learned counsel further submitted that he has filed the Memorandum and Articles of Association of the company through a statement dated 01.02.2016 which according to him are the correct Memorandum and Articles of Association of the company and perusal of which would reveal that these Memorandum and Articles of Association of the company duly authorizes the Managing Director of the company to act on behalf of the company .
The learned counsel in the end once again prayed for remanding the case to the learned Single Judge for delivering a fresh decision on merits of the case.
10. Nobody is in attendance on behalf of the respondent No.1, despite publication.
11. Mr. Mushtaq A. Memon Advocate has appeared on behalf of the respondents Nos.2 and 3 and stated that no doubt the person who has signed the plaint was the Managing Director of the Company but the moot question is whether he was authorized by the Company to file the said plaint /suit? As per the learned counsel the answer to this question is in negative. He stated that filing of the resolution of the Company duly mentioning the authorization given to the Managing Director before filing the plaint/suit is a mandatory requirement which could not be brushed aside easily and when the learned Single Judge came to the conclusion that no such authorization has been given to the person who had filed the suit, he quite rightly dismissed the suit without entering into other aspects of the matter . Mr. Memon submitted that the respondents Nos.2 and 3 were bona fide purchasers of the subject property .
He stated that issues were framed with the consent of the parties. He further stated that the learned Single Judge quite rightly relied upon the cases as mentioned above, which are still holding the field and in view of these pronouncements of law, as enumerated by the Hon'ble apex Court, it is now a well settled proposition of law that in case of non-authorization by a Company one cannot file any suit or to initiate any legal proceedings against any person.
12. The learned counsel stated that the copy of the Memorandum and Articles of Association filed by the learned counsel for the appellant at this belated stage is not acceptable. He stated that since the suit was filed by an unauthorized person hence the same was quite rightly dismissed by the learned Single Judge as such defect was incurable and cannot be rectified subseq uently by taking advantage of either provision i.e. Order VI, Rule 2 or Order VI, Rule 14 or Order VII, Rule 4, C.P.C. In support thereof, the learned counsel has placed reliance on the following decisions: 1) Adusumilli Gopalakrishnayya Garu (PLD 1947 Privy Council 180)
2) Messrs Gulf Air v . Messrs Shakil Air Express (Pvt.) Ltd. (PLD 2003 Karachi 156 )
13. The learned counsel further stated that for a Corporation or a Company establishing authorization under Order XXIX, Rule 1, C.P.C. is a mandatory provision and since the provision is not complied with the suit was rightly dismissed by the learned Single Judge. In support of his above contention, the learned counsel has placed reliance on the following judgments: 1) Qamran Construction (Pvt.) Ltd. v . Saleemullah and 2 others (2008 CLD 239 )
2) Trading Corporation of Pakistan v . Muhammad Alam (2016 CLC 1573 )
3) Abubakar Saley Mayet v . Abbot Laboratories and another (1987 CLC 367 )
14. The learned counsel stated that the decisions given by the Hon'ble Supreme Court in the cases of Muhammad Siddiq and Mamdot have been followed in the following judgments: 1) Dumez Borie v . International Forwarders Ltd. (NLR 1983 UC 184)
2) Messrs Standard Hotels (Private) Ltd. v . Messrs Rio Centre and others (1994 CLC 2413)
3) Sirajuddin Paracha- and 12 others v . Mehboob Elahi and 3 others (PLD 1997 Karachi 276 )
4) Abdul Rahim and 2 others v . Messrs United Bank Ltd. of Pakistan (PLD 1997 Karachi 62 )
5) Board of Control for Cricket in Pakistan v. Karachi Development Authority through Director-General and 51 others (1997 CLC 795)
6) National Bank of Pakistan and others v. Karachi Development Authority and others (PLD 1999 Karachi 260)
7) Messrs T aurus Securities Limited v . Arif Saigol and others (2002 CLD 1665 )
8) Messrs Razo (Pvt.) Limited v. Director , Karachi City Region Employees Old Age Benefit Institution and others (2005 CLD 1208 )
9) Messrs Pakistan Oil Mills (Pvt.) Ltd. v . Messrs Peter Shipping Co. Ltd. and others (2005 MLD 1745 )
10) Raja Ali Shan v . Messrs Essen Hotel Limited and others (2007 SCMR 741 )
11) Bashir Dawood v . Haji Suleman Goawala and Sons Ltd. and others (2010 CLC 191 )
12) SDA and others v . HEC (2014 MLD 1 110)
13) Bajwa Industries (Private) Limited through Chief Executive v . Muhammad Jehangir (2014 CLC 1 151)
14) Unreported judgment in H. C.As. Nos. 209 and 215, both of 2005 dated 3.2.2015.
15. The learned counsel stated that the learned Single Judge is not required under Order XIV, Rule 5, C.P.C. to frame issue on the maintainability . He stated that the question of jurisdiction can be urged and taken up at any stage without framing of any specific issue in this behalf. In support of his contentions, the learned counsel has placed reliance on the following decisions:
1. Haji Abdullah Khan and others v . Nisar Muhammad Khan and others (PLD 1965 SC 690 )
2. Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another (2006 SCMR 783 )
3. Evacuee T rust Property Board and others v . Mst. Sakina Bibi and others (2007 SCMR 262 )
4. Izhar Alam Farooqi, Advocate and another v . Sheikh Abdul Sattar Lasi and others (2008 CLD 149 )
5. Muhammad Hashim v . Abdul Majid (1997 CLC 875)
6. Abdul Karim v . Haji Noor Badshah (2012 SCMR 212 )
7. Mst. T aj Bibi through L.Rs. v . Rana Salah-ud-Din (2016 CLC 1621 )
8) Muhammad Asghar v . Hussain Ahmad and others (PLD 2014 SC 89 )
9. Anwar Ahmad v . Mst. Nafis Bano through legal heirs (2005 SCMR 152 )
10. Unreported Order dated 28.10.2010 of Division Bench in H.C.A. No.154 of 2001.
11. Pioneer Cement Limited through Company Secretary v. Fecto Cement Limite d through Chief Executive Officer and 3 others (PLD 2013 Lahore 1 10)
12. Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others (PLD 2010 SC 604 )
13. Muhammad Luqman v . Bashir Ahmad (PLD 1994 Karachi 492 )
14. Attaullah alias Qasim v . The State (PLD 2006 Karachi 206 )
15. Hassan Ali & Co. Cotton (Pvt.) Ltd. v. Trading Corporation of Pakistan (Pvt.) Ltd. and another (2016 CLD 2283 )
16. Flour Mills Employees' Union v . Karachi Steam Roller Flour Mills Co. Ltd. (PLD 1964 (W .P.) Karachi 587)
17. Din Muhammad and another v . Farooq Mirza (PLD 1955 (Sindh) 62 )
18. Walton Tobacco Company (Pvt.) Ltd. and others v. Azad Government of the State of Jammu and Kashmir and others (1993 CLC 66 )
19. Munir Hussain v . Mst. Mehrun Nisa (Through her legal heirs) (PLD 1982 Karachi 71)
20. Imam Din and 4 others v . Bashir Ahmed and 10 others (PLD 2005 SC 418 )
21. Muhammad Yousuf Siddiqui v . Haji Sharif Khan through L. Rs. and others (PLD 2005 SC 705 )
16. The learned counsel further submitted that ample opportunity of hearing was provided by the learned Single Judge to the appellant, hence it could not be said that either they were taken by surprise or that they were not given chance to advance their arguments so far as the issue of maintainability of the suit is concerned. He stated that the order of the learned Single Judge does not suffer from any illegality , as the learned Single Judge has decided the matter on the basis of the facts obtained from the record which are quite apparent and obvious. He lastly prayed for dismissal of the instant High Court Appeal.
17. We have heard both the learned counsel at considerable length and have also perused the record and the decisions relied upon by them.
18. In our view the only point that requires deliberation is "whether the person who has filed the suit admittedly without their being resolution of the company in his favour authorizing him to file the said suit/plaint could be considered as filing a suit which is mainta inable". Though a number of authorities have been cited on behalf of the counsel for the appellant and the respondents however in our view the said question has already been answered in negative and had been laid at rest by the Hon'ble Supreme Court of Pakistan in their two judgments one in Iftikhar Hussain Khan of Mamdot and another Muhammad Siddiq (PLD 1971 SC 550 and PLD 1966 SC 684, respectively) . Relevant observations of both these judgments are reproduced herein below:- Observations of the Hon'ble Supreme Court in Mamdot case: "In my opinion, no valid authority was conferred on Mr. Khursheed Mahmood and, therefore, he was not competent to institute the suit. 1 would, therefore, hold that the learned trial judge was perfectly justified in dismissing the suit on this ground".
Observation of the Hon'ble Supreme Court in Muhammad Siddiq case: "It was apparent from the pleadings that the suit was being instituted by a constit uted attorney of a public limited company . He could only do so if he was duly authorised in that behalf and occupied one or other of the offices mentioned in Rule 1 of Order XXIX of the Civil Procedure Code. A copy of the power of attorney had been produced which showed that Muhammad Khan had been empowered in that behalf but the question still remained to be ascertained as to whether those who gave him that power were competent to do so, as the authority was on behalf of a public limited company . For this purpose a reference to the Articles of Association of the company was certainly necessary to see whether the Directors were competent to delegate such power . It was not necessary to see whether the Directors; had in fact approved of the giving of such power -of-attorney to the person who presented the plaint. This was, however , proved by the production of the resolution of the Board of Directors as a matter of abundant caution. The additional evidence was to that extent, therefore, in our opinion; rightly admitted.
This was all that was required. It was not necessary , to call the Managing Director as the Court calling for the additional evidence itself realized subsequently . Even the production of the resolution could have been dispensed with, as it was not strictly necessary".
19. Hence in our view observations of the Hon'ble Supreme Court in these two judgments are quite explicit which are still holding the field as no judgment has been cited by both the learned counsel that whether these two judgments have either revisited or some contrary view has been taken by the Hon'ble apex Court in this behalf.
Hence we find no justification to interfere in the order passed by the learned Single Judge impugned in this High Court Appeal.
20. Apropos the ground taken by the learned counsel for the appellant that the appellant was taken by surprise as the learned Single Judge without framing issue of maintainability has decided the matter . Here again we tend to disagree with the, submissions of the learned counsel for the appellant as it is evident from the paragraphs Nos.9, 10 and 11 of the judgment of the learned Single Judge that elaborate discussion was made by him with regard to filing of the plaint by an unauthorized person. Perusal of these paragraphs show that not only Mr. Muhammad Ashfaq was cross-examined on this aspect but he was even allowed to lead evidence with regard to fact that whether he was competent enough to file the suit or not. Hence it could not now be inferred that the said Muhammad Ashfaq was taken by surprise or that opportunity of hearing was not provided to him. Moreover , Muhammad Ashfaq had admitted specifically in his cross-examination that he was not authorized by the company to file the said suit. Relevant extract from his cross-examination is reproduced herein below:- "It is correct that no resolution authorized me to file this suit on behalf of the plaintiff company has been communicated to me. I do not remember whether the Memorandum and Articles' of Association of the plaintiff company have been filed in Court. It is correct that the Director of the plaintiff company had not given me a power of attorney to enter into negotiation in respect of the disputed plot but being the Managing Director had full authority to do so on my own. I do not recall if any document specifying my power as Managing Director of the Plaintiff has been placed on record nor can show at present. The agreement was executed in my office".
21. Perusal of the above admission leaves no room of doubt that other directors of the company had neither executed any power of attorney in favour of the Managing Director to enter into negotiations in respect of the disputed plot nor Memorandum and Articles of Association have been filed by him in the Court nor does he recall any document specifying his power as Managing Director has been placed on record nor could he show the same.
22. We also agree with the contention of the learned counsel for the respondents Nos.2 and 3 that a legal issue going to the roots of the case can be raise d at any stage and we need not cite any authority in this behalf since it is now a well settled proposition of law and plethora, of judgments are available on this issue. Moreover it is also an undeniable position that the possession of the plot is with respondents Nos.2 and 3.
23. Memorandum and Articles of Associa tion of the company submitted before us by the learned counsel for the appellant firstly could not be relied upon since they were never produced earlier . Secondly , perusal of these Memorandum and Articles also does not reveal that the Managing Director of the company had a full-fledged authority to carry out the affairs of the company which of course was "Subject to general control and supervision of the directors" as clearly mentioned in the said Articles of the company . Moreover it was specifically admitted in the cross-examination by Muhammad Ashfaq that other Directors of the company have not given him any authority to enter into sale transaction even if these Memorandum and Articles of Association, which are placed now at belated stage before us are considered, the same are found to be of no avail to the appellant.
24. The upshot of the above discussion is that we do not find any misreading, non-reading of evidence, irregularity or illegality in the order passed by the learned Single Judge, which was based upon the pronouncements of the Hon'ble apex Court. Hence the instant High Court Appeal is found to be devoid of any merit and is dismissed accordingly .