' By this appeal the appellant has challenged the judgment of the IInd Senior Civil Judge (East)
Karachi, dated 8-5-1985, whereby he dismissed the appellant's suit with costs. The appellant had filed a suit against the respondents for Rs,60,832 as damages on account of breach of contract committed in executing an agreement for intonation of passenger lifts in the 7-storeyed building known as Ismaili Centre, Garden East, Karachi. The suit was contested by the respondents on various grounds which are evident from the issues framed in the suit which are reproduced as under:- "(1) Whether the plaintiffs have completed installation of both the passenger lifts at Ismaili Centre as agreed? If so its effect?
' Whether the defendants have paid all instalments against the contractual amount of Rs,5,54,000?
If so, its effect?
' Whether a sum of Rs,50,000 is still outstanding plus interest thereon at 14% PA. From 11-7-1982 to 30-4-1984, amounting to Rs,10,832 aggregate Rs,60,832?
' Whether lift No,1 was installed but it was not operating properly?
' Whether the Plaintiffs are entitled to further interest and cost as prayed?
(6) What should the decree be?
2. Issues Nos.1, 2 and 4 were answered in favour of the appellant. On issue No,3, it was held that the defendants had not paid Rs,50,000 and Plaintiffs were not entitled to interest at 14% PA. Same was finding with regard to interest and costs in issue No,5. However, while discussing the issue No,6 the question of filing the suit without a resolution by the appellant's company was taken up by the learned trial Court. It will be useful to reproduce the relevant passage which reads as under- "In the present case Plaintiff's company has examined their Director Khursheed Mustafa, who has also signed and verified the plaint. He has admitted in cross-examination that he has not filed any resolution of the company authorising him to file the suit. He has nowhere deposed if he has been authorised by the company which is private limited by way of resolution. Thus in view of the above case-law the suit is not maintainable. Though this plea was neither taken in the written statement nor any issue was framed on this point, yet it is a legal plea and no evidence is required to be led on it, because Director of Plaintiffs company has admitted in cross that he has not been authorised by way of resolution of the company. Such plea can be taken even for the first time at the stage of appeal. Reliance is placed on 1986 CLC 1481. I, therefore, hold that Director of Plaintiff-Company had no authority by way of resolution to file this suit and thus the suit is incompetent and it dismissed with costs."
3. Mr. Haider Raza Naqvi, appearing for the appellant has relied upon a decision in the case of Messrs Mastersons through its Partner v. Messrs Ebrahim Enterprises and another reported in 1988 CLC 1381. The relevant passage from the reported case is reproduced as under:- "Objection is raised that the Plaintiff in Suit No,32 of 1982, being a limited company, the suit was not competent unless the person, who had signed the plaint was so authorised by resolution passed by the Company's Board of Directors Reliance is placed on the case of Khan Iftikhar Hussain Khan v.
Ghulam Nabi Corporation Ltd.,, Lahore PLD 1971 SC 550. In the reported case objection was raised in the pleadings, that the suit had not been validly instituted by an authorised person. Issue was framed by the Trial Court as to 'whether the person who had filed the suit was authorised by the Plaintiffs to institute the suit on their behalf?' Certain evidence on this issue was led in the Trial Court and the learned Appellate Court also allowed the parties to lead additional evidence. Their Lordships of Hon'ble Supreme Court, while assessing the evidence on this issue, came to the conclusion that due notice of meeting was not given to the deceased appellant, and therefore, the resolution passed in meeting cannot be said to be valid one and, therefore, no valid authority was conferred on Mr. Khursheed Muhammad and he was not competent to institute a suit. It may be pointed that the present suit has been instituted in the name of the limited company viz. Transpak Corporation Limited through its Manager Mr. Noor Muhammad who has signed and verified the plaint and has also examined himself. Thus, the compliance of Order 29, rule 1, C.P.C. Has been made in the instant case. From the body of the plaint it appears that the plaintiff is a private limited company. While verifying the plaint. Mr. Noor Muhammad has shown himself to be partner of the plaintiff-company. The defendant in their pleadings have not raised the plea that suit has been filed by some unauthorised person. Neither any issue to this effect was framed nor such question was put or suggested to Noor' Muhammad. In order to determine whether the suit has been filed by a person competent to do so, a reference has to be made to the Articles of Association of the Company. As no specific issue was framed, none of the parties have led evidence on the question whether the plaint has been instituted by an authorised person or nor, and, therefore, Articles of Association have not been produced. The plaintiff is a private limited company and the person, who has signed and verified the plaint is not only Manager of the company but is also its partner.
The suit has been duly admitted by the Court and no objection has been raised by the parties in the pleadings or when said Noor Muhammad was in the witness-box. The noting on the plaint shows, that the office had called upon the plaintiff to produce the power of attorney or a copy of the resolution of the company in favour of the Manager Noor Muhammad. The note dated 27-1- 1982 shows that the above objection was complied with and thereafter suit was admitted. Under the circumstances it cannot be said at this stage that the suit has been filed by an unauthorised person, therefore, this objection cannot be sustained at this stage. It may also be pointed that the defendants have even now neither prayed for framing of additional issues nor have they applied for permission to lead additional evidence on the question that Noor Muhammad was not authorised to file suit.
' Similar question arose in the case of Habib Bank Ltd. v. Green Garments and others PLD 1978 Kar.
1027. The learned Single Judge of this Court relying upon the case of Messrs Muhammad Siddiq Muhammad Umer v. Australasia Bank Ltd. PLD 1966 SC 684 came to the conclusion that for deciding this issue it was necessary to see the Articles of the Association of the company to find out whether the Directors were competent to delegate power to the attorney to institute the suit. It may also be pointed that in both the aforementioned cases specific issues had been raised as to the authority of the person instituting the suit and evidence was led by the parties.'
4. I am in respectful agreement with the view taken in this decision. It would, therefore, appear that as no such specific issue was framed nor the parties had led evidence on the question whether the suit had been instituted by an unauthorised person or not and further that the Articles of Association have not been produced, such a finding could not be given and the suit could not have been dismissed.
5. As against this Mr. Sadique learned counsel appearing for the respondents relied upon the case of Muhammad Saeed v. Lzhar Ali Siddiqui reported in 1986 CLC 1481 where it was held that a legal plea which was not raised in written statement or affidavit-in-evidence nor asked in cross- examination could be raised in Ist Appeal provided it was legal in nature and required no evidence for its determination. This ruling is distinguishable from the facts of the present case as it relates to a rent appeal. Not only that but in this ruling it is made quite clear that the legal plea should be such that it requires no evidence for its, determination; whereas in the present case the legal plea as to authorisation of the appellant's attorney requires leading of evidence for its determination, such as Articles of Association, passing of the resolution etc. I am, therefore, of the clear view that the learned trial Court was not justified in holding that suit was filed by an unauthorised person. The perusal of the cross-examination would also show that the plaintiff's attorney had only admitted that he had not filed the resolution authorising him to file the suit and had not stated so in the plaint. By such admission, the trial Court was not justified in coming to the conclusion that such a resolution was necessary and that no resolution was passed at all authorising the filing of the suit. The appeal, therefore, is allowed. The judgment of the learned trial Court is set aside and the suit is decreed for a sum of Rs,50,000.