' This application has been made by Mr. Farooq Umar son of Mian Noor Ullah resident of 1- Tariqabad, Faisalabad wherein it has been alleged that the particulars of the petitioners were deliberately withheld by the bank which were very material for the disposal of the suit so far as the same related to the petitioner. It was further submitted that even parentage of the petitioner was not mentioned and as such the service could not be taken as properly effected. The suppression of facts were attributed to collusion and mala fides on the part of the plaintiff-bank. It was also alleged in the petition that the alleged case against the petitioner was based on a fabricated document which was, allegedly a letter of guarantee signed by him as Director Flora Textiles Ltd.
Lahore i,e, defendant No,1. Many other objections were taken by the petitioner but they are not relevant to the disposal of the present petition. The plaintiff had, in its reply, raised preliminary objections regarding maintainability of the application under section 12(2), C.P.C. As, according to the respondent, the decree had not been passed so far and the fraud and misrepresentation had not been alleged against the plaintiff-bank. It was also submitted that earlier an application under Order I, Rule 10, C.P.C. Was also made by the petitioner and the contents thereof were contradictory to the stance taken in the present petition.
2. I have heard the learned counsel for the petitioner as also for the bank. I have also perused the contents of PLA 67-B-90 in COS 25 of 1990 which was dismissed by this Court on 24-11-1993. In para. 10 thereof the other defendants had submitted that no document of charge was ever signed by defendants Nos.4, 6 and 7. The present petitioner was defendant No,6 in the plaint. The said application was supported by an affidavit of Mr. Ahmad Irfan Mian son of Mian Noor Ullah, Chief Executive of defendant No, 1 . The plaintiff-bank had filed the reply thereto which was also submitted by an attorney of the Bank. In reply to para. 10 of the petition, the defendant had not sworn that the alleged letter of guarantee was singed by the present petitioner (defendant No,6) in his presence.
3. Whatever be the stance of the plaintiff and the other defendants in the case, I take judicial notice of the fact that the petitioner/defendant No,6 was a very senior public servant and as such could not have consented to serve as Director on the Board of Directors of defendant No,1 and as such, I am of the view that whatever document prepared by or produced before the plaintiff, was without the consent of the present petitioner. When a direct question was put to the learned counsel for the plaintiff-bank as to whether the public servant could serve on the Board of Directors of any limited company he had to concede that the same was not legally permissible.
4. I do not want to record the status of the petitioner and thereby create embarrassment for all the parties concerned and suffice for me to hold that the plaintiff-bank, if it had any document allegedly signed by the present petitioner, was either duped or they intentionally avoided to take notice of the legal disability of defendant No,6/petitioner to serve on the Board of Directors of defendant No,1.
5. The personal guarantee which has been allegedly signed by the present petitioner is bearing stamp mark of the Director of defendant No,1. The guarantee as such was in the capacity of being a Director of defendant No,1.
' Had the said document not been stamped as such the plaintiff could take the plea that irrespective of the disability of the present petitioner to serve on the Board of Directors of the company being public servant, he was under no legal infirmity to secure the repayment of any loan in his personal capacity. The stamping of the letter. Of guarantee with the rubber stamp of Director of defendant No,1 similarly suffers from the disability of being taken as a valid document.
6. The learned counsel for the petitioner also raised an objection regarding validity of the Guarantee pertaining to financial obligation and under the law for the time being in force the same was to be attested by two men or one man and two women. He referred to the provisions of section 59 of the Transfer of Property Act, 1882 but in my view the section ibid did not apply to guarantees.
He also referred clause (a) of Article 17(2) of Qanun-e-Shahadar, 1984 (President's Order No,10 of 1984) and also to the provisions of Article 79 of the Order ibid.
7. 1 have given my anxious consideration to the above contentions. The Hun pie Court in Ali Ahmad v. The State PLD 1962 SC 102 made an exercise omparison of the signatures of a witness with the help of magnifying glass and in Hamid Qayyum v. Muhammad Azeem PLD 1995 SC 381 Mr. Justice Wali Muhammad Khan had derived support of the same in his judgment which was supported by my Lord Mr. Justice Saiduzzaman Siddiqui and the appeal was dismissed. The objections raised by the learned counsel for the bank are not relevant and I proceed to examine these questions with the signatures of the petitioner on affidavit and Wakalatnama appended with petition and refrain from discussing those two objections.
7-A. The alleged guarantee is present before me as it was appended at page 39 of the paper book of COS 25/90. This petition is supported by an affidavit and the said affidavit has been signed by defendant No,6/petitioner and he was identified by Mr. Azmat Saeed, Advocate at the time of the attestation by the Oath Commissioner. Wakalatnama also appears on the file of the C.M. And signatures of defendant No,6 are affixed thereon. These three signatures which are available in C.M.
49-B-95 are absolutely different from those signatures which appear on the questioned document i,e, Letter of Guarantee referred to above. This fortifies my conclusion that the petitioner was neither serving on the Board of Directors of company nor had executed letter of guarantee. The said guarantee was produced in Court by the plaintiff and it was their duty to prima facie prove that the signatures thereon were affixed by the petitioner defendant No,6 in the presence of any of its employee. No affidavit to that extent has been filed by the plaintiff-bank.
8. Regarding objection of the learned counsel for the petitioner that the application under section 12(2) and section 151, C.P.C. Was not maintainable as the suit has not been decreed so far, this Court has inherent powers under section 151, C.P.C. To exercise its discretion to do complete justice between the parties in the larger interest of justice. In the present case, no doubt that the decree has not been passed as yet but the Court is also vested with powers under Order I, Rule 10(2), C.P.C.
Which reads as under:--
(2) The Court may at any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the question involved in the suit, be added."
The underlining is of mine and is intended to show that this Court had the discretionary jurisdiction to delete the name of any party, improperly joined, whether as plaintiff or defendant, and this discretion is presently exercised to do complete justice between the parties. Reliance is placed on Mst. Amina Begum and others v. Mehr Ghulam Dastgir PLD 1978 SC 220.
9. In view of the above discussion, and exercising powers vested in this Court under Order I, Rule 10(2) read with section 151, C.P.C., the petition is allowed and the name of the petitioner/defendant No,6 is struck out from the array of defendants in the plaint.
10. No order as to costs.