RANA BHAGWAN DAS, J.- This order shall dispose of aforesaid CMA, seeking rejection of plaint for the reasons firstly that the plaintiff No. 13 i.e. M/s. Standard Hotels (Pvt) Limited as owner of the at joining property by joining the plaintiffs Nos.1 to# l2 as co-plaintiffs who have no right to ownership in the property has forfeited its right to pre-emption if any; secondly that the suit for preemption has been filed jointly by plaintiffs Nos. I to l2 on their own behalf as well as on behalf of limited company with conflicting interests inter secondly,; and, thirdly that no special resolution was passed by plaintiff No. 13 company authorising the filing of the suit for pre-emption and consequently verification and signing of the plaint is unauthorised and incompetent.
2. Precisely the case as set up in the plaint is that property bearing survey ' Nos. 26/1 to 26/5, sheet No. SB-, Sadder Bazar Quarters, Karachi was purchased by plaintiffs from their own resources in the name of M/s Standard Hotels (Pvt) Limited by conveyance deed dated 3-12-1980. On the said day while the paid up capital of the company was Rs.40 - only, property was purchased for Rs.5,50,000/- This property is situated adjacent to Plot No. 31/2, sheet No. SB-5, Sadder Bazar Quarters, Karachi, which was sold by defendant No. 4 to defendants Nos.4 to 3 for a sum of Rs.3,00.00,000/- by a registered sale deed, lt is claimed that on acquiring this information, plaintiffs Nos. 1. & 3 for themselves as well as on behalf of co- plaintiffs asserted right of pre-emption under the Muhammadan Law and made talb- e-mowasibat as well as talb-e-ishhad in presence of witnesses, but contesting defendants refused to convey the property in suit in favour of the plaintiffs, hence the suit.
3. Plaintiffs,--filed a counter-affidavit to the CMA disputing various allegations on the averments that the company is one of the plaintiffs in the suit; that a resolution w passed by the company; and. That the verification and signing of the plaint is in accordance with law. Ln the counter- affidavit a reference was made to order dated 10.1.1995 passed by Kamal Mansur Alam, J. In Suit No. 388 93 for pre-emption filed by plaintiffs Sirajuddin Paracha Rafiuddin Paracha and Standard Hotels (Pv t) Limited against Liaqat Ali & others, in which the plaint w as rejected contending that High Court Appeal No. 35/1995 filed by them against the said order has been admitted for hearing.
They also referred to an identical order passed in Suit No. 479/1993 by late Hussain Adil Khatri, J.
Rejecting the plaint with the averment that it is not applicable in the facts of the present suit.
4. In support of the prayer for rejection of the plaint, Mr. G.H. Abbasi. Leamed counsel for the defendants Nos. 1 to 3 contended that the property having been purchased in the name of the company, plaintiffs Nos.1 to l2 are neither the owners thereof nor entitled to claim the right of pre- emption and in fact they being merely shareholders in the company are stranger to the property.
He further urged. That by joining such plaintiffs, plaintiff No. 13 claiming the right of pre-emption the ground of vicinage has lost its right to pre-emption it at all any. To reinforce hi: submission, leamed counsel has referred to paragraph 241 of the Principles o Muhammadan Law by D.F. Mulla which reads as under:-
241. Right lost bv joinder of plaintiffs not entitled to pre-empt.-If ; plaintiff who has a right of pre- emption joins with himself as co- plaintiff a person who has no such right he is not entitled to claim preemption, and the suit must be dismissed. But the right is not lost if he joins with himself as co- plaintiff a person who, but for his failure to make necessary demands, would have been entitled to pre-empt."
5. I am not inclined to agree with the leamed counsel on this score for the that this question was finally decided by their Lordships of the Supreme Court of Pakistan in Allah Ditta v. Muhammad Ali (PLD 1972 SC 59) taking the view that the right of a pre-emptor-plaintiff is not lost if in a suit to enforce his right he joins with him a stranger. Their Lordships observed that the mistake in joining as a co-plaintiff is procedural and is remediable by amendment under Order I rule 10 CPC as the Court has power to strike out or add without an application. It was further ruled that the provisions of the Pre-emption Act are technical and the pre-emption is a piratical right, but this would not mean that in procedural matters, the provisions of CPC are not applicable. The joining of a stranger as a co-plaintiff is a procedural defect and can be remedied by striking off the name of such person under Order I rule 10 CPC at any stage of the proceedings. This view was followed in Moula Bux v. Muhammad Sharif (PLD 1989 SC 278). However in this particular case, it is not necessary to strike out the names of plaintiffs Nos.1 to l2 from the area of parties for the reason that a question would then arise whether a limited company as opposed to a natural person would be entitled to claim the right of preemption under the Muhammadan Law. Prima facie it appears that a juristic person may not be entitled to claim such right which is strictly speaking personal in nature, but the question is. Left open for decision in an appropriate case raising this question. Moreover finding on this aspect of this case is not desirable also for the reason that leamed counsel for the parties had no opportunity to address this Court on this question of law.
6. There is however considerable force in the argument advanced on behalf of the defendants that in the absence of a resolution passed by the company under its Articles of Associations suit was incompetently filed and signing and verification of the plaint by plaintiffs was completely unauthorized. Perusal of the plaint tends to show that plaintiffs Nos.1 to l2 claimed to be the owners of the property with the assertion that the property was purchased in the name of the company was benami and for all intents and purposes, management and control of the company has always remained in the hands of plaintiff No. 1 who is Chairman and Chief Executive of the company. There is no specific reference to any resolution authorizing this plaintiff or any other plaintiff to file a suit for pre-emption in the plaint spread over 20 pages, but para 9 of the plaint, references to a resolution passed in the meeting of Board of Directors of the company held on 11.12.1980 authorizing plaintiffs Nos.1 & 3 to file all kind of legal proceedings and to take all other necessary' steps for and on behalf of plaintiff company. A copy of the resolution has been appended to the plaint as annexure D' in support of this averment. To my mind this resolution is general in nature authorizing plaintiffs Nos.1 & 3 to look after, manage and administer the affairs of the company, but it does not specifically authorise them to file a suit for pre-emption in respect of the property in suit for which passing of special resolution authorizing any of the Directors was absolutely necessary. As averred in para 29 of the plaint, cause of action for filing the suit arose to plaintiffs on 23.4.1994 when they received information about the sale of the property in suit by defendant No. 4 in favor of defendants Nos.1 to 3. Resolution thus passed in December, 1980 cannot be treated as special resolution authorizing the plaintiffs to file a suit for pre-emption on behalf of the company in 1994.
7. It is strange and surprising to note that in Suii.N0.497/1993 decided on 31st March, 1994 filed on behalf of the plaintiffs for similar relief, plaint was rejected in the case Standard Hotels (Pvt) Limited v. M/s Rio Centre (1994 CLC 2413) by late Justice Hussain Adil Khatri, taking the view that order XXDC rule 1 CPC provides only for the subscription of the signature to and verification of the pleadings by specified persons in suits by or against corporation. Yet the plaintiffs did not take any steps for having a resolution passed before instituting the present suit on 25.1.1995. On almost identical grounds in Suit No. 388/1993, plaint was rejected by Kamal Mansur Alam, J. Which has been referred in the counter-affidavit of the plaintiffs, yet they did not mend their ways and insisted in filing this suit without proper resolution and authority which can only be regretted. Although no authority is needed for the proposition, a reference may be had to Abubakar Salev Mavet v. Abbot Laboratories and another (1987 CLC 367) taking the view that suit filed by official of a company without authority to do so is nullity in the eyes of law \and plaint was non-existent for all intents and purposes. Abdul Qadeer Chaudhry, J. (as his Lordship then was) emphasized that all suits on behalf of a company are properly instituted if the plaint is duly signed and verified by the Secretary who is authorised by the company expressly to conduct the suit. His Lordship further held that order XXIX rule 1 comes into operation only after the proceedings have been validly started and cannot be utilized for unauthorized persons to prosecute the suit on behalf of the corporation.
8. This question was considered by their Lordships of the Supreme Court in lftikhar Hussain Khan of Mamdot v. Ghulam Nabi Corporation Limited (PLD 1971 SC 550) in which it was held that suit on behalf of company by a Director incharge is not competent unless he is so authorised by a resolution passed by company's Board of Directors. Their Lordships took serious view of the matter that due notice of the meeting was not given to one of the Directors of the company and held that the resolution passed in the meeting of Board of Directors cannot be said to be a valid one. In these circumstances, it was ruled that no valid authority was conferred on the Director so authorised by way of resolution and that he was not competent to institute the suit.
8. There is yet another remarkable observation by Zafar Hussain Mirza, J. In another case of this Court Dumez Borie v. International Forwarders Ltd. (NLR 1983 U.C. 184). In this case in order to overcome the incompetence of the suit plaintiff sought refuge by resorting to the provisions of order XXIX rule 1 and order XXX rale 1 CPC, but it was held that the suit was not competently filed for the following reasons: "The provisions of order XXIX rule 1 CPC deal only with the subscription and verification of pleadings in suits by and against the corporations. In other words, the rule merely authorised the persons mentioned therein to sign and verify pleadings on behalf of a corporation. The rule does not authorise such person to ."institute" suits on behalf of the corporation. Substantial question in issue herein is whether Mr. Terras was authorised by Societe Dumez to institute the present suit.
Therefore, merely because the person signing the plaint was principal Officer of the company is not sufficient to establish that he had authority to bring the suit on behalf of the company. Learned counsel had, therefore, to fall back upon the power-of-attorney. As pointed out above it is doubtful in view of the language in which die powers were couched that the attorney had authority to institute a suit before the Courts of law. Be that as it may, it seems to be settled that even constituted Attorney must have express authority from the Board of Directors of the company to institute a suit. The reason for the rule appears to be that in case of companies the initiative to institute an action at law must proceed from the company or the Authority under the Articles of Association in whom the management of the company vests."
This rule was also affirmed and approved in the earlier cases namely Notified Area Committee.
Okara v. Kidar Nath and ethers (AIR 1935 Lahore 345), and Muhammad Siddiq Muhammad Umer and another v. The Australasia Bank (PLD 1966 SC 684).
9. As to the power authorising a Court to reject a plaint in a suit found to be incompetent, a Division Bench of Dhacca High Court in Burmah Eastern Ltd, v. Burmah Eastern Employees' Union (PLD 1967 Dacca 190) laid down the following two principles for rejection of plaint: "The principles involved are two-fold. In the first place, it contemplates that a still-bom suit should be properly buried at its inception, so that no further time is consumed on a fruitless litigation.
Secondly, it gives, plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may found a properly constituted case. Order VII, rale 11 of the Code, as quoted above, enumerates certain categories under which the Court is called upon to reject a plaint, but. It is obvious that they are not exhaustive. It appears from the language of rule 11 of Order VII that it requires that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collapse as not being permitted by law."
10. Aforesaid view was approved from time to time and it holds the field. No case to the contrary has been cited on behalf of the plaintiffs. I am, therefore, of the confirmed view that the plaint is very clearly barred by the provisions of order VII rule 11 CPC. 1, therefore, direct rejection of the plaint as prayed.