KHILJI ARIF HUSSAIN, J.-- This appeal has been filed against the order dated 3.2.2003 passed in Suit No. 1003 of 1979 whereby learned Single Judge dismissed the application under Order 13 rule 1 and 2, CPC filed by the appellant, a limited company, seeking permission to produce resolution dated 22.10.1979 passed by the Board of Director authorizing Mr. Sayed Abid All Zaidi Managing Director of the company to file the suit against the respondent and certified copy of the Form XV issued by the Assistant Registrar, Joint Stock Companies, Karachi Region.
2. Brief fats of the case for the purpose of disposing of appeal are that the appellant filed suit for specific performance is respect of the plot No. 3-AA. National Highway, Phase II. The plaint was signed and verified by its Managing Director.
3. The respondent filed written statement denying various allegations in the plaint and also stated that the suit was framed is misconceive, bad in law and not maintainable. The appellant filed proposed issues on 31.1.1982 whereas respondent filed proposed issues on 22.5.1983. The respondent again filed issues on 26.2.1989 and Court framed the issues on 26.6.1989. Issues were re casted by the Court on 5.3.1989 and the Hon'ble Court framed the following issues:-
(1) Whether the letter of acceptance dated 28.5.1973 (Copy annexure ' C') accepting plaintiffs letter of offer dated 14.4.1973 (Copy annexure A') for purchase of suit plot and for construction over i.e. Of a Super Market and a Multi-storeyed Building was not issued with lawful authority or was issued in violation of the Bye Laws or was issued by the Senior Engineer who as not competent to issue the same?
(2) Whether the certificate dated 2.7.1973 (Copy annexure D' granting permission to the plaintiff to put his sign board at the sit plot, was issued without lawful authority by the Senior Engineer who was not competent to issue the same?
(3) Whether Managing Committee of the Pakistan Defence Officers Cooperative housing Society Limited, under the letter dated 28.5.1973 accepted offer of the plaintiff for purchase of the suit plot bearing No. 3-AA National Highway at Karachi, only for the limited purpose of plaintiff's constructing a Super Market over it?
(4) Whether the said Housing Society induced the plaintiff to withdraw his suit for' declaration etc. In consideration of getting approval for construction of a multi-storeyed apartments building over the suit plot?
(5) Whether the defendant issued the allotment order dated 27.1.1977 after realizing amount of the pay order dated 22.4.1975 and after getting the said pay order revalidated?
(6) Whether possession of suit plot continued to remain with the defendant despite obtaining of certificate of handing over and taking over, about it by the plaintiff through illegal means and without lawful authority?
(7) Whether cancellation of the transaction about sale of the suit plot to the plaintiff by the defendant, was illegal, void, unjustifiable and improper?
(8) Whether the defendant agreed to withdraw cancellation of the transaction?
(9) Wether the acts of the parties constituted a contract to be specifically enforced?
(10)Whether the suit is not maintainable and bad in law?
(11)Whether the Senior Engineer and the Sectary of the defendant society are in collusion with the plaintiff?
(12)Whether this suit is not properly valued?
(13)What should the decree be?
4. The plaintiff's witness was examined on 29.5.1996 i.e. Almost after seven years of framing of issues and he was cross-examined by the respondent on 22.11.2001 i.e. After about eleven years of framing of issues and almost after five years of the examination in chief of the plaintiff. During the course of cross-examination the appellant came to know that resolution of the Board of Directors authorizing Managing Director namely Syed Abid Zaidi to file the suit, has not been filed alongwith the plaint. The appellant filed application under Order 13 rule 1 and 2 read with section 151, CPC on 6.12.2001 i.e. About 1.1/2 months after cross- examination to allow the appellant to produce resolution passed by the Board of Director of the plaintiffs company dated 22.11.1979 and certified copy of the Form XV issued by the Assistant Director, Joint Stock companies. The said application was duly supported by an affidavit sworn by Managing Director of the plaintiffs company. The appellant annexed copy of the resolution as well as copy of the Form XV issued the Assistant Registrar, Joint Stock Companies, Karachi Region with application. The respondent/defendant filed objections to the said application and objected the application on the ground that the appellant does not disclose any good and genuine cause to present said documents on record. The appellant filed reply to the said objections supported with an affidavit. After hearing the parties the learned Single Judge dismissed the application.
Aggrieved with the said order the present appeal has been filed.
5. Heard Mr. Khalid Javed, learned advocate for the appellant and Mr. Chaudhry Muhammad Jamil, learned Advocate for the respondent.
6. The teamed advocate for the appellant argued that the appellant for the first time came to know about the fact that the resolution passed by the Board of Directors has not been filed alongwith plaint when during the course of cross-examination it transpires the said resolution is not available on record. The appellant immediately filed application seeking permission to bring the resolution passed by the Board of Director authorizing its Managing Director to file suit on record to avoid any complication in future. He further argued- that specific plea has not been taken by the respondent in their written statement that plaint has been filed by unauthorized person and or has been filed without resolution from the Board of Directory. He further argued that even no specific issue has been framed in this regard. On the other hands Mr. Chaudhry Muhammad Jamil learned Advocate for the respondent argued that a suit filed by limited company without resolution of its Board of Director is incompetent suit and liable to be dismissed on this sole ground. He further contended that the resolution. Of Board of Director is not a document for which the appellant can seek permission to produce and it was for the appellant to produce said resolution alongwith the plaint. In support of his contention the learned Advocate relied upon the case reported in (i) 1990 SCMR 964, (ii) PLD 1985 Karachi 95 and
(iii) PLD 1992 Lahore 291.
7. We would like the discuss first the case law relied upon by the learned advocate for the respondent.
8. In the case of Muhammad Umer Mirza v. Haris lqbal (1990 SCMR 964), the Hon'ble Supreme Court refused to grant leave, held that no documentary evidence in possession or power of party if not produce on the first date of hearing of a suit can be received at any subsequent stage of the proceeding unless cause is show to the satisfaction of the Court for the non production thereof.
9. In the case of Muhammad Ibrahim v. Sindh Industries Trading Estate Ltd. And 3 others (PLD 1985 Karachi 95), the Hon'ble Court upheld the order disallowing application for producing about 101 documents as their authenticity or genuineness can be doubted.
10. In the case of Karam Din v. Rana Zaheeruddin (PLD 1992 Lahore 291) Hon'ble Court refused to accept receipt which petitioner failed to produce alongwith plaint nor mentioned in the list of documents relied while expressing doubt about its authenticity.
1 1. The case law cited by the learned advocate would be of the help to the respondent as the same are distinguishable on facts from the matter in hand.
12. We have gone through the record and considered the arguments of the learned advocates.
There is no cavil to the proposition that for the purpose of filing the suit on behalf of a limited company, the company ought to have passed resolution to file the suit and authorize some one to file the same, this however is subject to the provision of article of Association of the company. As regard filing of such resolution alongwith plaint, no rule is placed before us, which required that the person(s) at the time of filing the suit on behalf of the company should also produce Board resolution authorizing him to file the suit. We would like to observe here that while filing the suit on behalf of the company, it is desirable that person filing the same, place on record such resolution as part of the plaint or copy of Articles of Association or power of attorney executed in his/their favour to file the suit.
13. A company is jurisperson, normally its functions regulate by its directors/secretary in terms of powers delegated to them by Articles of Association and or by Board of Directors of the Company unlike a partnership firm, where a partner can bind the firm by his act.
14. We have gone through the issues framed by the Court and no specific issue has been framed by the Court that whether the suit has been filed by the authorized person or not and or that Board of Directors of the Company has passed any resolution in this regard or not. In the absence of issue probably the appellant was not required to produce such resolution, authorizing him to file the suit on record.
15. The respondent has not stated a single word or expression any doubt about the authenticity of resolution passed by the appellant's company, which appellant wants to produce. As regard the second document, which. Appellant wants to produce i.e. Form XV issued by the Assistant Registrar of Joint Stock Companies, same is official document, the authenticity of which is beyond any shadow of doubt
16. We are of the view that the appellant had made out a case for grant of application filed under Order XIII, Rule 1 and 2 Civil Procedure Code. We have gone through the impugned order passed by the learned Single Judge and even in the said order the learned Judge has not expressed any doubt so far as authenticity of these two document are concerned. In the case of National Bank of Pakistan and others v. Karachi Development Authority and others (PLD 1999 Karachi 260 the learned Judge of this Court held:-- "While I m bound to allow the principles stated in the above referred Division Bench judgment, with all humility, am constrained to express my reservation in relation to the requirement to product and prove the resolution passed by an artificial body invested with the powers to conduct the business and affairs of a company even in cases where power of attorney is placed on the record, Indeed, in order to meet the requirement of showing that the power of attorney, itself, is authorized and has lawfully been executed, production of the Articles of Association is imminent. Against, in the absence of any challenge mere production of the power of attorney or resolution and copy of the Memorandum and Articles of Association should be sufficient. It appears unjust to call upon a plaintiff to prove the said document in the absence of any pleadings to the contrary."
17. We have noted that even office of this Court at the time of accepting the plaint has not raised any objection and asked the appellant to produce resolution of Board of Directory of the Company or other authority/power of attorney in his favour authorizing him to file the plaint and if it would have been done perhaps the matter would have been settled at the point of time, instead of wasting of considerable time of Court.
18. In our opinion it is advisable, to avoid the delay in dispensing justice, while accepting the plaint, the Presiding Officer or officer nominated to receive the plaint or Additional Registrar (0.S) in the matter to be filed in High Court under original jurisdiction, should strictly enforce and follow provisions of Civil procedure Code, 1908, particularly compliance of the requirement of order XVII and to see whether documents, on the basis of which suit has been filed, are annexed with the plaint, while satisfying about the authority of persons(s) filing the suit, whether he/they are competent to institute the suit on behalf of the plaintiff, whether consent of Advocate General has been taken in respect of matter, relating to public nuisance, or public charities as required under Sections 91 and 92 of Civil Procedure Code, if suit is filed by a partnership firm ask certificate of registration of the Firms.
19. For the foregoing reasons the impugned order is set aside and the application under order 13 rule 1 and 2, CPC filed by the appellant is granted. However respondent can take all objections available to him about the admissibility of these documents at the time when same were produced in evidence.
The observations made by us about the authenticity of the documents are tentative in nature and it is for the Trial Court to decide the same without influence by the observations made herein above.