MUHAMMAD MOOSA K. LEGHARI, J.--- This is a suit for recovery of a sum of Rs.5,34,907,47. Briefly stated, the facts as unfolded in the plaint are that the plaintiff is an airline company incorporated under the laws of Bahrain having its branch office at Karachi. The defendant is a Travel Agent and a member of International Air Transport Association (IATA) and is authorised to sell all tickets. The plaintiff used to give blank tickets to the defendant on credit for selling the same and the defendant used to submit its sale report together with the amount of sale proceeds at interval.
2. It is pleaded by the plaintiff that the defendant while submitting sale reports for the fortnights of 1st July to 15th July, 1996 and 16th July to 31st July, 1996, did not pay the amount of sale proceeds to the plaintiff and, as such, an amount of Rs.5,34,907,47 is outstanding against the defendant. The defendant has failed to make payment of the outstanding amount despite repeated requests, giving cause of action to the plaintiff on 31st July, 1996, hence this suit for recovery of the abovesaid amount.
3.. The suit was presented on 28.1.1998, and Summons were ordered to be issued to the defendant.
Since the summons could not be served upon the defendants in an ordinary way, substituted service was ordered. Publication was made in the daily ' DAWN' Karachi in it's issue of 29.1.2000. On 25.9.2000 orders were passed for proceeding the suit ex parte. In the first instance the plaintiff files affidavit in ex parte proof on 3.10.2000, without filing the documents. Subsequently a fresh affidavit in ex parte proof alongwith documents was filed on .10.7.2002.
4. On 18.9.2002 case was fixed for final disposal when the arguments of Mr. Nizam All Khan, learned counsel appearing of the plaintiff were heard whereas none was present on behalf of the defendant.
During the course of arguments, it was candidly admitted by the learned counsel for the plaintiff, that no document authorizing the signatory to sign and verify the plaint was produced on record.
No such authority was produced at the time of hearing.
5. The points which require to be determined in the above suit are:-
(1) Where Muhammad son of Abdul Rahman who has signed and verified the plaint was competent to verify the pleadings and institute the suit?
(2) Whether the documents produced by the plaintiff were admissible in evidence and sufficient to prove the claim of the plaintiff?
(3) What should the decree be? Issue No. 1:
6. As laid down in Order VI, Rule 1, "pleading shall mean plaint or written statement". Rule 14 of Order VI of the Code of Civil Procedure requires that, "every pleading shall be signed by the parties provided that where a party pleading is, by reason of. Absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign the same or to sue or to defend the suit."
Admittedly the plaintiff is juristic or corporate body and, as such, could sign the plaint only through the person duly authorised to do so. No power-of-attorney or for that matter, any other document has been placed on record to show that the person who verified the plaint, was a duly authorized person. Even nothing is stated in the plaint that Muhammad son of Abdul Rahman was such a person having been authorized by the plaintiffs. Neither any document has been produced with the plaint nor anything has been stated in the affidavit in ex parte proof, to take a view that the said person was authorised by the plaintiff to sign and verify the plaint.
7. Order VI, Rule 2 requires that "every pleading shall contain a statement in a concise form of the material facts on which the party pleading relies for his claim". It is clear that the fact, that the person who signed the plaint-of the plaintiff was or was not duly authorised, was a material fact. It may be pointed out that all the facts which, though not necessary to establish the cause of action or defence, but which the party pleading is required to prove, at the trial, are also material facts.
"The rule that material facts should be pleaded is no mere technically and an omission to observe it deprives pleadings of most of their value and may increase the difficulty of the Court's task of ascertaining the rights of the parties."
8. In order to prove that the plaint was duly or properly signed, as required by Order VI, Rule 14 of the Code, it was necessary that the plaintiffs should have stated that the signatory namely Muhammad son of Abdul' Rahman was duly authorised to do so.
(i) In Basdeo v. John Smidt (1899) 22 All 55 = 1899 AWN 172 (r.Ii.) it was pointed out that the object of the signature to the plaint is to prevent as far as possible disputes as to whether the suit was instituted with the plaintiff's knowledge and authority and that such authority may be established by other means besides the signature." (emphasis laid by me).
(ii) In Bisheshar Nath v. Emperor, (1918) 40 All 147 it was held that "the authority to bring a suit is a question of principle."
Similarly view was endorsed in Secretary of State v. Dinshano Navriji and another (AIR 1925 Sindh 257). Further reference can be made to Air 1925 Lab. 338.
(iii) In Calico Printers Association Ltd. (AIR 1930 Bombay 566) it was held that action on behalf of a company can be commenced only by person having power-of-attorney. Similar view was expressed in Osborne Garrette & Co. Ltd. In AIR 1931 Sindh 178, AIR 1936 Bombay 418, and AIR 1939 Bombay 347.
(iv) In PLD 1963 Dacca 25, Haji Shaikh Fazal Hussain v. Bhabani Prosad Sana, it was observed that the Manager authorized by the Articles of Association is entitled to file suits on behalf of the company.
(v) The Honourable Supreme Court in the case of Messrs Muhammad Siddiq Muhammad Umar, reported in PLD 1966 S.C. 684 has elaborately dilated upon the question of institution of a suit on behalf of private limited company. It will be advantageous to reproduce hereunder the relevant paragraph of the said report at page 695:- "It was apparent from the pleadings that the suit was being instituted by a constituted 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 legate 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."
(vi) The legal position again was discussed by the Honourable Supreme Court in PLO 1971 S.C. 550.
The point was further elaborated by a Division Bench of this Court in Abdul Rahim and 2 others v.
M/s. U.B.L. (PLD 1997 Kar. 62). The last case in point is reported in 2001 SCM R 1877 titled China Among Construction v. K.A. Construction Co.
9. It could only be shown in the evidence that the person who signed and verified the plaint was duly authorised. Since it was neither pleaded in the plaint nor it was said so in the affidavit in ex parte proof, therefore, I am constrained to hold that said Muhammad son of Abdul Rahman was not competent to sign and verify the plaint. Accordingly the suit was not competently instituted. On this score alone the suit is liable to be dismissed.
Issue No. 2:
10. In support of his claim, the plaintiff has produced in evidence copies of GF Passenger Sales Report--Frequency of Reporting Daily pertaining to the period from 16.7.1996 to 31.7.1996 and 1.7.1996 to 15.7.1996. These are carbon copies of certain statements containing the Monogram/Logo of the plaintiff viz. Gulf AIR. The said printed proforma contain the spaces earmarked for signatures of various officials. The proformas are necessarily to be signed by the person who prepares the same and a person by ,whom it is checked. Apart from that, these statements are to be signed by the Accountant/Manager. The spaces meant for the above purposes are left blank and do not bear the signatures of the concerned designated persons. A round stamp purporting to be that of Shakil Enterprises (Pvt.) Ltd. Appears on both the proformas. One of the proformas contains corrections made therein by using correction fluid, but has not been initiated or signed.
Besides that, a Statement of Accounts has been filed on plain paper showing the balance outstanding. It does not contain a certificate of correctness. The same does not bear any seal or signature of maker of the statement or, for that matter, any person who prepared and signed the said statement.
11. The plaint was signed and verified by Muhammad son of Abdul Rahman who claimed to be the Principal Officer of the plaintiff. However, the affidavit in ex parte proof has been filed by one Muhammad Ismail Haqqi claiming to be the Principal Officer of the plaintiff. Prior to that an affidavit in ex parte proof was filed on 3.10.2002 duly signed by one Muhammad Saleem Ahmed claiming to be the Principal Officer and attorney of the plaintiff. The person who has sworn affidavit in ex parte proof, has neither stated in the affidavit that the statement of accounts or, for that matter, any document was prepared by him. The deponent did not affirm on oath that the entries made in the proformas/statement were true and correct. It does not say that the statement of account was true and correct, Even the deponent has not stated on oath that the contents of the affidavit-in- evidence were true and correct to the best of his knowledge and belief. Neither such affidavit can be relied upon, nor the documents produced in evidence are admissible in evidence.
Consequently the findings on issue No. 2 are in negative. Issue No. 3:
12. Upon the above discussion, I have arrived at an irresistible conclusion that the suit was incompetently filed and no evidence has been adduced with regard to the liability of the defendants. Resultantly, the suit of the plaintiff is dismissed. .