DGMENT SYED JAMSHED ALI, ).--- The order dated 23.5.1996 of the learned Additional District Judge, Lahore before whom a suit under Order XXXVII of the Civil Procedure Code filed by the petitioner is pending has been assailed in this revision petition. The relevant facts may be noted hereunder.
2. On 30.7.1995, the petitioner filed a suit under Order XXXVII of the Code of Civil Procedure for the recovery of an amount of 1,75,000 US Dollars with mark-up and costs against M/s. Topworth Investments (Macau) Ltd. (defendant No. 1), M/s. Harvest International (Pvt.) Limited (defendant No. 2), Mr. Yiu Wai Ming William (defendant No. 3), Mr. Lee Kim Wo (defendant No. 4), Mr. Leving Hing Tak (defendant No. 5) and Mr. Shahrukh Saeed (defendant No. 6).
3. The case of the plaintiff-petitioner in the plaint was that defendant No. 2 opened his business office at Lahore to transact the business of opening foreign currency accounts in collaboration understanding and arrangement with Topworth Hong Kong. The plaintiff opened foreign exchange Account No. 8257. However, M/s. Topworth Investments Ltd. (Hong Kong) informed the plaintiff that for certain reasons the account will be held by Topworth Investment Ltd. (respondent No. 1) and, therefore, plaintiff's account was taken over. It was averred that on 6.7.1995, the plaintiff had to his credit an amount of US Dollars 175,371.38. On the demand of the petitioner for settlement of his account, respondents Nos. 3 to 6 expressed their inability to make the payment forthwith on which defendants Nos. 3 to 5, acting as authorized agents of respondent No. 1, executed a promissory note on 7.7.1995 in the sum of US Dollar, 1,75,000/-. The said promissory note was duly presented on 10.7.1995 at the office of respondents Nos. 1 and 2 but they refused to make the payment. The incident was reported to the Notary Public immediately who noted the fact of the promote being dishonoured. On 30.7.1995 summons were issued to the defendants in the suit for 14.9.1995 meanwhile on 9.8.1995 an application for leave to appear and defend was filed through Mr. 1hsan- ul-Haq Bhali, Advocate and Mr. Sana Ullah Khan Kakar, Advocate. It was not signed by any of the defendants in the suit. However, it was accompanied with the affidavit of Mr. Gulrez Mir. It may be noted here that defendant No. 2 in the suit was sued through Gulrez Mir as its Chairman/Chief Executive and Director of the said Company.
4. On 14.9.1995 when the case came-up for hearing before the learned Trial Court, apart from Gulrez Mir, Shahrukh-defendant No. 6 (wrongly described as defendant No. 3 in the said order) were also present in person. The petitioner-plaintiff raised an objection that the power-ofattorney submitted on behalf of respondent No. 1 was vague and incomplete. Accordingly, Gulrez Mir was directed to produce a proper power-of-attorney on behalf of respondent No. 1. It appears that respondents Nos. 3, 4 and 5, who were sued in their individual capacity, had not been served. The telegrams addressed to them were also not served on them with report of the postal authorities that the addressees had left without leaving their addresses. In the order dated 14.9.1995 it was noted that defendants Nos. 3 to 5 were not being represented properly. Respondents No. 2 and 6, however, submitted that they will procure power-of-attorney on behalf of respondents Nos. 3 to 5. The case was adjourned for filing the power-of-attorney to 20.9.1995. On 16.8.1995, defendants Nos. 3 to 5 executed special powers of-attorney in favour of Gulrez Mir, photo-copies of which are on the record. In the order dated 7.5.1996, the learned Trial Court noted that photocopies of powers-of- attorney and resolution were placed on record while the originals were returned. At this stage the learned counsel for the petitioner had objected that these documents should be impounded because these did not bear any stamp. Copy of the resolution dated 15.9.1995 of respondent No. 1 appointing Mr. Gulrez Mir as its attorney and original special power-of-attorney dated 16.8.1995 by respondent No. 1 in favour of Mr. Gulrez Mir is also on the record. Copy of another resolution dated 12.4.1996 is also on the record of the Trial Court whereby the Directors of respondent No. 'I affirmed appointment of Mr. Gulrez Mir as attorney of respondent No. 1.
5. It may also be noted here that while the case was pending before Mr. Abdul Qadir Shad, learned Addl. District Judge, the petitioner sought transfer of the case from his Court on which vide order dated 6.11.1995, the learned District Judge, Lahore transferred the case to the Court of Mr. Muhammad Aslam Zia, learned Addl. District Judge. The petitioner, feeling still aggrieved, approached this Court in C.R. No. 2270/1995 which was disposed of vide order dated 2.4.1996 and the case was transferred to the Court of Mr. Shafqat Ahmed, learned Additional District Judge.
While disposing of the said revision petition, this Court observed that the question whether the pleadings have been signed and verified by a duly authorized person as also the related question as to whether the learned counsel appearing on behalf of the respondents had lawful authority to file any pleadings as also to defend the suit will be considered at the trial. Meanwhile, on 5.10.1995 an application was moved by the petitioner before the Trial Court under Order XXXVII, Rule 2(2) read with Section 151, CPC seeking a decree against the defendants on the ground that application for leave to appear was not filed by a duly authorized person. This application was, however, rejected vide order dated 23.5.1996 which has been impugned in the present petition.
6. The learned counsel for the petitioner has raised the following contentions:-
(1) The application for leave to appear and defend was not signed by any of the respondents nor verified. Thus the provision of Rules 14 and 15 of Order VI of the Code of Civil Procedure were violated.
(2) The affidavit of Mr. Gulrez Mir filed with the application for leave to appear and defend was also attacked with the contention that it did not disclose whether he was filing the application for leave to appear on his own behalf or on behalf of other defendants as well and that it was not claimed that the deponent was fully conversant with the facts of the case.
(3) The verification of the affidavit was also challenged on the ground that it did not indicate the paragraphs which were true to the knowledge of the deponent and the contents of paragraphs which were true according to his information and thus the provisions of Rule 15 of Order VI and Rule 3 of Order XIX of the Code of Civil Procedure were violated.
(4) The Wakalatnama dated 9.8.1995 in favour of Mr. Ihsan-ul-Haq Bhalli, Advocate and in favour of Mr. Sana Ullah Khan Kakar, Advocate dated 8.8.1995 were signed by a person who did not disclose his own capacity and the capacity in which he was competent to authorize the said Advocates to file application for leave to appear and defend on behalf of the respondents.
(5) The person signing the power-of-attorney had no authority whatsoever for any of the respondents.
Even as far as respondent No. 2 is concerned, his objection was that he was not authorized by a special resolution of the Company to move the application for leave to appear and defend on behalf of respondent No. 2 even if the memorandum and articles of Association of respondent No. 2 authorized him. Further these were not produced before the learned Trial Court. Regulation No. 49 of Table-A was also referred to.
(7) As far as defendant No. 6 is concerned, no powerof-attorney was produced on his behalf alongwith the application for leave to appear and defend and only before, this Court power-of- attorney executed by him in favour of Mr. Ihsan-ul-Haq Bhalli, Advocate for prosecuting the matter before the Trial Court was placed on the record of this revision petition.
(8) That the power-of-attorney filed in the case was objected to as noted in the order dated 14.9.1995 and respondent No. 2 was directed to produce the power-of-attorney on behalf of respondent No. 1. According to him the Trial Court did not recognize the authority of Gulrez Mir to represent respondent No. 1. And, in any case on 14.9.1995 Gulrez Mir had no authority to represent respondents Nos. 3 to 5. The aforesaid order dated 14.9.1995 not having been complied with, the application for leave to appear at least to the extent of respondents Nos. 1, 3, 4 and 5 could not be considered.
(9) The power-of-attorney, on the record filed on behalf of respondents Nos. 1, 3, 4 and 5 are photo-copies which were executed on 16.8.1995 and 15.9.1995 while application for leave to appear and defend was filed on 9.8.1995. The powers-ofattorney having been filed after expiry of the period prescribed by Article 159 of the Limitation Act, the application moved on 9.8.1995 could not be treated as having been filed on behalf of respondents Nos. 1, 3, 4 and 5.
(10) That the learned Trial Court erroneously applied the principle of ratification. According to him the powers-of-attorney did not specifically ratify the act of filing of application for leave to appear and defend by Gulrez Mir on behalf of respondents Nos. 1, 3, 4 and 5. Further, Section 200 of the Contract Act was ignored by the learned Trial Court according to which ratification could not affect the right or interest of the petitioner to claim a decree at least against respondents Nos. 1, 3, 4 and
5. According to him no retrospective ratification was possible.
(11) Resolution dated 12.4.1996 by respondent No. 1 was also referred to which authorized Mr. Gulrez Mir to appoint legal practitioner in future and, therefore, on 9.8.1995, the date of application, Mr. Gulrez Mir had .No authority to act on behalf of respondent No. 1.
(12) The powers-of-attorney by respondents Nos. 1, 3, 4 and 5 in favour of Mr. Gulrez Mir were special powers-of-attorney which were required to be filed in original and, therefore, on the basis of the photo- copies, Mr. Gulrez Mir had no authority to act for respondents Nos. 1, 3, 4 and 5 even, after the date of execution of the said powers-of-attorney.
(13) Even if the original powers-of-attorney were produced (and returned by order of the Court), these could not be acted upon as these were not attested by two witnesses as required by Article 17 of the Qanoon-e-Shahadat Order, 1984 and not attested in accordance with Article 95 of the said Order.
(14) The powers-of-attorney were not attested by a Notary Public as required by the provisions of Notaries Ordinance No. 19 of 1961. According to him the Notaries of foreign countries were not included in Article 95 of Qanoon-e-Shahadat Order, 1984.
(15) He also submitted that the powers-of-attorney did not bear the Court-fee stamp as required by Item No. 48(g) of the Schedule of the Stamp Act and, therefore, were inadmissible by virtue of Section 35 of the Stamp Act.
(16) On 30.7.1995 summons were also sent through registered post, telegram, courier service and fax, therefore, the defendants in the suit shall be deemed to have been duly served and during the time contemplated by Article 159, no application for leave to appear having been filed, the suit of the petitioner ought to have been decreed.
(17) Under Sections 451, 452 of the Companies Ordinance, 1984 a foreign company was required to submit certain documents and returns to the Registrar of the Companies and the consequence of non-compliance of the said provisions, as provided by Section 456 of the said Ordinance, was that respondent No. 1 was under a total disability to institute any legal proceedings and, therefore, even with the authority later given to Mr. Gulrez Mir, no application for leave to appear and defend could be filed on behalf of respondent No. 1. According to him provisions of Section 456 were mandatory.
(18) Sections 455 and 4$ of the Companies Ordinance were also relied upon to contend that process issued for the service of respondents Nos. 1, 3, 4, 5 and 6 was due service and the failure of the said respondents to apply for leave to appear and defend within the time prescribed by law was fatal.
(19) Mr. Gulrez Mir, on the date of application, was neither the duly constituted attorney nor even a recognized agent of respondent No. 1.
(20) Respondent No. 2 being a limited Company oral authorization, or ratification was not sufficient to authorize Gulrez Mir to act on behalf of respondent No. 2. Gulrez Mir claimed to be holder of a powerof-attorney on behalf of respondent No. 1, and, therefore, he could not claim to be its recognized agent.
(21) Agreement of agency produced before this Court was challenged on the ground that it was not produced before the Trial Court and, therefore, could not be filed before this Court. He submitted that, at some stage arguments in the revision petition were concluded and thereafter this agreement of agency was filed before this Court. It was for a period of two years commencing 10.9.1993 and expired on 9.9.1995.
(22) The transaction was entered into with Top worth Hong Kong while the special power-of- attorney was executed by Top worth Macau in favour of frl! Gulrez Mir.
(23) A list is to be decided in accordance with law and when a legal provision was explicit and clear, principles of equity or substantial justice cannot be imported, when a mandatory provisions of law is violated.
7. The learned counsel for the petitioner placed reliance on the following judgments:-
1. Ghulam A.I and 2 others v. Mst. Ghulam Sanvar Naqvi (PLD 1990 S.C. 1).
(2) Aziz Khan Commander (E) v. The Government of Pakistan, etc. (NLR 1991 Civil 312).
(3) Punjab Livestock Diary and Poultry Development Board V. Sh. Muhammad Younus (1980 CLC 1932).
(4) Muhammad Hussain v. Bashir Ahmed and others (PLD 1987 Lah. 392).
(5) Muhammad Mehrban v. Sadr-ud-Din and another (1995 CLC 1541 = PL) 1996 AJ&K (SC) 9).
(6) Muhammad Imran Barni v. Federation of Pakistan through Ministry of Communication and Information Islamabad and 4 others (2001 YLR 2666) = (KLR 2001 CC (Lah) 314). . (7). Qurban Hussain and 2 others v. Hukam Dad (PLD . 1984 S.C. (AJ&K) 157.).
(8) Government of Pakistan v. Premier Sugar Mills and others (PLD 1991 Lah. 381).
(9) Sheikh Muhammad Shafique v. Humayun Kabir and 3 others (1981 CLC 1248).
(10) Abubakar Saley Mayet v. Abbot Laboratories and another (1987 CLC 367).
(11) Bankers Equity Ltd. Through Attorney and 5 others v. Sunflo Cit-Russ Ltd. (formerly known as Sunflo Juices Ltd.) through Managing Director (PLD 1999 Lah. 450).
(12) Azad Jammu and Kashmir Government through its . Chief Secretary at Muzaffarabad and 4 others v.
Sardar Muhammad Mad Khan (2000 YLR 2662) = (KLR 2000 SC (AJ&K) 359).
(13) Notified Area Committee, Okara v. Kidar Nath and others (AIR 1935 Lah. 345).
(14) M/s. Standard Hotels (Private) Ltd. v. M/s. Rio Centre and others (1994 CLC 2413)..
(15) Khan Iftikhar Hussain Khan of Mamdot (Represented by 6 Heirs) v. M/s. Ghulam Nabi Corporation Ltd., Lahore (PLD 1971 S.C. 550).
(16) M/s. Ideal Life Insurance Co. Ltd. And another v. Mst. Khairunnisa A.G. Mirza (1980 CLC 1375).
(17) Devk Sports Ltd. v. Silver Stars Ltd., etc. (NLR 1990 Civil 316).
(18) F. Kanematsu and Co. Ltd. v. S. Nazir Hussain Puri (PLD 1957 (W.P.) Karachi 832).
(19) Bank of Baroda v. M/s. Surendra Udyog (1989 (2) C.C.C. 132). (This book is not available).
(20) Muhammad Umar Mina v. Waris lqbal and others (1990 SCMR 964).
(21) 0.A.P.R.M.A.R. Adaikappa Chattiar v. Thomas Cook and Son (Bankers) Ltd. (AIR 1933 Privy Council 78).
(22) National Bank of Pakistan and others v. Karachi Development Authority and others (PLD 1999 Kar. 260).
(23) Murid Hussain and others v. Muhammad Shan. Through his Legal Heirs (1996 CLC 161).
(24) Pakistan Cement Industries Ltd. Rawalpindi V. Teekayee Trading Co. (PLD 1971 Lah. 522).
(25) Mst. Karim Bibi and other sv. Hussain Bakhsh and another (PLD 1984 S.C. 344).
(26) Lahore Improvement Trust, Lahore through its . Chairman v. The Custodian, Evacuee Properly, West Pakistan, Lahore and 4 others (PLD 1971 S.C. 811).
(27) Pakistan Tanneries Ltd. v. Sardar Hidayat Ullah Mokal and 5 others (PLD 1972 Lah. 880).
(28) Mst. Musarrat Bibi and 2 othErs v. Tariq Mahmood Tariq (1999 .SCMR 799).
(29) Punjab Zamindaras Bank, Ltd. v. Madan Mohan Singh and others (AIR 1936 Lah. 321).
(30) Babu Muhammad Aslam v. Mst. Rehana Parveen (PLD 1989 Pesh. 185).
(31) Zia-ud-Din Siddiqui v. Mrs. Rana Sultana and another (1990 CLC 645).
(32) D. Sardar Singh v. Seth Pissuml Harbhagwandas Bankers (A.I.R. 1958 Andhra Pradesh 107).
(33) S.M. Khalil v. Biswa nth Basak(1971 D.L.C. (Rev.) 623.
(34) Haji Yousuf v. Jalal-ud-Din and another (1986 CLC 363). (35) Munir Hussain v. Mst. Mehrun Nisa (through her legal heirs) (PLD 1982 Kar. 71).
(36) Manager, .Jammu and Kashmir, State Property in Pakistan V. Khuda Yar and another (PLD 1975 S.C. 678).
(37) Board of Control for Cricket in Pakistan v. Karachi Development Authority through Director- General and 51 others (1,997 CLC 795).
(38) Walton Tobacco Company (Pvt.) Ltd. And others v. Azad Government of the State of Jammu and Kashmir and others (1993 CLC 66).
(39) Shahab-ud-Din and others v. Mst. Mariam Bibi and others (1995 MLD 45).
8. On the other hand, Mr. Ihsan-ul-Haq Bhalli, Advocate defended the impugned order. According to him respondent No. 1 was a foreign company while respondent No. 2 was registered in Pakistan.
Respondent No. 2 was the Agent of respondent No. 1. Mr. Bhalli made submissions on the merits of the case by attacking the promote and authority of respondents Nos. 3, 4 and 5 to execute the promote on behalf of respondent No. 1 but these facts not being relevant to the controversy being raised in this petition, it is not considered necessary to note them. As far as respondent No. 2 is concerned, he invited my attention to the plaint in which the said respondent has been sued through Mr. Gulrez Mir its Chairman/Chief Executive and Director. He also referred to paragraphs 1 to 4 of the plaint to contend that in fact it was conceded that respondent No. 2 was the agent of respondent No. 1. Apart from the special power-of-attorney executed by respondent No. 1 in favour of Gulrez Mir, he pressed provisions of Clause (b) of Rule 2 of Order 111 of the CPC to contend that respondent No. 2, acting through its Director/Chief Executive, qualified as a recognized agent of respondent No. 1. About respondents Nos. 3, 4 and 5 he submits that even according to the case set up in the plait, they acted for and on behalf of respondent No. 1 as authorized agents of respondent No. 1 and had appointed Gulrez Mir asa their special attorney. As far as defendant No. 6 is concerned it was contended that he was a Director of respondent No. 2 and had executed a power-of-attorney in his favour which could not be inadvertently filed before the learned Trial Court which was, however, filed before this Court with an application. He also referred to Article 71 of the Articles of Association of respondent No. 2 which specifically empowers the Chief Executive to institute, prosecute, defend etc. Any legal proceedings by or against the Company or its officers or otherwise concerning the affairs of the Company. On the basis of the said Article he submits that Gulrez Mir, could defend the suit against respondent No. 6 on the basis of the aforesaid power. The returns filed by respondent No. 2 before the Registrar. Of Companies were also referred to. He submits that as noted in the order dated 14.9.1995 service of respondents Nos. 3 to 5 was dispensed with by the Court with the direction that powers-of-attorney on their behalf should be filed.
According to him defendants Nos. 1, 3 to 5 were not served and if authority of Mr. Gulrez Mir to represent respondents Nos. 1, 3 to 5 was being questioned, proper service of respondents Nos. 1, 3 to 5 should have been procured. Affidavit of Shahrukh Saeedrespondent No. 6, filed before this Court, was also relied upon in which he affirmed having appointed Mr. Ihsan-ul-Haq Bhalli, Advocate as his counsel. He next contended that any defect in the Wakalat Nama or even non-filing of Wakalat nama with the application was only a curable defect. According to him the authority of the agent could be disputed only by the principal. He further contended that the objections as to the validity of the power-of-attorney raised by the learned counsel are only hyper technical. Not only his authority to represent them has been affirmed by all the respondents, no prejudice is otherwise caused to the petitioner because 1,75,000/- US Dollars already stand attached. He submits that the technicalities, unless offer insurmountable hurdles, cannot be allowed to defeat the ends of justice.
He also relied upon the agreement of agency to contend that respondent No. 2 was a duly constituted agent of respondent No. 1 and Mr. Gulrez Mir validly acted not only on behalf of respondent No. 2 but also on behalf of respondents Nos. 1 and 6. He further submits that there is no express form for ratification. It could be express or implied and the execution of special powers-of- attorney by respondents Nos. 3 to 5 in favour of Gulrez Mir had the effect of ratifying the appointing of Mr. Bhalli as their counsel. According to him mere nondisclosure of the capacity in which Gulrez Mir signed the affidavit was of no consequence. He also contended that the original powers-of- attorney and the resolution dated 12.4.1996 were duly produced in original before the Trial Court.
These were inspected by the Court, the originals returned and the photocopies thereof retained on the record. As far as respondent No. 1 is concerned the original power of-attorney was on the record of the learned Trial Court. He next contended that if the Trial Court was not satisfied that the application for leave to appear and defend was competently filed by a duly authorized person. He also controverted the contentions of the learned counsel for the petitioner based on the provisions of the Companies Ordinance or the Qanoon-e-Shahadat Order and rules 14 and 15 of. Order VI of the Code of Civil Procedure.
9. In support of his submissions he placed reliance on the following judgments:-
(i) Muhammad Fayyaz and another v. Director Procurement Army, etc. (1997 CLC 88).
(ii) Muhammad Munshi and another v. Mst. Rakiya Bi (1990 CLC 301);
(iii) Gliulam Qadir and another v. Abdul Sattar and another (PLD 1984 SC 12);
(iv) Ismail and another v. Mst. Razia Begum and 3 others (1981 SCMR 687);
(v) Mst. Azra Begum v. Piran Ditta (PLD 1967 Lah. 807);
(vi) Mst. Karam Nishan v. Mehrban A.I Shah (PLD 1959 (W.P.) Lah. 946);
(vii) Abdul Wadud v. The State (PLD 1964 Dacca 543);
(viii) Ibrahim Ismail v. Brig. (Retd.) S.H.A. Gardezi (PLD . 1983 Kar.154);
(ix) Abdul Ghaffar v. Jamaluddin (1985 CLC 747);
(x) Khyam Films and another v. Bank of Bahawalpur Ltd. (1982 CLC 1275);
(xi) State Life- Insurance Corporation of Pakistan v. Mst. Maroof Jan and others (PLD 1986 Pesh. 121);
(xii) Australasia Bank Ltd. v. Abdul Aziz Jan and others (PLD 1983 Pesh. 64);
(xiii) Imtiaz Ahmed v. Ghulam A.I and two others (PLD 1963 SC 382); (xiv)Lt. Col. (Retd.) P.G. Braganza v. The Border Area Allotment Committee and another (1984 CLC 1479);
(xv) M/s. Govt. Employees Co-operative Housing Society Ltd. And another v. Province of Punjab and others-(1905 CLC 765); (xvi)Mst. Aziza Begum and 5 others v. Muhammad Hussain Khan and 4 others (1995 CLC 1578);
(xvii) Toor Gul v. Mst. Mumtaz Begum (PLD 1972 SC 9); (xviii) Mst. Shahnaz Begum and 4 others v. Ashiq Hussain Bhatti and 2 others (1995 CLC 327);
(xix) Sirbaland v. Allah Loke and others (1996 SCMR 575);
(xx) Muhammad Khaliq v. Abdul Khan and 4 others (1997 CLC 1366).
10. I have considered the submissions made by the learned counsel for the parties and had the benefit of going through a large number of precedent cases cited at the bar by the learned counsel. Before respective contentions of the learned counsel for the parties are examined I will like to refer to the following observations of the Hon'ble Supreme Court made in the case of Trustees of the Port of Karachi v. Muhammad Saleent (1994 SCMR 2213):- "It is well-settled that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of expressions which may be found there are not intended to the expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found Quinn v. Lenthem (1901 AC 495, 506).
The following observations in the case of Quinn (supra) were also noted with approval.
"A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it."
The judgments cited at the bar have been considered by me keeping in view the aforesaid principles.
1 1. As far as the first contention of the learned counsel for the petitioner based on Rules 14 and 15 of the Order VI of the Code of Civil Procedure is concerned, Rule 14 requires that every pleading shall be signed by the party and his pleader, if any, and Rule 15 requires verification. An application for leave to appear and defend under Order XXXVII, Rule 3, CPC is being assumed as a "pleading" for the purpose of Rules 14 and 15 ibid. This is a mistaken assumption of law because pleading "as defined in rule 1 of Order VI means "plaint or written statement". This definition is exhaustive and, therefore, an application under Rule 3 of Order XXXVII, CPC doe not fall within the scope of said definition to attract the provisions of Rule 14 or 15 of Order VI of the Code of Civil Procedure. Even otherwise, in the cases of Muhammad Fayyaz (supra) and Muhammad Munshi (supra) relied upon by the learned counsel for the respondents a defect of verification was considered to be a mere irregularity. In the case of Ismail and another even the absence of the signatures as the plaint was considered to be a mere irregularity. Therefore, the first contention has no merit.
12. As far as the second contention is concerned Gulrez Mir had sworn and affidavit. He is the Chief Executive of respondent No. 2 and where there are more defendants than one, affidavit of even one of the defendants alongwith application for leave to appear and defend was sufficient compliance of rule 3 of Order XXXVII of the Code of Civil Procedure.
13. As far as the third contention is concerned, neither Rule 15 of Order VI nor Rule 3 of Order XIX of the Code of Civil Procedure was attracted, the objection has no merit.
14. As far as the fourth contention is concerned, Wakalatnamas dated 9.8.1995 and 8.8.1995 respectively in favour of Mr. Ihsan-ul-Haq Bhalli, and Mr. Sana Ullah Khan Kakar, Advocates were signed by Gulrez Mir. He was described as Chairman, Chief Executive and Director of respondent No. 2 in the plaint itself..
15. As far as the fifth and sixth contentions are concerned, respondent No. 2 was sued through Gulrez Mir. Certified copy of the Articles of Association was placed on the record of this revision petition which I have taken into consideration. Clause (n) and (q) of Article 71 specifically authorises the Chief Executive, to combat, prosecute, defend, compound, settle, compromise, adjust, to refer arbitration, withdraw, the legal proceedings by or against the company or its officer concerning the affairs of the Company or to appoint a counsel. The said Articles confers specific authority on Gulrez Mir to act for respondent No. 2. In the case of Abu Bakar and Sley Mayet suit was filed by. Manager and Principal Officer, who had no authority according to the Articles of Association. The power-of-attorney executed in his favour subsequently did not authorize him to file the suit. In the case of Punjab Live Stock Board (supra), the Project Manager had executed Wakalatnama in favour of the counsel who moved an application for setting aside the ex parte decree. It was held that the Project Manger was not authorized to appoint a counsel. In the case of Govt. Of Pakistan (supra) out of nine plaintiffs eight were limited Companies while plaintiff No. 9 was an Association. It was observed that it was not shown that the suit on behalf of the companies was filed by duly authorized persons. It was observed that even a person incharge of the affairs of the company was not competent to file a suit unless he was authorized by the Board of Directors.
As far as plaintiff No. 9 was concerned, this Court noted that suit on behalf of the said plaintiff was filed through the Secretary who was not competent to file it in accordance with the articles of association. In the case of Bankers Equity (supra) application for leave to appear and defend was filed by the purchase Manager of the Company. It was held that he was not authorized by the Articles of Association to file the application for leave to appear and defend. In this case it was also observed that authorization beyond limitation was not valid although it was noted that till the date of decision of the said case no action was taken to ratify the act of the purchase Manager. In the case of Durmez Borie (supra) suit filed by an attorney on behalf of registered Firm was held to be incompetent with the observation that he could only sign and verify the plaint. In the case of M/s. Standard Hotel (supra) it was observed that persons mentioned in Order XXIX, CPC can sign and verify the pleadings and not institute the suit. In the said case suit was filed by the Director on the basis of unamended Articles of Association which authorized a Director to file the suit but on the date of institution of the suit that article had been deleted. It was found that in the absence of a resolution of the Board of Directors the Director could not institute the suit. In the case of Khan Iftikhar Khan Mamdot (supra), suit filed by a Director without a legal and valid resolution of the company was held to be incompetent. In the case of Ideal Life Insurance Company, the plaint was signed and verified by the General Manger and Secretary of the Company who was held to be incompetent. In case of Davk Sports Ltd., suit filed by the Director without proper authority was held to be incompetent. It was noted that the articles of association were not produced.
16. Except in the case of Bankers Equity (supra) all the precedents cases cited by the learned counsel were the cases in which suits were instituted by unauthorized persons. The authority to institute a suit by person on behalf of the Company is to be found either in the resolution. Of the Board of Directors or the Articles of Association. The obvious wisdom behind it is that while initiating a suit on behalf of the Company, it should not be involved in unnecessary litigation. While situation in a suit filed against the Company is entirely .Different because, the suit has to be defended by the Company and in this case it was being defended by a duly authorized persons i.e. Chief Executive of the Company.
17. The other judgments cited by the learned counsel for the petitioner on the question that when a suit is filed by an un-authorized person, it was liable to be dismissed, may also be noted. In the case of Muhammad Hussain, supra, preemption suit was filed by the attorney, but the power- ofattorney did not authorize him to file the suit. In the case of Muhammad Mehrban, supra, suit for possession was filed by an attorney. It was found that the attorney had no authority to file the suit, it was further observed that a power-ofattorney to be valid must fulfill the requirements of Section 32 and 33 of the Registration Act as also of Article 95 of the Qanun-e-Shahadat Order. In the case of Qurban Hussain, supra, a gift was made by the attorney on behalf of the Principal who was in England. The Principal had himself challenged the authority of the attorney. In the case of Sh.
Muhammad Shafique, supra, an attorney had appointed an Advocate, who entered into a compromise. It was held that since agent had no authority to compromise, it could not be delegated to the lawyer by the attorney. In the case of Azad Jammu and Kashmir, supra, the power-of-attorney executed in favour of the counsel did not authorize him to make the statement settling the dispute. The case of O.A.P.R.M.A.R. Adaikappa Chettiar explains the principles of interpretation of a power-of-attorney. In the case of National Bank of Pakistan, supra, it was held that the plaintiff Bank held failed to prove that the suit was filed by duly constituted attorneys. The case of Muhammad Hussain, supra arose out of a pre-emption matter.
It was found that the attorney, who had filed a suit was not duly authorized in the terms of the power-of-attorney and it was observed that power-of-attorney required strict construction. In the case of Notified Area Committee, the Secretary had filed the suit on behalf of the Notified Area Committee and it was found that under the Punjab Municipal Act, the Notified Area Committee could not delegate the authority to the Secretary. In the case of D. Sardar Singh, sale was made by the attorney, it was observed that at the time of registration of sale-deed, the Registrar was bound to satisfy himself that the power-of-attorney fulfilled the requirement of Section 32(c) of the Registration Act. The case of Munir Hussain, supra, arose out of an ejectment petition. It was observed that the special power-of-attorney did not authorize the attorney, to verify, sign or present the ejectment petition. In the case of Board of Control for Cricket, supra, it was observed that when a suit is filed by the company, it should accompany the Articles of Accociation and the Resolution and the names of Directors who participated in the meeting should also be indicated. In the case of Shahab-ud-Din, etc., supra, the Principle that power-of-attorney required strict construction was reiterated. In case of Haji Yousaf, supra, sale was made by the attorney, the owner of the property has himself challenged the sale-deed and execution of the power of- attorney. It was held that neither the original was produced nor execution of the power-of-attorney was duly proved.
18. None of the judgments relied upon by the learned counsel for the petitioner is applicable in the facts and circumstances of the case because by virtue of Article 71 of the Article of Association, Mr. Gulrez Mir was fully competent to defend the suit on behalf of respondent No. 2 and respondent No. 2, acting through Gulrez Mir could lawfully act as a recognized agent of respondent No. 1.
19. As far as the seventh contention is concerned, the affidavit of respondent No. 6 alongwith the power-of-attorney dated 9.8.1995 executed by respondent No. 6 in favour of his learned counsel for prosecuting the case before the learned Trial Court was placed on the record with the explanation that it could not be inadvertently filed. In his affidavit, he has affirmed having appointed Mr. Bhalli as his counsel in the Trial Court. In the case of Ghulam Qadir (supra), failure to file power-of- attorney alongwith petition was not considered to be fatal. This objection is also only hyper technical in nature. It is being asserted, and not without any basis, that respondent No. 6 is also a Director of the Company and the matter concerns the affairs of the Company and, therefore, by virtue of Clause (n) of Article No. 71, .Gulrez Mir, could even defend the suit on his behalf as well.
However in view of the affidavit of respondent No. 6 that he engaged Mr. Ihsan-ul-Haq Bhalli, Advocate, before the Trial Court, the objection has no merit.
20. Contentions Nos. 8 and 9 being co-related are being discussed together. As observed above, as far as application for leave to appear and defend on behalf of respondent No. 2 and 6 is concerned, I have already expressed my opinion. As far as respondent No. 1 is concerned, apart from the original power-of-attorney and the resolution of the Board of Directors which are, however, later in point, of time than the date of filing of the application for leave to appear and defend, the learned counsel for the respondents relied on clause (b), Rule 2 of Order III of the Code of Civil Procedure. The said rule authorizes the recognized agents of the parties to appear and act besides the persons holding powers-of-attorney. Clause (b) of the said rule provides that persons carrying on trade and business for and in names of parties not resident within the local limits of the jurisdiction of the Court can appear and act in the matter connected with such trade and business where no other agent is expressly authorized. Although agreement of agency was not produced before the learned Trial Court yet from the contents, particularly of para 1 of the plaint, it is established beyond any doubt that respondent No. 2,-- was the agent of respondent No. 1.
According to paragraph 1 of the plaint, respondent No. 2, in collaboration understanding and arrangement with each other, respondent No. 2 and M/s. Topworth Limited (Hongkong) started business of opening foreign exchange account of customers in the business premises of respondent No. 2. According to paragraph 2 of the plaint M/s. Topworth Limited Hongkong informed the plaintiff that the accounts will be taken over and held by M/s. Topworth Investments Maccu which arrangement was accepted by the petitioner. It may also be noted that the promote in question was purportedly executed by respondents Nos. 3 to 5 on behalf of. Respondent No. 1.
Respondent No. 2 has been impleaded in the suit on the basis of averment sin para 1 that it was doing business in collaboration with respondent No. 1. But for this averment, respondent No. 2 would not even be a necessary party to the suit. These facts clearly qualified respondent No. 2 as a recognized agent of a respondent No. 1 for the purpose of clause (b), rule 2 of Order Ill of the Code of Civil Procedure. It may be observed that in view of the time constraint for making an application for leave to appear and defend, the provisions of clause (b) of Rule 2 of Order III of the Code of Civil Procedure are required to be literally construed since these are beneficial provisions and intended to safeguard the interest of the foreign companies.
21. As noted above, the Wakalatnama was filed alongwith the application for leave to appear and defend by Gulrez Mir, who could competently act on behalf of respondents Nos. 1 and 2. However, as far as respondents Nos. 3, 4 and 5 are concerned, as noted in the order dated 14.9.1995, the petitioner/plaintiff had himself pointed out that respondents Nos. 3 to 5 were not being properly represented, which was conceded by the learned counsel for respondents Nos. 2 to 6 who had stated that he will producer the powers-of-attorney on behalf of respondents Nos. 3 to 5 was dispensed with. The original powers-of-attorney on behalf of respondents Nos. 3 to 5 were produced for the inspection of the Court and were returned while photo-copies were retained on the record. The filing of the powers-of-attorney on behalf of respondents Nos. 3 to 5 was under the above-said arrangement to which the learned counsel for the petitioner had agreed before the Trial Court. It may be noted that unless the Principal disputes the authority of the attorney, even subsequent filing of power-of-attorney is only an irregularity. Further, a perusal of- the pro-note shows that respondents Nos. 3 to 5 purportedly acted on behalf of respondent No. 1. The photo- copy of the pro-note produced on the record does not indicate that respondents Nos. 3 to 5 bound themselves in their personal capacity and even the case in the plaint has been that respondents Nos. 3 to 5 acted as authorized agents of respondent No. 1. It may also be observed that since, it has been found that application for leave to appear and defend was competently filed on behalf of respondent No. 1, in the peculiar facts and circumstances of the case, the objection that powers- of-attorneys on behalf of respondents Nos. 3 to 5 were filed subsequently after the expiry of the period of limitation is of no significance.
22. As far as the tenth contention is concerned, the controversy is not determinative of the fate of the case in view of my findings recorded above. It may, however, be noted that although the powers-of-attorney executed by respondents Nos. 3 to 5 do not expressly ratify the act of filing the application for leave to appear and defend on their behalf yet it may be observed that according to Section 197 of the Contract Act ratification may be express or implied. But for the representation of respondents Nos. 3 to 5 by Mr. Ihsanul-Haq Bhalli, Advocate before the Trial Court, they were required to be properly served since according to report received in-connection with the telegrams they had left the place of residence. Mr. Ihsan-ul-Haq Bhalli, Advocate not only represented , respondents Nos. 3 to 5 before the Trial Court but he is also representing them before this Court. Therefore, to my mind the principle of Section 197 of the Contract Act was fully attracted. It may be noted that unless the principal gives notice of his dissent to the un- authorized act of the agent within a reasonable time it raises a presumption of ratification. As far as the exception provided in Section 200 is concerned it is not applicable in the facts and circumstances of the case because the said section contemplates that if the act was done with the authority, it would have effect of subjecting a third person to damages or of terminating any right or interest of a 3rd person. Defence of the suit on behalf of respondents Nos. 3, 4 and 5 through the learned counsel could not possibly subject the petitioner to any damages or terminating any right or interest of the petitioner. The judgments relied upon by the learned counsel for the petitioner on this question have been considered. In the case of Punjab, Zimdara Bank, the suit was filed by the Manager, who had no authority to file the suit and the ratification made by the Directors after the expiry of limitation for filing of the suit was not held to be valid. In the case .Of Babu Muhammad Aslant, supra, ejectment petition was filed by the attorney in whose favour power-of-attorney was subsequently, executed, it was noted that the principle of ratification was not attracted, if the authority was given to the attorney to act in future. Reference may be made to the case of Muhammad Munshi and another; supra, in which the following observations were made:- "The relationship of a client and a counsel is recognized in law at the level of relations of principal and an agent. In such a situation, when an agent acts on behalf of the principal, even though he is not authorized in the prescribed manner for acting as such at the relevant time, the principal is vested with the authority to ratify the act of his agent with retrospectivity. On this principle, it is permissible to hold that action of Chaudhry Muhammad Hardt, Advocate by signing and verifying the pleadings and institution. Of the suit, could be rectified by the plaintiff with retrospective effect.
23. As far as contention No. 11 is concerned the resolution dated 12.4.1996 authorized Mr. Gulrez Mir to appoint a legal practitioner in future, however, in view of my findings recorded above that respondent No. 2, through its Chief Executive could competently act in the matter as a recognized agent of respondent No. 1, this contention has no merit.
24. As far as contention No. 12 is concerned the original power-of-attorney on behalf of respondent No. 1 in favour of Gulrez Mir is on the record, while photo-copies of the powers-of-attorney on behalf of respondents Nos. 3 to 5 were submitted. As noted above, the original powers-ofattorney were produced before the Court for inspection and were returned and copies thereof retained on the record and no objection was raised by the petitioner at that time. Therefore, respondents Nos. 3 to 5 could not be penalized for the act of the Court.
25. As far as contentions Nos. 13 and 14 are concerned, power-of-attorney is not a document required by law to be attested by two witnesses and, therefore, Article 17 of the Qanun-e-Shahadat Order, 1984 was not applicable. As far as applicability of Article 95 is concerned it only raises a presumption if attested in accordance with the provisions of the said Article, but it does not require that a power-ofattorney to be valid must be attested by the persons mentioned in the said section.
The powers-of-attorney on behalf of respondents Nos. 1, 3, 4 and 5 bear a notarial stamp but it is in the language which is not understandable because these were attested in a foreign country in a language other than English. In any case unless respondents Nos. 1, 3 to 5 had disputed the authority of their counsel to represent them, the objection of the learned counsel for the petitioner based on Article 95 is not sustainable. As observed above, since respondent No. 1 was being duly represented by a recognized agent, and basically the claim of the petitioner-plaintiff was against respondents Nos. 1 and 2, application for leave to appeal and defend could be validly considered on behalf of respondents Nos. 3 to 5.
25. As far as contentions No. 15 is concerned, merely because the powers-of-attorney did not bear the stamp, these were not invalid and the defect was curable under Section 35 of the Stamp Act as observed by the Hon'ble Supreme Court in the case of Sirbuland, supra.
26. As far as contentions Nos. 16 and 18 are concerned, the question whether respondents Nos. 1 to 6 had duly been served is not relevant because of my findings that the application for leave to appear and defend was competently filed on their behalf.
27. As far as contentions No. 17 is concerned, a foreign company, who has not complied with the provisions of Section 451 and 452 of the Companies Ordinance, 1984, remains liable for any contract, dealing or transaction and liable to be sued in respect thereof. However, the said section provides that the company shall not be entitled to bring inter alia, any "legal proceedings" in respect of any such contract dealing on transaction. A perusal of the aforesaid section shows that such a company can be sued but cannot sue or bring any "legal proceedings" in respect of any such contract dealing or transaction. According to the learned counsel, application for leave to appear and defend filed -on behalf of respondent No. 1 amounted to taking "legal proceedings" within the meaning of Section 456. It is not possible to agree with the contention because it is not a case where respondent No. 1 has instituted any legal proceedings in respect of any contract or transaction. The company (respondent No. 1) is defendant in the suit and can legitimately defend it. It may also be observed that making of an application for leave to appear and defend is step for defending the suit and does not amount to institution of any legal proceedings by respondent No. 1. The learned counsel for the petitioner relied on the cases of Karim Bibi, Lahore Improvement Trust and Pakistan Tenderies Ltd., supra, inter alia, explaining the terms "Proceedings", "Legal Process, and "Any". In the first case the Hon'ble Supreme Court was examining the issue with reference to the proviso to Section 3(2) of the Law Reforms Ordinance, 1972 as to maintainability of an Inter Court Appeal in a settlement matter. In the case of Lahore Improvement Trust, acquisition of land by the Trust was involved. The case of Pakistan Tanneries Ltd. Also arose out of a settlement matter. None of the aforesaid judgments advances the case of the petitioner that making of an application for leave to appear and defend by respondent No. 1 amounted to taking any legal proceedings by it. As a defendant, the said respondent had right to defend it and take such actions as were necessary to defend the suit.
28. Contentions Nos. 19 and 20 have already been attended to. The claim of Mr. Gulrez Mir that he also held a power-of-attorney on behalf of respondents Nos. 1 did not detract from the position of respondent No. 2 as a recognized agent of respondent No. 1 by virtue of clause (b) sub-rule (2) of Order III of the Code of Civil Procedure.
29. As far as contention No. 21 is concerned, the agreement of agency was for a period of two years.
Notwithstanding non-production of the agency agreement before the Trial Court, it could still be considered by this. Court. It shows that it was for a period of two years from 10.9.1993 to 1.9.1995, while application for leave to appear and defend was filed on 9.8.1995, during the subsistence of the said agreement. It may also be observed that in accordance with the Article 125 of the Qanun- eShahadat Order, when certain persons are principal and agent and they have been acting as such, the burden of proving that such relationship has ceased is on the person, who so asserts.
30. Contention No. 22 is equally without any merit. The original transaction, as claimed by the petitioner was with Top-worth, Hong Kong and according to the averments of the plaint Top-worth Macau had taken over the accounts of top-worth Hong Kong-Top worth Hong Kong has not even been sued. In fact, the .Contention goes against the petitioner because if it is accepted, it would mean that a necessary party was not before the Court. Further, the petitioner has sued Top-worth Maccu and the power-of-attorney in favour of Gulrez Mir was executed by Top-worth Macau. The transfer of accounts by Top-worth Hong Kong to Top-worth Maccu having been accepted by the petitioner, the objection is not available to him.
31. As far as the contention No. 23 is concerned, both the parties have cited various judgments. The consensus of opinion has been that technicalities should not be allowed to defeat the ends of justice. The learned counsel for the petitioner strenuously relied on the observations made in the case of Manager Jammu and Kashmir State Property, supra, to the effect that "principal of equitable construction agreeable to justice and reasons is too well-known to be elaborated subject of course to the equally well-established principle that equitable justice and interpretation should not induce Judges to do violence to the language". The said case had its own peculiar features. In the said case the suit instituted by the respondents was decreed against, which an appeal was - filed which was dismissed for non-prosecution, an application for re-admission of the appeal was also dismissed for non-prosecution and an application for restoration of the application was also dismissed. Instead of pursuing the remedy of re-admission of the appeal the Manager Jammu and Kashmir State Property filed second appeal before the High Court. It was converted into a revision petition and was dismissed in limine. Against that order, an appeal was taken before the Hon'ble Supreme Court which was allowed and the rule laid down in the case of Imtiaz Ahmad supra was affirmed with the following observations:- The proposition could hardly be disputed that the principal object behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of modem society and the conflict between equity and law in judicial history.
It cannot be denied that legal precepts were devised with a view to impact certainty, consistency and uniformity tc administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fide. Over a period of time this development of codes and rules led to the evolution of what is called "jurisprudence of Conception" a system of logical deduction from fixed premises."
32. I may respectfully add that while considering a matter the primary consideration for a Court should be whether non-compliance of a procedural provision has caused any prejudice to the opposite party. It is a case in which the petitioner desires a technical knockout of the respondents on the basis of technical and even higher technical objections which will plainly defeat the ends of justice.
33. It may also be noted that on a Court query the learned counsel for the petitioner had also cited judgments in support of the plea that a promissory note was not required to be attested by two witnesses and also as to the effect of service by post. I have not considered it necessary to note and examine the said judgments because the question of admissibility of a pro-note and service of the respondent are not relevant to the controversy raised in this revision petition.
34. For what has been stated above, I find no force in this revision petition, which is dismissed. No order as to costs. The record of the learned Trial Court shall be immediately returned.