P L D 1967 Dacca 737 (PLP)

Mr. Asrarul Hossain, representing the plaintiff opposite‑party, has, on the other hand, contended that having regard to certain allegations made in the plaint, to which I shall have occasion to refer shortly hereafter, as well as the provision of Order I, rule 10, Sub‑rule (2) of the Code of Civil Procedure, the peti tioners, even though not necessary parties, cannot be said to have been improperly impleaded. In this connection, he has also referred to the decision in Monohar Lai and others v. Roshan Lai and another (A I R 1938 Lah. 799), which, however, does not, in my view, afford any direct assistance in this case. There is no question as to the soundness of the proposition laid down in Ratan Lai v. Jagadhri Light Railway Company Limited and others, and followed in the case of Khawaja Mohammad Saeed v. Mr. Justice Shabir Ahmed and others that "to an applica tion under section 38 of the Companies Act the Directors are not necessary nor proper parties". This position appears also to emerge from the provision of Order XXIX of the Code of Civil Procedure and it is now well‑settled that a corporation of a registered company should be sued in its corporate name and not in the names of its agents or servants. Now turning back to the authorities cited above it may be observed that the first‑mentioned case (A 1 R 1946 Lahore 193) related to an application under section 38 of the Companies Act praying for rectification of the Register by substituting therein the names of the petitioners in place of some others, and it was therein that the proposition already cited above was laid down. This has been reiterated with approval in the other case reported in P L D 1965 Lah. 92 which also related to a suit brought by a member of a Club questioning his expulsion therefrom. It is true that the present suit may be compared in substance to an application under section 38 of the Compromise Act but one distinguishing feature that strikes me is that no allegation attributing what may be called improper conduct to the directors concerned appears to have been made in either of the two cases, referred to above. In both of them the relevant records, as they stood, do not appear to have been called in question and the Courts were, therefore, not required to go behind them. In the present case, however, certain allegations really going behind the records, as they stand have been made. In this connection, reference may be made to paragraph 9 of the plaint wherein it has been alleged inter alia: "That the plaintiff believes that the alleged false complaint was lodged by the said bearer against the plaintiff at the instigation and encouragement of the defendant No. 2 the President of the club with whom there had been bitter and strained relationship for some time past in connection over the club affairs. One of such incident was on the date of Annual General Meeting when nomination papers of plaintiff was wrongly rejected over which a large number of members with drew in protest." Proceeding it has been further alleged in the concluding portion of paragraph 10 as follows:‑ "Further there having been no hearing before the Executive Committee is opposed to the principle of natural justice. That no evidence was recorded and no opportunity of cross‑examin ing the bearer was given to prove the innocence of the plaintiff though demanded, nor was the complainant bearer examined by the Committee. The Executive Committee acted in a most high‑handed manner with defendant No. 2 as his chief and recorded false resolution as unanimous to suit his own position and the same statement of unanimity is false. The plaintiff is in possession of letters from members of the Executive Committee being Nos. 7 and 9 to the said effect." The above allegations practically amount to an aspersion of improper conduct upon the members of the Executive Committee including the President and I would take it that it is because of this, as has, in fact, been argued by Mr. Asrar Hossain that the plaintiff opposite‑party thought it fair and proper that such allegations affecting some respectable getlemen of the standing of the defendants concerned should better be made in their presence as much to afford them an opportunity to meet the same as to forestall a likely argument at the end that these allegations made behind their back merit little consideration. It is in the context of the above facts that the petitioners' prayer for striking out their names under Order I. rule 10, sub-rule (2) of the Code has not be considered. That sub-rule provides:‑ "(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 caught 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 questions involved in the suit, be added." The question arising therefore is whether the petitioners can be said to have been improperly joined. So far as this is concerned, I find it indeed difficult in view of the allegations referred to above to say at this stage that the petitioners i.e. the principal defendant No. 2 and the pro forma defendants Nos. 3 to 12 have been improperly impleaded though they may be found to have been so impleaded on a consideration of the materials produced by the parties at the final hearing. It is also interesting to note that in their petition the petitioners have prayed for striking out their names under the aforesaid provision, "so that these petitioners may be exempted from unnecessary troubles of appearance in the Court." If that is the sole purpose of the prayer made by them, it will suffice just to point out that these defendants, simply because they have been impleaded as such, are not bound to appear, as it is open to them not to do so, if they are so advised. For the reasons stated above, it will not, I am afraid, be advisable or proper to strike out the names of the petitioners from the plaint in this stage. In any event the impugned order passed by the learned Munsif cannot be said to suffer from any illegality or material irregularity affecting the exercise of his jurisdiction so as to justify interference in revision. The Rule is accordingly discharged but having regard to the circumstances of the case I leave the parties to bear their own costs in this Court. Let the records be sent down expeditiously. K. B. A. Rule discharged.