1990 PLP 453 (MLD)

5. Before adjudicating the points involved certain material which is necessary may be set out. The power of attorney executed in favour of the plaintiff reads: By this power of attorney given on the 8th day of Jan., 1980. Muhammad Ali Gobaisi Enterprises; at P.O. Box No. 4395 Abu Dhabi (hereinafter called the "Company") hereby appoint Mr. C. Doraiswamy and Mr. T. Dulipsingh partners in the law firm of kind and Patride of the Catholic Centre, Armamen Street, P.O. Box No. 121, Madras, (India) (hereinafter called the Attorney) as through and lawful Attorneys of the Company for/or in the name of and on behalf of the Company to do or execute any of the acts and things hereinafter mentioned that is to say To commence legal proceedings against the Stale Bank of Hyderabad in respect of the Company's claim against them and to execute, sign, enter into, acknowledge, perfect, do all such deeds, instruments, acts and thins as shall be requisite for or in relation to all or any of the purposes or matters relating thereto and if thought fit to compromise, refer to arbitration, abandon and submit to judgment in these proceedings. IN WITNESS WHEREOF these presents have been executed into that day and year first above. written." As to the fact whether Company Law existed at all in Abu Dhabi, the material has been placed before the Court which is contained in Business Laws of the United Arah Emirates Vol. 11, by Majorie, J. Hall, which reads "There is no Company Law in Abu Dhabi. In addition, it is unlikely for a group of individuals and/or companies to form a limited liability company as H.M. The Ruler will not, at the present time, entertain the formation of such companies. Decrees of incorporation are therefore only issued in respect of companies which are Government or quasi Government bodies, such as ADNOC. As a result, business corganisations generally operate as partners and/or, where individuals are concerned, a traders. However it is anticipated in view of the volume of business currently being carried on in Abu Dhabi that a, Company Law will be issued but no date has yet been announced for such promulgation:" Rule 2 of Order XIV, C.P.C. reads "2.(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub‑rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to‑‑ (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined and may deal with the suit in accordance with the decision on that issue."

6. It is quite plain from the language of R.2 of O. XIV that any point pertaining either to the jurisdiction of the Court or a law which bars the suit to be tried may at first be decided as a preliminary point though the normal rule is that the Court shall pronounce judgment on all issues which mandate, however, is subject to the provisions of sub‑rule (2). It is essentially based on an object which has been deliberately introduced by the Amendment Act 1976; in order to see that the lis unnecessarily is not protracted and would not cause any harassment to the parties if it could be decided that lis itself is not maintainable in the Court and thus avoiding the avoidable litigation in the Court. 7‑

8. Bearing the above in mind, the question to be examined in this case is whether the power of attorney has been validly executed, enabling the plaintiff to maintain the suit in the Court?

9. So far as Abu Dhabi Law is concerned, it prima facie establishes that there is no Company in that country and it does not enable a group of indivisible (individuals?) or companies to form a limited liablility company, as the Ruler himself will not entertain the formation of such companies. It does show prima facie that the plaintiff who has been admittedly styled as a company in the power of attorney will not be in a position to maintain the suit. In other words, it appears that this power of attorney has not been validly executed. The second infirmity that is sought to be placed before the Court is that the 2nd defendant at any rate cannot be made a party to the suit as power is not conferred upon the plaintiff to file a suit against the 2nd defendant. It may be that this lacuna is a curable one by further tiling a ratification or a fresh power of attorney thereby curing the defect mentioned herein. Even to this day, that is not available before the Court. But assuming it is curable irregularity, even on the first point, it appears to be an uphill task for the plaintiff to maintain its suit, as there is no recognition to any company in Abu Dhabi and, therefore, it has to be examined whether the suit itself is maintainable and if it is not maintainable surely it goes to the root of the matter and ousts the jurisdiction of the Court to entertain the same though the word 'may' has been employed in R. 2 of O. XIV. But this has been a deliberate amendment in the year 1976 which is to be read as "shall" and, therefore, mandatory. Once the Court forms the opinion that a point which has t been raised to be adjudicated as a preliminary issue, touches upon the jurisdiction of the Court or even any bar by which a suit is precluded from being entertained under any law, then that has to be decided at first so as to obviate the necessity of going through the entire gamut of the litigation viz.; deciding all the issues involved and thereby cutting short the time that involves in the litigation and so forth. This was the primary concern of the Legislature at the time when the amendment was enacted. Looked at from that angle, therefore, in my judgment this involves both the aspects; firstly there appears to be a brat under Abu Dhabi Law viz.; a company cannot be invested with a power to file a suit because there is no company law whatsoever and therefore the recognition of company itself is out of the picture so far as Abu Dhabi law is concerned. Hence if that infirmity apparently is said to be residing in the power of attorney which I cannot be said to enable the plaintiff to file a suit and if that suit cannot be entertained at all, it touches upon the jurisdiction of the Court itself. Hence it is eminently a tit case where so far as the facts are concerned the primary objection raised in this case has to be decided first. It is for the plaintiff to establish that he is in a position to maintain the suit. It is for him to produce the' necessary documentary and/or oral evidence to establish the same.

10. So far as the second aspect of the case is concerned, the 2nd defendant, the petitioner herein, is said to have raised the preliminary objection at the time when almost the trial, according to the learned counsel for the respondent, is commenced. This does not appear to be quite evident from the material on record. Once the suit was dismissed for default and it was restored in Sept. 1983, thereafter it saw the adjournments for not less than a dozen times and eventually on 16‑10‑1984 when the matter was taken up the interlocutory application was filed by the petitioner, for disposing of the preliminary objection before the other issues are sought to be adjudicated. Could it then be said that there was a deliberate delay on the part of the 2nd defendant to protract the litigation. In my view it does not appear to be so true there appears to be some laches on the part of the 2nd defendant. But then the suit was eventually taken up on 16‑10‑1984 and then for the first time on that occasion the 2nd defendant filed the petition though it could have been filed earlier. In any case the suit underwent adjournments and nothing fructified and, therefore, no detriment has been caused.

11. Looked at from any angle, therefore, I have no hesitation in holding that the trial Court had to decide at first the preliminary objection raised on behalf of the 2nd defendant. Hence, the order under revision which suffers from error of jurisdiction is set aside and the matter is remitted back to the trial Court for deciding the preliminary objection at first as expeditiously as possible, preferably within twelve weeks from the date of receipt of this order. However, the trial Court shall neither take cognizance of nor be influenced by any observations made herein in regard to the merits of the case. The parties shall be at liberty to lead evidence before the trial Court.

12. The revision petition is accordingly allowed. No costs. M.B.A./195/F.J Revision allowed.