2010 PLP 2974 (YLR)

MUHAMMAD KHALID MEHMOOD KHAN, J.

The petitioner has assailed order dated 3-12-2009 passed by the learned first Appellate Court Sialkot, whereby the petitioner's application under Order XLI, Rules 3, 11 and 151, C.P.C. was dismissed.

2. The petitioner's claim is that appeal filed by the respondent being a private limited company is without authority and as such the same should be dismissed.

3. The petitioner filed a suit for possession through pre-emption against the respondent, a private limited company incorporated under the Companies Ordinance, 1984. The suit was decreed vide judgment and decree dated 26-7-2000. The respondent-Company assailed the said judgment and decree through an appeal. The petitioner filed an application before the first Appellate Court under Order XLI, Rules 3 and 11 and section 151, C.P.C. praying that appellant/respondent is juristic person and as such without authority of the share holders its Director or even Director Incharge or any other person could not file the appeal. He alleges that respondent-Company has not authorized the counsel or any other person to sign the appeal and to file and prosecute the same. The learned Appellate Court vide impugned order disposed of the said application holding that appeal was remanded to this Court in pursuance of a judgment passed in Civil Revision No.2232 of 2002 by the Lahore High Court Lahore vide order, dated 26-3-2009. The said aspect of the matter was not urged before the honourable High Court and as such it will be premature to decide this application before hearing the main appeal.

4. Learned counsel for the petitioner submits that, he has filed an application challenging the very institution and prosecution of appeal on the ground of non-availability of authority to institute and prosecution, as such the learned Appellate Court is bound to decide the application before entering into merits of appeal.

5. Learned counsel for the petitioner has relied on numbers of judgments especially the judgment Khan Iftikhar Hussain Khan of Mamdot (Represented by 6 others) v. Messrs Ghulam Nabi Corporation Ltd. Lahore (PLD 1971 Supreme Court 550), Abu Bakar Saley Mayet v. Abbott Laboratories and another (1987 CLC 367 Karachi), Government of Pakistan v. Premier Sugar Mills and others (PLD 1991 Lahore 381), Milat Tractors Ltd. v. Ch. Tawakal Ullah (NLR 1993 UC (Civil) 54), Sirajuddin Elahi and 3 others v. Mehboob Elahi and 3 others (PLD 1997 Karachi 276), Messrs Taurus Securities Limited v. Arif Saigol and others (2002 CLD 1665) and Wapda and another v. Messrs Ghulam Rasool & Co. (Pvt.) Ltd. (2005 MLD 1165). He has relied on Order XXIX, Rule 1 Code of Civil Procedure.

6. Learned counsel for the respondent supports the impugned judgment and submits that the petitioner has every right to raise this objection at the time of final hearing of appeal but before entering into the merits of the appeal the application is not maintainable, he further submits that petitioner in the first round of litigation has not raised the said objection and as such the application is afterthought.

7. I with the assistance of learned counsel for the parties gone through the file of the appeal to find out any authority or resolution passed by the Board of Directors of respondent-Company in favour of signatory of appeal or any instructions issued by the Board of Directors of Company showing that company has decided to file the instant appeal but no such documents is available on record. Even the resolution for appointment of a counsel is also not available on record. Further there is no averment in the grounds of appeal to this effect.

8. There is no cavil to the proposition of law that suit or legal proceedings on behalf of Corporation or Company could not be filed by any person except with the authority of the Board of Director of the Company if the Board of Directors is authorized under the Articles of Association of the Company to give the said authority or through a resolution to authorize the officer or director Incharge or Secretary to act in this behalf passed in a duly convened meeting of Board of Directors. The learned counsel for the respondent is even not able to point out any averment in the appeal confirming that the signatory of appeal is authorized to institute and prosecute the same nor the learned counsel for the respondent has argued that the resolution was passed and the same is available in the minutes book of the Company and he may be allowed to place the same on record. In these circumstances the learned Appellate Court has wrongly dismissed the petitioner's application on the ground that this matter will be decided at the time of hearing an appeal on merits. The petitioner before entering into the merit of the appeal has filed an application for ascertaining the admissibility and maintainability of appeal and learned first Appellate Court in this view of the matter was bound to decide the said application before entering into the merits of appeal. In view of the above the order assailed is set aside and the application of the petitioner is allowed, resultantly the appeal is dismissed.

9. There is no order as to costs. M.H./G-54/L.????????????????????????????????????????????????????????????????????????????????????? Revision allowed.