1996 PLP 1064 (CLC)

(1) Whether the suit is maintainable at Karachi within the jurisdiction of this Hon'ble Court? (2) Whether there is any privity of contract between the plaintiffs and defendants? (3) Whether the loss/damage has been caused due to the negligence of the plaintiffs and/or their agents/employees/servants? (4) Whether the loss/damage falls within the terms and conditions of the insurance policy? (5) Whether the defendants are liable for the loss? (6) What should the decree be? After recording evidence of the parties, learned Trial Court under the impugned judgment dated 26‑8‑1990 found the suit to have been correctly filed at Karachi but took view that the plaint was signed and verified by an incompetent persons and hence the suit was not maintainable. After holding so, the Trial Court dismissed the suit. Hence this appeal. Mr. Gulzar Ahmed, learned counsel for the appellant argued that there was nothing in Order XXIX, Rule 1 of C.P.C. to show that the person filing suit on behalf of corporation should be authorised by such corporation through a resolution to file the suit. He cited the case of All India Reporter Ltd. v. Ramchandra Dhondo Datar (AIR 1961 Bombay 292) where it was held that the words 'duly authorised' in Order 6, R. 14 of C.P.C. need not be restricted to mean authorised by proper written authority or by power of attorney. Learned counsel for the appellant further argued that the trial Court had not framed any issue on the point that the plaint was not properly signed and verified according to law and as such no evidence could be led on the point by the appellant. Mr. Naeem Ahmad, learned counsel for the respondent argued that Issue No. l as framed by the Trial Court covered the legal objection raised by the respondent in para. 12 of the written statement to the effect that the suit as filed was not maintainable. Learned counsel for the respondent conceded that Order XXIX, R. 1 of C.P.C. did not make it necessary for a person filing suit on behalf of a corporation to be armed with a resolution of such corporation authorising him to file the suit. Learned counsel for the respondent, however, relied on the case of Khan Iftikhar Hussain Khan of Mamdot v. M/s. Ghulam Nabi Corporation Ltd. (PLD 1971 SC 550) where it was held that the person in whose favour valid authority was not conferred was incompetent to institute a suit on behalf of a company. In para. 12 of his written statement the respondent pleaded that the plaint not having been singed and verified according to law and by the duly authorised person was liable to be dismissed. A specific issue covering said objection should have been framed by the Trial. Court. I am unable to agree with the learned counsel for the respondent that aforesaid objection raised in para. 12 of the written statement, is covered by Issue No.

1. Issue No. l is focusing on the point of maintainability of the suit at Karachi, rather than competency of Jehangir Moghul to file the suit on behalf of the appellant which is a private limited company. In absence of an issue covering para. 12 of the written statement, the appellant could not have led evidence on the point raised in said para. The Trial Court could not have given finding against the appellant on a point which was not covered by any of the issues and on which the appellant had no chance to lead evidence. I agree with the learned counsel for the appellant that it is not the requirement of Order XXIX, Rule 1 of C.P.C. that Secretary or Director of a Corporation filing suit on behalf of such corporation, cannot file such suit unless he is authorised by such corporation. The only required qualification for a Director or a Secretary filing suit on behalf of his corporation is that he should be able to depose to the facts of the case. The question arises as to whether Director or Secretary of a corporation filing suit on behalf of such corporation; can sign the plaint or can verify the pleading. Order 6, Rule 14 of C.P.C. says that every pleading shall be signed by the party and his pleader 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. Order 6, Rule 15 of C.P.C. says that every pleading shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties pleading or by some other persons proved to the satisfaction of the Court to be acquainted with the facts of the case. In the case of All India Reporter Ltd. (AIR 1961 Bombay 292), it was held that in the case of companies, the plaint can be signed by either a Secretary or a Director or other principal officer or by any person authorised by the company. Hence the words 'duly authorised' in Order 6, Rule 14, C.P.C, need not be restricted to mean authorized by proper written authority or by power of attorney, as further held. Hence a Secretary or a Director of a Corporation, filing suit on behalf of such corporation need not be specially authorised to do so. In the same case it was held that the plaint must be verified by the plaintiff or one of the plaintiffs or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case and that even omission to verify a pleading was a mere irregularity because the verification can take place even after filing of the suit. In the case of Khan Iftikhar Hussain Khan of Mandot (PLD 1971 SC 550) exception was taken to the fact that a suit filed on behalf of a company was instituted by a person who was not validly authorised to institute the suit and who was neither Director nor Secretary of the Company. In view of this the cited cases are distinguishable from the instant case where the suit was filed by a director of the appellant. In the instant case, fact of Jehangir Moghul being Director of the appellant was not denied and Order 29, rule 1 of C.P.C. made him competent to file the suit on behalf of the appellant corporation, subject to the condition that he was able to depose to the facts of the case. Jehangir Moghul has verified facts of the plaint on oath. He stated that whatever was written in paras. 1 to 10 of the plaint was true to the best of his information, knowledge and belief. Fact that the appellant was able to depose to the facts of the case, has not been challenged. Consequently it cannot be said that the suit was signed and verified by an incompetent person. In this view of the matter, finding of the Trial Court about the suit being not maintainable is reversed and impugned judgment and decree are hereby set aside and the matter is remanded to the Court of the Second Senior Civil Judge, Karachi‑South for redeciding the case on merits after allowing the parties one more chance to lead evidence. The appeal is accepted to that extent with no order as to costs. Parties and their counsel to appear in the Trial Court on 21‑4‑1992 at 9 a. m. A.A./M‑2099/K Appeal accepted