P L D 1983 Peshawar 64 (PLP)

Date of hearing.: 1st December, 1982. Australasia Bank Ltd. Peshawar (now the Allied Bank of Pakistan Ltd.) instituted the present suit Against Abdul Aziz Jan and Haji Abdur Rehman (now deceased and represented by their L. Rs.) for the recovery of Rs. 4,637.93 in the Court of Civil Judge, Peshawar on 2‑9‑1970. On the pleadings of the parties various issues were framed but for the disposal of this R. S. A. only issue No. 1 requires consideration which is. to the following effect:‑ "(1) Whether the Manager Branch Office, Peshawar is competent to bring the present suit?" After recording the evidence of the a parties the learned trial Court came to the conclusion that according to the terms of the Power of Attorney of the Manager he could only bring a suit jointly with another Attorney of the Bank and the suit having been filed by the Manager alone was not competent. The suit of the plaintiff‑appellant was dismissed on this ground as well as on merits. The appellant preferred an appeal before the Additional District Judge, Peshawar which was dismissed on 5‑2‑1972. The learned lower appellate Court confined its finding to issue No. 1 and by affirming the finding of the learned trial Court on this issue dismissed the appeal with costs.

2. From the perusal of the record it appears that the plaint in the suit is signed and verified by Mr. Zaidi the Manager of the Bank and the Wakalatnama in favour of the counsel was also signed by him. However, at the trial one Nisar Ahmed Accountant of the Bank appeared as a witness and admitted that plaint and Wakalatnama did not bear his signature, because these documents were signed by Mr. Zaidi the then Manager of the Bank. He also stated that the Power of Attorney executed in his favour and in favour of Mr. Zaidi (the Manager) were identical. A reference to the copy, of the Power of Attorney placed on the file would show that the plaintiff‑bank would appoint two Attorneys on behalf of the Bank for the purpose of institution of suits or others legal proceedings in Courts of law. Both the learned Courts below are of the view that the present suit, having been instituted only by one of the Attorneys by putting his signatures on the plaint and the Wakalatnama, was incompetent.

3. It appears that the appellant also submitted an application under Order VI, rule 17, C. P. C. before the lower Appellate Court for permission to amend the plaint to show that it was filed by the two attorneys and thus the Court was requested for permission to allow the other Attorney also to sign the plaint and the Wakalatnama. This application was turned down by the learned lower Appellate Court on the ground that it was too late for the plaintiff appellant to make this prayer at the appellate stage and the application should have been filed before the trial Court.

4. The appellant Bank is a company registered under the Companies Act, 1913. By a Resolution dated 7‑8‑1961 the Board of Directors authorised Mian Hidayat Ali Talib, Director of the Bank, to execute lower of Attorney in favour of any bank employee authorising him to institute suits etc. on behalf of the Bank. It appears that the aforesaid Director executed Power of Attorney in favour of Nisar Ahmed Qureshi (Accountant) on 2‑9‑1961. Nisar Ahmed Qureshi has stated that a similar Power of Attorney was also executed in favour of Mr. Zaidi the then Manager of the Bank. It is not disputed that the plaint and the Wakalatnama bear the signature of one of the attorneys of the appellant. Under Order XXIX, rule 1., C. P. C. in a suit by or against a Corporation any pleading may be signed and verified one behalf of the Corporation by the Secretary or by any Director or other Principal Officer who is able to depose to the facts of the case. Under Order, III, rule 1, C. P. C. any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court may be made or done by a party or person, or by his recognized Agent or by a Pleader on his behalf. Under Order III, rule 2, C. P. C. the recognized Agent of a party by whom such appearances, applications and acts may be made or done is a person holding Power of Attorney authorising him to make and do such appearances, applications and acts on behalf of such party. Keeping in view the aforesaid provisions of law, it is abundantly clear that Mr. Zaidi the then Manager of the Bank was a recognized Agent of the appellant‑bank and he had signed the plaint as well as Wakalatnama in favour of the counsel in that capacity. In the circumstances it is clear that the presentation of the plaint in the trial Court and the signing of the Wakalatnama in favour of the counsel by Mr. Zaidi, the then Manager of the bank, were in accordance with law. However, the omission to comply with the terms of the Power of Attorney would only be an irregularity and would not effect the filing of the suit. According to the terms of the Power of Attorney, the plaint and the Wakalatnama should have been signed by two Attorneys jointly but in the present case admittedly the aforesaid documents were signed by Mr. Zaidi one of the Attorneys alone and the other Attorney Mr. Nisar Ahmed has appeared as a witness in the trial Court on behalf of the appellant. It does not appear to be a case of intentional omission and the failure of one of the Attorneys to sign the plaint and the Wakalatnama could have been corrected by allowing the person concerned to sign the aforesaid document subsequently. Under section 107, C. P. C. an Appellate Court is given the same powers as are conferred on the trial Court and the permission for signing the plaint and the power of attorney could have been allowed by the learned lower Appellate Court when a request was made in that behalf. The case not being of deliberate omission, the defect could have been allowed to be remedied by the learned Courts below 4s it certainly did not affect the merits of the case. In Toor Gul v. Mumtaz Begum (P L D 1972 SIC 9) it was held that accidental omission of the name of the Pleader from the body of the Wakalatnama is a mere irregularity and it would be too technical to hold that the Wakalatnama is not valid merely on this account. It was also observed that "The rules framed in the Code of Civil Procedure are rules made for the advancement of justice and they cannot, as far as possible, be allowed to operate so as to defeat the ends of justice". In support of the view that the plaintiff‑appellant's suit should not have been thrown out on aforesaid techincal ground, a reference can be made to Wali Muhammad Khan v. Ishaq Ali Khan (A I R 1931 All. 507) wherein it was held that "The absence of signatures or verification or for that matter the absence of presentation on the part of some of the plaintiffs out of several does not affect the jurisdiction of the Court and the suit must be deemed to have been duly instituted on their behalf if it was filed with their knowledge and authority. It was also observed with reference to A I R 1927 Allahabad 514 that "any irregularity in the signature or verification of the plaint was a mere defect of procedure and could not be fatal when the merits of the case had not been affected". In that case a suit had been instituted by a person not duly authorised but with the knowledge and by the authority of the plaintiff named therein. It was accordingly considered that it was unimportant bow the plaint was actually filed or signed. In Shafiq Metal Works v. The Bank of Bahawalpur Ltd. (P L D 1973 Note 33 at p. 41) it was held that there is no specific provision in the Code of Civil Procedure in which the plaint, as such, must be signed by a person holding a Power of Attorney and it cannot be said by any stretch of imagination that such a plaint which is not so signed can be deemed to be an absolutely void plaint, or a nullity. It is simply an irregularity. The important test, for showing that certain proceedings are a nullity, is to show that a mandatory provision of law has been violated. 1n view of the above discussion it can safely be said that in a case of defective signing or presentation of the plaint by a person who does not hold a Power of Attorney but is otherwise orally authorised to file a suit there is no violation of any specific provision of the law and such presentation or signing cannot make the plaint a nullity.

5. In this view of the matter the findings of both the learned Courts below on issue No. 1 suffer from legal infirmity. They were not justified to non‑suit the plaintiff‑appellant on this technical ground. Therefore, by accepting the appeal and setting aside the decree of the lower Appellate Court the case is remanded to that Court for decision on merits with a direction to allow the plaintiff‑appellant the requisite prayer for amendment of the plaint and of putting the signatures of the other Attorney on the plaint and the Wakalatnama. The parties are directed to appear before the lower Appellate Court on 15‑12‑1982. Costs to follow the event. S. Q. Appeal accepted.