1999 PLP 3273 (MLD)

I dispose of these two Civil Revision Applications bearing Nos. 4 of 1989 and 5 of 1989 as they are between the same parties and same facts and questions are involved. The brief facts leading to the filing of the above revision applications are that the applicants filed Suit Nos. 2015 of 1987 and 2016 of 1987 against the respondents for declaration, cancellation and permanent injunction. On receipt of summonses the respondents filed separate applications under Order 7, Rules 10 and 1.1 read with sections 16, 20 and 151, C. P. C. The applicants resisted the applications. The learned Trial Court after taking into consideration the arguments advanced by the learned counsel for the parties ordered return of the plaint to be presented before the proper Court vide, order dated 4-4-1988. The applicants being aggrieved against the order, dated 4-4-1988 filed separate Miscellaneous Appeals being Nos. 60 of 1988 and 61 of 1988 in the Court of District Judge, Karachi South. The appeals were dismissed by the learned District Judge vide judgment dated, 26-11-1988. The applicants being aggrieved against the judgment and decree, dated 26-11-1988 preferred these revision applications as stated in the earlier part of this judgment. I have heard Dr. Hameed Ahmed Ayaz Advocate in support of the application and Mr. Iqbal Ibrahim, Advocate on pre-admission notice. The respondent took preliminary objection of maintainability of appeals before the District Judge. The preliminary objection is that the appeal is not competent as it has not been signed or preferred by either the appellant/applicant or his authorised representatives. The learned District Judge taking into consideration the arguments advanced by the learned counsel for the parties upheld this objection. It is not in dispute that the applicant filed the suit through his attorney Nadir Hussain. I have perused the power of attorney executed by the applicant in favour of Nadir Hussain. Para. 12 of power of attorney gives power to the attorney "to institute, contest and conduct all appeals, Revision and/or References arising as an off-shoot of the proceeding in this suit". Clause (13) thereof, provides as under:-- "To institute-; contest and, conduct suits for recovery of Damages accruing to me as a result of final adjudication in this case". A perusal of memo of appeal filed by the applicant would show that the applicant in the present case has filed civil miscellaneous appeals through his lawfully constituted attorney namely Nadir Hussain. In Messrs Pakistan Insurance Corporation v. Pak Insurance Company Ltd (PLD 1960 (W.P.) Kar. 74), Mr. Qadeeruddin Ahmad, J. (as he then was) held as under:-- "In the present case the General Manager of the defendant company has been authorised to act for his principal in all matters relating to settlement, adjustment and compromise of the suit. The several acts which he is expected to do for achieving the object constituted one . C transaction, but the power that is conferred on him is General in so far as the contemplated transaction is concerned. The power of attorney is, therefore, special for the Stamp Act and general for making the transaction. " In Khayam Films and another v. Bank of Bahawalpur Ltd (1982 C L C 1275) it was held that the person did or did not have authority can effectively be challenged only by the principal. It was held:-- '....If in spite of the objections taken the principal continues to recognise the authority of the agent to institute the suit I am inclined to think that this would amount to a ratification and the suit would be a validly instituted suit. I am further clearly of the opinion that it is wrong on the part of the Court below to promptly frame a preliminary issue on such questions and then go on with it for a couple of years before the main claim comes to be considered. Such a practice is to be deprecated: If the plea of the kind as taken in this case is raised it may be tried alongwith the whole suit. I say to because my impress is that these pleas are taken recklessly and most of the time the idea is to delay the decision of the suit. These delays are detrimental to a healthy commercial practice. " In Haji Muhammad Rafiq v. Shahensha Jehan Begum PLD 1987 Kar. 180 I held:-- "Order VI, Rule 15 requires that every pleading shall be signed by the party and his pleader, if any, provided that where 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. Order VI, Rule 14 provides that in certain circumstances a pleading may be signed by any person duly authorised by the plaintiff to sign the plaint or to sue on his behalf. The expression 'signed by a person duly authorised by him to sign the same' need not be restricted to written authorizations. If the authorization is proved, even an oral authorization should be taken as sufficient and there is no reason to read Order VI, rule 14 as requiring written authorization or a power of attorney. Order 111, rule 2 describes who the recognized agents referred to in Order III, rule 1 are. A bare reading of Order III, rule 1 shows that it only applies to appearance applications or acts in or to any Courts required or authorised bylaw to be made or done by any party in such Court. The signature on a plaint is not an appearance or application, or act in or to a Court. The presentation of plaint may be an act to or in a Court, but the mere act of signing a plaint would not be an act in or to a Court. A bare perusal of Order IV, rule 1 shows that it merely provides that every suit shall be instituted by presenting a plaint. Order IV, rule 1 does not specify by whom a plaint is to be presented. A plaint can, therefore, be presented by any person." The principles laid down in the above cases are applicable to the facts of the present case. The learned counsel for the respondent has fairly conceded this legal position. The learned District Judge has not considered this aspect of the case. For the aforesaid reason the revisions are allowed, the impugned judgment, dated 26-11-1988 is set aside. The civil miscellaneous appeals are remanded to the learned District Judge for disposal according to law after affording full opportunities to both the parties. The parties through their counsel are directed to appear before the learned District Judge, Karachi South on 7-3-1989. In the circumstances of the case, the parties shall bear their own costs. Q.M.H./M.A.K./M-339/K Case remanded.