2008 PLP 2418 (YLR)

KHAWAJA NAVEED AHMED, J.

This second appeal has been filed on behalf of the appellant Muhammad Zarkhaiz against the judgment of both the Courts below dated 7-3-2003 and 17-2-2004. The learned 1st Senior Civil Judge, Karachi East had dismissed Civil Suit No.581 of 2002 on a technical point that Messrs Kehkashan Textile (Pvt.) Ltd. has not been made party in the suit, though the property was in the name of Kehkashan Textile (Pvt.) Ltd. The Court had further observed that Niaz Khalid was the Chief Executive of the firm and the plaintiff through his pleading as well as through the documents filed by the plaintiff could not establish that Niaz Khalid had any authority given by the Board of Directors to sell the property belonging to Kehkashan Textile (Pvt.) Ltd. Being aggrieved from this judgment and decree of dismissal of suit the appellant had filed Civil Appeal No.73 of 2003 and the learned II ADJ, Karachi East vide his judgment dated 17-2-2004 was pleased to uphold the order of the learned Senior Civil Judge. I have heard Chaudhry Abdul Rasheed, Advocate for the appellant at length. He had drawn my attention towards the Articles of Association of the Company and has darwn my attention towards Clauses 35 and 36 of the Articles of Association which gives powers to the Chief Executive to enter into agreement on behalf of the Company. These clauses are available in Articles of Association of the Company and the appellant has taken the plea of ignorance of indoor management of the company. It is too late at this stage to entertain this plea of indoor management. Be that as it may the factual position is that the appellant had given money to respondent No.1 under an agreement and as per his statement he had taken the possession of the property. I have heard Mr. Muhammad Anwar Tariq, Advocate, who has strongly opposed this second appeal on the ground that no point of law has been raised by the appellant in this appeal. The second appeal is no maintainable on facts and both the Courts below have rightly dismissed the suit as well as civil appeal. The learned counsel for the respondent has drawn my attention towards the order of this Court dated 20-3-2006, which is reproduced hereunder:- "Learned counsel for the appellant states that he has filed an application under Order I, rule 10 C.P.C. for impleading Messrs Kehkashan Textile (Pvt.) Limited, as the party and submits that the above party is a necessary and proper party because the sale agreement which is the subject-matter of the dispute and for specific performance of which the suit was filed by the appellant was executed between Messrs Kehkashan Textile Mills (Pvt.) Limited and the appellant. However, on examination of the impugned orders of the trial Court and appellate Court it is seen that the suit was rejected and the Appeal was dismissed only on the point that a Chief Executive of the Company does not have the powers to dispose of the property of the Company. In the agreement itself also it is not mentioned under what authority of the Company the Chief Executive Mr. Niaz Khalid, being arrayed as respondent No.1, executed the Agreement of Sale nor any Board Resolution of the Company has been attached, authorizing the Chief Executive to execute the sale agreement on behalf of the company. Learned counsel for the appellant requests for time to satisfy the Court on this point. Adjourned to 27-3-2006." Mr. Muhammad Anwar Tariq has strongly relied upon the above mentioned order and has argued that the initial objection raised by this Court has not been met with by the learned Advocate for the appellant till date and as such appeal should be dismissed in limine. I have considered the arguments of both the learned counsel and have perused the record. It is a case of non-joinder of necessary party. The learned Advocate for appellant in second appeal has moved an application under Order I, rule 10 C.P.C. for making Kehkashan Textile (Pvt.) Ltd as party. I am afraid that at this stage this Court cannot allow this application as in second appeal new party cannot be introduced. However, to meet the ends of justice and in order to provide fair opportunity to the appellant to contest his case on merits I set aside the judgment of both the Courts below and remand the case back to the trial Court where it is open for the appellant to move application under Order I, rule 10 C.P.C. and proceed according to law. The observations made in this order are tentative in nature and the trial Court should not be influenced by it and should proceed on merits according to law on the basis of evidence produced before the trial Court. Second Appeal No.25 of 2004 is disposed. All the miscellaneous applications stands dismissed and all interim orders passed on miscellaneous applications stand withdrawn. Nazir is directed to restore the possession of the property to the party from whom he had taken it. S.A.K./M-90/K Appeal disposed of.