1980 PLP 1932 (CLC)

(b) Additional Chief Secretary, Government of the Punjab, Planning & Development Department Director (c) Chief Land Commissioner Director (d) Secretary to Government of the Punjab, Finance Department Director (e) Secretary to Government of the Punjab Agriculture Department Director (J) Secretary to Government of the Punjab, Livestock, Fisheries and Dairy Development Department Director (g) Non-official Members not less than four in numbers to be appointed by the Government ... Director (h) Managing Director ... Director." (2) The Managing Director shall be appointed by the Government and shall be ex officio Secretary of the Board of Directors. (3) Government may by notification in the official Gazette alter the membership of the Board or increase or decrease the number of Directors.

6. Managing Director.-(i) The Managing Director shall be the Chief Executive of the Board and shall- (n) be a whole-time officer of the Board unless Government directs otherwise ; (b) perform such duties as may be specified or as may be assigned to him; (c) hold office as Managing Director for a period of three years ; and (d) receive such salary and allowances as the Government may deter mine. (2) Nothing in this section shall preclude the Government from ex tending the term of office of the Managing Director for such period as Government may determine. (3) Notwithstanding anything contained in this Ordinance, the Managing Director may, at any time before the expiry of his term and upon one month's notice resign his ofce or upon similar notice or one month's pay in lieu thereof, be removed from office by Government without assigning any reason.

11. Delegation of powers.-The Board may by general or special order, delegate to the Chairman, Managing Director, Directors, Advisers, Officers, Experts, Consultants or employees of the Board or the Committees constituted under section 9, any of its powers, duties or functions under this Ordinance and the rules and regula tions made thereunder subject to such conditions as it may deem fit to impose." It is evident from the above referred provisions of law that the appellant Board is a body Corporate under the aforesaid Provincial Statute consisting,, of Board of Directors including a Managing Director as the Chief Executive of the Board and crispy or be sued is its dame. The Administration Management of the affairs of the Board exclusively vest in the Board of Director.

8. There is nothing to indicate in the aforesaid statute that a Project Manager of one of the Projects, managed and run by the Board itself., can defend and look after the affairs of the Board without any previous sanction of the Board of Directors. The appellant has not placed any material on the record to prove that Abdur Razzaq, Project Manager was ever authorised on the relevant date by any general or special order of the Board to institute an application, for setting aside the ex parte decree on behalf of the appellant. 9 The Board is controlled by the Statute and cannot exercise any functions which it is not authorised to do under the Statute. The only' section in the Act III of 1974, that empowers the Board to delegate its powers to its officers as section 11 referred to above and this section make no specific reference to the matter in question. However according section I l (supra) the Board as defined in section 2(a) of the Act, may delegate any of its powers, duties or functions under the Act by general or special order to certain persons including employees of the Board or the Committee constituted under section 9 of the Act subject to such condi tions as it may deem ft to impose. Undoubtedly Abdur Razzaq A. W. 1, Project Manager is either an employee of the Board or of the Committee who, appearing as a witness frankly conceded that he held no power of attorney behalf of the Board in his favour. Facing this situation, the learned counsel for the appellant diverted my attention to an application on the file submitted through Mr. Abdul Majid Khan Advocate on 15th March, 1979 praying that Managing Director of Punjab Livestock, Dairy and Poultry Development Board may be permitted to sign the main application and on the strength of that application he tried to argue that Managing Director of the appellant Board owned the main application and validated the actions of Abdur Razzaq A. W. 1, Project Manager. The argument developed by the learned counsel for the appellant is basically untenable and fallacious, inasmuch as this subsequent application presented on 15th March, 1979 itself suffer from the similar incurable defect. 10. 1 have carefully perused the application. It was made after the close of the evidence. Moreover this application is itself a nullity in the eye of law as it does not bear the signature of any person authorised by the Board except that of Mr. Abdul Majeed Khan Advocate in whose favour no power of attorney was ever executed by any duty authorised person on behalf of the Board. Therefore that application too was not competent in the eye of law. However it appears that the Managing Director of the Board was fully alive of the weak aspect of the instant case and unsuccessfully tried to cover the fatal defect, not keeping in view that an illegal act cannot be legalized subsequently as ratification is of not avail in those cases where the original act was ab initio illegal.

11. The learned trial Court ruled out this important legal objection and decided Issue No. 2 arbitrarily on this wrong assumption that signing and instituting of plaint are one and the same thing and hence defective signing is not fatal but curable under the law and reliance was placed on Shofi Metal Works and others v. The Bank of Bahawalpur Ltd., Gujranwala (P L D 1973 Note 33 at p. 37) In fact the learned lower Court has totally misconstrued the meaning and scope of Order XXIX, rule 1, C. P. C. and wrongly relied upon the ease-law cited above. Order XXIX rule 1, C. P. C. does not authorise the persons mentioned therein to institute suits and legal action on behalf of the Corporation. It merely authorises those persons to sign and verify pleadings on behalf of a Corporation. The p institution of the suit and legal proceedings or their presentation is to done by the party in person or by his recognized agent or by a Pleader appearing, applying or acting as the case may be on his behalf as required by Order 111, rule 1, C. P. C. 11-A. In Notified Area Committee, Okara v. Kidar Nath and others (A I R 1935 Lah. 345) the Divisional Bench of this Court observed as under :- "Similarly Order XXIX, rule 1, C. P. C. also does not help the appellant. It merely defines the person who is authorised to sign or verify the- pleadings on behalf of the Corporation (Municipal Committee). It therefore comes into operation only after the proceedings have been validly started and cannot be utilized to authorise an unauthorised person to institute suits on behalf of the Corporation." This view gets further support from the dictum of the Supreme Court laid down in Khan Iftikhar Hussain of Mamdot v. Ghulam Nabi Corporation Ltd., Lahore (P L D 1971 S C 550) where it was observed that a suit on behalf of Company by a person (Director Incharge of Company) was not competent unless he was so authorised by a resolution passed by Company's Board of Directors. In that case suit was filed by the Managing Director in the absence of a valid authority. In the Thal Development Authority v. Nisar Ahmad Qureshi (P L D 1962 Lah. 839). Sh. Shaukat Ali, Advocate on the basis of the vakalanama signed by Mr. M. H. Soofi who had relinquished charge month earlier was held not competent to file the objections on behalf of the That Development Authority with the observation that no Pleader or Advocate can act in Court unless duly appointed by the instrument in writing by a party in view of the provisions of Order III, rules 1, 2, 3, 4 and 6, C. P. C. which may be referred for advantage as under :- "I. Order III, rule l.-Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf Provided that any such appearance shall, if the Court so directs, be made by the party in person.

2. The recognized agents of parties by whom such appearance, applications and acts may be made or done are :- (a) persons holding powers-of-attorney, authorising them to make and do such appearances, application and acts on behalf of such parties ; (b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is matte: or done, in matters connected with such trade or business only where no other agent is expressly authorized to make and do such appearances, applications and acts. 3. .......................... 4..--(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person ditty authorised by or under a power-of-attorney to make such appointment. (2) Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client of the pleader, as the case may be, and filed in Court or until the client or the pleader dies, or until all proceed ings in the suit are ended so far as regards the client. (3) ............................... ....................................... (A)

(5)

5.

5.-(1) Resides the recognized agents described in rule 2 any person residing within the jurisdiction of the Court may be appointed an agent to accept service of process. (2) Such appointment may be special or general and shall be made by an instrument in writing signed by the principal, and such instru ment or, of tile appointment is general, a certified copy thereof shall be filed in Court.

12. Beside the prevision of Order III, C. P. C., relevant Rules and Orders of the High Court of Judicature at Lahore cannot be ignored. According to rule 2 in Chapter 6-B of Volume V, no Advocate or Vakil shall act for any person is any Court unless he has been appointed by an instrument in writing. Chapter 16, Part `A' of Volume 1 of Rules and Orders provides for filing of the power of attorney by a Pleader who is required to act for a Court of Law. The above cited Rules may conveniently be quoted as under :-- Volume V, Part-.3. 2

No Advocate or Vakil shall act for any person in any Court unless he has beer, appointed by any instrument in writing as required by Order 111, rule 4 of the Code of Civil Procedure, 1908, as amended by Act XXII of 192.6. Chapter 15.

Legal Practitioners. Part A.

The filing of Powers-of-Attorney by Pleaders in subordinate Courts. Whereas by Order III, rule 4 of the Code of Civil Procedure, no pleader shall fact' for any person in any Court unless he has been appointed by an instrument in writing, nor shall any pleader, who has been engaged for the purpose of pleading only, plead on behalf of any person unless he has filed in Court a memorandum of appearance or unless he has been engaged by another pleader duly appointed, and no such pleader can be recognized in the absence of a written authority or memorandum of appearance as aforesaid as empowered to plead or act for any person in arty proceeding governed by the Code of Civil Procedure, and it is expedient to provide for ascertaining that every such pleader is duly authorised to appear, plead or act in any such proceeding before subordinate Courts, the following instructions have been issued by the High Court :- . (1) Every appointment of a pleader to act shall contain in the name of the person, or where there are more than one, of every person who thereby appoints the pleader to act on his behalf, and shall be executed by every such person. (2) When such appointment or power is not executed by the principal himself, but by some person claiming to appoint or give authority on his behalf, the pleader will not be recognized by the Court without proof that such person was duly authorised by the principal to execute such appointment or power. (3) In cross appeals a pleader who has already filed a power of attor ney or memorandum of appearance for the appellant shall not be required to file another power of appearance for the appellant shall not be required to file another power of attorney or memorandum of appearance for his client as respondent in the cross appeal."

13. In the light of what has been discussed above I am constrained to hold that application under Order IX, rule 13, C. P. C. was not filed by a duly authorised person and Mr. Abdul Majeed Khan Advocate could not be deemed to have been duly constituted recognized agent or a Pleader for the defendant-appellant.

14. Assuming without holding that Abdur Razzaq A. W. 1 was a duly authorised person to file an application under. Order IX, rule 13, C. P. C. on behalf of the appellant, even then the application for setting aside the ex parte decree is not sustainable in the eye of law. The sole ground alleged by the appellant in support of his plea is that he was never served upon according to the relevant provisions of C. P. C. In order to substantiate that allegation he produced Abdur Razzaq A.W.

1. Project Manager and Naeem Sultan A. W. 2 a senior clerk serving under the appellant Board. Naeem Sultan A. W. 2 has admitted the receipt of summons vide Exh. R. I under his own signatures thereon. He further revealed that whatever be received vide Exh. R. 1 was essentially trans mitted by him to the concerned Officer (Managing Director of the Board). Abdur Razzaq A. W. 1. admitted in cross-examination that Exh. R. I and Exh. R. 2 were addressed correctly. Murtaza Ali, Postman R. W. 2 disclosed that he delivered the registered notices to the despatcher at given address in the Head Office of the appellant who received such registered notices per direction of the Managing Director. The learned counsel for the respondent invited my attention to the provisions of Order XXIX, rule 2 of C. P. C. which provide that when the suit is against a Corporation the summon may be served, (a) on the Secretary, or on any Director or other principal Officer of the Corporation or (b) by leaving it or sending it by post addressed to the Corporation at the registered office. It is evidently proved on the record that the defendant-appellant was validly served upon with a notice in accordance with the provisions of Order XXIX, rule 2 of Code of Civil Procedure. This fact is further strengthened by the assertion of Abdur Razzaq A. W. 1 made in his- statement as under :- In may safely be presumed from the above statement that Abdur Razzaq A. W. 1 who claims to be the principal officer of the Board though he is not so but is merely a Project Manager of Meat Complex, was in know of the institution of instant suit against the appellant long before his alleged meeting with the decree-holder in Kohati Bazar on 22nd June, 1978.

15. The learned counsel for the appellant utterly failed to controvert the above contentions and mostly argued with reference to the merits of the main suit which is not a matter in issue before me, However he submitted that the appellant was never duly served. According to him A. W. 2 who admitted the receipt of notice vide Exh. R. 1 issued in the name of appellant Board is merely a clerk and does not enjoy the status of a principal officer or agent of the Board and therefore the receipt of summons by him would not amount to service of summons upon the appellant. He further urged that as the appellant does not reside within the territorial jurisdiction of civil Courts at Rawalpindi, the provisions of Order V, rule 21, C. P. C. should have been complied with for effecting due service upon the appellant. As it is stated above, Order XXIX, rule 2, C. P. C. is a complete answer to the above conten tion. In the instant case, as the suit was filed against the defendant-appellant, a statutory body Corporate, the summons could be served upon it by leaving it or sending it by post at its registered office and evidently the procedure laid down by Order XXIX, rule 2, C. P. C. as discussed above was fully complied with in the present case. I am conscious of this legal proposition that the mode of service provided by Order XXIX, rule

2. C. P. C. may be availed only in cases where there is no mode of service provided by any other Statute as the, application of this rule is "subject to t any statutory provision regulating service of process". This rule in fact provides for a mode of service not in addition to but only in cases where there is no mode prescribed by any Statute otherwise than C. P. C. A reliance may be placed on the law laid down in Asiatic Steam Navigation Co. Ltd. v. Tribhawan Das & Co. (AIR 1928 Sind III) The learned counsel for the appellant failed to point out any other mode provided by Act No. III of 1974 or any other enactment for effecting service of process on a statutory Cor poration other than those contained in Order XXIX, rule 2, C. P. C. Moreover second proviso added to Order XXIX, rule I3, C. P. C. further set at rest the matter in dispute. According to this proviso if the Court is satisfied for reasons to be recorded that the defendant had knowledge of the date of hearing and sufficient time to appear on that date and answer the claim, no decree passed ex parte can be set aside on account of any irregularity in the service of summons. I am therefore of this view that the appellant was duly served with the summons and had sufficient know ledge of the suit from the date of service. Having given my careful consi deration to the aforesaid discussion I am further of this view that the finding of the learned trial Court on issue No. 1 is based on correct appraisal of law and facts on the file.

16. The upshot of the above discussion is that F. A. O. No. 217 of 1979 is hereby dismissed and cross-objections vide C. M. No. 3398/C of 1979 are hereby accepted, leaving the parties to bear their own costs. M. Y. M. Order accordingly.