1991 PLP 821 (MLD)

J.H. Rahimtoola for Plaintiffs. Iqbal Akhtar for Defendants. This application has been moved by the defendant No.6 under Order I rule 10 C.P.C. read with Order VII rule 11 and section 151 C.P.,C. with the prayer that the name of the said defendant (M/s. Habib Bank Limited) be struck off or in the alternate the plaint against them be rejected. I have heard Mr. Iqbal Akhtar, learned counsel for the defendant No.6. He has submitted that a plain reading of the plaint will show that the present applicant are neither necessary nor proper party to the suit; and that they have been joined only to cause harassment. He has further submitted that the plaint does not disclose any cause of action against the present defendant. Mr. J.H. Rahimtoola, learned counsel appearing for the plaintiffs has submitted that this is a suit filed by the plaintiffs for "cancellation and delivery of forged and made up agreement and receipts, compensation and damages, possession, mesne profits, receiver and ancillary reliefs." The facts as disclosed in the plaint show that the property in suit was initially owned by plaintiffs Nos.l to 4, which they subsequently contracted to sell to plaintiffs Nos.5 to

10. However, the defendant No.0 filed the suit claiming to be the purchaser of certain premises of the property in suit being Suit No. 1505 of 19.8.8 in the Court of VIIth Senior Civil Judge, Karachi (South). The sale agreement dated 10th January, 1987 was produced by him in the said suit, photostat copy of which agreement is filed in the present suit alongwith the plaint. The plaintiffs in the present suit claim this agreement to be a forged and made up one, as alleged in para. 8 of the plaint. In para. 8 of the plaint, it is further alleged that amongst others, one Mr. Nafisuddin, who is also a defendant in his personal capacity had signed the said agreement as a witness. It is further in the plaint that the present applicant (Defendant No.6 in this suit) is an employer of said Mr. Narisuddin and, therefore, liable as such for his acts and conduct for the loss and damage caused to the plaintiffs. Mr. J.H. Rehimtoola, learned counsel for the plaintiffs has further submitted that it is the contents of the plaint and its accompaniment which are to be taken into consideration and to be treated as true for the purposes of determining if any cause of action has accrued to the plaintiffs. There is no cavil about this proposition of law. Mr.J.H. Rahmitoola, learned counsel for the plaintiffs has further submitted that since Mr. Nafisuddin is an employee of Habib Bank Limited, therefore, the said Bank is vicariously liable for the act of Mr. Nafisuddin, who according to the learned counsel is a party to fraud and forgery as he had signed the said agreement. In light of above facts, the point for determination is whether Messrs Habib Bank Limited being an employer of said Mr. Nafisuddin are vicariously liable for his act of putting his signatures on the allegedly forged agreement as a witness. The main thrust of the learned counsel for the plaintiffs was to the effect that Mr. Nafisuddin being an employee of the Bank, the Bank would be vicariously liable for all his acts whereby any loss and damage is sustained by the third party as this claim is in tort. He has placed reliance on the case of Capt. Benaras Khan P.N. (Retd) v. Commodore Akhter Hanif and another (1988 C L C 1093). In my view, this case has no application in the present case as the facts in the above-cited case were that defendant No.1 had acted as an officer of defendant No.2 and certain wrong notices were published showing the dismissal of the plaintiff for the service although he had resigned and, therefore, he had damages on account of defamation etc. As against this, in the present case, a perusal of the agreement will show that Mr. Nafisuddin has simply put his signatures on the agreement as a witness. This agreement pertains to a private transaction between individuals and has absolutely no connection whatsoever with the defendant Habib Bank Limited or its business. The agreement does not show that Mr. Nafisuddin had represented him as an officer of the Bank or even that the agreement was written, typed or signed in the Bank premises. This act of Mr. Nafisuddin is totally an independent act and is neither done in the interest of the Bank nor in course of his employment which shows that the said act of his was outside of the course of his employment. In the case of Warren v. Henlys Ltd. (1948) 2 All ER 935, it was observed as under:

"...if the unauthorised and wrongful act ....is not so connected with the authorised act as to be a mode of doing, it, but is an independent act, the master is not responsible for in such a case the servant is not acting in the course of his employment, but has gone outside of it." "The make an employer liable for the act of a person alleged to be his servant the act must be one of class of acts which the person was authorised or employed to do. If the act is one of that class the employer is liable, though the act is done negligently or, in some cases, even if it is done with excessive violence. But the excess may be so great as to take the act out of the class of acts which the person is authorised or employed to do." Also in the case of Canadian Pacific Railway Company v. Lockhart (1942) A.C. 591, the Privy Council had observed as under:-- "On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside of it:" In view of the principles of vicarious liability as laid down in the above cases, the defendant Habib Bank Ltd. cannot be held to be vicariously liable for an independent act of their employees which are committed or performed by them outside the scope of their authority in course of their employment. Mr. Nafisuddin is otherwise a defendant in the suit in his personal capacity. In these circumstances, I allow this application with no order-as to costs The name of defendant No.6 shall be struck off.

2. For settlement of issues, to come up on 21-2-1991. AA./R-164/K Application accepted.