P L D 1972 Peshawar 175 (PLP)

ABDUL HAKEEM KHAN, J.‑--Mr. Muhammad Yousaf Khan Khattak feels aggrieved by the order dated 13th May 1972, of the Election Tribunal presided over by Mr. Allah Bakhsh Khan, declaring the former's election to Constituency No. NW‑1 Peshawar‑I to be void on the ground, that he was the Managing Director of the K. K. & Company Ltd, Peshawar, on the date of filing of nomination papers, as also on the date of scrutiny in violation of Article 9(2)(h) of the, Legal Framework Order, and has preferred appeal with reference to section 64(3) of the National and Provincial Assemblies (Elections) Ordinance, 1970 (hereinafter called the Elections Ordinance).

2. It has been conceded, that the K. K. & Company Ltd. (hereinafter called the Company) is a public limited company, it had a contract for the supply of goods with the Government during the relevant period; and the appellant was its Managing Director and as such holding an office of profit in the Company up to 10th December 1970. The entire controversy between the parties on which the fate of this appeal hinges is, that while it is contended on behalf of the appellant, that consequent upon his resignation, the appellant ceased to be a Director of the Company with effect from 10th December 1970, the contention of respondent No. 1, Mr. S. M. Ayub, on the other hand, is that the appellant continued to be the Managing Director of the Company up to Ist January

197. So to speak, the appellant was occupying the position of a Managing Director on the crucial dates of nomination, viz., 27th December 1970, and scrutiny on the following day. There is no dispute with the proposition that if the appellant continued to be the Managing Director of the K. K. & Company Ltd. even up to 27th December 1970, the conclusion arrived at by the learned Tribunal will be sustainable in law. A reference to section 65(1)(b) of the Elections Ordinance will show, that it was within the powers of the Tribunal to declare the election of a returned candidate to be void, if it was satisfied that the returned candidate was not on the nomination day qualified for, or was disqualified from, being elected as a member. It may at once be stated, that no other point has been pressed in this appeal, though it must be mentioned, that many questions of fact and law have to be considered in connection with the sole controversial pint allued to above.

3. To appreciate the questions involved, it will be necessary to advert to the petition of respondent No. 1, namely, Mr. S. M. Ayub, and the written statement of the appellant, filed before the Tribunal. A reference to paragraph No. 1/P of the petition will show, that respondent No. 1 had categorically stated, that the appellant, Mr. Muhammad Yousaf Khan Khattak, had resigned on 1st January 1971. Paragraph No. 1/P reads.‑ That the respondent No. 1, however, has resigned from the said Managing Directorship of the K. K. & Company Ltd. on 1‑1‑1971, I.e. after the nomination papers were scrutinised and accepted, i.e., the 28th of December 1970. Please refer to Annexure 'A'. The appellant, however, refused the above said assertion, that he resigned on 1st January 1971, and in reply, contended, that he submitted his resignation on 10th December 1970, and that the same became effective from that very day. Paragraph No. 1/P of his written statement reads:‑ That the contents of this paragraph are also incorrect are therefore denied. The petitioner has made a false statement that the Replying respondent No. 1 resigned from the Managing Directorship of K. K. & Co, on 1st January 1971. AS submitted in the preceding paragraphs and established from unimpeachable documents, the Replying respondent No. I resigned from the Board of Directors on 10th December 1970 and hence ceased to be either a Director or a Managing Director with effect from that date.

4. The conclusion of the Tribunal on a consideration of the evidence led and the documents produced before it is, that the resignation was tendered on 10th December 1970, and that it was accepted by the Board of Directors on 1st January 1971. It remains to be seen, as to whether there was any misreading of evidence in arriving at the aforementioned conclusion, but before we discuss that, we will like to take note of the arguments addressed by Mr. S. M. Zafar, learned counsel for respondent No. 1, that in all probability, the resignation in the case was tendered after 14th January 1971, when the unofficial result of the election was known and that the evidence was manipulated to witness, that the resignation had been tendered by the appellant on 10th December 1970.

5. We have given our anxious thought to the matter and taking into account the allegations in paragraph No. 1/P of the petition as reproduced above; reply of respondent No. 1, as respects Exh. P.E; evidence brought on the record; and more particularly the omission to put any cross‑question or suggestion in this behalf to the appellant, it becomes crystal clear, that it has never been the case of respondent No. 1, that the appellant tendered his resignation after 14th January 1971, when the result was declared and that the documents upon which the latter relies were ante‑dated to suit his purpose. While there is `considerable force in the argument, that it was quite easy for the appellant to have ante‑date the documents which he relies and which he has produced in support of his contention because of a very close affinity of the Directors of the Company with each other, we are not prepared to allow respondent No. 1 to set up a new case in this appeal, which is restricted in its scope and is permissible only on such grounds on which a second appeal under section 100, Civil Procedure Code, could be brought to this Court.

6. It may here be mentioned, that it is the case of the appellant himself, that he tendered the resignation on 10th December 1970, and further, it is not denied by him, rather Exh. DF and Exh. DH themselves show, that the resignation was accepted on 1st January 1971. We do not feel persuaded to disagree with the conclusion of the learned Tribunal, in so far as the factual aspect of the case is concerned. On legal plane, however, we will like to reserve our conclusion for the present; for, inter alia, it has been strenuously argued, that the resigna tion of the appellant from both the posts of Director and Managing Director took effect on 10th December 1970, and that its acceptance by the Board on a later date, viz., 1st January 1971, was inconsequential.

7. Learned counsel on either side have conceded, that it is settled law, that toe articles of association of a company are conclusive on the point, as to when the resignation of a director shall take effect. A reference to section 86‑I of the Companies Act, 1913, which relates to the "vacation of office of director" will establish the proposition beyond doubt. In subsection (1) of this section, as many as eight grounds have been listed to show, as to when the office of a director shall be vacated omitting, of course, the contingency of resignation. The very fact that sub section (2), ibid, provides: Nothing contained in this section shall be deemed to preclude a company from providing by its articles that the office of director shall be vacated on grounds additional to those specified in this section will show, that articles of association can provide, that a director shall vacate his office on grounds not specified in the section, and since resignation is a contingency not listed in the section, it can appropriately be made an additional ground in the articles of association leaving, of course, full discretion to the framers of the articles of association to provide for the date on which resignation made shall be deemed to take effect. In this view of law, we also get ample support from the Commentary under the title "Resignation" at page 241 of the Indian Companies Act by K. M. Gosh, Ninth Edition; another Commentary under the same heading at pages 535‑536 viz., the Palmer's Company Law by Clive M. Schmitthoff, L.L.D., 20th Edition; Paragraph 64 at page 321 of the Halsbury's Laws of England, Third Edition, Volume 6; Glossop v. Glossop (97 I T R 372) and Raja Balaadur Shidlal Motilal v. The Tricumdas Mills Company Limited (I L R 36 Bom. 564).

8. The articles of Association of the Company (hereinafter called the Articles) are Exh. DG and Article 78 which provides for filling up of a vacancy reads:‑ Any casual vacancy occurring on the Board of Directors may be filled up by the Directors, but the person so chosen shall be subject to retirement at the same time as if he had become a Director on the day on which the Director in whose place he is appointed was last elected as Director. It will be seen, that the powers to fill up a vacancy has been given to the Directors and the remaining two Directors of the Company, namely, General Habibullah Khan and Begum Kulsoom could fill up the vacancy in pursuance of the powers conferred upon them by Article 80, ibid. A reference to the general meeting in Exh. DH is misleading. In the circumstances, we do not find it permissible to invoke Article 51, ibid, and in the result, hold that since the quorum of five members was not there, the acceptance of the resignation could be attacked on that ground. Be that as it may, though we have been through the Articles (Exh. DG) again and again, we have not been able to lay our hands upon any specific provision, regarding the acceptance of a resignation. Had there been some specific provision that could have been very naturally helpful and conclusive. Nevertheless, it seems to us, that there is enough material in the Articles to lead to the inference, that the resignation from directorship could not per se irrevocably terminate all the links of a director with his office. In this view, we are supported by the contents of Article 88, ibid, reproduced below: If at any meeting at which an election of Directors ought to take place, the places of the vacating Directors are not filled up, the vacating Directors or such of them as have not had their places filled up shall if willing continue in office until the ordinary meeting in the next year. We will like to elaborate the point further. As already observed, the appellant resigned from the post of directorship, vide his letter dated 10th December 1970 (Exh. DA). Now, if Article 83, ibid, was to be the solitary article in the field, there can be no two opinions, that the office stood vacated eversince the resignation, i.e., 10th December 1970, and it could have been urged without fear of contradiction, that thereafter, the appellant became functus officio. But as already indicated, Article 88, is also in the field along with Article 83. 'To explain the point, we propose to make a direct reference once again to Article 78 (already reproduced) which provides for filling up of a casual vacancy. There is no doubt, that in the instant case, the resignation did result in a casual vacancy. This vacancy, as it is always the case, could not be filled up no sooner it occurred. A meeting had to be called, and it is quite understandable, that for one reason or the other, it might not have been possible for the remaining directors to fill up the vacancy. On the happening of such an event, as already pointed out, the vacating director had the, option to continue in office until the ordinary meeting in the next Sear. From this it logically flows, that immediate cessation or termination of links on tendering resignation was never intended.

9. The directors may or may not have been able to hold meeting on fat January 1971, at all. In any case, no body could be sure, that on 1st January 197'... both the remaining directors would have agreed on the appointment of successor. What would have happened, if the two directors had differed. There would have been one against one. It was precisely for this reason, that the option to continue as director remained vested in the appellant till a successor was elected on 1st January 1971, and it appears to us, as we shall discuss at the appropriate stage, that this option was not renounced by the appellant; rather remained with him till 1st January 1971, when a substitute was elected. We will like to emphasise, that the words "if willing to continue in office" in Article 88, ibid, are highly significant and speak for themselves.

10. In the above view, we are also reinforced by the provisions of Article 92, ibid, which permit in the case of the Managing Director deviation from automatic and rigid applica tion of Article 83, ibid. A reading of Article 92 will show, that rigid enforcement of Article 83 could be contracted out for good and valid reasons. A Managing Director is the kigpin in the organizational structure of a company, and it will be sheer madness to think, that the Articles could countenance a vacuum for a single moment especially when the number of directors was minimal, i.e., three, and Article 80 did not allow the remaining two directors to act in any matter other than the filling up of the vacancy.

11. On the view of the matter that we take, we consider that it was of utmost importance for the appellant to have brought on the record the contract to re‑enforce his contention, that his resignation from the post of directorship did not oblige him to wait for the acceptance of his resignation. The contract between the appellant and the Company was a matter which was within the knowledge of the appellant and it was, therefore, his duty to have produced it, or he should have caused it to be produced to prove the all important contention raised on his behalf, viz. his resignation from the post of directorship was to take effect ipso facto and was irrevocable. Unfortunately, the appellant has made no attempt, whatsoever, in this behalf, rather, he has considered it fit to state in his cross‑examina tion:‑ I do not remember if there is a provision in the Articles of Association of the Company that the resignation stood accepted automatically. That the Articles were also understood by the General Manager of the Company in this very sense, namely, before vacation of office, acceptance of resignation was necessary, is borne out by the fact, that on receipt of the appellant's resignation, an agenda (copy Exh. DD) was prepared on 10th December 1970, and the very first item on the agenda reads:‑ To consider the acceptance of resignation tendered by Khan Muhammad Yousaf Khan Khattak on 10th December 1970. It is true, that the second item on the agenda as below:‑ To elect a new Director and a Managing Director to the office of Director and Managing Director respectively vacated by Khan Muhammad Yousaf Khattak on 10th December 1970 gives an impression, that the office to which election was being held had been vacated on 10th December 1970, but this we do not consider to be the actual position. The vacation of office was and could not be otherwise than notional, when we advert to Article 88, ibid. That from the acceptance, of resignation alone, certain legal result were to flows will be all the more firmly established on a reference to the minutes of the meeting of the Board of Directors (Exh. DF), which show, that the following three resolutions were passed:‑ (1) Resolved that the Board of Directors accepted with deep regret the resignation of Khan Muhammad Yousaf Khan Khattak of 10th December 1970, from the Board of Directors of the Company, and from the office of the Managing Director of the Company. (2) It was resolved that Khan Muhammad Ayub Khan Khattak be elected to the office of a Director and it was also further resolved that Khan Muhammad Ayub Khan Khattak be elected to the office of the Managing Director of the Company. (3) A vote of thanks was proposed to Muhammad Yousaf Khan Khattak for his service to the Company.

12. Now, a question arises, if it was not necessary to accept the resignation and it had taken effect no sooner it was tendered, where was the occasion to resolve "the Board of Directors accepts with deep regret the resignation of Khan Muhammad Yousaf Khan Khattak of 10th December 1970", and why they did not specifically say, that it was accepted with effect from 10th December 1970, when it was tendered? That the resignation was accepted, and, as said before, made effective from 1st January 1971, and not earlier, will be borne out by the fact, that no date was given, as to when it shall be taken to have become effective. Exh. DH which is a copy of the statement that had to be conveyed to the Registrar, Joint Stock Companies, and is, therefore, a solemn document is also to a similar effect. It will be seen, that this information was supplied by the Company on 16th January 1971. It is in this context, that Annexure `A` to the petition equal to Exh. PB dated 16th January 1971, and Exh. PE dated 31st December 1970, assume a decisive role. It has to be noted, that Exh. DH was prepared under the mandate of section 82(2) of tine Companies Act and Exh. PB to meet the requirements of section 87, ibid. Subject to the argu ments of the learned counsel for the appellant that will be noticed in the sequel, it may be said, that these documents will con clusively show, that till 1st January 1971, there was no change in the Managing Directorship.

13. It may be stated at once, that the main attack of the learned counsel for the appellant is that Exh. PE has been surreptitiously smuggled in, and that it was not at all signed by the appellant the learned counsel adds, that even if it is found that Exh. DH and Exh. PB were seat by the Company, this should not affect that appellant's case adversely; for the latter could not be held responsible for any wrong statement prepared by the Company over the signature of its functionaries after his exit.

14. In support of his contention, that Exh. PE has been smuggled in, the learned counsel for the appellant submitted, that though Exh. PE was a basic document according to the replication dated 11th March 1972 of Mr. S. M. Ayub, respondent No. 1 (See III F) and anchor‑sheet of the latter's case according to the learned Tribunal (See first para. at page 4 of the judgment of the learned Tribunal), the fact rein sins, that it was not filed along with the petition, while the mandate of the Civil Procedure Code as in Order VII, rule 14(1) is, that it being a document on which the suit was based, at least a copy of the same should have been so filed. The learned counsel added, that since this document was not brought on the record with the leave of the Court as envisaged by Order VII, rule 18, Civil Procedure Code, and it came through the backdoor without adequate notice to the appellant and was got exhibited through P. W. 2, all this constitutes noting else but a surreptitious act of smuggling. To re‑enforce his contention, the learned counsel Invited our attention to tile omission on the part of the Learned Tribunal to comply with Order XIII, rule 4, Civil Procedure Code, which according to tae observations of their Lordships of the Privy Council in Sadiq Hussain Khan v. Hashim Ali Khan and others (A I R 1916 P C 27) were imperative and entailed the consequence, that Exh. PE could not be looked into. To fortify his submission further, the learned counsel added, that even the, respondent, namely, Mr. S. M. Ayub, himself when he came to the witness‑box, did not speak a word about Exh. PE and the same was also not put to the appellant when he happened to be in the witness box. According to the learned counsel, the appellant was not present in Court, when the document was smuggled in and that the latter only came to know for the first after 19th February 1972 (on which date the arguments on the petition were heard) that tae learned counsel for his opponent was relying on Exh. PE.

15. We have carefully considered the profuse argument addressed to us in this behalf by the learned counsel for the appellant and have come to the conclusion, that the premises on which these proceed are not sound and as such, untenable. While it is true, that the provisions of Order VII, role 14, Civil Procedure Code, are mandatory and the document which ought to be produced in Court when the plaint is presented shall not, without the leave of the Court, be received is evidence on behalf of the plaintiff at the hearing of the suit, vide Order VII, rule

18. The authorities cited by the learned counsel for the appellant, namely, The Lahore Improvement Trust v. Sh. Karamat Ali (P L D 1959 Lah. 597) and The Lahore Improvement Trust v. Messrs Khuda Baksh‑Meraj‑Din (P L D 1956 Lah. 252) are not going to be of much help to the appellant, even if one has to accord entire agreement with the proposition of law propounded in Mohammad Nawaz Khan v. Chairman, Punjab Road Transport Board, Lahore (P L D 1956 Lah. 1068), viz., the normal rule would be, that where a thing is required to be done in a certain way, it should be invalid, if not done in that way. The reason for this conclusion is, that Order XIII, rule 1, Civil Procedure Code, has been substituted by a local amendment in the N. W. F. P. and the same reads :‑‑ A documentary evidence shall be produced by the parties or their pleaders in the method and at the time prescribed in Orders VII and VIII provided that after the settlement of the issues, the Court may fix a date, not being more than thirty days after such settlement, within which the parties may present supplementary lists of documents on which they rely. A careful reading of the above amendment will show, that it is so couched, that it amends Orders VII and VIII of the Civil Procedure Code as well in their application to the N. W. F. P. by making an overriding provision, that the lists of reliance can be filed within thirty days of the Settlement of the issues. When we see, that the issues in this petition were framed on 22nd October 1971, and the lists of witnesses and documents were filed by both the parties on 30th October 1971, we find little hesitation in repelling the contention raised on behalf of the appellant by observing further, that the appellant's reliance on the dictum in Muhammad Nawaz Khan v. Chairman, Punjab Road Transport Board, Lahore is otiose. It may be added, that we also do not find any force in the contention of the learned counsel for the appellant, that Exh. P. E. was a document which had the same status as a document on which a suit is based, and it should, therefore, have been mentioned in the plaint or the list of reliances. Rather, we uphold the contention of Mr. S. M. Zafar, learned counsel for respon dent No. 1, that Exh. P. E. was nothing but a piece of evidence in support of his client's case, that the resignation was submitted by the appellant on 1st January 1971, and not earlier.

16. As the law in the N. W. F. P. to which reference has already been made provides for a further opportunity, the provisions of Orders VII and VIII of the Civil Procedure Code notwithstanding, to the parties to file their lists of witnesses and documents within thirty days of the settlement of the issues, and we have already observed, that it was in pursuance of the local amendment of Order XIII, rule 1, Civil Procedure Code, that both the parties were asked to file: lists of witnesses and documents, and, as a matter of fact, these lists were filed within eight days of the settlement of the issues, the only thing that remains to be ascertained in this context, is, as to whether or not, it was at all indicated in the list, that the .respondent will be relying upon the impugned document. Now, a reference to the list filed by respondent No. 1, which is at pages 74 and 75 of the main file, will show, that the Registrar, Joint Stock Companies, was mentioned at Serial No. 1, and that Form 'E' dated 21st December 1970, which was eventually exhibited as Exh. P. E. was mentioned at item No. 2 in the list of documents. In this state of record, we fail to understand, how the learned counsel for the appellant thought it fit to canvass the argument, that the document was smuggled in surreptitiously. If the appellant or his counsel before the Tribunal were not vigilant enough and were thus unable to get themselves acquainted with the record of proceedings, they can only blame themselves, 'The contention of the learned counsel, that Exh. P. E. was smuggled in surreptitiously in this state of record, to our mind, w6 say with utmost respect, is less than charitable. Indeed, we fail to appreciate, how such hard words can justifiably be used, when it is clear, that Aziz Bakhsh. (P. W. 2) was examined on 10th December 1971, and he introduced Exh. P. E. without any objection by or on behalf of the appellant, an; particularly when the appellant himself did not consider it fit to give a lie to the document, when he was examined about a month and half later, i.e., on 26th January 1972. It is extremely disappointing to see, that a document of high probative` value like Exh. P. E. placed on the record by the appellant's opponent as far back as 30th October 1971, could rot be discovered by the appellant till after 19th February 1972, despite the fact that it was exhibited in Court in the presence of the appellant's counsel without any objection. More so when P. W. 2 had even produced the original of Exh. P. E. in Court on 10th December 1971.

17. We now proceed to address ourselves to the question of admissibility of Exh. P. E. The learned counsel for the appellant strenuously argued, that since the exhibit was not endorsed as provided by the mandatory provision of Order XIII, rule 4, Civil Procedure Code, it cannot be looked into. ID, support of his contention, the learned counsel relied or Sadiq Hussain Khan v. Hashim Ali Khan and others and also referred to Attili Venkanna v. Parasuram Byas and another (A I R 1929 Mad. 522) While it is true, that the provisions of Order XIII, rule 4, Civil Procedure Code, are mandatory and the Privy Council has deprecated the non‑observance of the rule, but on a careful reading of the judgment of their Lordships of the Privy Council, it transpires, that the observations of their Lordships were prompted by the discovery of many instances in the record before their Lordships of documents prints of which were bound up in the record, but it could not be said, that those documents had been given in evidence. It was in this awful state of record, that their Lordships administered a warning, that in order to prevent injustice, their Lordships will be obliged in future on tie hearing of the Indian appeals to refuse to read car permit to be used any document not endorsed in the manner required by Order XIII, rule 4, Civil Procedure Code. So far as Madras case, viz. Attili Venkanna v. Parasuram Byas and another is concerned it was also a case of its own type; for the Judge's initial on a document had been placed by a third person by means of a rubber stamp. Evidently, this recourse did not evidence that the Judge had consciously applied his mind, when the documents were brought on the record.

18. Though the observations of their Lordships in Sadiq Hussain Khan v. Hashim Ali Khan and others command profound respect on our part, we will like to bring on the record, that in the instant case, by and large all the formalities required by Order XIII, rule 4, Civil Procedure Code, have been complied with. The exhibit's mark, date, signatures over it and the abbreviation E. T. (i.e, Election Tribunal) were endorsed by the learned Tribunal In his own band. The only missing feature; are the number and title of the suit, name of the person producing the document and the endorsement, that it has been so admitted. But, in our view, this is inconse quential; for it is clear from the capital letter 'P' in Exh. P. E , that the document was produced by the petitioner, and on the basis of our experience, we can say, that such exhibit marks are only placed over the signatures of a Judge or Tribunal, when a document is admitted in evidence,

19. There is yet another aspect of the matter, and it is that the omission to endorse strictly in accordance with the requirements of Order XIII, rule 4, Civil Procedure Code, is an act of the Court and it is well settled, that a party to a suit cannot be penalised or made to suffer for the act of Court. Again, there is a long chain of authorities, which disallows an appellate Court to interfere with the discretion exercise by the trial Court in admitting or rejecting a document, unless such a discretion has, be exercised capriciously or arbitrarily.

20. In 13 M I A 77 (P C), their Lordships of the Privy Council have observed, that whet: the trial Court In its discretion received a document at a late stage, late production cannot be the ground of appeal. There is also a Division Bench authority of the Lahore High Court in 1933 Lah. 892 to a similar effect. Again, a Division Bench of the Sind Judicial Commissioner's Court is Pribhadinomal Methumal and others v. Mst. Chuti and others (A I R 1933 Sind 379), has held, that where certain documents are produced by a party, and are referred to in the argument and make use of in the judgment also, the fact, that they have not been marked as exhibits is a mere irregularity which is not incurable. There is yet another Division Bench authority In Mukhi Ram v. Firm Kamta Parasad Balam Das (A I R 1937 Pat. 222), wherein their Lordships, after distinguishing A I R 1916 P C 27, held, that non‑compliance with Order XIII, rule 4, however reprehensible, does not make the document inadmissible in evidence. There are also three Division Bench authorities from our jurisdiction, which are directly in point. In Nathe Khan v. Asst. Rehmat Bibi and others (P L D 1961 B J 96), it was held, that the documents not exhibited but placed on record are admissible in evidence and can be looked into. In Allah Ditta v. Sardar Din (P L D 1961 Lah. 643), certified copies which were tendered after the conclusion of the arguments and were rejected by the trial Court, were admitted in evidence waiving the formalities inasmuch as the factum and validity of those documents were not in dispute. In Sultan Ahmad Choudhry v. Mustafizur Rahman Choudhry (P L D 1967 Dacca 216), the, failure of the Judge to endorse a document was not approved, and the document (Exh. P. 2) of that case which was a letter written by the Commissioner, Wakf, to defendant go. 1 was taken into consideration, repelling the objection ground on Order III, rule 4, Civil Procedure Code.

21. It may here be repeated, that in this ease, Exh. P. E. bears exhibit mark over the signature of the learned Tribunal, and that all the documents produced by the appellant himself have also been exhibited in the like manner. We also cannot overlook the fact, that section 59 of the Elections Ordinance does not insist upon a rigid and strict compliance with the provisions of the Code of Civil Procedure in the trials before the Tribunal, rather, it gives due allowance for such deviations as do not go to the root of the matter by providing "election petitions shall be tried as nearly as may be in accordance with the procedure in the trial of the suit under the Code of Civil Procedure". The underlining has been supplied to emphasise the point.

22. The learned counsel for the appellant has urged, that the mere fact that Exh. P. E. has been exhibited by the learned Tribunal will not discharge the onus probandi placed upon respondent No. 1 to prove the document and that this could only be achieved by proving the signature of that much of the handwriting as purports to be in the handwriting of the appellant. The learned counsel adds, that the requirements of section 67, Evidence Act, are mandatory and could not be dispensed with. On the other hand, the learned counsel for respondent No. 1 contended, that no sooner Exh. P. E. was admitted in evidence by the learned Tribunal without any objection on the part of the appellant, he was relieved, of his obligation to prove the document, as the law is well settled, that objection to the mode of proof cannot be taken up for the first time in appeal.

23. It may here be mentioned, that section 67, Evidence Act, does not itself indicate the mode of proof of a signature or a writing. It appears to us, that while in some cases, execution of the documents produced in evidence might be proved by calling a person who signed or wrote the document, or a person in whose presence the document was signed or I written, but such a recourse may not be necessary in each and every case; for instance, where a document is admitted under section 58, Evidence Act, or under some other provision of law. It, therefore, remains to be considered, as to whether the admission of a document in evidence without objection by the opponent will be sufficient proof of the signature and the contents.

24. But before we refer to the case‑law on the subject, we will like to bring it on the record, that for a full and complete appreciation of the case‑law, it will have to be borne in mind, that the Code of Civil Procedure provides for an adversary system of trial, and incidentally, the conduct of a party or its counsel during the trial may, in some cases, be conclusive. To elaborate the point, we will like to mention, that if a witness in the witness‑box is allowed to prove a document, which cannot be proved by him, there should remain no foundation for an objection at any subsequent stage, that the document was brought wrongly, and it should, therefore, not be looked into. The reason for visiting like omission with such a penalty is to be found in the fact, that if at the proper stage, the party objecting to the mode of proof had raised the objection, the party relying on the document might have produced all the best evidence available to him. The reason is quite discernible; for the party not objecting induces his opponent into belief, that what it was doing was either not objectionable or will not be objected to at a subsequent stage. In this view of law, we are re‑enforced by the two authorities of highest order In Abdullah and 3 others v. Abdul Karim and others (P L D 1968 S C 140) and Malik Din and another v. Muhammad Aslam (P L D 1969 S C 136). But apart from what is laid down in the above cited authorities, there are several other grounds, which have been pressed into service on behalf of respondent No. 1 by his learned counsel, Mr. S. M. Zafar, to settle the controversy conclusively, that Exh. P. E. stands even otherwise proved to be over the signature of the appellant. In the first place there is the admission of Mr. Muhammad Latif, Advocate, who appeared on behalf of the appellant before the Tribunal, that the signature on Exh. P. E. was that of the appellant; in the second place, Exh. P. E. was a public document and it could be proved by the mere production of its certified copy; and in the third and last place, the execution of the document shall be deemed to have been admitted by the appellant himself, inasmuch as the original of the document was produced by P. W. 2 Aziz Bakhsh, before the Tribunal on 10th December 1971, adding that Exh. P. E. was its certified copy, while on the other hand the appellant though he appeared about one and a half months later on 26th January 1972, did not dare to disown its contents or deny his signature over it. This conduct, according to the learned counsel for respon dent No. 1, implied, that the latter admitted his signature and the contents of the document. The learned counsel further added, that since the appellant did not contradict the evidence brought on the record with regard to the admission contained in Exh. P. E, it was not kit all necessary to contradict him formally by confrontation in compliance with the requirements of section 145, Evidence Act.

25. Before we enter upon a discussion on the point, as to whether the learned counsel for the appellant before the Tribunal did make the admission attributed to him in the judgment of the Court on page 10, which reads: I do recollect vividly that during the course of arguments I had asked the learned counsel for the respondent as to why the latter had signed Exh. P. E. and his answer was that it was signed by him erroneously or illegally. We will like to determine the effect of the statement of a counsel on a question of fact. A reference to Order III, rules 1 and 4, Civil Procedure Code, will be helpful. A careful study of the provisions will show, that a pleader can act on behalf of his client, if he has been so authorised. To ascertain, as to whether or not, Mr. Muhammad Latif, Advocate, to whom the admission has been attributed was actual, authorised to act for the appellant, we should like to refer to page 55 of the main fife on which his mukhtarnama appears. A perusal of the same will show, that Mr. Muhammad Latif, Advocate, was authorised to defend and give statements and do all acts in connection with the case. It was further added, that he will have full powers to conduct the proceedings and to confess judgment. We are, therefore, satisfied that this power of attorney gave full powers to Mr. Muhammad Latif, Advocate, to act on behalf of the appellant. A question arises, as to whether r a person so authorised can make an admission on facts. Our answer is in the affirmative, and we feel in good company, when we lean on (1) Mashuq Ali and others v. Hurunissa and another P L D 1919 Oudh 204; (2) Sheo Nath Singh and another v. Lala Bansidhar A I R 1931 All. 415; (3) Markanda Mahapatra v. harada Kameswar Rao Naidu and others A I R 1949 Pat. 197; and (4) Nazir Muhammad Khan v. Fazal and others P L D 1965 Lah. 434.

26. It remains to be seen, as to whether Mr. Muhammad Latif, Advocate, did admit that the appellant had signed Exh. P. E. In the very first place, apart from the observations of the learned Tribunal in his judgment, that the counsel admitted before him, that Exh. P. E. had been signed by his client to which observation, we must attach the greatest possible weight there is the corroborative statement in the replication dated 11th March 1972, which bears the signature of Mr. Zahurul‑Haq, Bar‑at‑Law, learned counsel for respondent No. 1 in the appeal before us. A reference to the penultimate paragraph of the replication (page 108 of the main file) will show, that the learned counsel made a categorical assertion, that the concession alluded to in the judgment was made by the learned counsel for the appellant. It reads: It is respectfully submitted that in the course of the arguments when the learned counsel of respondent No. 1 was asked by the Tribunal as to why the respondent No. 1 has signed the document Exh. P. E. the learned counsel answered that it was by mistake or by clerical error which establishes the facts that the document was signed by respondent No.

1. When we see, that this assertion was not counteracted by an affidavit or a petition for more than two months, though during this period, the matter remained pending before the learned Tribunal, we have no other alternative, but to regretfully ignore the affidavit by Mr. Muhammad Latif, Advocate, here in this Court to support the assertion, that no such admission was made by him, even if the same is taken to be a categorical refutation of the statement attributed to him, which we think it is not.

27. We cannot for a moment think, that a concession which was being vividly remembered by the Tribunal, was, as a matter of fact, not made. We also cannot imagine, that though the appellant was making full efforts to exclude Exh. P. E. from consideration by the tribunal on all conceivable grounds, he just omitted to challenge the categorical assertion of Mr. Zahurul Haq, as reproduced above. In our opinion, the appellant would have challenged its correctness, if the same was not factually correct. To make it more clear, we will like to add that the impression that we get from the record is, that the appellant was deliberately pursuing ostrich policy as respects Exh. P. E. and if there was any merit in his contention, that he had not signed the exhibit, he would have certainly, instead of mating a lengthy application on 28th February 1972, supported by his own affidavit of even date to get the same removed from the record, would have categorically asserted, that he had never signed any such document.

28. The conclusion that inescapably flows from the above discussion is, that the admission of a counsel is as good as that of his client; it binds the latter; it can be acted upon by the Court or Tribunal; anal a plea inconsistent therewith cannot be allowed to be raised for the first time in appeal, Further, the moment concession about the execution of Exh. P. E. was made by the learned counsel for the appellant, it became unnecessary for respondent No. 1 to prove the document by evidence allunde or to confront the appellant himself with the same, so as to get an explana tion from him for consideration of the Tribunal. More so when we see, that, as a matter of fact, an explanation was given by the learned counsel. He admitted execution of the document by adding, that it has been signed by his client by mistake or due to clerical error.

29. But even if we were to overlook the admission made by the learned counsel for ~he appellant before the Tribunal, as regards the signature of the appellant over Exh. P. E. it will not be possible for us to ignore Exh. P. E. which is a certified copy on the ground, that it is a public document as defined in section 74, Evidence Act. Once we come to the conclusion, that Exh. P. E. answers the description given in section 74 of the Evidence Act; section 77, ibid, will make Exh. P. E. a sufficient proof of its contents. What is Exh. P. E. ? It is a copy of the pro forma described as Form E. in the Third Schedule to the Companies Act, 1913. The Company had to submit it to comply with the mandatory requirements of section 32 of the Companies Act. A reference to subsection (2) of that section will show, that this pro forma had to be filed by the Company with the Registrar over the signature of a director together with a certificate, that the list and summary stated the facts as they stood on the prescribed date. Subsection (5) of the same section will further show, that in case of default, the company and every officer of it was made liable to a penalty not exceeding fifty rupees for every day during which the default was to continue. That the Company is a public company is also riot without significance, but the premises for the conclusion that we propose to draw is not restricted to section 32, ibid. There is yet another section, namely, section 248 in the Companies Act, subsection (5) whereof which Is being reproduced after underlining the words supporting our conclusion will show, that any person may Inspect the documents and may also get a certified copy thereof (5) any person may inspect the documents kept by the registrar on payment of such fees as may be appointed by the Central Government, not exceeding one rupee for each inspection and any person may require a certificate of the incorporation of any company, or a copy or extract of any, other document of any part of any other document to be certified by the registrar on payment for the certificate, certified copy or extract, of such fees as the Central Government may appoint, not exceeding three rupee for a certificate of incorporation, and not exceeding six annas for every hundred words or fractional part thereof required to be copied.

30. The above provision In the Companies Act per se qualifies a document of the type 9f Exh. P. E. to be classified as a public document. The words" records of the act . . . .", as they occur in section 74 of the Evidence Act are quite capable of bearing an interpretation, that the documents filed with the Registrar are also records of his act. The very acceptance of a document filed by a company will be an act on the part of the Registrar. The mere fact, that the document is accepted would indicate, that the act of acceptance by the public officer was being brought on the record. In this, we are fortified by a Full Bench ruling in Katikineni Venkata Gopala Narasimha Rema Rao v. Chiduri Venkatararnayya (A I R 1940 Mad. 768), wherein their Lordships have held, that an income‑tax return or statement filed in support of it is a public document and certified copies thereof will be admissible.

31. It cannot be denied, that the appellant himself did not speak a word about Exh. P. E. when he was examined by his own counsel. The learned counsel for respondent No. I also did not consider it proper to ask any question from the appellant about Exh. P. E. what to speak of confrontation of the appellant with that document, with reference to section 145, Evidence Act. The learned counsel for the appellant contended, that it was not at all necessary for his client to have offered explanation about Exh. P. E. when respondent No. 1 cared not to prove his signature over it. On the other hand, learned counsel for respondent No. 1 submitted, that Exh. P. E. was apiece of evidence/admission mentioned in the list of documents, which had been filed in October 1971, and it was not at all obligatory for him to give an opportunity to the appellant to explain the document which was within his knowledge, or should be presumed to be within his knowledge, particularly when the appellant's statement in Court was neither in words nor in effect in conflict therewith.

32. We will briefly refer to the authorities cited by the learned counsel for the appellant in support of the proposition that Exh. P. E. could not be used without having afforded an opportunity to the appellant to explain it. Bal Gangadhar Tilak and others v. Shriniras pandit and others (A I R 1915 P C 7), no doubt supports this proposition and calls it a salutary and intelligible rule, but a careful examination of the ruling will show, that there was overwhelming evidence in support of the plaintiff's claim, but the learned Judges of the High Court preferred to make certain observations against some of the witnesses who were persons of considerable standing, though not a single word would have justified such condemnation. As a matter of fact, reliance was placed on the evidence in the criminal proceedings in respect of perjury without affording the witnesses an opportunity to explain the statements attributed to them. It was in this state of record, that it was observed: Their Lordships have observed with regret and with surprise that the general principle and the specific statutory provisions have not been followed. The verdict of the High Court is an inferential verdict nonetheless sweeping on that account but an inferential verdict actually of perjury. What are the premises upon which this inference proceeds? In no inconsiderable degree they consist of documents, state ment, even turns of expression, which are used to confound the spoken word. Had the safeguards set up by the law with respect to the use of documents been observed? Not at all. Not only have the documents been used for the purpose of contradicting witnesses without obeying the injunctions prescribed by lava, but the inference thus derived, and improperly derived, from these documents has result, as stated, in as inferential verdict of perjury. Sikandar Hayat anti S others v. Master Fazal Karim (P L D 1971 S C 739) will also support the proposition canvassed by the learned counsel for the appellant, but a careful reading of the authority will show, that in that case also, the learned Single Judge in the High Court has acted against the weight of evidence brought on the record by the defendant‑vendee on the sole ground of omission In Exh. D‑1 a counter‑offer to the intending pre‑emptor, to plead the bar of estoppel. Their Lordships observed, that this omission in Exh. D‑1 would not justify rejection of the reliable and trustworthy evidence produced by the appellant; for the exhibit ` has not been put to the appellants, when they were in the witness box. It is noteworthy that in the case before their Lordships of the Supreme Court, a definite plea of estoppel and in support of which reliable and trustworthy evidence has been produced, was sought to be controverted by the mere omission to raise such a plea in the notice (Exh. D‑1). As a matter of fact, the omission to raise such a pleas in the said notice did not tantamount to an inconsistent statement or admission on a previous occasion. As observed by their Lordships themselves, there was no clear admission by the defendants and it was "only a case of a omission and, therefore, it was necessary for the plaintiff to draw in cross‑examination the attention of the defendants to explain as to why they failed to mention about the alleged estoppel and waiver".

33. On the other hand, the learned counsel for respondent No. 1 has laid stress on the wording of section 21 of the Evidence Act and has invited our attention to the Commentary under section 17 in the Principles and Digest on the Law of Evidence by M. Munir. 4th Edition, page 118, under the headnote "Mode of proof of admission; should an admission be put to the party making it?". We have been through the Commentary and have also been able to lay our hands upon Des Raj Faqir Chand v. Piarey Lal Ayaram (A I R 1946 Lah. 65) and Mst. Ultaf v. Zubaida Khatoon (A I R 1955 All. 361) referred to in the commentary. In addition to this, we have been referred to Ghulam Nabi Corporation Ltd. v. Khan Iftikhar Hussain Khan of Mamdot (P L D 1962 Lah. 370) a Division Bench authority, by the learned counsel for respondent No. 1 in support of the proposition, that an admission contained in a statement can be used against a person making it without confronting him with that statement. It will be seen, that Mr. M. Monir in his M commentary observes, that though there are several decisions that when an admission is sought to be given in evidence, the same must be put to the party making it to enable him to explain, the admission, he considers the view to be erroneous. The learned commentator has given ample reasons and quoted many authorities In support of' his observations. We would have followed the views of Mr. Monir without an elaborate discussion, as also Mst. Ultaf v. Zubaida Khatoon but we do not consider such a recourse permissible, when we see that the dictum numbered (a)(3) in Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Ram and others which is a Full Bench ruling, has been cited with approval by their Lordships of the Supreme Court in Sikandar Hayat and 4 others v. Master Fazal Karim, even though we have already endeavoured to distinguish this authority of the highest order.

34. It will be seen that in the Lahore Full Bench case, viz. Firm Malik Des Raj Faqir Chand v. Firm Piare Lal Aya Ram and others, there was an admission of Rahm Sahai one of the defendants, that his firm owed Rs. 7,000 to the plaintiff‑firm. Though we Are not aware, as to how the dictum was applied by the referring Bench to the facts before them, we will like to place it ors the record, that Mahajan, J., who wrote the judgment for the Full Bench observed as follows:‑ "When an admission of a party is proved in the case in his presence the attention of that party is obviously drawn to it and if that admission is contrary to the case of that party then it is for that party to explain away that admission or to pet rid of it by showing that the admission was untrue. That party can walk into the witness‑box and can make a statement as a witness on oath inconsistent with the previous statement though without expressly referring to it. The party has therefore given evidence the very existence of his previous statement (sic), and in that situation there is nothing further for him to explain. In that event if the party who wishes to place reliance on the previous statement does not confront the witness with that statement and does not give him an opportunity to explain the contradiction between his evidence in Court and that contained in the previous admission then t hat party cannot make the previous statement legal evidence in the case in view of the provisions of section 145, Evidence Act. But where the party whose admission has been brought on the record does not go into the witness‑box either to deny the admission or to explain it and does not, in the witness‑box, take up an attitude inconsistent with the previous admission, then the provisions of section 145 can have no application and there is no other provision in the Evidence Act which affects the relevancy of admissions as pieces of evidence under the provisions of section 21, Evidence Act." When we check up the facts of the instant case in the light of the above quoted observations, we feel little hesitation in arriving at the conclusion, that since the appellant in his own statement before the Court has not said anything totally inconsistent with his previous statement in Exh. P. E., the provisions of section 145 of the Evidence Act will have no application. We have said, that the appellant has not set up any case inconsistent with his previous statement in Exh. P. E. Our reasons are that he has nowhere stated before the Tribunal, that he relinquished the charge of his office without waiting for the acceptance of his resignation by the Board. A bald statement that the appellant made, viz: " . . I had resigned from the Managing Directorship of K. K. & Company and from the Board of Directors on 10th December 1970. The resignation was to take effect immediately." will not establish, that the resignation actually took effect on 10th December 1970. If the appellant wanted to say, that he could not work, and, as a matter or fact, did not work as Managing Director of the Company on 31st December 1970, he would not have said in reply to the question in cross what follows:‑ . . I do not remember if there is a provision in the Articles of Association of the Company that resignation stood accepted automatically.

35. Be that as it may, there is an insurmountable difficulty for the appellant, as we have already come to a definite conclusion, that Exh. P. E. was put to the counsel for the appellant, and he not only admitted its execution, but further gave an explanation for the signature of his client over it by adding that it was signed erroneously or illegally. We fail to understand, what more was required in this state of conduct of the learned counsel for the appellant.

36. Though on a consideration of Exh. P. E., Exh. D. H. and Exh. P. B., we have come to the conclusion, that the appellant continued to be the Managing Director of the Company till 1st January 1971, his resignation as in Exh. D. A. notwithstanding, we will like to express ourselves on the alternate argument taken ay the learned counsel for respondent No. 1, that to attract disqualification under the Election Laws, it was not at all necessary for the appellant to be a de jure Managing Director, and that he will also stand disqualified, it he was found to be a de facto Managing Director on the date on which h filed the nomination papers, The definition of the word "director" has been given in section 2(5) of the Companies Act, 1913, which is to the following effect:‑ "Director" includes any person occupying the position of a director by whatever name called; The words underlined are capable of including the case of a de facto director. This will not be in any case repulsive to the Articles of Association (Exh. D. G.); for, as already said, those also envisage cases, where a director may continue for a certain period, when his office is not filled up. In any case, it cannot be the intention of the second proviso to Article 9(2)(h) of the Legal Framework Order, 1970, to restrict the disqualification to a de jure director; for otherwise it would be very easy to defeat the election laws by resigning an office which attracts disqualifica tion, but continue with the same and thus play a fraud on the Statute itself. It will follow, that even if we were to hold, that the Articles contemplated immediate vacation of office, taking into account Exh. P. E., Exh. D. H. and Exh. P. B., it will not be possible for us to hold, that the office which attracted disqualification was not held by the appellant de facto on the crucial date of his nomination, i.e. 27th December 1970.

37. On the view of the matter that we take, we do not feel called upon to discuss the English authorities alluded to in the earlier part of this judgment in detail, but we will like to add, that we have not been at all impressed by the contention raised on behalf of the appellant, that the learned Tribunal had a bias against the appellant. The mere fact that Article 92 of the Articles which was pressed into service by the appellant before the learned Tribunal could not find a mention in the judgment of the Tribunal will not be conclusive. More so when we see from the record, that the learned Tribunal has acted nothing but judicially throughout the course of the proceedings. The epithet "judicial bias" is not only understandable in relation to the tribunal, but is also wholly uncalled for.

38. The upshot of the whole discussion is, that on the basis of the facts brought on the record and the law cited at the Bar, no other conclusion than the one at which the learned Tribunal has arrived at was possible. For the reasons, we dismiss the appeal with costs. The affidavit of Mr. Zahurul Haq, Bar‑at‑Law, learned counsel for respondent No. 1 to wit, that the admission about the signature on Exh. P. E. was, in fact, made by Mr. Muhammad Latif, learned counsel for the appellant before the Tribunal, and that he in his replication of 11th March 1971, made the submission reproduced in paragraph loo. 26 of this judgment has been riled today in the office, when the judgment was complete for announcement. We place it on the file. On the view of the matter that we have taken, it needs no further action. K. B. A. Appeal dismissed.