2010 PLP 141 (CLC)

NADEEM AZHAR SIDDIQI, J.

This is an application under Order VII, rule 11, C.P.C., praying for dismissal of the suit. Brief facts of the case as stated in the plaint are that the plaintiff is a .container leasing company and one of its representatives, Mr. David Attenborough, entered into negotiations with Mr. M. Habibullah, Chairman of defendant No.1 (Mega-Feeder (Pvt.) Limited, for leasing containers. Later on, Mr. Shakeel Hyder, Senior Manager (Finance) of defendant No.1, also joined the negotiations. After finalization of the negotiations, an agreement dated 1-6-2006 was executed between the plaintiff and defendant No.1 through Mr. Shakeel Hyder. Subsequently, an amendment was made to the said agreement and the defendant No.2 was added as a guarantor for defendant No.1. Pursuant to the said lease agreement, the plaintiff allocated 4,086 20 feet standard containers and 1,288 40 feet High Cube containers to the defendant No.1. The business relationship between the plaintiff and the defendant No.1 were progressing smoothly for some time when in January, 2007 the defendant No.1 defaulted in payment of rentals. Meanwhile, the plaintiff received a letter from the lawyer of defendant No.1 wherein it was contended that there is no privity of contract between the plaintiff and the defendant No.

1. The plaintiff sent a notice of default to the defendants Nos.1 and 2 in response to which the same lawyer, now also acting for defendant No.2, through his letter dated 11-4-2007, reiterated his earlier position and further stated that the containers of the plaintiff were "foisted" upon the defendant No.1. The plaintiff, realizing that no purpose will be served by waiting for 60 days period as stipulated in the agreement between the parties, filed the present suit inter alia for recovery of lease rentals as well as return of the containers. The defendant No.1, through its Manager, Kamran Saeed, filed the present application under Order VII, rule 11, C.P.C., seeking dismissal bf the suit on the grounds mentioned above. I have heard the learned counsel for the parties and have gone, through the record. Learned counsel for the defendants submitted that defendants have no privity of contract with the plaintiff, the plaintiff has no cause of action against the defendants, and that the suit has been filed by a person not competent to file the same. He submits that no resolution/power of attorney and/or Articles and Memorandum of Association of the plaintiff was filed to show that the person presenting the plaint is competent to do so. He also submitted that the plaintiff has also filed a suit in the United States of America against the defendants on the same cause of action on 14-11-2007. He referred to the agreement between the parties (available at page 39 of the file) and sated that the agreement is by a company incorporated in Bermuda and not a company of United States and submitted ' that the plaintiff and the contracting Company are two different entities. He also referred to clause (k) of the agreement and stated that only Courts of State of Carolina, USA', have jurisdiction to decide a dispute in respect of the lease agreement. On the other hand, Mr. Mansoor Shaikh, learned counsel for the plaintiff stated that the ingredients required for dismissal of a suit under Order VII, rule 11, C.P.C. are missing, he submits that the address of the plaintiff in the agreement is that of Bermuda and that the Notification Address, as mentioned at the last page of the agreement, is that of Bermuda. He further states that if copy of the power of attorney/resolution was filed at the time of filing of the suit the same is an irregularity and not an illegality. He relied on the cases of Ghulam Mohiuddin and another v. Noor Dad and others PLD 1988 SC (AJ&K) 42 and Ismail and another v. Mst. Razia Ahmad and others 1981 SCMR

687. Before dilating upon the arguments advanced and case-law relied upon by the learned counsel for the parties, it would be beneficial if provisions of Order VII, rule 11, C.P.C. are reproduced, which read as under: -- "

11. Rejection of plaint.

The plaint shall be rejected in' the following cases:

(a) where it does not disclose a cause of action; (b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law. So far as the first ground on which plaint in a suit could be rejected under Order VII, rule 11, C.P.C., i.e. non-existence of any cause of action, is concerned, it is evident from the plaint of the suit that the plaintiff has pleaded that the defendant No.1 was leased containers by the plaintiff and the defendant No. 1 defaulted in payment of the lease rentals for recovery whereof the plaintiff has filed this suit. The plaintiff also seeks recovery/possession of the containers leased out to the plaintiff. Although the defendants are denying having entered into any agreement with the plaintiff but it is to be decided through evidence whether the plaintiff entered into a binding agreement with the defendant No.1 which was guaranteed by defendant No.2, or not. It is well-settled principle of law that for the purpose of deciding an application under Order VII, rule 11, C.P.C., only the averments made in the plaint are to be taken into consideration and nothing else is to be considered for this purpose. In para.18 of the plaint the plaintiff has shown the cause of action that has accrued to the plaintiff. Mere denial by the defendants thereof cannot suffice. Thus, the provisions of sub-clause (a) of Order VII, rule 11, C.P.C. are of no help to the defendants. Admittedly, there is controversy as envisaged under clauses (b) and (c) of the said provision with regard to valuation of the relief claimed or the same being written on insufficiently stamped paper. As regards sub-clause (d), once again the Court is to decide on the basis of the averments made in the plaint whether the suit is barred by any law. Learned counsel for the defendants submitted that no power of attorney/resolution has been. filed by the person presenting the plaint in the suit to show that he was duly authorized by the plaintiff to file the present suit. However, subsequently, the counsel for the plaintiff produced a copy of the power of attorney executed by the plaintiff in favour of the person presenting the plaint, namely, Mr. S. Shakil Ahmed son of S. Abdul Aleem. Although objections were raised by learned counsel for the defendants to the delayed production of the copy of the said power of attorney but the law is very clear in this regard. In case a suit or any other proceeding is filed by a person on behalf of a company without having been duly authorized to do so by the company prior to filing of the suit or the proceedings, as the case may be, the same shall be without lawful authority and liable to be dismissed as such. However, where a suit has been filed by a duly authorized person but such authority has not been produced at the time of filing of the suit, the same cannot be said to be filed by an incompetent person. This at best can be termed as an irregularity which is curable and not as an illegality. In the verification clause of the plaint, the deponent clearly states that "L S. Shakil Ahmad son of S. Abdul Aleem, the duly constituted attorney of the plaintiffs Company"" and subsequently, copy of such power of attorney was produced by counsel for the plaintiff in Court. In view of the provisions of Article 95 of the Qanun-e-Shahadat, 1984, a power of attorney executed. before and authenticated by, notary public, or any Court, Judge, Magistrate, Pakistan consul or Vice Consul, or representative of the Federal Government, is to be presumed to have been so executed and authenticated. Once the initial burden is discharged by the plaintiff, it is for the defendants to rebut the same by evidence. This exercise can only be undertaken when the evidence of the parties is recorded. The other ground urged in support of the listed application, that another suit on the same cause of action and documents has been filed by the plaintiff in the United States of America, has also no nexus with the provisions of Order VII, rule 11, C.P.C. Needless to state that I am not touching the merits of the case as it would prejudice the case of either of the parties hereto. Suffice it to say that none of the provisions of order VII, rule 11, C.P.C. are applicable. In view of the above, the listed application under Order VII, rule 11, C.P.C. is dismissed. Office to fix the case of appropriate purpose. H.B.T./T-17/K Application dismissed.