PLJ 2012 Peshawar 248
[D.I. Khan Bench]
[D.I. Khan Bench]
Present: Qaiser Rashid Khan, J.
HASNAIN COTEX
LIMITED through its Director--Petitioners
Versus
JASIM KHAN,
PROPRIETOR M/S. SUZUKI FRONTIER MOTOR EAST
CIRCULAR ROAD, D.I. KHAN--Respondent
C.R. No. 59 of
2011, decided on 7.2.2012.
Civil Procedure
Code, 1908 (V of 1908)--
----Ss. 115
& 151, O. VII, R. 10--Civil revision--Application for return of plaint was
dismissed--Challenge to--Petitioner was filed by persons who were not
authorized to file on behalf of company--Petition was filed by company through
its directors--Directors were not authorized by Board of Directors of Company--Question
of--Maintainability of revision petition--Validity--It is settled principle of
law that when law requires a thing to be done in particular manner then it
ought to be done in that manner only and no other manner of doing such an act
should be resorted to--Except for signing power of attorney in favor of their
counsel and affixing company stamp, no resolution of Board of Directors was
available on file whereby they had been authorized to file instant
petition--Petition was filed by persons who were not authorized empowered to
file same on behalf of petitioner company as they were not authorized by means
of resolution of Board of Directors--Petition was dismissed. [Pp. 250 & 251] A, B & C
Mr. Saleemullah Khan Ranazai,
Advocate for Petitioners.
Mr. H. Saleem Jan Khan, Advocate for Respondent.
Date of hearing:
7.2.2012.
Judgment
Hasnain Cotex Limited through its Directors, namely, Sheikh
Muhammad Yaqoob and Sheikh Muhammad Ayub, petitioners herein, have filed this revision petition
against the judgment and order dated 28.11.2011 passed by the learned Civil
Judge-V, D.I.Khan, whereby their application for
return of plaint of the respondent under Order VII, Rule 10 CPC was dismissed.
2. Succinctly stated facts of the case as per
the instant petition are that the respondent/plaintiff, namely, Jasim Khan, filed a suit for damages amounting to Rs. 1,88,77,541/- alongwith interest
against the petitioners in the Court of Senior Civil Judge D.I.Khan
for the work allegedly carried out by him at Chaman-Baluchistan
being their sub-contractors and recovery of balance amount of Rs. 63,77,541/
allegedly outstanding against them. The said suit was entrusted to the learned
Civil Judge-V, D.I. Khan for disposal who summoned the petitioners where they
preferred an application under Order VII, Rule 10 CPC for the return of the
plaint due to lack of jurisdiction and for its presentation before the proper
and competent forum. The respondent contested the said application by
submitting replication and the learned trial Judge ultimately dismissed the
application vide order which is now under challenge by the petitioners through
the revision petition in hand.
3. Learned counsel for the petitioner argued
that the impugned order of the learned Civil Judge-V is against the law and facts
of the case. He argued that the respondent had carried out work at Chaman Quetta Road,
Qilla Abdullah, Baluchistan and thus he had no cause of action
to file the suit in hand at D.I.Khan. He contended
that the petitioners have a construction company with its Head Office at Lahore and are the
permanent residents of that area, therefore, the suit
was not maintainable at D.I.Khan. According to him
under the CPC such like suits can only be instituted where the defendants
reside or work for gain. He, therefore, termed the impugned order being
patently illegal and liable to be set aside.
4. In rebuttal, the learned counsel for the
respondent defended the impugned judgment and order on almost the same grounds
which prevailed with the learned trial Judge and fully enumerated therein.
5. We have carefully gone through the record and
considered the submissions of the learned counsel for the parties.
6. Before attending to the arguments of the
learned counsel for the parties, we would like to embark upon the very
maintainability of this petition. It has been filed by the petitioner company
through its Directors, namely, Sheikh Muhammad Yaqoob
and Sheikh Muhammad Ayub. Admittedly, the petitioner
company is a limited company incorporated under the Companies Ordinance, 1984
having its Head Office at Lahore.
We have noticed that the said Directors have not been authorized by the Board
of Directors of the Company by means of a resolution passed in a proper meeting
of the Board of Directors Law requires that the persons filing/instituting
legal proceedings on behalf of a Company incorporated under the Companies
Ordinance 1984 should be duly empowered/authorized through a resolution by the
Board of Directors in a meeting of the Board of Directors duly convened in
accordance with the Articles of Association of the Company. It is a settled
principle of law that when the law requires a thing to be done in a particular
manner, then it ought to be done in that manner only and no other manner of
doing such an act should be resorted to. Reliance in this respect is placed on
the case of Hakim Ali Vs. Muhammad Salim
and others reported in 1992 SCMR 46.
7. Though the two persons who have filed the
petition in hand are allegedly the Directors of the Company, but in support of
their said status, there is nothing available on record to support their said
version. Except for signing the power of attorney in favour
of their counsel and affixing the company's stamp thereon, no resolution of the
Board of Directors is available on file whereby they have been authorized to
file this petition. It needs no reiteration that a person filing a suit or
petition on behalf of a public limited company, or for that matter a private
limited company, should be either one of its Directors or its Secretary duly
authorized and empowered by a special resolution of the Board of Directors to
exercise and perform powers to institute, conduct, defend, compound or abandon
legal proceedings. Reliance is advantageously placed on the case of Khan Iftikhar Hussain Khan of Mandot Vs. M/s. Ghulam Nabi Corporation Limited Lahore reported in PLD 1971 SC-550
and M/s. Razo (Pvt) Private
Limited Vs. Director, Karachi City Region Employees Old Age Benefit Institution
reported in 2005 CLD 1208 Karachi.
8. For the reasons discussed above, there is
hardly left any doubt with regard to the maintainability of the present
revision petition. The present petition was filed by persons who were not
authorized/empowered to file the same on behalf of the petitioner company,
namely, M/s. Hasnain Cotex
Limited, as they were not authorized/empowered
by means of
a resolution of the
Board of Directors of the Company
passed in a duly convened meeting in accordance with the Articles of the
Association of the Company. As such the petition being not maintainable under
the law is accordingly dismissed with no order as to costs.
(R.A.) Petition dismissed
