HASNAIN COTEX LTD. and 2 others vs JASIM KHAN

' QAISER RASHID KHAN, J.--- 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, C.P.C.

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 along with 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, C.P.C. 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 C.P.C. Such like suits can only be instituted where the defendant 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 b the Board of Directors of the Company by means of a resolution pissed 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 v. Muhammad Salim and others reported in 1992 SCM R 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 v. Messrs Ghulam Nabi Corporation Limited Lahore reported in PLD 1971 SC 550 and Messrs Razo (Pvt.) Private Limited v. 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, Messrs Hasnain Cotex Limited, as they were not authorized/empowered by means of a resolution of the Board of Directors of the Company passed in 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.