BOARD OF CONTROL FOR CRICKET IN PAKISTAN Versus KARACHI DEVELOPMENT AUTHORITY , Iqbal Kazi alongwith K.A. Wahab

ORDER

Through this common order, I intend to dispose of two miscellaneous applications, one filed by the defendant No.21 namely Ahmed Ali U. Qureshi (CMA 2591) and the other filed by defendants Nos.36 and 37 namely Tanzilur Rehman and K.A. Ghani (CMA 4093/1996), since both these applications are under Order 7, rule 11, C.P.C., for rejection of plaint in the above suit.

Initially, this suit was filed on 22‑3‑1988 against some eight (8) defendants by the Board of Control for Cricket in Pakistan (hereinafter referred to as BCCP). The reliefs sought in this suit was for declaration, injunction, possession and for compensation, containing as such as sixteen (16) main reliefs. Upon filing of a counter‑affidavit by the defendant No. l in reply to the plaintiffs' application under Order XXXIX, Rules 1 and 2, C.P.C., the plaintiff came to know that the defendant No. l has carved out plots from the land of the plaintiff and has allotted to some forty‑four (44) persons. In view of this fact, the plaintiff filed an application under Order I, Rule 10, C.P.C., which was allowed by this vide order dated 13‑12‑1992 and the forty‑four (44) allottees were joined/impleaded as defendants Nos. 9 to 52. Thereafter, the plaintiff filed amended plaint on 13‑12‑1992. The defendants Nos. 21,36 and 37 are now seeking rejection of the plaint.

The case of the plaintiff, as stated in the amended plaint, is that sometime in the year 1953, the defendant No.8 namely Pakistan Public Works Department acquired through the then Chief Commissioner of Karachi a piece of land measuring 175.5 acres in Deh Okewari NLC 177, Survey No. l at Mile‑6, Jail‑Drigh Road (presently it is called as Stadium Road). At the time when the abovesaid land was acquired, it was part of the then Federal Capital Area. The purpose of acquiring such land, as averred in the plaint, was to construct a National Stadium for different sports facilities. Out of the abovesaid land, an area of 21.6 acres in Survery No. l was owned by the Karachi Pinjrapur Association which was acquired under the Land Acquisition Act, 1894 vide Notification No.25/90/Rev/53 dated 5‑4‑1953 and for which compensation was paid to the said association. It is not disputed by any of the defendants that in the year 1954 the National Stadium was constructed on a part of the said land. The present plaintiff came into picture in respect of this land in the year 1980 when on their representation to the Chief Martial Law Administrator/President of Pakistan, the National Stadium alongwith its building and a piece of land measuring about 104.50 acres was leased in the plaintiffs' name for 99 years. This lease‑deed was duly registered before the Sub‑Registrar on 6‑12‑1995. The plaintiff has filed the same as Annexure P‑1 to the plaint. The area defined at the end of this lease is as follows:‑‑

"North by ??????????????????????????????????????????? Open land

South by ????????????????????????????????????????????? Stadium Road

East by ??????????????????????????????????????????????? Army Store

West by ????????????????????????????????????????????? Agha Khan Hospital"

The grievance of the plaintiff in this suit against several defendants, as alleged, pertains to illegal and unauthorised encroachment. It would be convenient if the facts of the plaint are summarised in reference to the different sets of the defendants and in order to elaborate what grievance the plaintiff have against each set of defendants.

LAND IN POSSESSION OF DEFFNDANT NO. 1 NAMELY KDA

In paragraphs 7 and 7(a) it is stated by the plaintiff that an open land measuring 6 acres approximately is situated along the boundary line of KDA Scheme No.24 at Karachi, which belongs to the plaintiff. According to the plaintiff it was kept open for future expansion of sports facilities; that on 2‑4‑1987 the plaintiff came to know through local English daily Star that the KDA without notice had unlawfully altered its boundaries of Scheme No.24, commonly known as Gulshan‑e‑Iqbal Scheme; that through this newspaper item, the plaintiff came to know that defendant No.2‑KDA is claiming the said open land, measuring 6 acres as part of the Scheme No.24; that on 12‑.5‑1987 the plaintiff addressed a legal notice to defendant No. l claiming right on this piece of land and called upon the defendant No. l to refrain from claiming this piece of land as part of Scheme No.24, that subsequently the plaintiff came to know that the land has been allotted to the defendants Nos. 9 to 52. As stated earlier, the plaint was amended. Plaintiff has claimed the following reliefs against the defendants Nos. 1,9 to 52:‑‑

"2. For declaration that the claim of the defendant No. l over the portion of the land of the plaintiff lying vacant on the Northern and North Eastern sides of the National Stadium as shown in the map annexed with plaint and the lease‑deed is illegal, bogus, false and mala fide and that the defendant No. l has no right to claim or deal with the said portion of land in any manner whatsoever.

3. For declaration that the alteration and extension of the boundaries of the Gulshan‑e‑Iqbal Scheme No.24 by the defendant No.l affecting ? the land of the plaintiff is illegal, ultra vires and of no lawful effect.

3‑A. For declaration that the alleged allotment and handing over possession of the respective plots out of the disputed land by defendant No. l to various allottees i.e. the defendants Nos.9 to 52 is void, illegal and of no lawful effect.

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9. For permanent injunction restraining the defendant No. l from entering on the said Northern and North Eastern portion of the land of the plaintiff or in any manner asserting any rights and claims and interfering with by surveying, levelling, carving out plots or dealing with it in any manner whatsoever.

9‑A. For permanent injunction restraining the defendants Nos.9 to 52 from entering, selling, alienating, transferring, assigning, encumbering, constructing and/or dealing in any manner whatsoever with the said disputed land acquired through allotment or otherwise from defendant No. 1.

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12. For possession in favour of the plaintiff of the land measuring about 6 acres lying on the Northern side of the plaintiffs' Stadium along the boundary line of KDA Scheme No.24 as fully described in the registered lease deed dated 6th December, 1980 and shown and delineated on the map annexed thereto and presently illegally held, encroached upon and/or possessed by the defendant No. l and by apportionment by defendants Nos.9 to 52 individually through the defendant No. l."

LAND IN POSSESSION OF DEFENDANTS NOS.2 AND 3 NAMELY PROVINCIAL GOVERNMENT AND DEPUTY COMMISSIONER, KARACHI (EAST).

According to the plaint another piece of land measuring six (6) acres was lying vacant in front of the National Coaching and Training Centre alongwith the boundary wall of Agha Khan Hospital and Medical College, which, as alleged in the plaint, was illegally usurped by the defendant No.3 namely Deputy Commissioner, Karachi (East). According to the averments of the plaint, the said defendant has started raising construction of buildings on the said piece of land despite protest from the plaintiffs' side. The plaintiff has approached the Chief Secretary, Government of Sindh and a meeting was called at his office on 14‑6‑1987 to resolve the said dispute. It is claimed by the plaintiff that the defendant No.3 was directed by the Chief Secretary to stop the, construction but despite that the construction of the building continued. The plaintiff has, therefore, claimed possession of this land in the suit as well as mesne profit/compensation from the defendants Nos.2 and 3 at the rate of Rs.600,000 (six hundred thousand) per annum since March, 1987.

The plaintiff has sought following reliefs against the defendants Nos.2 and 3:‑‑

"4. For declaration that the illegal claim of the defendants Nos.2 and 3 over the said disputed portion of the plaintiffs' land as fully described in the plaint and as shown in green in the plan attached is false, bogus, illegal and mala fide and without any substance whatsoever.

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7. For mandatory injunction directing the defendants Nos. 2 and 3 to demolish the illegal construction being carried out by them on the plaintiffs' land and remove its debris and construction material therefrom.

8. For permanent injunction restraining the defendants Nos.2 and 3 from asserting any rights, whatsoever and from bringing in their servants, agents, contractors, labourers and building materials etc. to continue with their illegal construction work of offices and residences at the said portion of the land lawfully belonging to the plaintiff.

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????????????????????????????????????????????????????????????????????????????????????????????????????????????? .

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????????????????????????????????????????????????????????????????????????????????????????????????????????????? For possession in favour of the plaintiff of the land measuring about 6.8 acres illegally occupied by the defendants Nos.2 and 3 as fully described in the plaint and shown in the plan annexed and marked as P‑1.

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15. For mesne profits against defendants Nos.2 and 3 at the rate of rupees six lacs per annum from March, 1987 till the filing of this suit and at the rate of rupees ten lacs per annum from the date of the suit till decree delivering of possession and realisation with interest at the rate of 15% per annum. "

LAND IN POSSESSION OF DEFENDANTS NOS. 4. 5 AND 6.

In paragraphs 4, 5 and 6 of the plaint, it is admitted by the plaintiff that at the time when the abovementioned land was leased out, an area of 17 acres of land was with the defendant No.6, namely Pakistan Steel Mills Corporation (hereinafter referred to as the PSMC). However, on 22‑12‑1985 an area of 12.25 acres was delivered to the plaintiff by the PSMC which was in their possession and was being used as transport yard. The remaining area of 7 acres was not delivered as the PSMC required time to shift their transport yard. In the meanwhile the defendant No.5, namely the Station Commander, Headquarter, Karachi Cantt. intervened and claimed this land from PSMC on the grounds that it was handed over to them on 1‑9‑1988. It is stated in the plaint that on 28‑10‑1986, the plaintiff withdrew the permission granted to PSMC for using the said 7 acres of land for transport yard but the plaint is silent on the point whether PSMC ever delivered the possession of disputed seven (7) acres of land to the plaintiff. It is case of the plaintiff that in the year 1987 the BCCP requested the Quarter Master General, R.P. to intervene in the matter who replied that since the matter was pending before. Justice Division, no action could be taken. It is alleged that this piece of land measuring 7 acres is still in the possession of defendant No.5 namely The Station Commander, Station Headquarter, Karachi Cantt. till filing of the suit. It is further alleged in the amended Memo. of plaint that after obtaining order of status quo on 27‑3‑1988 by the plaintiff the defendant No.5 has unlawfully, forcibly and by breaking the locks obtained further possession of a piece of land measuring 12 acres from the plaintiff and has raised illegal construction thereon. Following reliefs are sought in plaint by the plaintiffs against defendants Nos.5 and 6:‑‑

"5. For declaration that the claim of the defendants Nos.4 and 5 over the land of the plaintiff adjoining Pucca existing boundary wall on the Eastern side of the plaintiffs' land is illegal, false and unsustainable.

6. For declaration that the defendant No.6 after termination of his licence by the plaintiff on 28‑10‑1986 is a trespasser and is liable to be ejected therefrom.

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10. For permanent injunction restraining the defendants Nos.5 and 6 from asserting any rights, claims whatsoever and from entering on the said portion of the land of the plaintiff lying on the Western side of the existing Pucca boundary wall and from interfering with the possession of the plaintiff or creating any hindrance, obstruction with the work of the plaintiff on the said land.

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11. For permanent injunction restraining the defendant No.6 from handing over the possession the plaintiffs' land measuring bout 4.78 acres in its occupation to the defendant No.5 and any one else except the plaintiff.

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14. For possession in favour of the plaintiff of the land measuring about 4.78 acres held and occupied by the defendant No.6 as fully described and shown in the plan annexed and marked P‑2/1,.

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????????????????????????????????????????????????????????????????????????????????????????????????????????????? .

16. For mesne profits against defendant No.6 at the rate of rupees five lacs per annum from October, 1986 till the filing of the suit and at the rate of rupees eight lacs per annum from the date of the suit till decree delivering of possession and its realisation with interest at the rate of 15 per cent. per annum.

17. For possession in favour of the plaintiff of about 12 acres of land illegally and forcibly taken away by the defendant No.5 from the plaintiff after the filing of the above suit.

18. For mesne profits against defendant No.5 for illegally and forcibly holding the abovesaid about 12 acres of land at the rate of rupees twelve lacs per annum from 5th April, 1988 till the passing of the decree, delivering of possession and realisation thereof to the plaintiff with interest at the rate of 15 % per annum.

The first objection to the maintainability of this suit as argued by Mr. Iqbal Kazi, pertains to the authority of the person to file present suit. According to the learned counsel nowhere it is mentioned in the plaint as to what is the status of the plaintiff nor the person who verified and signed the plaint has anywhere declared in the plaint the status of the plaintiff or about his authority to sign and verify the same. It is further argued that neither any Memorandum and Articles of Association, nor any Resolution, nor any power of attorney has been produced till this date by the plaintiff showing its locus standi or entitlement to institute the above suit. In view of these facts, it was contended by Mr. Kazi that the suit has been filed incompetently and, therefore, the plaint is liable to be rejected. In support, he has referred to the case of Messrs Standard Hotels (Pvt.) Limited v. Messrs Rio Centre and others (1994 CLC 2413) and the case of Shab‑ud‑Din and others v. Mst. Mariam Bibi and others (1995 MLD 45).

????????????????????????????????????????????????????????????????????????????????????????????????????????????? Mr. Muzaffar Ali Khan, learned counsel for the plaintiff has replied that non‑disclosure of the status of the plaintiff or authority of a person signing or verifying a plaint is merely a technical defect and can be cured at any stage by the leave of the Court. In support, he has referred to Rules l and 3 to Order XXIX of the Code of Civil Procedure, 1908, where in rule 1 it is provided that either the Secretary or any Director or Principal Officer of a Corporation who is aware of the facts of the case is competent to sign and verify the pleadings. According to Rule 3 to Order XXIX the Court is permitted to require the personal appearance of the Secretary or of any other Director, or any other principal officer of the corporation, at any stage of the suit, who may be able to answer to the material questions relating to the suit.

The plaint in the above suit reveals that it is filed by the Board of .Control for Cricket in Pakistan. This description itself does not make it clear whether it is a company registered under the Companies Act, 1913 or the. Ordinance, 1984, limited by shares or guarantee or is a non‑profit company. Nowhere it is averred in the plaint that whether the plaintiff is either a society registered under the Societies Registration Act, 1860 or is a corporate body incorporated under any special law. I have perused the original plaint as well as amended plaint but nowhere in both these plaints at any place it is shown that the person who has signed and verified the plaint was authorised by any resolution of the Board of Directors or by a power of attorney validly granted in a meeting of the Board of Directors. In this connection, reference made to Order XXXIX, Rule 1, C.P.C. is of no assistance because this provision of law does not deal with institution of a suit. Recently, this question was considered by this Court in the case of Messrs Standard Hotels (supra) and about the competence of such suit filed in a manner as of instant case. In this reported case, the defendants had filed an application under Order VII, Rule 11, C.P.C. for rejection of plaint on the ground that the plaint was signed and verified by one of the Directors of the plaintiff, which was a private limited company, without any express authority from the company and that neither certificate of incorporation, nor its Memorandum and Articles of Association, nor any resolution of the Board of Directors were produced at any time to show that the person, who has signed and verified the plaint, was so authorised to file the suit. A learned Single Judge of this Court, Hussain Adil Khatri, J. (as he then was) after referring to the case of Khan Iftikhar Hussain Khan of Memdot v. Messrs Ghulam Nabi Corporation Ltd., (PLD 1971 SC 550) has observed as follows:‑‑

"In view of the rule enunciated in the above authorities it has become inevitable to hold that the Articles of Association do not confer any such authority on the said Director of the company. The plaint and the counter‑affidavit do not disclose existence of any resolution of the Board of Directors, rather the tenor of the letters point to non‑existence thereof.

In view of the above‑settled law, there is no escape from the conclusion that the suit has been filed incompetently and the plaint is liable to be rejected".

In the above reported case, reference was made to the case of Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd., PLD 1971 SC 550 where one of the questions raised, before a Full Bench of Supreme Court of Pakistan, was whether the suit was properly instituted by a person, who claims to ' be the Director Incharge of the respondent‑company and who had signed the plaint was, not competent to institute this suit. It was argued before the Supreme Court that it was obligatory on the respondent‑company to specifically allege in the plaint that the person, who has signed and verified the plaint was competent to institute the suit on its behalf. The suit was contested on merit after recording of evidence from both sides. At the stage of appeal before the High Court the respondent‑company was allowed to remove this defect and allowed to produce further evidence as provided under Order XXXXI, Rule 27 of the C.P.C. The respondent‑company produced despatch register and the peon book before the High Court but the Supreme Court did not accept its genuinity and held that, such documents can be fabricated and manufactured. In view of this background the Supreme Court upheld dismissal of suit on the ground of incompetence of the person to sign and verify the plaint. Following is the relevant observation of the Hon'ble Supreme Court:‑‑‑

"In the case of H.M. Ebrahim Sait v. Soush India Industrials Ltd. AIR 1932 Madras 962 it was held that in law a meeting of Directors is not duly convened unless due notice has been given to all the Directors. On the facts of the present case, I am satisfied that due notice of the meeting was not given to the deceased appellant and, therefore, the resolution passed in the meeting of 28th September, 1951, cannot be said to be a valid one. In my opinion, no valid authority was conferred on Mr. Khurshid Mahmood and, therefore, he was not competent to institute the suit. I would, therefore, hold that the learned trial Judge was perfectly justified in dismissing the suit on this ground. "

The other case, which was referred by this Court in Messrs Standard Hotels supra is again a case of this Court Dumez Borie v. International Forwarders Ltd. NLR 1983 U.C.

184. In this reported case one of the issues framed was whether the suit has been filed without authority on behalf of the plaintiffs? In this reported case the plaintiff in order to overcome the incompetence of the suit sought refuge by resorting to the provisions of Order XXIX, Rule 1 and Order XXX, Rule, 1, C.P.C. On the other hand, the defendant relied upon the case of Khan Iftikhar Hussain Khan of Mamdot ibid. A learned Single Judge of this Court, Zafar Hussain Mirza, J., as his Lordship then was dismissed the suit with costs on the ground, inter alia, that the suit was not competently filed on the following reasonings:‑‑‑

"The provisions of Order 29, Rule 1, C.P.C., deal only with the subscription and verification of pleadings in suits by and against the corporations. In other words, the rule merely authorised the persons mentioned therein to sign and verify pleadings on behalf of a corporation. The rule does not authorise such person to 'institute' suits on behalf of the corporation. Substantial question in issue herein is whether Mr. Terras was authorised by Societe Dumez to institute the present suit. Therefore, merely because the person signing the plaint was principal officer of the company is not sufficient to establish that he had authority to bring the suit on behalf of the company. Learned counsel had, therefore, to fall back upon the power of attorney. As pointed out above it is doubtful in view of the language in which the powers were couched that the attorney had authority to institute a suit before the Courts of law. Be that as it may, it seems to be settled that even a constituted Attorney must have express authority from the Board of Directors of the company to institute a suit. The reason for the rule appears to be that in case of companies the initiative to institute an action at law must proceed from the company or the Authority under the Articles of Association in whom the management of the company vests. "

The second case referred by Mr. Iqbal Kazi was of Shahab‑ud‑Din 1995 MLD 45 where one of the question before the Lahore High Court was whether the suit was properly instituted by a person, who claims to be lawful attorney and whether the learned trial Court had rightly held that since the power of attorney was not placed on record of the Court, therefore, the suit was not properly instituted. The Lahore High Court upheld the view of the learned trial Judge and observed that the power of attorney has to be strictly construed and a person authorised to do any particular act will do only that specific act and will not travel beyond the authority vested in him., It was further held that the judicial proceedings launched in a manner not authorised by power of attorney executed in favour of a person would be a nullity in the eyes of law.

The question of maintainability of a suit in reference to Order XXIX, Rule, 1, C.P.C., came up for consideration before this Court in Abubakar Saley Mayet v. Abbot Laboratories and another 1987 CLC 367. One of the issues involved was the maintainability of suit. it was argued from the appellant's side that the person who has signed and verified the plaint was not competent and authorised. Before the trial Court the respondent/plaintiff took the plea that such person was verbally authorised by the Directors to sign the plaint and to adduce evidence and was also authorised through power of attorney which was dated subsequent to the date of proceedings of the suit produced as Exhibit 6/3. A learned Single Judge of this Court, Mr. Abdul Qadeer Chaudhry, J., as his Lordship then was, after referring to the cases of Punjab Zamindars Bank Ltd. Lyallpur v. Madan Mohan Singh and others AIR 1936 Lahore 321 and the case of Notified Area Committee, Okara. v. Kidar Nath and others AIR 1935 Lahore 345 accepted the appeal and set aside the judgment and decree passed by the trial Court on the following reasonings:‑----

"This is not a General Power of Attorney and as the recital show the Company authorised Kamran Mirza to file suit against Messrs Zahoor Enterprises but this authority did not empower Kamran Mirza to institute the present suit. Therefore, the suit filed by the respondent No. l against the appellant is a nullity in the eyes of law. The same was instituted by a person who had no authority to institute the suit and the plaint is not existent for all intents and purposes. Reliance as stated above has been placed on Order XXIX. Order XXIX only permits the persons mentioned in it to sign and verify the plaint. The company can always authorise some person on its behalf. The Company does not choose to do so. It can act under rule 1 in that way. All suits on behalf of the Company are properly instituted if the plaint is duly signed and verified by the Secretary who is authorised by the Company expressly to conduct the suit. Rule 1 comes into operation only after the proceedings have been validly started and cannot be utilised for unauthorised persons to prosecute the suits on behalf of the Corporation-----In this case Kamran Mirza has stated that he was orally authorised by the Directors to institute the suit. In the Bombay case referred to above it was held that a Company cannot orally authorize another person to sign a plaint on its behalf. A Company can act only under its Articles of Association. If a power of attorney is to be executed for a Company, it must satisfy the requirements of its Articles of Associations.

As such even if statement of Kamran Mirza be accepted that he was authorised orally by the Directors to institute the suit that authorisation has no sanction under the law. The business of the Corporation is to be run under the Articles of Association and a verbal instruction by a Director which he is not competent under the Articles of Association does not bind the opposite party."

I am fully conscious of the rule laid down by the Hon'ble Supreme Court in an earlier case of M/s. Muhammad Saddiq Muhammad Umer and another v. The Australasia Bank PLD 1966 SC 684. In this case the respondent which was a public limited company filed the suit through one Muhammad Khan who disclosed himself to be the principal special officer of the plaintiff‑bank. In the plaint it. was averred that he being conversant with the facts of the case relating to the concerned branch is able to depose about the same. One of the issues framed by the trial Court was whether this person namely Muhammad Khan was competent to file the suit on behalf of plaintiff‑bank? During the proceedings of the suit, before the trial Court the plaintiff‑bank neither filed Articles of Association nor any resolution of the Board of Directors or adduced any evidence to show that Muhammad Khan was competent and authorised by such Board to file the suit. In his cross‑examination Muhammad Khan failed to given any satisfactory answer. In the absence of these material, the trial Court came to the conclusion that the suit was not filed by an authorised person. On appeal to the High Court by the plaintiff‑bank, one of the learned Judge of the erstwhile High Court of West Pakistan agreed with the view of the trial Court, while the other learned Judge differed. The matter was referred to a third learned Judge who felt that in order to enable him to pronounce judgment it was necessary to see the Articles of Association of the bank as also other documents relating to the appointment of said Muhammad Khan. In furtherance of the order of the learned third Judge to produce further evidence, the Memorandum and Articles of Association of the bank and copy of resolution of the Board of Directors were filed. Therefore, the third learned Judge came to conclusion that the suit was competently instituted. In appeal, Hon'ble Full Bench of Supreme Court upheld the majority view of the High Court with the following observations:‑‑‑

"It was apparent from the pleadings that the suit was being instituted by a constituted attorney of a public limited company. He could only do so if he was duly authorised in that behalf and occupied one or other of the offices mentioned in Rule 1 of Order XXIX of the Civil Procedure Code. A copy of the Power‑of‑attorney had been produced which showed that Muhammad Khan had been empowered in that behalf but the question still remained to be ascertained as to whether those who gave him that power were competent to do so, as the authority was on behalf of a public limited company. For this purpose a reference to the Articles of Association of the company was certainly necessary to see whether the Directors were competent to delegate such power. It was not necessary to see whether the Directors had in fact approved of the giving of such power‑of‑attorney to the person who presented the plaint. This was, however, proved by the production of the resolution of the Board of Directors as a matter of abundant caution. The additional evidence was to that extent, therefore, in our opinion, rightly admitted. This was all that was required...

We are unable to uphold the view that the production of the power of attorney bearing the common seal of the company was by itself sufficient." Underlining is mine.

The case of M/s. Muhammad Siddiq Muhammad Umar and another was referred by the appellant before the Hon'ble Supreme Court in the case of Khan Iftikhar Hussain Mamdot PLD 1971 SC 550 in support of its arguments that in order to ascertain the competence of the person who had filed a suit on behalf of a limited company, additional evidence at the appellate stage was not proper exercise of the discretion as provided under Order XLI, Rule 27, C.P.C. The Hon'ble Supreme Court agreed with the counsel for the appellant and made the following observation:‑‑

"The grievance of the appellant cannot be said to be ill‑founded. In my opinion, the learned Judges of the High Court should not have exercised their discretion under Order XLI, Rule 27, C.P.C., in respect of the production of the despatch register or the peon‑book, because such documents can be fabricated and manufactured. They were, however, right in allowing the evidence of Mr. Justice Muhammad Yaqub Ali Khan to be produced as additional evidence in the case."

I am of the view that the rule laid down by the Supreme Court in the case of M/s. Muhammad Siddiq Muhammad Umar and another is of no help to the plaintiff but the rule laid down in the case of Iftikhar Hussain Khan is very much attracted for the reason that this suit is pending since 1988 and on more than two occasions, the plaintiff was allowed to amend its plaint but despite that neither Memorandum or Articles of Association was placed on record nor any resolution nor even the status of plaintiff was disclosed in the subsequent pleadings. These two applications under Order VII, Rule 11, C.P.C., are pending for last more than 15 months. CMA 4093/95 was filed by the defendant No.37 where he has specifically challenged the legal status/entity of the plaintiff to file and maintain the above suit and has further stated that the suit has been filed without any resolution or authority of the plaintiff and that the plaint has been signed and verified by an unauthorised person. In reply to this application, one Nusrat Azeem who declared himself to be the 'coordinator' of the plaintiff filed his counter‑affidavit but nowhere he controverted allegations of the said defendant about the competence of the person tiling and prosecuting this suit. At that stage an opportunity was available to the plaintiff to remove this lacuna and to clarify the status of the plaintiff to justify the competence of the person to file and prosecute the above‑suit as well as competence of the person who signed and verified the plaint. It is pertinent to note that the first plaint was signed and verified by one A.A.K. Abbasi declaring himself to be Honorary Secretary of the plaintiff, while the amended plaint, which was filed on 12th June, 1993 was signed and verified by the same person namely A.A.K. Abbasi, this time disclosing himself to be the Honorary. Treasurer. Subsequently, counter affidavits and rejoinders were filed by one Nusrat Azqem declaring himself to be the Co‑Coordinator of the plaintiff but again no such authority or competence was shown. In support of contempt application one Muhammad Ahfaz Saleem has filed and sworn his affidavit who has disclosed himself to be the supervisor of the plaintiff. A perusal of file shows that during all this period which is spread over more than seven years the plaintiff made no attempts to remove this lacuna.

As a result of the above discussion, I am of the considered view that the suit being incompetent is not likely to succeed. It is settled law that an incompetent suit should be buried at an initial stage in order to save the defendants from hardship and harassment and in order to prevent abuse of process of law. If any reference is needed, see Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190, Pakistan Oil Company Ltd. v. The Karachi Electric Supply Corporation Ltd. and 24 others PLD 1991 Karachi 365'and M/s. Standard Hotels Private Ltd. v. M/s. Rio Centre and others 1994 CLC 2413.

The defendants have also challenged the maintainability of this suit on the ground of "multifariousness". It was with this view that the prayers in respect of separate sets of defendants were incorporated in the earlier part of this order. But in view of my finding that the plaint is liable to be rejected on the grounds discussed above, it is not necessary to deal with the second objection.

In furtherance of the above view, the plaint is liable to be rejected Order accordingly. Order of injunction granted earlier stands vacated.

A.A./B‑14/k ????????????????????????????????????????????????????????????? Plaint rejected.