SUIT NO.607/2012

Plaintiffs              :        Dr. Dilnawaz Rafi Shaikh & others, 

                                         Through M/s. Saleemuz-Zaman &

                                         Mr. Muhammad Ali Jan, advocates.


Defendants          :        Riyazur-Rahim and others,

through Mr. Farooq Hashim advocate for defendants No.1 and 2.

Mr. Saleemuz-Zaman advocate for defendants No.3 and 4.


Date of hearing :        26.08.2014.

Date of Order     :       08.09.2014




SALAHUDDIN PANHWAR, J. This order will dispose of application under Order VII Rule 11 CPC filed by defendant No.1, contending therein that person who signed and verified the plaint had no authority in as much as annexure B to plaint discloses that Muhammad Rafi Shaikh is sub-attorney of Firasat Ghori while plaint has been signed and verified by Dr. Muhammad Rafi Shaikh; General power of attorney does not disclose any authority to sign, verify and present the plaint as such plaint has been filed signed and verified by unauthorized person. Further it has been pleaded in plaint that Dr. Muhammad Rafi Shaikh is duly constituted attorney of plaintiff No.1 to 4 while as per annexure A Firasat Ghopri is claiming to be attorney of Rafia Sultana, Zakia Sultan and Mrs. Dilnawaz Rafi Shaikh while Riazur-Rahim has already revoked and cancelled the general power of attorney and had given intimation to Firasat Ghori on 02.10.2006, that power of attorney was obtained by Firasat Ghori from defendant No.1 under duress by extending threats, and that in CVT I challan for registration of general power of attorney it was found that signature of defendant No.1 had been forged and he has been disclosed as seller in CVT form, that status of person who verified the plaint was not disclosed in verification.

2.                                            Learned counsel for defendants No.1 and 2 while reiterating above contentions, has argued that suit is incompetent as it is filed without any authorization from plaintiff; no written general power of attorney from plaintiffs favouring signatory of the plaint is in existence, neither same is filed nor produced in Court on the basis of which suit has been signed, verified and filed. Thus proceedings launched without any lawful authority would be nullity in the eyes of law; suit is also incompetent as it has not been filed on the strength of any of the three deeds of general powers of attorney/sub-power of attorney annexed with the plaint. As a matter of fact general power of attorney annexure-A is in favour of one Firasat Ghori who is not signatory of the plaint which was neither verified nor presented by him. When deeds, acts of signing, verifying and filing of the suit were not performed under the strength of any of the three written power of attorneys attached to the main plaint, any alleged attempt to condone or ratify the acts, deeds of attorney within the terms of the said three powers of attorney will not provide any shelter from the consequence arising out of defendant No.1’s application under order VII rule 11 CPC. He has relied upon 2009 MLD 538, 2005 CLC 269, 1997 CLC 795, NLR 1987 CIVIL 614, PLD 1987 LAHORE 392, 1995 CLC 896, NLR 1984 AC 227, , 2005 CLC 269, NLR 2005 CIVIL 47, PLD 2000 LAHORE 168, PLJ 2001 LAHORE 175, PLD 1999 KARACHI 260, 2005 CLC 610, MLD 2007 54, NLR 2005 CIVIL 437, PLD 1985 SC 341, PLD 2003 PESHAWAR 40, NLR 1989 SCJ 262, 1995 CLC 1541, NLR 2005 CIVIL 556, 1994 CLC 2413, PLD 1984 AZAD J & K 1 and prayed for rejection of plaint.

3.                                            Conversely, learned counsel for plaintiffs has argued that sub-power of attorney has limited powers within the scope and within the four corners of the general power; sub-power does not contain powers to sell and /or mortgage etc, as set out in para-3 and 4 of general power of attorney which includes the power to institute suits, that powers contained in para 13 of the sub-power are also contained in para 1 of general power of attorney and are ancillary thereto, powers contained in para 14 of sub-power are ancillary to powers contained in para 5 of general power of attorney to give effect thereto, that powers contained in para 5, 13 and 14 are within the powers as contained in last para of general power of attorney and that powers contained in sub power are within the four corners of the powers contained in general power as permissible under the law to give effect to the purpose for which the power has been granted. That as regard to defendant No.1’s  claim that Muhammad Rafi Shaikh has filed suit against one of the principals, it is pointed out that suit has been instituted by plaintiffs against defendants which includes defendant No.1 through duly constituted attorney. That plaintiffs NO.1, 3 and 4 have not withdrawn their power granted to Firasat Ghori who in turn has given powers to the attorney, even alleged withdrawal of power by defendant No.1 has no bearing on facts of the case as this is suit for administration, partition, declaration, cancellation and injunction. It is further argued that as an abundant caution plaintiffs No.1, 3 and 4 by power of attorney dated 04.01.2013 have ratified; all actions taken by the attorney by virtue of duly registered power of attorney dated 27.09.2006 which ratification includes filing of suit No.607 of 2012 and suit has been instituted under lawful authority of plaintiffs No.1, 3 and 4, that full name of attorney is Mohammad Rafi Shaikh rightly written in paint as well as in the sub power of attorney annexure-B granted to him by Firasat Ghori, attorney’s father name is Hafiz Mohammad Usman last name inadvertently written as Hussain in the sub power of attorney however his CNIC is specifically provided in the sub power of attorney for proper verification. That as regard to allegation about CVT, it has nothing to do with the proper filing of the suit as signature of defendant No.1 has not been challenged by defendant No.1 and that alleged withdrawal of power granted by defendant No.1 by plaintiffs and the attorney and/or Firasat Ghori has no bearing whatsoever on general power of attorney granted by plaintiff No.1, 3 and 4. The application under reference is frivolous, misconceived and baseless and liable to be dismissed with heavy cost. He has relied upon 2007 CLC 404 SC (AJ&K), PLD 1989 PESHAWAR 185, PLD 1969 KARACHI 210, 1999 MLD 2202 LAHORE, PLD 1975 SC 678, PLD 2010 KARACHI 158, 1982 CLC 1275, PLD 1973 LAHORE 33.

4.                                            Before going into details of merits of the instant case, it would be significant to first refer the provision of Order VII Rule 11 CPC for proper disposal of the application in hand.

Order VII  R. 11 CPC. 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, failed 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.


5.                                            The above reading makes it quite obvious that it speaks about four situations. Out of four, two relates to procedural requirement i.e (b) and (c) and for both situation the plaint is not to be rejected unless the plaintiff fails to make compliance despite specific direction. Thus, it would be pertinent to mention that a procedural formality or requirement even if found to be existing can well be allowed to be rectified if same are not restricted by law or have created certain legal rights in claim of rival party. The clause (a) is specific and clear that a plaint, failing to spell out a cause of action, shall require its rejection. While referring the last clause i.e clause (d) which shall come into play where ‘the statement in plaint makes it (suit) barred by any law’.            The term ‘barred by law’ shall not be available where there is a technical error, defect or irregularity which, even if allowed to be corrected, causes no prejudice to other-side rather makes things straight for proper adjudication which has been the ultimate object of law.

6.                                            In the instant matter, the learned counsel for the defendants, for rejection of the plaint of the plaintiffs has mainly insisted that plaint, being verified by incompetent person, deserves to be rejected. Let’s see what the relevant provision of Code (C.P.C.) says about signing and verification of pleading (s).


Pleadings to be signed.---Every pleading shall be signed by the party and his pleader (if any); provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.



Verification of pleadings.—(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified (on Oath or solemn affirmation) at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.

(2)       The person verifying shall specify, by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3)       The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.

7.                                            Bare perusal of above provision makes it quite clear that since these provisions nowhere, bring any penal consequence in event of the failure to make compliance thereof in stricto-senso, therefore, these provision (s) are directory in nature. These provision (s) have nothing to do what is stated in the pleading (plaint or written statement) but the object of these provision is to make it clear for other-side that as to what is based on personal information of person, signing and verifying or what he believes to be true. Worth to add here that a procedural provision if not carrying penal consequence cannot result into considering as ‘incurable’ . An omission to verify or defective verification is a mere irregularity not effecting the merits which can be cured at subsequent stage. A curable irregularity needs not be confused with the term ‘barred by law’ , so used in the clause (d) of the Rule-11 of Order-VII of the Code. At this juncture it would be conducive to refer the case of Ismail vs. Razia Begum (1981 SCMR 687), wherein it is held that:-

“ the learned counsel conceded before us that the respondents had all along prosecuted their suits with diligence and had appeared as their own witnesses. In these circumstances, the non-signing of the plaints by them at the proper stage was a mere irregularity, and consequently the learned District Judge was entirely justified to direct that the said irregularity may be rectified. Furthermore the learned counsel has not been able to show as to how he has been prejudiced, therefore, the objection raised by him is only technical .”

In case of “Rajab Ali vs . Messrs Gujrat Bus Service  Karachi”  PLD 1961 (W.P) Kar. 486 it is held that :-

“there is no authority to support the contention that Order VI Rule 14, contemplates a formal application by a party who is unable to sign the pleadings. But even if that were the case, the omission is of a minor nature and the Court can get the plaint signed by the Appellant in addition to the signature of the legal attorney of the party. The objection was treated purely of technical nature having no bearing on merits of the case and was overruled.”

(underlining has been supplied for emphasis)


8.                                            It is also a matter of record that the suit was claimed to be filed by an ‘authorized agent’ which is covered by Order-III rule 2 of the Code. Even if the claim of the defendants’ side is believed that plaint was filed by an incompetent person with reference to a defective  power of attorney’  yet the acts and deeds can well be rectified by the principal. This view find support with the case of Karimdad Khushk(PLD 2010 K 158), wherein is held that:

‘As regards the plea of the appellant that suit was not competently filed, the plaint itself shows that it is signed by Safeer Ullah Abbasi and Ruizwanul Haq Siddiqui, who are attorneys of the respondent. Merely for the reasons that copies of power of attorney were filed subsequently will not make the suit incompetent as it is now established that een if the plaint is not competently filed, such anomaly can be rectified subsequently. Reference in this regard is made to the case of Habib Bank Ltd. Vs. Messr ESS EMM ESS corporation Pakistan Ltd. And 5 others 2005 CLD 854.

9.                                            Besides, in the instant matter the plaintiffs have placed on record the copy of the power of attorney and have rectified and reaffirmed the status of the person, signed and verified the pleading, therefore, the defect (s), if any, in compliance of the Order VII Rule 14 and 15 CPC, stood complied, which otherwise, have caused no prejudiced to the defendants.

10.                                       In view of above discussion, it is manifest that since the rejection of the plaint of the plaintiffs has been sought simply with reference to compliance of Rules-14 and 15 of the Order-VI of the Code, which being mere irregularity, cannot bring such a case within meaning of clause (d) of the Rule-II of Order-VII of the CPC. therefore, the application of the defendants, on such ground, is not worth to result in rejection of the plaint. Accordingly, the instant application is hereby dismissed.



                                                                                                J U D G E

Imran PA