IN THE HIGH COURT OF SINDH AT KARACHI
Plaintiffs : Dr.
Dilnawaz Rafi Shaikh & others,
M/s. Saleemuz-Zaman &
Muhammad Ali Jan, advocates.
Defendants : Riyazur-Rahim
through Mr. Farooq Hashim advocate for
defendants No.1 and 2.
Mr. Saleemuz-Zaman advocate for defendants
No.3 and 4.
hearing : 26.08.2014.
Date of Order :
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.
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.
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).
ORDER VI R. 14
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.
ORDER VI R. 15
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
verification shall be signed by the person making it and shall state the date
on which and the place at which it was signed.
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
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
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