2010 M L D 1787
(a) Civil Procedure Code (V, of 1908)---
----O. XXXIX, R.2(3)---Breach of interim injunction---Consequences---Provisions of O.XXXIX, R.2(3), C.P.C., envisaged penal consequences for violating orders passed by a court of law---Penal consequences were always against a named individual and could not be enforced against official designations.
Khawaja Muhammad Sharif v. Abdul Baqu (PLD 1954 Pesh. 72, Ghulam Sarwar v. Ghulam Rabbani PLD 1992 Pesh. 130; Ayaz Durrani v. Chairman WAPDA (PLD 2000 Lah. 414; Haji Sheikh Afzal Hussain v. Bhabani Prosad Saha PLD 1963 Dhaka 25 and Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 ref.
(b) Civil Procedure Code (V of 1908)---
----O. I, R.9---Misjoinder or non joinder of parties---Effect---Misjoinder or non joinder of parties, seldom would result in dismissal of the suits.
Sardar Muhammad Kazim Ziauddin Durrani v. Sardar Muhammad Asim Fakhruddin Durrani and others 2001 SCMR 148 ref.
(c) Civil Procedure Code (V of 1908)--
----S. 115---Revisional jurisdiction .of High Court---Scope---Findings of the courts below which were neither perverse nor arbitrary, could not be disturbed in revisional jurisdiction of High Court.
Muhammad Idrees v. Muhammad Parvez 2010 SCMR 5 ref.
Minhaj Ahmad Khan for Petitioners.
Nadeem Rasheed for Respondent.
Date of hearing: 24th May, 2010.
2010 M L D 1787[Peshawar]Before Yahya Afridi, JMANAGER MUSLIM COMMERCIAL BANK, MARDAN and others---PetitionersVersusQazi JAN MUHAMMAD---RespondentCriminal Revision No. 335 of 2010 decided on 28th May, 2010.
JUDGMENT
YAHYA AFRIDI, J.---This Revision Petition is directed against the judgment and decree passed by the learned Additional District Judge-VII, Mardan dated 21-10-2009 whereby the appeal of the present petitioners against the judgment and decree dated 27-4-2009 passed by Civil Judge-IV, Mardan was dismissed.
2. The brief and relevant facts which have led to the present petition are that the present respondent had opened an account No.PLS-010331-2 ("Account") at Muslim Commercial Bank Limited ("MCB"), Bank Road Branch, Mardan ("Branch") and on retirement from WAPDA, he had deposited his pensionary benefits in the Account.
A Cheque bearing No.262915 dated 19.5.2003 for an amount of Rs.80, 000 ("Cheque") on presentation at the counter of the Branch was honoured and the said amount was debited from the Account.
3. The present respondent contested and disputed the signature on the said cheque. In consequence thereof, inter alia, a recovery suit was filed by the present respondent against the present petitioners.
4. The present petitioners filed their written statements, disputing the assertion made by the present respondent, wherein one of the preliminary objections was that the suit of the present respondent was not maintainable for non-joinder of necessary party as:
"that the suit is bad for non-joinder of necessary parties. One Mr.Tariq Aziz son of Ghani Gul has withdrawn the amount from the plaintiff bank as such he is a necessary party".
There was no clear objection taken by the present petitioners regarding the maintainability of the suit for not impleading the MCB as a party.
5. The trial Court based on the pleadings of the parties framed fourteen issues and after recording of evidence, decreed the suit in favour of the present respondent vide judgment dated 27-4-2009.
Aggrieved of the said decree, the present petitioners assailed the same in appeal, which too was dismissed by impugned decision dated 21-10-2009. Hence the present revision petition.
6. The contention of the learned counsel for the petitioners was mainly restricted to the legal objection of filing a suit against the officers of the Bank and not the legal entity itself. The learned counsel contended that MCB was a legal person incorporated under the Companies Laws in Pakistan and hence could only be sued in its own name and not in the name of its employees. He further contended that no suit could he filed against officers of a company. He relief upon Khawaja Muhammad Sharif v. Abdul Baqu (PLD 1954 Peshawar 72), Ghulam Sarwar v. Ghulam Rabbani (PLD 1992 Peshawar 130 and Ayaz Durrani v. Chairman WAPDA (PLD 2000 Lahore 414).
7. The learned counsel for the respondent rebutting the arguments of the learned counsel for the petitioners contended that no such objection was taken in the written statement filed by the present petitioners; hence the same could not be taken at this belated stage. He further contended that the written statement filed by the present petitioners were in fact filed by MCB, as it contained the signature of the Manager of the Branch who was the valid and lawful attorney of the MCB. He further contended that the application for the grant of permission to amend the written statement was signed and stamped by the Manager of MCB. In addition thereto the only 'Wakalat Nama' filled with the written statement dated 18-9-2000 was signed by the Manager of MCB and it also contained a seal of MCB. He also contended that the objection taken by the present petitioners was only to avoid and defeat the process of law. The learned counsel added that the issue relating to the negligence of the petitioners which caused pecuniary loss to the present respondent was duly proved in evidence.
8. The valuable arguments of the learned counsel for the parties have been duly heard and noted. The available record of the case has been thoroughly considered with the assistance of the learned counsel for the parties..
9. Now to the case-law cited by the learned counsel for the petitioners; Ghulam Sarwar's case and Khawala Muhammad Sharif's case are essentially relating to breach of interim injunctions under Order XXXIX, Rule 2(3) of C.P.C. The said provision of law envisages penal consequences for violating orders passed by a court of law. Penal consequences are always against named individual and cannot be enforced against official designations. Ayaz Durrani's; case decided by the Lahore High Court is however, related to legal consequences arising out of punitive actions initiated by the WAPDA against the directors of a company.
All the cases cited by the learned counsel are not relevant to the facts of the present case. In the present case, specific acts committed by officers of MCB resulted in pecuniary loss to the present respondent.
Hence impleading them by designation was to satisfy the dictates of Order I Rule, 3 of Code of Civil Procedure, 1908 ("C.P.C.") being "proper parties", if not "necessary parties".
The issue of filing a suit against company, which was not correctly described in the plaint has been elaborated in Haji Sheikh Afzal Hussain v. Bhabani Prosad Saha (PLD 1963 Dhaka 25) which explained that: -
"……6. The next ground relating to maintainability of the suit urged by Mr. B. C. Das is that the landlord being a registered company, the suit ought to have been filed by the company, as such, so that the present suit filed not by the company but by one Bhabani Prosad Saha as Managing Director cannot be maintained. This objection was raised in the courts as well, but was overruled on two grounds. In the first place, the Courts below considered the objection as too technical and were of the opinion that suit was really filed in the name of Shaha Estate Ltd. from its Pabna branch, the words "Bahabani Prosad Saha on behalf of the company" being redundant. Secondly they also found that Bhabani Prosad was authorized under the Articles of Association of the plaintiff company to file suits on its behalf and that as such the present suit as filed by him on the basis of that authority was maintainable.
(7) There appears to be nothing wrong in the above view taken by the learned Courts below. It is no doubt the general rule that a company must sue or be sued, not in the names of its agents or servants but in its own corporate name but where, however relief is really sought by or against the company and the errors merely one of misdescription a suit, through nominally by or against the agent may be treated in substance to be one by or against the company."
The above mentioned dictum in the judgment has clearly explained the effect of mere misdescription of a party in a suit, where the same has been filed against the agent of the company. In such cases, it is to be treated in substance to be one by or against the said company.
In the present case the record of the case reveals that the 'Wakalat Nama' which was filed by the Manager of the Branch of MCB had his signature and also the stamp of MCB. There are other documents, which bear the stamp of the MCB affixed thereon.
The objection of the present petitioners is not of much avail as the description or defendant No.1 petitioners No.1 was:--
"Manager National Bank of Pakistan, Bank Road Branch Mardan",
And the correct description of the party was to be:
"Muslim Commercial Bank through the Manager Bank Road Branch, Mardan".
This surely is a hypertechnical objection raised by the learned counsel for the present petitioners and the objection has been duly laid to rest by a judgment referred to hereinabove.
What is to be noted is that in substance MCB had notice of the suit, which was filed against it and also that it was duly represented to fulfill the principle of "natural justice". The record of the present case reveals that these essential requirements of law were substantively complied with.
In the case of Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382) a guiding and binding principle has been laid down by the apex Court while dealing with the legal technicalities. It has been held that technicalities of law, whether of procedural or substantial in nature, shall not be allowed to defeat substantial justice or on that account to let unjust order to remain.
On general note, Misjoinder or non-joinder of parties seldom results in dismissal of the suits. Reliance may be placed on Sardar Muhammad Kazim Ziauddin Durrani v. Sardar Muhammad Asim Fakhruddin Durrani and others (2001 SCMR 148).
10. Coming to the merits of the case, Shamim Anwar Chief Manager MCB Bank Road Mardan (D.W.1) in his statement clearly states that there was overwriting on the Cheques and that the encashment of such cheques was against the rules of MCB. He explained this in the following manners:--
"I have seen the original cheque which bears the signature of one Mr. Muhammad Tariq Officer in counter signature was made by Chief Manager Jehan Khusro Khan. The officer Mian Muhammad Tariq's duty is to verify the signature of the account holder with the specimen of the signature of the account holder and thereafter the cheques was computed and posted by him to the cashier for the payment of the cheque. The signature of the cashier is also available on the said cheque. Today I have seen the original cheque and on the face of it the signatures of all these officers were made with red ink. It is correct in figures there is some overwriting made in the face of the disputed cheque in amount voluntarily stated that in column of words the amount is correctly mentioned as 80,000 rupees. I am well-acquainted with the rules and. regulations written on the cheque book. It is correct that the instructions written on the cheque book is given by our Bank MCB Mardan Branch. It is correct that that the said instructions some liabilities arc mentioned to be fulfilled by the bank officials while some liabilities, by the account holder. It is correctly mentioned in instructions that all alterations made in the cheque must be verified by the drawers full signature otherwise it may not be paid...."
Similarly Abdul Awal, Cashier MCB (D. W.2) also verifies that there was overwriting on the Cheque and that a cheque having overwriting is not allowed to be encashed unless duly signed by the drawer. He explained it as.
"………today I have seen the disputed cheque. It is correct that on
the face of the disputed cheque overwriting is made in amount figure."
11. Finally, the scope of the revisional jurisdiction of the High Court under section 115 of the C.P.C. has recently been dilated upon by the august Supreme Court in Muhammad Idrees v. Muhammad Parvez (2010 SCMR 5) and held that:--
"The High Court in exercise of its revisional jurisdiction under section 115, C.P.C. unless such findings suffer from controversial defects, illegality or material irregularity as law laid down by the Privy Council in Hindu Religious Endowments Board, Madras' case PLD 1949 PC 26. With regard to section 115, C.P.C. it is observed by the Privy Council as under:
(i) This section empowers the High Court to satisfy itself upon three matters:--
(a) That the order of the subordinate Court is within its jurisdiction.
(b) That the case is one in which the Court ought to exercise jurisdiction.
(c) That in exercising jurisdiction, the Court has not acted illegally, that is breach of some provision of law, or with material irregularity, that is by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
Keeping the above guiding principle, this Court considers that the findings of the courts below should not be disturbed, as the same are f neither perverse nor arbitrary.
For the reasons stated hereinabove, the present revision petition fails and is dismissed.
No order as to costs.
H.B.T/219/P Petition dismissed.
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