IN THE HIGH COURT OF SINDH AT KARACHI

HCA NO.265 OF 2014

Present:-

Mr. Justice Aqeel Ahmed Abbasi

Mr. Justice Muhammad Junaid Ghaffar

Trading Corporation of Pakistan (Private) Limited------------Appellant

Versus

Tando Muhammad Khan Sugar Mills (Pvt) Ltd --------------Respondent

Date of hearing: 19.12.2014

Date of order: 19.12.2014

Appellant: Through Syed Ashfaq Hussain Rizvi

Advocate.

O R D E R

MUHAMMAD JUNAID GHAFFAR, J:- Through instant appeal, the appellant has impugned order dated 02.09.2014 passed by the learned Single Judge of this Court on CMA No.5451 of 2014 in Suit No.701 of 2011, whereby, the defendant’s application seeking permission for filing written statement and recalling of the order dated 08.04.2014 has been allowed.

2. Learned Counsel for the appellant has contended that the learned Single Judge was not justified in granting the aforesaid application, as the defendant had already been granted sufficient time for filing of written statement, but had failed to do so, therefore, there was no justification for allowing further time to the defendant to file written statement as the defendant had already been declared Ex-parte by the Court. Learned Counsel has further contended that even otherwise, the application for recalling of Ex-parte order was not filed through an authorized person, as the same had been filed without any Resolution of the Board of Directors of the defendant, whereas, only Extract of Minutes of Meeting of the Board of Directors of the defendant were filed, which, according to the learned Counsel, was not a proper authorization. Learned Counsel has further contended that since the person, who has filed application for seeking recalling of the order dated 08.04.2014, is not an authorized person in absence of a proper Board’s Resolution, the suit of the plaintiff, if decreed, otherwise would not be executable.

3. We have heard the learned Counsel for the appellant, perused the record and have also gone through the order passed by the learned Single Judge. From perusal of the impugned order, it is seen that the learned Single Judge, after scrutinizing the contents of the application and the sufficient cause shown for not having filed the written statement within the given time, has allowed the defendant’s application, whereby two weeks’ time for filing written statement has been allowed, however, with a note of caution that in case the defendant fails to file written statement within such period, the right of defense of the defendant shall stand struck of. We are of the view that the discretion vested in the learned Single Judge to condone the delay and to allow further time to the defendant to file written statement, if sufficient cause has been shown, has been fairly exercised after examining the record and the mitigating circumstances which had prevented the defendant from filing written statement within time. In our opinion the impugned order does not suffer from any error or illegality, hence, does not require any interference by this Court. Moreover, the appellant has not been able to point out any jurisdictional defect nor has alleged any malafide in exercising such discretionary power by the learned Single Judge. As regards an objection with regard to filing of extract of minutes of Board’s meeting instead of a Board’s Resolution, for filing application on behalf of the defendant, the same is also not tenable and appears to be misconceived, as the Extract of Minutes of the Board’s meeting reflects that the Secretary of the defendant’s Company has been duly authorized to engage Counsel, sign Vakalatnama etc on behalf of the defendant’s Company. We do not see any reason to discard such authorization at this stage of the proceedings, whereas, the appellant may agitate and object such authorization at the time of recording of evidence in the Suit. Similarly, the objection of the learned Counsel for the appellant that eventually, if the suit of the appellant is decreed, the same would not be executable, as proper authorization of the defendant is not on record, also appears to be misconceived, as it is based merely on apprehension, whereas, the Suit has been filed against a Limited Company which is a juristic person and not an individual and the law provides a complete mechanism for execution of decree passed by a Civil Court in respect of a Company.

4. In view of hereinabove facts and circumstances of this case, we do not find any substance in the instant High Court Appeal, whereas no legal question has been raised by the appellant which may require this Court to interfere with the impugned order passed by the learned Single Judge of this Court while exercising the discretion vested in the Court under the law. Accordingly, we had dismissed the instant High Court Appeal in limine vide our short order dated 19.12.2014, and these are the reasons of such short order.

JUDGE

Talib