IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAT-IAR ALl AKBAR NAQVI
CIVIL PETITION NO-820 OF 2019
(Against the judgment dated 2502.2019
of the Peshawar High Court, Peshawar
passed in Civil Revision No.592-P12018)
Sf0, PESCO Daudzai Sub-Division Ring Road, Peshawar
etc.
Petitioner(s)
Versus
Wadan Sher
Respondent(s)
For the Petitioner(S)
For the Respondent(s)
Date of Hearing:
Mr. Mad Jan, ASC
(through video link from Peshawar)
Not represented (Ex-parte)
25.08.2022
ORDER
IJAZ UL AHSAN, J: The Petitioners through this
Petition have challenged a judgment of the Peshawar High
Court, Peshawar dated 25.01.2018 passed in Civil Revision
No. 592-P/2018.
2. The brief facts giving rise to this Its are that the
Respondent filed a suit for declaration to the effect that a bill
sent by the Petitioners for the month of August 2012 for Rs.
240,217/- was incorrect. The suit was decreed vide judgment
and decree dated 24.11.2014. Dissatisfied, the Petitioners
I
CIVIL PETITION NO.820 OF 2019 
-: 2
filed an appeal which was dismissed vide judgment dated
10.07.2018. Aggrieved, the Petitioners filed a Civil Revision
which met the same fate and was dismissed in lirnine vide
order dated 25.01.2019, The Petitioners have now approached
this Court and are seeking leave to appeal.
3.
The learned ASC appearing on behalf of the
Petitioners has argued that the learned High Court erred in
law in holding that the Petitioner was required to get
authorization to file the Civil Revision from PESCO for the
reason that the Petitioner No. 01 was sued in his personal
capacity and was therefore, not representing PESCO but was
defending himself as a separate legal person. The learned ASC
has further argued that the question of law relevant in this
case has already been decided by this Court to the effect that
where an official has been sued in his personal capacity,
there is no requirement of a Board resolution of the company
of which he is an official. He points out that the petitioners
are SDO PESCO, XEN PESCO and R.O. Office. None of whom
is the company of which they are employees and as such in
order to contest the suit, no resolution of the Board of the
company was required.
4.
Despite service, no one appeared on behalf of the
Respondent. He was accordingly placed ex-parte.
CIVIL PETITION No.820 OF 2019 
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5.
We have heard the learned Counsel for the parties
and perused the record. The basic question which needs to be
answered is whether a board resolution permitting the
Petitioner to file a civil revision petition was required in order
for the Petitioners to appear before the lower fora. The answer
to this question is in the negative. It is noteworthy that the
Petitioner was sued in his personal capacity and was not
representing PESCO. The plaint of the Respondent nowhere
mentions that PESCO in its capacity as a public limited
company was sued. The Respondent consciously chose to
nominate the Appellants as defendants in the suit, in their
respective personal capacities. This can be seen from the title
of the plaint, which finds specific mention of the Appellants.
The fact remains that from the contents of the plaint, it is
evidence that the grievance and cause of action of the
Respondent was against the Company and not against the
Petitioners. As such the framing of the suit was less than
perfect to say the least. This material aspect was ignored by
the lower fora including the High Court.
6.
If the Petitioners were appearing as persons nominated
by and defending/ representing the Company, they may have
arguably required a board resolution. However, the record
clearly shows that the Petitioners appeared before the lower
fora in their respective personal capacities and not in the
capacities of PESCO's representatives. As such, the learned
CIVIL PETITION NO.820 OF 2019 
. 
-: 4
High Court erred in law as well as in fact to hold that the
Petitioners lacked authority to appear and required a board
resolution from PESCO.
7. It is pertinent to mention here that a Company
has a separate and distinct legal identity. When a Company is
sued or is initiating legal proceedings, there must be proper
authorization which is ordinarily provided in the
Memorandum and Articles of Association or a Resolution of
the Board of Directors of a Company. To the contrary, if a
member/shareholder/director/official of a Company is sued
in his personal capacity, then, the need for a Board
Resolution authorizing such person does not arise. This is
because, the Company is itself a separate legal entity
whereas, its members/ officials/ shareholders /directors, in
their personal capacity, have a separate legal status. Reliance
in this respect is placed on the case reported as Uzma
Construction Co. v. Navid H. Malik (2015 SCMR 642). This
interpretation is in line with Order XXIX of the Code of Civil
Procedure, 1908 which reads as follows: -
"1. In suits by or against a corporation, any pleading rnau
be signed and verified on behalf of the corporation b y the
secretary or by any director or other principal officer of the
corporation who is able to depose to the facts of the case.
2. Subject to any statutory provision regulating service of
process, where the suit is against a corporation the
summons may be sewed - a) on the secretary, or on any
director, or other principal officer of the corporation, or b)
by leaving it or sending it by post addressed to the
corporation at the registered office, or if there is no
clvi PETnION NO. 820 OF 2019 
-: 5
registered office then at the place where the corporation
carries on business.
3. The Court may, at any stage of the suit, require the
personal appearance of the secretary or of any director, or
other principal officer of the corporation who may be able
to answer material questions relating to the suit."
(Underlining is ours)
8. Order XXIX ibid applies when a suit is initiated
against or on behalf of a corporation. In that instance, a
Board Resolution is important for the reason that the relief
being sought is against the corporation as a whole, which is
separate from its directors/shareholders/members! officials.
It has been settled through various judgments that even if a
Board Resolution is not provided, the same is not an
incurable defect on the basis of which a suit can be
dismissed. In the present case, PESCO has not been sued.
Rather, the Petitioners have been sued in their personal
capacities. The written statement filed before the trial Court
shows that the same has been filed by the Petitioners for
themselves and not on behalf of the Company. As such, the
argument that the Petitioner lacked authority is repelled since
authority from the Company was not required in the instant
matter. Reliance in this regard is placed on the case reported
as Chief Executive, PESCO Department, Government of
Khuber Pakhtunkhwa. Peshawar ii. Afnan Khan (2021
SCMR 21001 in which this Court held as follows: -
"6. As regards the question of filing of resolution, we
note that the very civil revision was not filed by the
Company rather it was filed by the Chairman, WAPDA
CIVIL PETITION NO.820 OF 2019 
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and Chief Executive, PESCO and these are the two
authorities who were also irnpleaded by the respondent
as defendants in the suit. Once the respondent himself
has chosen to make a specific designation in the
organization/ company as party to the suit and not the
organization/ company, the objection with regard to filing
of the resolution by the Company could not be justifiably
raised."
9.
The learned High Court has held that the
Petitioner required authorization to defend the suit. However,
as already held above, since the Petitioners have been sued in
their personal capacities, therefore, the learned High Court's
conclusion to the effect that authorization was required is
untenable. The Respondent chose to implead the Petitioners
by mentioning their specific designations, thereby, referring to
them in their personal capacities. This issue is particularly
important since it determines the nature of the suit. If the
suit was filed against PESCO, then, the applicable law and
rules would operate differently. However, since the suit was
filed against individuals in their personal capacities, the law
would take a different course altogether.
10.
The lower fora, as a matter of abundant caution,
could have satisfied themselves by seeking production of
Articles of Association of the Company if the suit was filed by
PESCO in its capacity as a Public Limited Company or, if the
suit was filed against PESCO in the said capacity. However,
since the suit has been filed against its officials in their
personal capacities, such scrutiny was neither required nor
necessary for adjudication of the present Us. It has nowhere
CIVIL PETITION NO.820 OF 2019 
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been argued that someone else from within the Company was
competent to defend the suit. Rather, a generic stance has
been taken to the effect that a Board Resolution was
necessary for the Appellants to defend the suit so that it
could be ascertained that they were empowered by PESCO to
do so. We cannot agree with this conclusion by the lower fora
simply because the Appellants have nowhere taken any
stance on behalf of the Company or defended the Company.
Rather, the Appellants have defended themselves in their
individual capacities. As such, they were not required to
produce a Board Resolution when defending themselves in
their personal capacity.
11. Even otherwise, this Court in its pronouncements
such as Rahat and Company p. Trading Corporation of
Pakistan Statutory Corporation 12020 CLD 872 Supreme
Court) has held that even in the absence of a Board
Resolution, pleadings can, either expressly or impliedly, be
subsequently ratified. The Court can, therefore, come to the
conclusion that the Corporation had ratified the act of signing
the pleadings by its Officer(s). As such, it is discernable from
the said pronouncement of this Court that the absence of a
Board Resolution is not an incurable defect which would ipso
facto render a plaint/suit defective. Rather, it is a curable
defect arid, in certain instances, is not even necessary if
CML PETITION NO820 OF 2019 
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subsequently, the plaint/suit is ratified by a person
competent and empowered to do so.
12.
The High Court has proceeded on incorrect
premises and misapplied the law to the facts and
circumstances of the case which warrants interference of this
Court. Accordingly, the judgment of the High Court is held to
be legally unsustainable.
13.
For the reasons recorded above, this petition is
converted into an appeal and allowed. The impugned
judgment of the Peshawar High Court dated 25.01.20 18 is set
aside. 
Islamabad, the
25th 
ugust, 2022
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