IN THE COURT OF IIIRD SENIOR CIVIL JUDGE

WEST AT KARACHI

Civil Suit No. 12 of 2024

JUNAID QURESHI ……………………………… PLAINTIFF

VERSUS

MUHAMMAD TAHIR & OTHERS ……………… DEFENDANTS

APPLICATION UNDER ORDER VII RULE 11

READ WITH SECTION 151 C.P.C. 1908

For the grounds enumerated in the accompanying affidavit, it is

humbly prayed on behalf of Defendant No.1 abovenamed that this

Honorable court may graciously be pleased to reject the plaint as is barred

by law and plaint discloses no cause of action against the answering

Defendant.

Prayer is made in the interest of justice.

Karachi
Dated ____ June, 2024
ADVOCATE FOR DEFENDANT NO.1
 IN THE COURT OF IIIRD SENIOR CIVIL JUDGE
WEST AT KARACHI

Civil Suit No. 12 of 2024

JUNAID QURESHI ……………………………… PLAINTIFF

VERSUS

MUHAMMAD TAHIR & OTHERS ……………… DEFENDANTS

AFFIDAVIT

I, Muhammad Tahir S/o Sabir Hassan, Muslim, Adult, resident of

House No.111/3, 26th Street, Phase-VI, DHA, Karachi, do hereby state on

oath as under:

1. I say that being Defendant No. 1 in the captioned matter, I am well

conversant with the facts and circumstances of the case and the
accompanying application under Order VII Rule 11 CPC has been
drafted under my specific instructions, the contents whereof may
be treated as part and parcel of this affidavit for sake of brevity.

2. I say that the captioned suit is filed for recovery of movable

property, damages, and mandatory injunction. The Plaintiff has,
inter alia, prayed that containers belonging to [name of company]
that have been unlawfully detailed by [MTO PL] may be recovered.
However, rather than instituting the suit in the name of the
company i.e. [name of the company], he has filed the instant suit in
his personal name. Moreover, admittedly the unidentified
containers are lying in the yard owned and managed by [MTO PL],
however, the said company has not been made party in the instant
suit.

3. I say that the Plaintiff has instituted the instant suit in the name of
wrong plaintiff and wrong defendant, as the answering defendant
cannot be held personally liable for the actions / inactions of a
private limited company, which is a separate legal body.
4. I say that the Plaintiff has no cause of action against the answering
Defendant, inasmuch as, his claim is against [MTO PL], which is a
legal person and can sue and be sued in its own name. The
answering defendant has a separate legal identity, and it is settled
law that any member or shareholder or director or official of a
company cannot be sued in his personal capacity for the actions of
the company.

5. I say that the suit is bad for misjoinder of parties and non-joinders
of necessary parties, as such, the same is defective which cannot be
cured, as such, the suit is not maintainable in its present form.

6. I say that the plaint in the instant suit suffers from serious and
glaring legal infirmity inasmuch as the mandatory prerequisite of
impleading the company has not been fulfilled by the Plaintiff.

7. I say that the Plaintiff’s claim is erroneously directed against

Defendant No.1 in his individual capacity, inasmuch as the
containers are detained by the company-not by the answering
Defendant.

8. I say that, if which is denied, that the Plaintiff has a cause of action,
the same is against [MTO PL], not the answering Defendant.

9. I say that it is settled law in view of the dicta laid down by the
superior courts in 1986 SCMR 680, 1987 MLD 15, 1981 CLC 462,
PLD 2014 Sindh 378, 2019 SCMR 648 where a necessary party is
not impleaded in the case, the case is liable to be dismissed.

10. It is settled law that in cases of a suit by or against company, the

company is to sue or be sued in its name through its authorized
person. Mere impleading of the authorized person on his own and
failing to array the company as a plaintiff/defendant would lead to
dismissal of the suit. Reliance is placed upon PLD 2014 Sindh 378
and PLD 2011 Kar 484.

11. I say that in view of the dicta laid down by the superior courts, the
plaint in the instant suit is liable to be rejected.
12. I say that unless the accompanying application is granted the
interest of answering defendant(s) shall be seriously prejudiced and
he shall suffer irreparable loss, harm and injury.

13. I say that whatever has been stated above is true and correct to the
best of my knowledge, belief and information.
Karachi
Dated: ____, June, 2024
DEPONENT
CNIC______________
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