ATTA MUHAMMAD KHAN and another vs LASBELLA CEMENT LTD.

1. This revision application has been filed by Corporate Law Authority and Joint Registrar of Companies jointly in this Court and their grievance was that the suit filed before the Second Senior Civil Judge, Karachi by the respondents being Suit No,841 of 1995 was not maintainable as the prayer was made in respect of a company law matter for which the jurisdiction is conferred on the High Court or could be conferred on any Civil Judge in terms of section 7 of the Companies Ordinance, 1984 by the Federal Government and since no jurisdiction was conferred on the IInd Senior Civil Judge, therefore, the suit filed was not competent.

2. Briefly the case of the respondent was that the respondents were initially registered as private limited company converted themselves into a public limited company. The memorandum and article of association were duly amended and they started manufacture of cement. Their further case is that the name was changed with the approval of the Joint Registrar of Companies. The notice was give on 5-8-1995 by the applicant No,1 in which the respondent was called upon to show cause as to why it should not be directed to change its name. Consequently, suit was filed and the following relief was prayed for:--

(a) declaring that the Notice, dated 31st July, 1995 issued by the defendant No,1 is wholly without jurisdiction and of no legal effect.

(b) permanently restraining the defendants from acting upon the said notice or from interfering in any manner with the use by the plaintiff of its existing name.

(c) granting costs of the suit and such other relief as may be appropriate in the circumstances of the case.

3. The respondent further filed an application under Order 39, Rules 1 and 2, C.P.C. while the applicant filed an application under Order VII, Rule 11, C.P.C. The IInd Senior Civil Judge, Karachi (South) passed the order which is reproduced as follows:-- "Hence, under the facts and circumstances as mentioned, I am declined to reject the plaint and have reason to say that plaintiff has prima facie case, balance of convenience also his favour and if the application under Order 39, Rules 1 and 2, C.P.C. is not allowed he would suffer irreparable loss."

4. This order was impugned in appeal by the applicants in Civil Miscellaneous Appeal No,54 of 1995 which was transferred to Vth Additional District Judge, Karachi (South) for disposal according to law and he dismissed the said miscellaneous appeal as time-barred. Vide orders, dated 30-11-1995 which are impugned in this revision application. This revision application was admitted on 7-2- 1996.

5. Notices were issued. On 30-10-1996 one Mr. Fahimul Haq for the respondent was present and requested for time to engage counsel. Service was held good. Thereafter, the respondent did not engage counsel and the notice of regular hearing for today was sent and served on them.

6. Mr. Aamir Naqvi, learned counsel for the applicant contended that in company law matters or relief in relation to any matter under a company law the jurisdiction of Court is governed by section 7 of the Companies Ordinance, 1984 which is a special law and reads as follows:-- "7. Jurisdiction of the Courts.-- (1) The Court having jurisdiction under this Ordinance shall be the High Court having jurisdiction in the place at which the registered office of the company is situate: Provided that the Federal Government may, by notification in the official Gazette and subject to such restrictions and conditions as it thinks fit, empowers any civil Court to exercise all or any of the jurisdiction by this Ordinance conferred upon the Court, and in that case such Court shall, as regards the jurisdiction so conferred, be the Court in respect of companies having their registered office within the territorial jurisdiction of such Court.

(2) For the purposes of jurisdiction to wind up companies, the expression ' registered office' , means the place which has longest been the registered office of the company during the six months immediately preceding the presentation of the petition for winding up.

(3) Nothing in this section shall invalidate a proceeding by reason of its being taken in a Court other than the High Court or a Court empowered under subsection (1)."

7. He stated that since the jurisdiction is specially conferred on a High Court, therefore, by implication Civil Courts will have no jurisdiction in terms of section 9 of the Code of Civil Procedure and the jurisdiction of Civil Courts under the general law is ousted by virtue of special provisions in section 7 under the Companies Ordinance.

8. I have given my anxious consideration to such plea and I agree with the learned counsel for the applicant that since the relief claimed by the respondent was in relation to declaration under the Companies Ordinance, Civil Court will have no jurisdiction unless such jurisdiction is specifically conferred by the Federal Government through notification. Without such notification the jurisdiction of Civil Courts is specifically barred under section 9 of the Code of Civil Procedure, in view of the above quoted provisions of Companies Ordinance, 1984.

9. Since Civil Courts have no jurisdiction therefore, the order passed by the Civil Judge is declared to be illegal.

10. This brings me to the other order passed by the learned Vth Additional District Judge, Karachi (South) he did not apply his mind that the order passed by the Civil Judge was without jurisdiction, therefore, void, and limitation does not run against void order. Although, technically civil miscellaneous appeal arising out of an order under Order XXXIX, Rules 1 and 2, C.P.C. which was also passed by the trial Judge in the same order i,e, 20-8-1995 was time-barred. Nevertheless, refusing to reject the plaint was not an appealable order and the revision against that order was maintainable under section 115(2), C.P.C. The learned District Judge did not notice that the order passed was patently without jurisdiction and revision was maintainable which was within time and there was embargo to convert civil miscellaneous appeal into revision in a fit case.

11. For these reasons, this revision application is allowed and since the respondents are not contesting, therefore, no order as to costs is passed.