DIAMOND INDUSTRIES LIMITED vs M. ZAFARULHAQ HIJAZI and 2 others
This petition for leave to appeal was filed against an order of a learned Judge in Chambers of the Peshawar High Court, which had dismissed a challenge to the appointment of an Inspector to investigate the affairs of Diamond Industries Limited. The core legal question was whether an appeal against an order passed by a Company Judge in Chambers, regarding the appointment of an Inspector under the Companies Ordinance, 1984, is maintainable before the Supreme Court, or if an alternative remedy exists. The Supreme Court held that the impugned order, being interlocutory in nature, was subject to an Intra-Court Appeal before a Division Bench of the High Court, as established by precedent regarding the exercise of original civil jurisdiction. Consequently, the Supreme Court dismissed the petition for leave to appeal, ruling that it was not maintainable because the petitioner had failed to exhaust the remedy of an Intra-Court Appeal. The key principle laid down is that interlocutory orders passed by a Company Judge in Chambers are appealable via an Intra-Court Appeal before a Division Bench of the High Court.
- Is an order passed by a Company Judge in Chambers regarding the appointment of an Inspector appealable before a Division Bench of the High Court?
- Can a petition for leave to appeal be maintained in the Supreme Court against an interlocutory order of a Company Judge when an Intra-Court Appeal remedy is available?
- Does the High Court possess original civil jurisdiction over orders passed under section 10(2) of the Companies Ordinance, 1984?
- Section 265, Companies Ordinance 1984
- Section 33, Securities and Exchange Commission of Pakistan Act 1997
- Section 10(2), Companies Ordinance 1984
- Section 15, Code of Civil Procedure (Amendment) Ordinance 1980
' ABDUL HAMEED DOGAR, J.---Petitioner Diamond Industries Limited seeks leave to appeal against the judgment, dated 11-6-2001 passed in Company Case No,13 of 2000 by a learned Judge in Chambers of the Peshawar High Court, Peshawar, whereby the same was dismissed.
2. The facts relevant for filing the instant petition are that the petitioner-company was issued a show-cause notice on 11-9-1999 by the Security and Exchange Commission of Pakistan (hereinafter referred to as the Commission) through its Commissioner Enforcement (ENF) as to why Inspector should not be appointed to investigate the affairs and the management of the Company as required under section 265 of the Companies Ordinance, 1984 (hereafter called as "the Ordinance") as it showed losses, thus necessitated the examination of the financial statement. This was objected but however, after giving an opportunity of hearing to the company, an order appointing the Inspector was passed. The petitioner-company assailed the same in appeal under section 33 of the Securities and Exchange Commission of Pakistan Act, 1997 (Act XLII of 1997) (hereinafter called as "the Act") before the Appellate Bench of the Commission which was accepted and the said order was set aside.
3. Thereafter, another show-cause notice was issued on 7-8-2000 under the same provisions of law to show cause as to why Inspector should not be appointed to investigate the affairs of the company on various grounds including non-payment of return to the shareholders, uncalled for heavy expenditures, deviations from memorandum of association etc. This too, was challenged before the Appellate Bench of the Commission which was rejected vide order, dated 5-12-2000 and subsequently maintained by Company Judge of Peshawar High Court vide impugned order.
4. In the case of Brother Steel Mills Ltd. And others v. Mian Ilyas Miraj and 14 others (PLD 1996 SC 543) and an unreported judgment in the case of Ch. Muhammad Hussain v. Pakistan Industries and Credit Investment Corporation Ltd. And others C.M.A. No, 943 of 2002 in C.A. No, 648 of 2002, decided on 25-7-2002), this Court has held that all orders passed under subsection (2) of section 10 of the Ordinance in exercise of original civil jurisdiction of the High Court as per provisions of section 15 of the Code of Civil Procedure (Amendment) Ordinance (X of 1980) are appealable before a Division Bench of the High Court.
5. In the case in hand identical questions of law and fact are involved. The impugned order being an interlocutory in nature is governed by the aforesaid provisions of law against which an Intra- Court Appeal before a Division Bench is the only remedy.
6. Accordingly, the petition being not maintainable is dismissed and leave refused.
Cited by 1 case
- 2010 PTD 2432 2010 PTD 2432