PLJ 2022 Quetta 124
Present : MUHAMMAD KAMRAN KHAN MULAKHAIL , J.
Hafiz ZUBAIR and another --Petitioners
versus
Mst. HAZAR NAZ (Widow) and 13 others --Respondents
C.R. No. 169 of 2021, decided on 30.11.2021.
Specific Relief Act, 1877 (I of 1877) --
----Ss. 39, 42 & 54 --Suit for declaration, cancellation of instruments and permanent injunction --
Decreed --Appeal --Dismissed --Recovery of shares --Objection regarding jurisdiction --No issue
regarding jurisdiction of Court was framed --Despite raising a specif ic objection by Respondent
before trial Court with regard to jurisdiction, trial Court neither framed any issue in this respect,
nor decided question of jurisdiction at first instance --It would be in best interest of parties and
justice, to remand case to trial Court with direction to decide question of jurisdiction at first
instance, and if necessitated, trial Court may frame issue and lead evidence to this extant only.
[Pp. 129 & 130] B & D
Companies Ordinance, 1984 (XLVII of 1984) --
----S. 7--Jurisdictio n--No Court, other than High Court as has jurisdiction to entertain any matter
relating to title or share in company --Whenever a challenge is made to jurisdiction of Court, such
Court in first instance is obliged to decide matter of its jurisdiction by tak ing into account all
relevant facts.
[Pp. 126 & 129] A & C
2019 CLD 931 ref.
Mr, Sardar Ahmed Haleemi , Advocate, for Petitioner.
Mr. Ewaz Zehri , Advocate for Respondent Nos. 1 & 12.
M/s. Tahir Iqbal Khattak , Assistant Attorney General & Shahid Javed Bal och, Assistant
Advocate General for State.
Dr. Parvaiz Ahmed Khilji, Present on Court Notice.
Date of hearing: 4.11.2021.
JUDGMENT
This Civil Revision Petition is directed against the Judgment & Decree dated 12th October, 2012
passed by Civil Judge -IV, Que tta, (“trial Court” ), whereby the suit filed by the petitioners
was dismissed and the Judgment & Decree dated 24th March, 2021, passed by the Additional
District Judge -VII, Quetta (“appellate Court”) whereby the appeal preferred by the petitioner
was also dismissed.
2. Brief facts of the case are that predecessor -in-interest of Respondent Nos. 1 to 12 namely
Muhammad Karim being plaintiff in Civil Suit No. 58/2009 filed a “suit for Recovery of Rs.
6,13,000/ -with profit, Declaration, Permanent Injunction & Cancellation of Instruments” before
the trial Court, stating therein that three companies with the name and style as “(i) Yalamlam
Hajj Umra Services, Private Limited, (ii) Al -Matla Hajj & Umrah Services and (iii) Kalat Hajj &
Umra Services,” were register ed with the Respondent No. 13 under the Companies Ordinance;
that the Yalamlam Hajj & Umrah Services Pvt: Ltd; were having various members, who were
having their equal shares of 25%, besides two other companies were also effective and were
doing the same b usiness; that in the month of November, 2006 dispute arose between the
partners, and matter was referred to one Mr. Zafar Razzaq Durrani as President of Private Hajj
Group Organization Balochistan, Quetta, who gave his award to the extent that some changes be
made in the possession and ownership of the Hajj Services by the parties and in the light of
decision of Arbitrator 50% share of one Atique -ur-Rehman in the Yalamlam Hajj & Umrah was
replaced in place of predecessor in interest of Respondent Nos. 1 to 12 and Hafiz Abdul Waheed
in the said Company was replaced with Al -Mata Umrah & Hajj Services and Hafiz Abdul
Waheed was brought in his place, but he was also Director on the basis of 25% shares each; that
it was also resolved by the Arbitrator that an amo unt of Rs. 6,13,000/ -be paid to the predecessor -
in-interest of Respondent Nos. 1 to 12; that the petitioners had made some change in the
directorship of the company, being not recognized by the law, thus were liable to be declared
illegal. The suit was con tested by the petitioners alongwith other defendants (deleted from the
suit), by way of filing separate written statements and thereafter, the learned trial Court out of the
pleadings of the parties framed the following issues:
“i. whether the plaintiff is entitled to be declared as Director in Al -Malta (sic) Hajj and
Umrah Services on basis of 25% share?
ii. Whether the plaintiff is entitled for ex -profit of 2006 for amount Rs. 6,13,000/ -(Rupees six
lac thirteen thousand only?
iii. Weather the plaintiff wa s deleted as Director from Al -Matla and Umrah Services by the
defendants fraudulently through fake documents?
Amended issues:
“i. whether the predecessor in interest of the plaintiffs is entitled to be declared as Director
in Al -Malta (sic) Hajj and Umrah Services on basis of 25% share?
ii. Whether the predecessor in interest of the plaintiffs is entitled for ex -profit of 2006 for
amount Rs. 613,000/ -(Rupees six lac thirteen thousand only?
iii. Weather the predecessor in interest of the plaintiffs was deleted as Director from Al -
Matla and Umrah Services by the defendants fraudulently through fake documents?
The learned trial Court aft er recording the evidence of both the parties and hearing the parties,
decreed the suit vide judgment & decree dated 12th October 2012 and appeal filed by the
petitioners before the appellate Court was dismissed vide judgment and decree dated 24th March
2021, hence this civil revision petition.
3. The learned counsel for petitioner at the very outset pointed out that the learned trial Court has
failed to frame proper issue with regard to jurisdiction of the civil Court, as under Section 7 of
the Com panies Ordinance 1984, no Court, other than High Court as defined under the Ordinance,
has jurisdiction to entertain any matter relating to the title or share in the company, therefore, the
impugned judgments passed by the Courts below being coram non judi ce, is liable to be set
aside.
4. Conversely, the learned counsel for the respondents while supporting the judgments of the
Courts below stated that there is no dispute with regard to title or share, rather the share has been
defined, but the petitioners a re reluctant to pay the same, whereas, fraudulently, the name of the
predecessor -in-interest of the respondents have been removed from the Directorship, thus,
apparently a factual controversy was involved, which could only be decided by the Court of Civil
Jurisdiction and the Courts below have rightly passed the impugned judgments; he finally urged
for dismissal of the petition.
Learned Dr. Parvaiz Ahmed Khilji, Advocate present on Court notice to assist the Court on legal
preposition, stated that any issue with regard to title or shares between the parties is to be dealt
with under the Provisions of Companies Act 2017 or the Ordinance 1984, while in the case in
hand, the prayer was with regard to payment of share and title to declare the predecessor -in-
interest of the respondents as Director, squarely falls within the jurisdiction of companies Court
as defined under Section 5 of the Act or Section 7 of the Ordinance.
5. I have heard learned counsel for the parties and have perused the relevant record appende d
with memo of the petition.
6. The perusal of the record reveals that the respondents being plaintiffs have filed a suit with the
following prayer: --
“a. Directions be made to Defendant No. 1 about official inquiry about created fake
instruments against t he Defendant No. 2.
b. That that predecessors of the plaintiff be declared as Directors in the Al -Matla Hajj &
Umrah Services, Private Limited, on the basis of 25% and also the Defendants No. 5 and 6 are
directed to pay as ex -profit of 2006 Rs. 613,000/ -and further profit of 2007 and 2008 till now to
plaintiffs and also the Defendant No. 6 be declared as defaulter of same amount.
c. That the instrument of deleting of the predecessor of the plaintiffs as Director from the
Al-Matla Hajj & Umrah Services, Priv ate Limited be declared as Null and void instrument under
the law and also direction to be issued to official defendants of maintained status -quo about any
change of both Hajj Companies also black listed profit money from the Bank.
d. That the Defendant No . 6 be declared as fraudulent person and after due verification and
inquiry directions be given to Defendant No. 1 to declare him as a black list and his Hajj
Services be cancelled.
7. The respondents through the suit sought recovery of shares of their pre decessor -in-interest in
the Al-Matla Hajj & Umrah Services Private Limited , whereas the written statement filed by the
official Respondent No. 14 clearly speaks that as per the official record maintained by the
official respondent, the said Abdul Karim , (predecessor -in-interest of respondents) has never
remained as director of the Al-Matla Hajj & Umrah Services Private Limited , and similarly also
raised an objection about the jurisdiction of the Court under Section 7 the Companies Ordinance
1984. Section 7 of the Companies Ordinance stipulates as under:
7. Jurisdiction of the Court. --(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:
Similar ly, Section 5 of the Companies Act 2017 stipulates as under:
5. Jurisdiction of the Court and creation of Benches. --(I) The Court having jurisdiction
under this Act shall be the High Court having jurisdiction in the place at which the
registered office of the company is situate.
(2) Notwithstanding anything contained in any other law no civil Court as
provided in the Code of Civil Procedure, 1908 (Act V of 1908) or any other Court shall
have jurisdiction to entertain any suit or proceeding in respect of an y matter which the
Court is empowered to determine by or under this Act.
(3) 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.
(4) There shall be, in each High Court, one or more Benches on permanent basis,
each to be known as the Company Bench, to be constituted by the Chief Justice of the
High Court to exercise the jurisdiction vested in the High Court under this Act: Provided
that Benches constituted under the Companies Ordinance, 1984 (XLVII of 1984), shall
continue to function accordingly unless otherwise notified by the respective Chief Justice
of the High Court: Provided further that provisions of section 6 shall be effective from
the date of notification by the Chief Justice of the respective High Court within six
months from the date of the commencement of this Act.
(5) There shall be a Registr ar to be known as Registrar of the Company
Bench/duly notified by the Chief Justice of the respective High Court who shall be
assisted by such other officers as may be assigned by the Chief Justice of the respective
High Court.
(6) The Registrar of the Company Bench shall perform all the functions assigned
to it under this Act including all ministerial and administrative business of the Company
Bench such 12 as the receipt of petitions, applications, written replies, issuance of
notices, service of summo ns and such other functions or duties as may be prescribed
under Section 423.
(7) The Chief Justice of the respective High Court, if deemed appropriate, may
also establish a secretariat in each Company Bench of the respective High Court in such
form and m anner to provide secretarial support and to perform such functions as may be
prescribed under Section 423.
The afore -referred provisions of the Ordinance 1984 and the Act 2017, clearly indicate that no
Court, other than the High Court, where the company ex ists, shall have jurisdiction to entertain
the matter. In the case in hand admittedly, the respondents had sought declaration of title of their
predecessor -in-interest as director of the Al-Matla Hajj & Umrah Private Limited , and profit as
per shares owned by late Abdul Karim, thus, the matter squarely fell within the jurisdiction of the
Company Judge. Reliance can be placed on the case of “Dr. Omar Masood & another v Syed
Amir Hussain Naqvi and another” (2019 CLP 931), wherein it was held:
10. A combined r eading of the provisions of the Act of 2017 unambiguously manifests the
legislative intent. The legislature has intended that all matters relating to title or transfer
of shares of a juridical person incorporated under the Act of 2017 shall be dealt with b y
the Court vested with jurisdiction under section 5 to entertain or proceed to determine
under the Act of 2017.”
8. It is noteworthy to observe note here that despite raising a specific objection by the
Respondent No. 14, before the trial Court with regar d to jurisdiction, the learned trial Court
neither framed any issue in this respect, nor decided the question of jurisdiction at first instance.
It is settled law that whenever a challenge is made to the jurisdiction of the Court, such Court in
the first i nstance is obliged to decide the matter of its jurisdiction by taking into account all the
relevant facts. However, the Courts have inherent jurisdiction to decide the question of their own
jurisdiction with respect to a specific matter and jurisdiction of a Court is initially determined by
the pleadings of the parties. If the Court reaches upon the conclusion that it does not have the
jurisdiction to decide the his before it, the Court
should return the plaint under Order VII, Rule 10, C.P.C. because dec ision will have a binding
force only when same is passed by a Court of competent jurisdiction. Thus, without rendering
any observation on merit of the case and deciding the issue finally, it would be in the best
interest of the parties and justice, to rema nd the case to the trial Court with the direction to
decide the question of jurisdiction at first instance, and if necessitated, the trial Court may frame
issue and lead evidence to this extant only, and thereafter, proceed ahead, but strictly in
accordanc e with the law.
Order accordingly.
The petition stands disposed of in the above terms, but with no order as to costs.
(Y.A.) Petition disposed ofThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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