' MUHAMMAD AKHTAR SHABBIR, J.---This appeal by leave of the Court is directed against the judgment dated 7-4-2003 passed by a learned Single Judge of the Lahore, High Court, Lahore, in Civil Revision No,2596 of 2002.
2. The brief resume of the case is that the respondent Raja Khushbakht-ur-Rehman had instituted a suit in the Court of Senior Civil Judge, Lahore, for declaration asserting there in the plaint that he was one of the members of the "Lahore Race Club" having its registered office at Rakh Chandra Kot Lakhpat, functioning in terms of section 42 of the Companies Ordinance, 1984, praying for a decree for declaration with consequential relief in his favour against the defendants-appellants by declaring the decision of the appellants removing the plaintiff- respondent's name from the register of membership of the Club, vide letter No,1075/SEC/2002 dated 13-8-2002, illegal, void unjust, unwarranted, mala fide, without jurisdiction, based on ulterior motives, personal and inoperative, non-existent qua his membership rights, restraining .The defendant-appellant from stopping the respondent to use and exercise his membership right at any place of the club, anytime, anywhere.
3. The suit was contested by the defendant-appellant who filed their written statements raising some preliminary objections specially lack of jurisdiction by the Civil Court. The learned trial Court after hearing the arguments on the preliminary objections of jurisdiction by observing that in view of section 7 of the Companies Ordinance, 1984, the Court lacks jurisdiction, returned the plaint of the plaintiff-respondent, vide order dated 17-9-2002. The plaintiff-respondent filed an appeal before the First Appellate Court/Additional District Judge, Lahore, who vide order dated 26-11-2002, dismissed the same, upholding the order of the Civil Court. In State of disappointment, the respondent filed a Civil. Revision No,2596 of 2002 before the High Court' which was accepted, vide the impugned judgment. Hence, this appeal.
4. The learned counsel for the appellants vehemently argued that the Civil Court has no jurisdiction to entertain the instant suit and the High Court has the exclusive jurisdiction to try the disputes under the Companies Ordinance, 1984, contending that the Judge of the High Court was competent to decide the matter and if found controversial controversies requiring recording of evidence, could refer the respondent to approach the Civil Court. He placed reliance on. Messrs Ammonia Supplies Corporation Private Ltd. v. Messrs Modern Plastic Containers (Pvt.) Ltd and others (AIR 1994 Delhi 51).
5. While on the other hand, the learned counsel for the respondent vehemently opposed the arguments of the learned counsel for the appellant contending that where there are intricate questions of law and facts involved, the Civil Court in its plenary jurisdiction is competent to adjudicate upon the matter and even otherwise, the High Court as well as the Civil Court having concurrent jurisdiction, committed an error of law in returning the plaint. He placed reliance on the cases of Hamid Hussain v. Government of West Pakistan and others (1974 SCMR 356), Sh. Mushtaq Ahmad v. Shaukat Soap Factory and others 1987 CLC 2079, Khurshid Ahmad Khan and another V.
Pak Cycle Manufacturing Company Ltd. Shandara and 4 others (PLD 1987 Lahore 1), Zakir Latif Ansar and another v. Pakistan Industrial Promoters Ltd. And 2 others (1988 CLC 1541), Syed Shafqat Hussain v. Registrar, Joint Stock Companies Lahore and others (PLD 2001 Lahore 523).
6. We have heard the arguments of the learned counsel for the parties and examined the relevant provisions of law with their assistance.
7. The disputed issue before us is the "rectification" of the register of membership of the club and removing the name of the plaintiff-respondent from the register maintained by the office holder of the Club. It is admitted position that the appellant is registered under section 42 of the Companies Ordinance as limited company. The dispute between the club and its member is covered under the Companies Ordinance, 1984 prevailing in the country. Section 7 of the Ordinance provided the jurisdiction of the Court which reads as under:-- "7. Jurisdiction of the Courts.---(1) The Court having jurisdiction under this Court 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, empower any Civil Court to exercise all or any of the jurisdiction by this Ordinance conferred upon the Court, and in that case such, 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 of winding up.
(3) Nothing in this section shall invalidate a proceeding by reason of its being taken in Court other than the High Court or a Court empowered under subsection(1)."
8. The "Court" has been defined in section 2 subsection (11) of the Companies Ordinance, 1984 as follows:-- "The "Court" means the Court having jurisdiction under this Ordinance.
9. Section 7 of the Ordinance envisaged that the High Court shall have the jurisdiction under the Ordinance. Further section 152 of the Ordinance contained power of the Court to rectify a register which is reproduced as under:-- "Power of Court to rectify register.---(1) If--the name of any person is fraudulently or without sufficient cause entered in or omitted from the register of members or register of debenture- holders of a company; or
(b) default is made or unnecessary delay takes place in entering on the register of members or register of debenture-holders the fact of the person having become or ceased to be a member or debenture-holder the person aggrieved, or any member or debenture-holder of the company, or the company, may apply to the Court for rectification of the register.
(2) The Court may either refuse the application or may order rectification of the register on payment by the company of any damages sustained by any party aggrieved, any may make such order as to costs as it in its discretion thinks fit.
' On any application under subsection (1) the Court may decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register, whether the question arises between members or debenture-holders or alleged members or debenture-holders, or between members or alleged members, or debenture-holders or alleged debenture-holders, on the one hand and the company on the other hand; and generally may decide any question which it is necessary or expedient to decide for rectification of the register.
(4) An appeal from a decision on an application under subsection (1), or on an issue raised in any such application and tried separately, shall lie on the grounds mention in section 100 of the Code of Civil Procedure, 1908 (Act V of 1908)---
(a) if the decision is that of a Civil Court subordinate to a High Court, to the High Court; and
(b) if the decision is that of a Company Bench consisting of a Single Judge, to a Bench consisting of two or more Judges of the High Court."
10. The plaintiff is aggrieved of removal of his name from the register of membership and prayed for declaring this act as illegal, void and unwarranted, mala fide, etc. Keeping in view the prayer clause of the plaint and section 152 subsections (1)(a)(b), it can easily be inferred that the rectification can be made by the Court if the name of any person is fraudulently or without sufficient cause entered in or omitted from the register of members or register of debenture-holder of a company.
11. The question that boils down for determination before this Court is whether the plaintiff- respondent should have approached the High Court under section 152 of the Companies Ordinance or he has rightly resorted to the plenary general jurisdiction of the Civil Court. The word "Court" in the Companies Ordinance means "High Court/Company Judge notified by the Chief Justice of the High Court" as defined in section 2(11) of the Companies Ordinance and section 7(1) enacts that the Court having jurisdiction under this Ordinance shall be the High Court having jurisdiction in the place where the registered office of the Company is situated. Proviso to section 7(1) empowers the Federal Government to confer the powers upon any Civil Court. Section 9 contemplates the procedure to be followed by the Company Judge while dealing with the matter under this Ordinance. Now, the question is whether the jurisdiction of High Court under section 7 is statutory jurisdiction/original jurisdiction/civil jurisdiction. A study of the Ordinance clearly demonstrates that all the matters under Ordinance, are initiated before the Company Judge by moving up an application and by filing of reply to it, as laid down in the case of Messrs Sunrise Textiles Limited and others v. Meshreq Bank PSC and others (PLD 1996 Lah. 1). The said question had also exhaustively been dealt with by this Court in the case of Brother Steel Mills Ltd. And others v.
Mian Ilyas Miraj and 14 others (PLD 1996 SC 543), wherein it is observed that the High Court or a Court empowered under section 7(1) of the Companies Ordinance, 1984, has been vested with the jurisdiction to entertain, hear, try and decide the matters in cases arising under the Ordinance as, such jurisdiction has been conferred by the Ordinance. The proceeding under the Ordinance is initiated in the High Court as a Court of first instance and while exercising such jurisdiction it has the characteristics and attributes of original jurisdiction.
12. The term "original jurisdiction" means "jurisdiction in the first instance", jurisdiction to take cognizance of a cause at its inception, try it, and pass judgment upon the law and facts. As per Black's' Law Dictionary, "Original Jurisdiction" is the authority of a court to hear a case in the first instance, i,e,, to function as a trial Court and the "Appellate Jurisdiction" is the authority of a court to hear a case that has first been decided by a lower Court. Jurisdiction of a court is never established by the court itself but by some authority external to it either in a Statute or the Constitution. "Original Civil Jurisdiction" of a Court is such jurisdiction where it is empowered to entertain suits and such proceedings of civil nature which are initiated before the said court and IE entertained by it as a court of first instance and are decided by it. Sub-Article (2) of Article 175 of the Constitution of Islamic Republic of Pakistan enshrines that, "No court shall have any jurisdiction save as is or may be .Conferred on it by the Constitution or under any law". The jurisdiction can be conferred on any court including a High Court by a statute which may be provided for initiating the proceedings in that court as a court of first instance having poser to entertain and decide it. Such Court will thus be vested with original jurisdiction. If it relates to civil disputes, it will be termed as "Original Civil Jurisdiction." It is also a common proposition that Statutes are promulgated conferring jurisdiction on the High Court to initiate proceedings as a court of first instance for purposes of exercise of jurisdiction.
13. The High Court enjoys the "original jurisdiction" under Article 199 of the Constitution of the country and under different Statutes like the Companies Ordinance, the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 2001, etc.
14. Section 9 of the Companies Ordinance, 1984 has provided procedure to dispose of all matter coming before the High Court and against the judgment of the High Court in exercise of its original jurisdiction, the appeal is provided to a Bench consisting of two or more Judges of the High Court.
15. So far as taking the cognizance of the matter is concerned, it is provided in the Ordinance, 1984, that an application shall be preferred before, the Court (the High Court) by the aggrieved person or any member of the company for "rectification" of the register. Though section 152 of the Companies Ordinance, 1984 gives wide power to the High Court to rectify the register of members, yet, the jurisdiction of the High Court is summary in nature, as emerges in section 9 -subsection (3), which reads as under:-- "In the exercise of its jurisdiction as aforesaid, the Court shall, in all matters before it, follow the summary procedure."
16. A careful examination of section 9 of the Companies Ordinance., 1984, would show that the intention of the legislature is to introduce new provision in the Ordinance to provide a very expeditious and summary procedure. In case where there is allegation of fraud and fabrication or intricate question of law is involved requiring recording of evidence, the High Court can advise the party to approach the civil Court of competent jurisdiction to get the issue determined and in case of favourable judgment, the litigant can always approach the High Court again under section 152 of the Ordinance. A Division Bench of the High Court of Sindh at Karachi, in the case of Manzoor Ahmad Bhatti and 4 others v. Haji Noval Khan and 5 others (1986 CLC 2560), directed the parties to approach the Civil Court for resolution of disputed question of fact raised in the petition. Similarly, in the cases of Syed Shafqat Hussain v. Registrar, Joint Stock Companies Lahore and others (PLD 2001 Lahore 523) and Zakir Latif Ansari and others v. Pakistan Industrial Promoters Ltd. And others (1988 CLC 154), the aggrieved person was advised by the High Court to approach the Civil Court of competent jurisdiction to get the issues determined and in case of a favourable judgment, he could always approach the High Court again under section 152 of the Ordinance with a similar prayer of rectification of the Register of the Company.
17. In the case of Muhammad Hussain v. Dawood Flour Mill and others (2003 CLD 1429), a Division Bench of the High Court of Sindh at Karachi observed that if the name of any person is fraudulently or without "sufficient cause" entered in or omitted from the Register of Members, the aggrieved person can apply to the Court for rectification of Register and the Court after enquiring into the matter may order rectification of Register if it is satisfied that the aggrieved person is entitled to such relief.
18. The question of jurisdiction of rectification of name in the Register of Members has also been dealt with by a Full Bench of Delhi High Court in the case of Messrs Ammonia Supplies Corporation Private Ltd. v. Messrs Modern Plastic Containers (Pvt) Ltd. And others (AIR 1994 Delhi 51) and the Court that the jurisdiction of the Court is discretionary and summary in nature. The Delhi High Court in that case took into consideration different views rendered by the Indian High Courts. The judgment of the Delhi High Court was challenged before the Supreme Court of India in the case of Messrs Ammonia Supplies Corporation (P.) Ltd. v. Messrs Modern Plastic Containers (Pvt.) Ltd. And others (AIR 1998 SC 3153) and the Court keeping in view the powers of the Court to rectify Register of Member of the Company under section 38 of the Indian Companies Act, 1913, observation that "rectification of Register of Member, jurisdiction of the Company Court is summary in nature and Civil Court's jurisdiction is impliedly barred." Section 38 of the Indian Companies Act, 1913 dealing with powers of the Court to rectify the Register corresponds with section 152 of the Companies Ordinance, 1984. Section 152 empowers the Court to decide any question relating to "rectification" of the Register including the law. There can be no doubt that any question raised within the peripheral field of rectification, it is the High Court under section 152 alone which has the exclusive jurisdiction. However, the question raised does not rest here. In case any claim is based on some seriously disputed civil rights or title, denial of any transaction or any other basic facts which may be the foundation to claim a right to be a member and if the Court feels such claim does not constitute to be rectification but instead seeking adjudication of basic pillar some such facts falling outside the rectification, its discretion to send a party to seek his relief before Civil Court first for the adjudication of such facts, it cannot be taken away merely on account of that no such language is provided in the section. For instance, if under the garb of rectification one may lay claim of many such contentious issues for adjudication not falling under it, in other words, the Court under it has discretion to find whether the dispute raised are really for rectification or is of such a nature, unless decided first it would not come within the purview of rectification. A plain reading of the word "rectification" itself connotes some error, which has crept in requiring correction. Error would only mean everything as required under the law has been done yet by some mistake the name is either omitted or wrongly recorded in register of the company.
19. The Companies Ordinance, 1984, is a special law. It has provided special remedy and procedure to resolve disputes erupting between the company and the members under the said Ordinance. It is settled proposition of law that when a thing is to be done in a particular manner, it must be done in that particular manner, and not otherwise. The neglect of plain requirements of a statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner, as laid down in the case of Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others (PLD 1971 SC 61).
20. Having dealt with the matter in hand, in the manner discussed above, we hold that the High Conn being the Court of "original jurisdiction" under the Companies Ordinance, 1984, is empowered under section 152 of the Ordinance to entertain the application for "correction/rectification of the register of members", in the first instance, and thereafter if reached to the conclusion by taking into consideration the application, reply thereto and the documents produced before it, that the matter .Is out of the purview of the summary procedure as provided under section 9(3) of the Ordinance,, it may refer/advise the party to approach the Civil Court for resolution of the disputed controversies.
21. For the foregoing reasons, we are not inclined to agree with the impugned findings/judgment of the Lahore High Court which is not sustainable in law. Resultantly, thi6 appeal is allowed and the impugned judgment of the High Court is set aside.