1. ' NADEEM AZHAR SIDDIQI, J.---The applicant/petitioner by filing this judicial miscellaneous application has prayed for setting aside the ex parte judgment dated 13-5-2003 and the decree passed in Suit NO,1180 of 2002.
2. ' The brief facts necessary for disposal of this judicial miscellaneous application are that the applicant claims that the name of Thar Sugar Mills was changed on 15-11-2000 with the approval of Deputy Registrar of Companies and the applicant has shifted its office from previous premises to the present premises on 1-5-2003 and service of Ch. Jawad Afzal was terminated in 2001 and Bak Khattak was retired in 2002. The respondent NO,1 has not filed the suit against the applicant but against Thar Sugar Mills and against the ex-employees of the applicant knowingly that they are not in service and that summonses were issued against Thar Sugar Mills which was never served upon the applicant while the applicant was aware about the change of name of applicant. It was stated in the application that on the basis of collusive reports the respondent NO,1 has got ex parte decree against the applicant and it is a clear case of fraud and misrepresentation with the Court as well as with the applicant who was kept in the darkness.
3. ' The respondent NO,1 filed counter-affidavit through attorney wherein it was stated that name of the Company was changed to usurp the amount of growers and that Jehanzeb Khan is still Chief Executive and owner of Messrs Najma Sugar Mills who was also Chief Executive of Messrs Thar Sugar Mills. The summonses were served on same address and were received by Najeeb and Mr. Shakri on behalf of applicant and respondents Nos.2 and 3.
4. ' The applicant has filed affidavit-in-rejoinder stating therein that Mr. Jehanzeb. Sikander is the Chief Executive of the applicant but the respondents Nos.2 and 3 were not in employment at the time of institution of the suit. The respondent NO,1 has not produced any positive prove regarding existence of a person, namely, Shakri or his designation in the organization of applicant. It was further stated that by playing fraud and getting collusive report from the bailiff the respondent NO,1 succeeded to get the ex parte judgment and decree with ulterior motives.
5. ' Mr. Ch. A. Rasheed, learned counsel for the applicant, has contended that the respondent NO,1 knowingly filed suit against the applicant in its former name and hidden the proper address of the applicant from the Court to obtain an ex parte judgment and decree. He has submitted that the false bailiff reports have been obtained and this amounts to committing fraud upon the Court. He has further submitted that hiding the correct name of the applicant from the Court and filing the suit in the former name of the company amounts to misrepresentation of facts and judgment and decree is liable to be set aside.
6. ' Mr. Amjad Ali Sahito, learned counsel for respondent NO,1, submits that no fraud has been committed and the summonses were properly served upon the applicant at its address through bailiff as well as through courier service. He further submits that summonses were served upon the applicant through Najeeb, Sharif, Zahid and Shakri and the applicant has not specifically denied that they are not in the service of applicant. He further submits that under subsection (3) of section 40 of the Companies Ordinance, 1984, the change of name shall not effect the rights and obligations of the company and the proceedings can be maintained against the company in its former name.
7. ' Mr. Ch. A. Rasheed in rebuttal submits that subsection (3) of section 40 of the Companies Ordinance is not applicable as the suit was instituted after one year of the change of name and only pending proceedings on the date of change of name was protected.
8. ' I have heard the learned counsel for the parties and perused the record of Suit NO,1180 of 2002.
9. ' The applicant has challenged the judgment on the ground of irregularity in service and filing the suit in the former name of the applicant. The summonses were served upon the applicant at its Karachi Office through bailiff as well as through courier service so also the summonses were served upon the applicant on its factory address through bailiff of District Court, Mirpur Khan and through courier service. The summonses issued through bailiff was received by one Najeeb after putting the rubber stamp of Thar Sugar Mills by cutting the word "Thar" and putting the name of "Najma'. The summonses issued through courier was received by one Sharif. The summonses issued at the Karachi Office through courier was received by one Zahid. The summonses sent to the applicant at its Karachi Office through bailiff was received by one Shakri after putting the seal of Thar Sugar Mills. The applicant has not specifically denied that the above named persons are not in the employment of the applicant. In absence of specific denial it cannot be presumed that no summons was served upon the applicant. The company has changed its address from Jabbar Centre to Block 5, Clifton, in May, 2003 after service of summonses on the previous address.
10. Furthermore, from the contents of lease agreement dated 1-5-2003 (Annexure "A/7" of the application) it appears that the same is in respect of a residential house acquired for the use of Chief Executive of the applicant. Regarding the change of name of the applicant is concerned in the plaint, the name of Mr. Jehanzab Khan was given as Chief Executive of Thar Sugar Mills and the fact that he is the Chief Executive of Najma Sugar Mills has not been disputed. Furthermore, under the names of respondents Nos.2 and 3 the name of Najma Sugar Mills was given which is sufficient to connect the present applicant with the suit filed in the name of Thar Sugar Mills. Subsection (3) of section 40 of the Companies Ordinance provides that the change of name shall not affect any right or obligation of the company or render defective any legal proceedings by or against the company and any legal proceedings that might have been continued or commenced against the company by its former name may be continued by or commenced against the company by its new name. The above provision of Companies Ordinance provides protection to legal proceedings, which have been continued or commenced against the company by its former name. The applicant has failed to demonstrate any fraud and misrepresentation in the service of summonses upon the applicant.
11. ' In view of the above discussion, I do not find any merit in this application which is accordingly dimissed with no order as to costs.