C.M.A. No,14 of 2012: ' AZIZ-UR-REHMAN, J.---Through the listed application, under Order XXXIX Rule 4 r/w section 94(e) and section 161, C.P.C., (C.M.A. N.14 of 2012) respondent No,2 seeks discharge, vary or -set aside of the ad interim ex parte order dated 18-2-2011 passed by this Court on C.M.A. No,50 of 2011. The application is duly supported by an affidavit of respondent No,2.
2. Precisely the facts leading to the filing of the above application are:-
3. The petitioner filed a winding-up petitions, under sections 290, 291, 292, 305, 309 and 314 of the Companies Ordinance, 1984. Along with the petition an injunction application under Order' XXXIX, Rules 1 and 2. r/w section 94 and section 151, C .P. C . Besides other applications, was also filed with a prayer that respondents be restrained from creating any third party interest and/or selling off or disposing off the assets of the company as enunciated in Annexure A/1 of the winding-up petition.
Prayer for ad interim relief was also sought.
4. On 18-2-2011, C.M.A. No,50 of 2011 was also listed at Serial No,3, when the following order was passed:--
5. Notice was above. Till then, no third party interest shall be created over the assets of the company, as enunciated in annexure A-1 of the petition.
4 & 5. ....",
6. Upon service, the respondent No,2, filed a detailed Counter-Affidavit in response to C.M.A. No,50 of 11, wherein the assertions with regard to ownership of three immovable properties by respondent No,1, as shown/stated in annexure "A-1" (page 55 of the court file) was forcefully denied. The petitioners however, in their own wisdom avoided and/or ignored to file any affidavit-in-rejoinder in answer to the Counter-Affidavit filed by respondent No,2, as such the contents of the Counter Affidavit filed by respondent No,2 have gone unrebutted.
7. Respondent No,2 on 24-1-2012 also filed an application under Order XXXIX Rule 4 r/w section 94(e) and section 151, C.P.C., with a prayer for discharge, vary or set aside of the ex party order dated 18-2-2011, reproduced hereinabove. Notice, of C.M.A. No,14 of 2012, was served on the petitioners' counsel, as is evident from bailiff report dated 6-8-2012. Despite service, however, in answer to the application bearing C.M.A. No,14 of 2012 the petitioners or any of them failed to tile any Counter Affidavit.
8. Nonetheless, on 5-9-2012 time was sought on behalf of the petitioners to file Affidavit-in- Rejoinder, in response to Counter-Affidavits, filed by the respondents Nos.1 and 2, regarding 3 C.M.A.'s including C.M.A. No,50 of 2011 all having been filed by petitioners and consequently, the case was adjourned to come up on 12-9-2012. On 12-9-2012, time was allowed for filing 'Counter Affidavit' in response to C.M.A. No,14 of 2012 and the case was adjourned to come up on 20-9-2012.
9. 20-9-2012, besides hearing of various applications, the case was also fixed for order on C.M.A.
No,284 of 2012 being an application under Rule 50 SCCR (0.S.) filed by the petitioners counsel for discharge of their Vakalatnama. Order passed on 20-9-2012 reads as under:-- "1. Through this application under Rule 50 of the Sindh Chief Court Rules (OS), (C.M.A. No,284 of 2012) the learned counsel for the petitioners seek discharge of their Vakalatnama. Learned counsel for respondents present in Court extended their no objection to the grant of this application. Consequently, the application is granted. Office is directed to score off the name of the petitioners' counsel from the file . Cover. Further office is directed to issue notice to the petitioners directly through ordinary coursed as well as courier service. To come up on 27-9-2012 as suggested.
' (2 to 7) Deferred for the time being."
9. It is worth to' mention, no Affidavit-in-Rejoinder and/or Counter Affidavits were filed, till 20-9- 2012. On 27-9-2012, Petitioner No,2 appeared in person and sought time for engaging another lawyer. Time for such purpose, was granted and as suggested, the case was adjourned for to date i.e, 16-10-2012.
10. On 16-10-2012 when the case was called in the 1st round, none was in attendance to represent the petitioners. However, in the interest of justice the case was kept aside. At 11-00 a.m. When again the case was called neither the petitioners nor any counsel on their behalf was present to proceed with the case. The learned counsel for the respondents seriously opposed the affording of any further chance/adjournment in view of the operation of ad interim order passed long ago i.e, 18-2- 2011.
11. Heard Mr. Ravi Panjvani, learned counsel for the respondent No,2 and Mr.Muhammad Ali Jan learned counsel for the respondent No,1 and with their able assistance I also perused the materials available on record.
12. Mr. Ravi Panjvani, learned counsel for the respondent No,2 while, making reference to the detailed and comprehensive `counter-affidavit' filed by the respondent No,2 to the injunction application bearing C.M.A. No,50 of 2011, contended that the assets per 'Annexure A/1' [at Page 55 of the Court file] in actual fact are the properties of. Respondent No,2. Per learned counsel respondent No 1 company has no concern with the mentioned Immovable Properties. The details/description of the assets Immovable Properties belonging to respondent No,2 are as below:-- "(a) Double storeyed Bungalow No,12- A, 8th Central Street, Phase-2, measuring 2080 sq. Yards, situated in DHA, Karachi.
(b) Leasehold residential plot of land bearing No,12-B, Circular Street Phase-II, measuring 790 square yards or thereabout with construction of double storeyed bungalow thereon, situated at.
DHA, Karachi.
(c) Office situated at Plot No,194, Block-A, Survey No,219, measuring 1000 sq. Yards, having Society No,194 Sindhi Muslim Cooperative Housing Society Ltd., Karachi, particularly the first floor, second floor, and 2/3rds of the Ground Floor, Karachi."
13. Regarding first property viz. Bungalow No,12-A, 8th Central Street, Phase-II, measuring 2080 square yards, DHA, Karachi, Mr. Ravi Panjawani learned counsel for the respondent No,2 vehemently contended, that it was .Purchased by respondent No,2, from his 'own source of income' and such purchase of the aforesaid property is/was much prior to 21-6-2007 when the Company/ respondent No,1 was incorporated. He further contended that on 19-3-2004, the respondent No,2 entered into the sale agreement, with the previous owner of the aforesaid property and upon failure of the previous owner to perform his contractual obligations, the. Respondent No,2, instituted Suit No,989 of 2004, for specific performance and perpetual injunction before this Court, which suit was. Subsequently decreed and whereafter a sale-deed was duly executed and registered on 27- 12-2006. Copy of the Registered sale-deed dated 27-12-2006 and referred to by the learned counsel for respondent No,2 is available as annexure "R-1" at Page 191 of the Court file.
14. As regards the second property Viz: Immovable Property No,12-B, Circular Street, Phase-II, DHA, Karachi, the learned counsel for the respondent No,2, emphatically contended that the same was purchased by a registered sale-deed dated 19-5-2008 even before commencement of the business of respondent No,1/Company. Per learned counsel the said property was purchased by the respondent No,2 from his own 'source of income'. Further the learned counsel submitted that evidently the petitioners have no source of income to purchase any of the properties as mentioned and shown in Annexure A/1 to the main petition available at Page 55 of the Court file. The copy of the registered sale-deed dated 19-5-2008 in favour of respondent No,2, is available as annexure "R-2" at page 213 of the Court file.
15.. Regarding 3rd property mentioned at Serial No,3 above, it was forcefully contended by the learned counsel for the respondent No,2 that this immovable was also purchased by respondent No, 2 on 18-5-1977 i.e, much prior to marriage/ birth of petitioners respectively. Copy of the Registered sale-deed dated 18-5-1977 as annexure "R-3" is available at Page 253 of the Court file.
Lastly, it was contended by the learned counsel for the respondent No,2 that neither the petitioners nor any of them have any right or justification to claim any right, interest or share, of course, during the life time of respondent No,2,. Over and in respect of the aforesaid properties.
16. Mr. Muhammad Ali Jan, learned counsel for the respondent No,1; besides supporting the case of respondent No,2, adopted the arguments advanced at bar by the learned counsel for the respondent No .
2.
17. Have given due consideration to the arguments advanced by the learned counsel for the respondents Nos.1 rand 2 and also minutely examined the available materials on record.
18. In the case in hand, the respondent No,2 is holding in its favour 'Registered sale-deeds' in respect of all three immovable properties mentioned hereinabove. Under law a registered document operates from the date of its execution and until and unless the same is cancelled through another registered document and/or declared as void through a declaration of court, then the sanctity of a registered document in my view cannot be doubted and/or otherwise, questioned.
A registered document is always presumed and/or deemed to be genuine, binding and enforceable under law. In the present case, it is worth to note that the petitioners not only failed to file any Counter-Affidavit in answer to C.M.A. No,14 of 2012 and/or Affidavit in rejoinder in reply to Counter Affidavit filed by the respondent No,2, in answer to C.M.A. No,50 of 2011. The contents of C.M.A. No,14 of 2012 and supporting affidavit thereof and of the Counter Affidavit(s) filed by respondent No,2 remained, uncontro verted/unrebutted and the ownership of respondent No,2 in my opinion is not opened to be questioned muchless in the present winding up proceedings.
19. Moreover, the learned counsel for the respondent No,1 has also not resisted/ opposed the grant of C.M.A. No,14 of 12 rather has fully supported the case of respondent No,2. The title documents/ registered sale-Leeds placed on record by the respondent No,2 clearly and without of any iota of doubt establish that the aforesaid properties are exclusively belonging to respondent No,2 only.
20. In view of the above, I am of the considered opinion that the properties as mentioned in para 12 hereinabove and/or enunciated an annexure "A/1" to the petition, are belonging to the respondent No,2 and not respondent No,1 Company, as alleged by the petitioners. The applicant/ respondent No,2 in my view has shown sufficient and plausible grounds for varying/recalling of the ad interim order dated 18-2-2011. Under circumstances, the application C:M.A. No,14 of 2012 is granted.
Resultantly, the order dated 18-2-2011 is recalled/varied to the extent of properties belonging to and owned by respondent No,2.
' The application is allowed.