C.M. No, 104 of 2011 ' SHAHID KARIM, J.---This is an application under Order VII, Rule 11 of Code of Civil Procedure (C.P.C.)
(the Application) for the rejection of the petition C.O. No,52 of 2010 (the Petition), which has been filed for seeking the following prayer: i. To issue 62.5% of the total shares of Messrs Joy Foam Pvt. Ltd. To Petitioner No,1 /company or its nominee against their initial investment of Rs,12,500,000/- therein, ii. To issue share certificates of requisite value in the name of Petitioner No,1 or its nominee. iii. To constitute the Board of Directors of Respondent No,1 /company and include its nominees therein in accordance with the ratio of the above mentioned shares of the petitioners (62.5 %) in M/s. Joy Foam (Pvt.) Ltd.; iv. To amend the statutory record of Respondent No, 1/company including its Memorandum and Articles of Association so as to describe the petitioner No,1 as subscriber of 62.5% of its total share holding. v. To file the above amended statutory record and documents with the appropriate authority, vi. In the alternative to refund the amount of Petitioners investment in M/s. Joy Foam (Pvt.) Ltd.; amounting to Rs,12,500,000/- together with mark-up there upon at 2% above the bank rate calculated from 01.01.2004 till the date of decision of this civil original petition together with damages amounting to Rs,288 Million for loss of business."
2. A synoptical resumption of the facts are that on 07.04.2004 the petitioners filed a suit for declaration and mandatory injunction. The declaration was sought with regard to the purported omission of the names of the petitioners from the Register of Members of Toy Foam (Pvt.) Limited, ("Joy") as also for a declaration that the petitioners were Directors of Joy and were entitled to the allotment of 12,50,000 shares in lieu of their contribution to the paid up share capital of Joy. This suit was filed before the Senior Civil Judge, Lahore. The basis of the claim was that the petitioners had invested an amount of Rs,12.5 million in the capital of Joy. On 28.9.2010 by relying on a judgment of Supreme Court of Pakistan reported as Lahore Race Club v. Raja Khushbakht ur Rehman (PLD 2008 SC 707) the civil court returned the plaint with the direction to the petitioners to file the same before a competent forum. On 8.12.2010 the petitioners filed the present petition C.O. 52 of 2010. It is the case of the respondents that the titled petition is substantially and materially different from the plaint which was returned to the petitioners to be filed at the competent forum.
3. The instant application was filed by the respondents for the rejection of the petition on the threshold. A reply was filed to this application by the petitioners. In a nub, the applicants assert that: 1) Since the plaint was returned to the petitioners, no amendments could be made to the plaint and, therefore, the petition was not maintainable as the plaint which was returned to the petitioners ought to have been filed without being altered or amended.
2) In case the petition is deemed to be a fresh petition, it was statute barred.
3) The petition and the documents appended to the petition disclose no cause of action.
4. The grounds raised in the application under consideration are dealt with in seriatim as follows.
No Amendments Could Be Made:
5. The learned counsel for the applicants has made a frontal attack on the petition, filed by the petitioners in its present form. According to the learned counsel, the instant petition is substantially different in material particulars from the plaint which was returned to the petitioners for being filed before a competent forum. The learned counsel for the applicants has relied upon Mst. Hawabai and 6 others v. Abdus Shakoor and 8 others (PLD 1970 Kar. 367), Kashif Rasheed and another v. Haji Muhammad Adrees through L. Rs, and 13 others (2007 CLC 1848) and Sardaraz Khan and 36 others v. Amirullah Khan and 34 others (PLD 1995 Pesh. 86) to invite this Court to hold that a plaint once returned has to be filed in the same form as it is returned and no amendments or changes can be brought about. It does 'not lie within the power of the party to whom the plaint is returned to effect any changes and on the strength of the precedents relied upon by the learned counsel, it is argued that any petition which incorporates substantial changes in the plaint which is so returned is incompetent and an action extra jus.
6. As a prefatory, the learned counsel for the petitioners submits that the present petition is a fresh petition and, therefore, the doctrine with regard to the return of plaint is not applicable to the facts and circumstances of the case.
7. It is clear from the stance taken by the learned counsel for the petitioners that the present petition has no relation with the suit which was filed before the civil court and the plaint in respect of which was returned to be filed before a competent forum. Thus, for all intents the proposition that we are now concerned with is not whether any amendments could be brought about in the plaint which was returned to the petitioners but whether the petitioners could file a fresh petition irrespective of the return of the plaint to the petitioners. This proposition was emphatically answered in the negative in the judgments which have been cited by the learned counsel for the applicants and the foundational judgment in this regard is the Mst. Hawabai case. However it turns out that Mst. Hawabai is no more good law on the subject. That judgment of the learned Single Bench of the Karachi High Court was appealed before a Division Bench of the Karachi High Court and while accepting the appeal the judgment cited by the learned counsel for the applicants was set aside in the following words: "...There is nothing in rule 10 of Order VII, C.P.C. Which compels a plaintiff to necessarily present the same plaint to the Court having jurisdiction in the matter after it is returned to him by a Court on the ground that it had no jurisdiction in the matter, if he chooses, not to do so. In view of the above discussion we have reached the conclusion that after a plaint is returned to a plaintiff by a Court under Order VII, rule 10, C.P.C., he may adopt any of the following courses:-- i. He may challenge the order, returning the plaint for presentation to the proper Court by filing an appeal against such order, or ii. He may present the same plaint after its return to him to a Court having jurisdiction in the matter, or iii. He may amend the plaint by giving up a part of the relief or reduce the valuation so as to make it cognizable by the Court which returned the plaint and then represent the same to the same Court or amend the plaint and present it before are Court having jurisdiction in the matter, or iv. He may file a fresh suit in the Court having jurisdiction in the matter. We also hold that there is no bar either under Order VII, rule 10, C.P.C., or in any other provision of the code which precludes the plaintiff from filing a fresh suit in case the plaint filed earlier in a Court is returned on the ground that the Court had no jurisdiction in the matter. We further hold that a plaint filed in a Court of proper jurisdiction after having been returned by another Court on the ground that the former Court had no jurisdiction in the matter is a fresh suit to all intents and purposes and not merely a continuation of the old proceedings in the former Court."
8. The matter did not end there. A further appeal was taken to the Supreme Court of Pakistan and the findings were returned in a reported judgment Abdul Shakoor and others v. Mst. Hawabai and others (1982 SCMR 867). It was observed by the Supreme Court of Pakistan: "...It will be appreciated that no withdrawal was involved and the plaintiffs were not allowed to withdraw their suit under Order XXIII, rule 1. There was no formal defect in the plaint nor any request has been made by the plaintiffs before the Court. Here the plaint was returned by the Court concerned because it had no jurisdiction to decide it. The plaintiffs were, therefore, under no legal obligation to file the same plaint before the other forum. They could submit a fresh plaint and as indicated above they were under no obligation to file a suit at all. Of course, in the later case they could not overlook the period of limitation fixed for such a suit. Before the Single Judge of the High Court when the respondents submitted their plaint including therein some other grounds and that suit was not time-barred, they could do so. Therefore, the Single Judge in the High Court could not return the plaint or4ismiss it on that ground alone. In that view of the matter, the decision of the Division Bench was correct."
9. It is clear from a reading of the judgment of the Division Bench of the Karachi High Court as affirmed by the Supreme Court of Pakistan that the Single Bench went wrong in holding that a plaint ought to be filed un-amended and there was no bar in filing the plaint by bringing about substantial changes and amendments. The basis of the judgment of the Supreme Court of Pakistan was that the party to whom a plaint is returned is not obliged to file that very plaint and it lies within the discretion of that party, at its option, to file a fresh suit or a petition (as in the present case) and there was no prohibition to this course being adopted by that party subject however to the question of limitation which will be taken up at the peril and risk of the party choosing that course of action. Therefore, it is held that the ground raised by the applicants with regard to the present petition being incompetent on the basis of the doctrine underlying return of plaint is without force.
Barred by limitation:
10. In Abdul Shakoor and others, the Supreme Court of Pakistan found that a fresh petition or a suit could be filed but made it subject to the period of limitation. It ineluctably follows that in case a party chooses to file a fresh petition as in the present case and does not file the returned plaint as it is, that party must be willing to face the challenge of the fresh petition being statute barred under the statutes of limitation. The learned counsel for the applicants has raised as his second ground the plea that the present petition is barred by limitation since the cause of action admittedly accrued in the year 2003 when the suit was initially filed and the period of limitation for any such application is provided by Article 120 of the First Schedule to the Limitation Act, 1908. This submission of the learned counsel is based on a recent judgment of this Court reported as Mian Waheed ud Din and others v. Messrs Royal Rice Millers (Pvt.) Ltd. (2015 CLD 1978) and has relied upon the following observations with regard to the period of limitation for an application under section 152 of the Companies Ordinance, 1984 (Ordinance, 1984): "The examination of the above provisions leave no room for doubt that a civil suit for a relief under section 152 of the Ordinance would entail the limitation period prescribed in Article 120 of the Limitation Act. Therefore, Article 120 of the Limitation Act shall be applicable to a petition filed under section 152 of the Ordinance and period mentioned in the said Article should be taken as a reasonable standard by which delay in seeking remedy under section 152 of the Ordinance should be measured."
11. In terms of the holding of this Court in Waheed ud Din case, the period of limitation for a petition under section 152 of the Ordinance, 1984 shall be 'reckoned under Article 120 of the Limitation Act, 1908 and is six years. The raison d'etre of Waheed ud Din case is encapsulated in the following observations: "13. After carefully considering the issue, this Court has come to the conclusion that the provisions of Limitation Act apply to a petition filed under section 152 of the Ordinance. In "Syed Akbar Ali v.
Mamun Ali Bumasuk (Pvt.) Limited and others" 2006 CLD 960, with reference to Articles 120 and 181 of the Limitation Act, it was stated that the petition under section 152 of the Ordinance was neither a suit nor an application. This description of a petition under section 152 of the Ordinance, with due respect, may not be apt as such a petition is akin to a plaint for the reasons stated below.
14. The expressions "suits", "applications" and "petitions" are not defined in the Civil Procedure Code, 1908. By virtue of section 2(1) of the Limitation Act, 1908, "applicant" includes any person from or through whom the applicant derives his right to apply and "suit" in terms of section 2(10) thereof does not include all appeal or an application. Section 3 of the Limitation Act provides that subject to the provisions contained in sections 4 to 24, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed. By virtue of section 5 of the Limitation Act, any appeal or any application as specified therein but not a suit may be admitted after the prescribed period provided the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making application within such period. Section 29 provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule forming part of the Limitation Act, the period prescribed by such special or local law will be applied for determining any period of limitation for any suit or appeal or application as the case may be. The Schedule forming part of the Limitation Act consists of three divisions prescribing the period of limitation. The first division covering Articles 1 to 155 deals with the limitation for a suit. The second division comprising Articles 156 to 164 pertains to the limitation for filing an appeal, while Articles 166 to 183 deals with the limitation for filing an application. Article 181 is a residuary Article which applies to all applications for which no period of limitation is provided and the period starts running from the date on which the right to apply accrues and is enforceable within three years thereof A reading of these Articles would show that the limitation period is fixed only in connection with the filing of either a suit or application before a civil court or an appeal.
15. By virtue of the explanation to section 3 of the Limitation Act, a suit is instituted in ordinary cases, when the plaint is presented to the proper officer. Similarly, Order IV, C.P.C. Deals with institution of suits. Rule 1 thereof is as follows:
1. Suit to be commenced by plaint---(1) Every suit shall be instituted by presenting a plaint to the Court or to such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.
16. The Companies (Court) Rules, 1997 have been framed, inter alia, to regulate the conduct of the proceedings initiated under the Ordinance. In terms of Rule 5 thereof all applications under the Ordinance shall be made by petitions. Once a petition is entertained for regular hearing, the respondent(s) is/are required to file "written statement" in answer to the contents of the petition. In terms of Rule 7(1), the practice, procedure and provisions of the Code of Civil Procedure have been made applicable to all the proceedings under the Ordinance unless prescribed otherwise by the Ordinance and the Rules. It is thus clear that although the proceedings under section 152 of the Ordinance are initiated by a petition, the formalities and material particulars required to be mentioned in those petition are the same as in a plaint; Under the scheme of things, therefore, there is no sanctity attached to the use of the expressions 'Petition" or "plaint" for describing the nature of the lis. In the context of the proceedings under the Ordinance, the difference between the two expressions appears to be more of nomenclature than of substance. On the examination of the above provisions, this Court is satisfied that a petition filed under section 152 of the Ordinance is essentially in the nature of a plaint and the proceedings are akin to a suit."
' P. It will be seen that the Court arrived at the conclusion that Article 120 was applicable to a petition under section 152 of the Ordinance, 1984 by a circuitous route and by drawing an analogy between the concept of a plaint in C.P.C. With an application under section 152 of the Ordinance, 1984 and they were held to have been used interchangeably in the context of an application under section 152.
13. There is another strand of judgments by which the same result has been arrived at although by a different set of reasoning. These judgments have returned a finding that period of limitation does apply to an application under section 152 of the Ordinance, 1984 and it cannot be left to the whim and discretion of a person who files such a petition without regard for a period within which it ought to be filed. What is at the heart of the conclusion is an intention to thwart vexatious proceedings and to have them dismissed on the ground that they have been filed with an inordinate delay. Another principle which seems to have weighed on the mind of the Judges while laying this rule is that all litigations must come to an end and certainty must attach to the rights of persons who may move on in their lives and their business without fear of a challenge to those rights. These judgments have held that an application under section 152 of the Ordinance, 1984 cannot be maintained when the suit for seeking the same relief has become barred by time under the Limitation Act. This rule was propounded in the judgment passed by this Court and reported as Talib Hussain v. Babu Muhammad Shafi and 12 others (PLD 1987 Lahore 1) in which the following observations were made: "7. This plea is misconceived. The power vesting in Court under section 152, is to be exercised in cases where legal title of the applicant is clear as in a complicated or doubtful case, summary jurisdiction ought not to be exercised. This was so held as early as the year 1877 in the matter of the Diamond Rock Boring Company Ltd. (1877) 2 Q.B.D.
463. It is true that this section gives the Judge wide discretion in deciding matters relating to the rectification of Register of Members but that would mean that each and every controversy raised respecting the shares or right claimed with regard thereto can be considered and determined by the Court. In a case where sale of shares is not complete, remedy under general law is to be availed of by instituting proper proceedings in the civil Courts of plenary jurisdiction. The summary proceedings under section 152 Companies Ordinance, 1984, cannot be resorted to when the suit for seeking same relief has become barred by time under the Limitation Act. Again the discretion vesting in the Court will not be exercised in favor of a party guilty of laches. The delay in a given case may give rise to equitable considerations and disentitle a party from seeking a particular relief. In the instant case sale of shares was admittedly not complete. Learned counsel for the petitioners was not in a position to urge that suit for specific performance if now filed, will not be liable to be dismissed as barred by time. The petitioners in the circumstances noted above are not entitled to invoke jurisdiction vesting in this Court under section 152, Companies Ordinance. For the reasons given above, there is no alternative but to dismiss this petition."
14. The second judgment in the same vein is by the Sindh High Court in a case reported as Syed Akbar Ali v. Mamun Ali Bumasuk (Pvt.) Ltd. And others (2006 CLD 960) and follows the same line of reasoning to arrive at the conclusion in the following words: "A party, who called in question title of the shares and of omitting his name fraudulently from the register of Company, has two remedies i,e, by filing a suit for declaration before the civil Court and/or by filing an application, under section 152 of the Companies Ordinance, 1984 but such remedies ought to have been invoked within the period of limitation provided and if no period is specifically provided then within reasonable period of time. Without going into the question whether Article 120 of the Limitation Act and/or Article 181 of the Limitation Act is applicable to the petition under section 152, Companies Ordinance, 1984 or novas such petition is neither a suit nor an application under section 3 of the Limitation Act, the petitioner cannot be allowed to call in question transfer of shares at his own sweet-will Once a remedy of Civil suit has become barred by time then only in exceptional circumstances a party can be allowed to avail other remedy if available in law. Since the petitioner has failed to give any reason what to say cogent reason for not questioning the transfer of shares from his name for 11 long years the petitioner is not entitled to discretion by relief under section 152 of the Companies Ordinance, 1984, the petition is, therefore, dismissed."
15. These judgments have been considered in another case reported as Mrs. Syeeda Mahmood and another v. Anas Munir (Pvt.) Ltd. Through Chief Executive, and 6 others (2007 CLD 637) decided by a Single Bench of this Court.
16. However, a judgment of the Supreme Court of Pakistan reported as M. Imam-ud-Din Janjua v.
The Thal Development Authority through the Chairman, T.D.A., Jauharabad (PLD 1972 Supreme Court 123) seems to have escaped the attention of the courts while dealing with this issue. In Iman ud Din Janjua, the matter related to a contract entered into between a contractor and the Thal Development Authority. Differences arose regarding the execution of the works and the contractor served a notice upon the Authority to appoint an Arbitrator in terms of the Arbitration Clause contained in each of the contracts. The Authority included the name of an Arbitrator and an application was filed with the Senior Civil Judge, Sargodha under section 20 of the Arbitration Act, 1940. The Civil Court appointed the Arbitrator who delivered the award against which objections were filed by both the parties. The matter reached the Supreme Court of Pakistan and one of the questions before the Supreme Court of Pakistan was to consider as to whether Article 181 of the Limitation Act applied to proceedings under section 20 of the Arbitration Act. We are not concerned with the other questions which arose in the matter before the Supreme Court of Pakistan. Article 181 of the Limitation Act appears in Third Division of the First Schedule to the Limitation Act, 1908 and reads as under:{{TABLE}} "181. Application for Three When the right to apply which no period of years accrues." limitation is provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908.
17. The Supreme Court of Pakistan upon consideration of the tenor and contexture of Article 181 of the Limitations Act, proceeded to hold that Article 181 applied to all applications for which no period of limitation was provided elsewhere either in the First Schedule to the Limitation Act or in any other statute. It was held that: "In support of his contention that the aforesaid Article applies only to applications under the Code of Civil Procedure learned counsel for the appellant has placed strong reliance on the observations of the Judicial Committee in the case of Hansraj Gupta v. Dehra Dun M.E.T. Co. Ltd.
(AIR 1933 PC 63 = 601 Al 3), Lord Russel of Killowen, while delivering the opinion of the. Board in that case, which arose out of an application under the Companies Act, observed that; It is common ground that the only Article in that Schedule which could apply to such an application is Article 181" but a series of authorities commencing with Bai Manekbai v. Manekji Kavasji (ILR 7 Born. 213), has taken the view that "Article 181 only relates to applications under the Code of Civil Procedure in which case no period of limitation has been prescribed for the application.
' This view, learned counsel points out, has also been followed by the Supreme Court of a neighbouring country in the case of Shah Mulchand & Co. Ltd. v. Jawahar Mills Ltd. (AIR 1953 SC 94), where, after noting that there is some divergence of judicial opinion even within the same High Court in this sub-continent; it has been opined that the preponderating view is undoubtedly to the effect that the said Article applies only to applications under the Code".
' The cases before the Privy Council and the aforementioned Supreme Court both arose out of applications under the Companies Act but even so the Privy Council did not express any definite opinion on this question, because it went on, after making the observation quoted above, to consider the position even if Article 181 of the Limitation Act did apply, and came to the conclusion that the application, having been filed three years from the time when the right to apply accrued, was within time even under Article 181 and thus from "either point of view" the application was not one which could be dismissed by reason of the provisions of section 3 of the Limitation Act.
' Similarly, in the case before the Indian Supreme Court, although a more elaborate discussion was made with regard to the applicability of Article 181, it was again found that, even if Article 181 did apply, the application before that Court was within time.
' In 1933, when the Privy Council delivered its opinion, the Arbitration Act of 1940 had not come into existence nor had the Third Division of the First Schedule to the Limitation Act been amended to provide Jo applications under the Arbitration Act (vide Articles 158 ana 178 in the Third Division of the First Schedule to the Limitation Act). Up to that stage all the Articles in this division of the Schedule to the Limitation Act dealt with applications under the Code of Civil Procedure. It may well be that for this reason it was held that Article 181 also applied to only such applications ejusdem generis. After the introduction of Articles 158 and 178 in the Third Division of the First Schedule to the Limitation Act, this reason no longer holds good. The divergence of opinion in British Indian and Indian Courts has arisen mainly because of these amendments introduced in 1940 and the view seems to be gaining ground that after the amendments made in 1940 it was no longer possible to restrict Article 181 only to applications under the Code of Civil Procedure.
' So far as this Country is concerned, it appears that, after the incorporation of Articles 158 and 178 in the Third Division of the First Schedule to the Limitation Act, the view that has consistently prevailed is that the provisions of this Article are no longer confined to applications under the Code of Civil Procedure. The first case in which it was held that Article 181 was not restricted to applications under the Civil Procedure Code but "tended even to applications not provided for in that Division was the case of the People Bank of Northern India Ltd. v. Firm Lekhu Ram and Sons (AIR 1941 Pesh. 3), where the Court observed as follows:--- "....If we were to restrict the scope of Article 181 to applications under the Civil P.C. Many applications will remain for which there will be no Article in the Limitation Act and the reductio ad absurdum would be that the applicants in those cases would have a free hand to put in applications whenever they liked. An application for filing of an award of this kind by an arbitrator would be a case in point. On this view an arbitrator may keep the award in his pocket for ten years and then he may file it within impunity.
' Next in the case of Muhammad Abdul Latif Faruqi v. Nisar Ahmad (PLD 1959 Kar. 465), a learned ;Single Judge of the former West Pakistan High Court took the view that an application under section 20 of the Arbitration Act, 1940, has to be filed within the time prescribed under Article 181 of the Limitation Act.
' The same view was again taken by a Full Bench of the Azad Jammu and Kashmir High Court in the case of Mian Omar Din v. Government of Azad Jammu and Kashmir (PLD 1968 Azad J&K 21), after noticing the decision from the Indian jurisdiction including that of the Indian Supreme Court referred to above.
' Lastly in the case of the West Pakistan Water and Power Development Authority, Lahore v. Messrs Omar Sons Ltd., (PLD 1970 Lah. 398), a Division Bench, after considering all the earlier decisions, came to the conclusion that the position had been materially altered by the incorporation of Articles 158 and 178 in the Third Division of the First Schedule to the Limitation Act and it was no longer possible to say that the Third Division of Schedule 1 is confined to applications under the Code of Civil Procedure or to apply the ejusdem generis rule only.
' Having examined these decisions with care, we, too, have come to the conclusion that, after the incorporation of Articles 158 and 178 in the First Schedule to the Limitation Act, which make specific provision for applications under the Arbitration Act 1940, it is no longer possible to say that the Article contained in the Third Division of the First Schedule to the Limitation Act apply only to applications under the Code of Civil Procedure, because, all the other Articles contained in this Division apply to such applications. With the incorporation of Articles 158 and 178, that reason no longer holds good, and therefore, the scope of Article 181, which is in the nature of a residuary Article, must necessarily be extended to all kinds of applications for which no specific period of limitation has been provided for either in the First Schedule to the Limitation Act or in any other Statute. To hold otherwise would lead to the anomalous result that for applications which have not been expressly provided for in the Third Division of the First Schedule to the Limitation Act there will be no period of Limitation at all. This could not have been the intention of the Legislature.
' We regret, with respect, our inability to agree with the Indian Supreme Court that in spite of the subsequent amendments of Articles 158 and 178 no change has been effected in the old construction of Article 181 even though the reason on which the old construction was founded is no longer available."
18. The judgment of the Supreme Court of Pakistan, referred to above, leaves it in no manner of doubt that Article 181 of Limitation Act applies to all' applications filed under any statute and is not confined in any manner to merely the applications filed under the C.P.C. The limitation for such an application is three years. Section 152 of the Ordinance, 1984 is reproduced as under: 152 Power of Court to rectify register. - (1) If-
(a) 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 parry aggrieved, and may make such order as to costs as it in its discretion thinks fit.
(3) 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 Companies Ordinance, 1984, 104 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 band 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 all issues raised in any such application and tried separately, shall lie on the grounds mentioned 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.
19. It can be seen that an aggrieved person may apply to the Court for the rectification of the Register of Members if the conditions mentioned in section 152 are fulfilled. By subsection (2), the Court may either refuse the application or may order rectification of Register on payment by the company of any damages sustained by any party aggrieved. It is clear, therefore, that it is an application which will be filed before the Company Bench of this Court under section 152 of the Ordinance, 1984 and there is no reason to deal with this application any differently to the application under section 20 of the Arbitration Act in respect of which the judgment of the Supreme Court of Pakistan relates. Be that as it may, the fundamental sinews and the ratio deadendi of the judgment of the Supreme Court of Pakistan makes it clear that Article 181 of the Limitation Act applies to all applications either in the First Schedule to the Limitation Act or in any other statute.
Clearly, the holding by the Supreme Court of Pakistan is applicable a fortiori on all fours to the application under section 152 of the Ordinance, 1984 as well.
20. The next question which requires consideration is whether the present application under section 152 of the Ordinance, 1984 is within time or not. The terminus a quo for any such application is "when the right to apply accrues".
21. It is common ground between the parties that the suit filed by the petitioner before the civil court was filed in the year 2004. It was a suit for declaration and mandatory injunction. The plaint in that suit was returned on 28.9.2010. The present petition was filed on 8.12.2010. Clearly, therefore, the right to apply under section 152 of the Ordinance, 1984 accrued to the petitioner at the same time when a suit was filed in the year 2004. The prayer in the suit filed by the petitioners as also in the present petition are materially and substantially the same. In a nub, the petitioners seek the rectification of the Register of Members and the incorporation of the names of the petitioners as shareholders in the said register. The learned counsel for the petitioners submits that till the year 2003, the respondents Nos.2 and 3 had not become the directors of the respondent No,1 Company and, therefore, there was no cause for seeking the rectification of Register of Members. He has referred to paragraph 12 of the petition to urge that the first directors were Mian Hassan Javed and Mian Sheraz Amir. It was through the filing of Form 'A' for the year 2005 on 31.10.2005 that it became known that the respondents Nos.2 and 3 had also become the shareholders of the respondent No,1 Company. Prior to this, according to the learned counsel,- the respondents Nos.2 and 3 remained the directors of the petitioner-Company. The learned counsel submits that the cause of action is recurring and continue to arise with each passing event.
22. The submission of the learned counsel for the petitioners should receive a short shrift. It is not denied that the suit on the same facts was filed in the year 2004. The cause of action for that suit was clearly that the petitioners had made substantial investment in the respondent No,1 Company and the respondents have fraudulently omitted the names of the petitioners as shareholders from the Register of Members of respondent No,1 Company. This cause of action is also the basis for the present petition. Therefore, the primary cause of action has not transmuted or undergone a change through the course of the period since the filing of the suit by the petitioners. The learned counsel for the petitioners has attempted in vain to create a new cause of action in the year 2005 when Form 'A' with regard to the respondent No,1 Company was filed. However, no amendment was made in the plaint filed by the petitioners before the civil court seeking any amendment with regard to the fact which is now being urged by the learned counsel for the petitioners. Even if the year 2005 were taken as forming the basis for a fresh cause of action for the purposes of the present petition, it is clear that under Article 181 of the Limitation Act the present petition is beyond the period of three years and is thus barred by time in anyase. To reiterate, it is the case of the petitioners that the present is a new petition and has no relation with the suit filed in the year 2004.
Thus, the present petition has been filed beyond the period of limitation under Article 181 of the First Schedule to the Limitation Act, 1908 and is not, therefore, competent and maintainable. The application is thus accepted and the petition is rejected.
THE END