AAMER FAROOQ, J.---Through the instant petition under Article 199 of the Constitution, the petitioners have assailed order dated 13.03.2013, passed by respondent No,1, permitting change of the registered office of respondent No,3.
2.At the outset, learned counsel for the petitioners candidly conceded that he does not press the prayers, made in the petition, except assailing order dated 13.03.2013, whereby Respondent No,1 permitted amendment in the Memorandum of Association by Respondent No,3; hence, change of registered office from Punjab to Sindh.
3.Respondent No,3 changed its registered office from Punjab to Sindh, and in this behalf, the special resolution was passed by the Company on 04.03.2013, whereafter approval was sought from Respondent No,1, as required under the law. The referred permission was accorded by respondent No,1 vide the impugned order dated 13.03.2013 and the special resolution, passed by the Company on 04.03.2013, was confirmed.
4.Learned counsel for the petitioner inter alia submitted that special resolution, passed by respondent No,3, was not in accordance with law inasmuch as the notice, required for the same, was not duly served. In this behalf, it was contended that twenty one days notice is required to be served before passing the resolution which was not done in the instant case. The learned counsel further submitted that under sections 21 and 24 of the Companies Ordinance, 1984, respondent No,1 had to satisfy itself before according approval of the special resolution which was not done.
5.The learned counsel for respondent No,3 inter alia submitted that the instant petition is not maintainable inasmuch as the petitioners have an alternate remedy of revision, available to it. It was further contended that the petition is barred by laches and is liable to be dismissed on that score. On merits, it was contended that all the prerequisites for passing special resolution were duly complied with and the notices were sent as prescribed. In this regards, it was pointed out that the petitioners filed a petition' under Companies Ordinance, 1984, in the Sindh High Court (J.M.
No,21/2014) in which it was highlighted that the registered office of respondent No,3 is in Sindh. It was also contended that the petitioners have no locus standi to institute the instant petition. The learned counsel also submitted that initially the registered office of the Company was in Sindh which was changed to Rawalpindi (Punjab), and subsequently, again to Sindh.
6.Learned counsel for respondent No,1 inter alia submitted that intimation of the special resolution along with the requisite documents were forwarded to respondent No,1 by respondent No,3 and the same were processed in accordance with law; that respondent No,3, on 07.03.2013, filed an application in terms of section 21 of the Companies Ordinance, 1984, read with Rule 3 of the Companies General Provisions and Confirmation Rules, 1985, seeking confirmation of alteration in the Memorandum of Association of the Company whereby registered office of the Company was changed; respondent No,1 duly examined the contents of the application and the annexures and being satisfied passed Order dated 13.03.2013. It was further contended that Form-16 clearly shows that all six members/shareholders were present at the time of passing special resolution on 04.03.2013.
7.Memorandum of Association (MOA) of respondent No,3 was amended to shift the registered office from Province of Punjab to Sindh. Respondent No,3 passed resolution on 04.03.2013 whereby the amendment was made. In this behalf, an application was filed before respondent No,1 for according approval of the special resolution as required under section 21(2) of the Companies Ordinance, 1984, by virtue of which any alteration in the Memorandum of Association shall not take effect unless confirmation by the Commission had been obtained. Under subsection (3) of section 21 of the Ordinance ibid, the Commission has to satisfy itself that sufficient notice has been given to inter alia shareholders of the Company and to any person or classes of persons whose interest shall, in the opinion of the Commission, be affected by the alteration and with respect to other creditors who are entitled to object and signify their objection, in this regards. Respondent No,1 can dispense with the requirement of the notice for special reasons. Under section 23, ibid, the Commission/respondent No,1 before exercising discretion has to keep in regard rights and interest of the members of the Company before passing any order.
8.The impugned Order was passed on 13.03.2013 and the instant petition has been filed in April, 2015, after almost about more than two years. In this behalf, objection regarding laches has been raised. The learned counsel for the petitioners when was confronted with the referred position, submitted that the petitioners had no knowledge of the change in the registered office and came to know about it on 28.04.2015 when application for withdrawal of a petition under section 290 of the Companies Ordinance, 1984, (J.M. No,21/2014) was made. In the referred application for withdrawal, the reasons given was that the registered office of the Company is in Rawalpindi, however, the learned counsel for respondent No,3 did apprise the Court that the registered office is in Sindh.
9. The petitioners when filed J.M. No,21/2014 before the Hon'ble High Court of Sindh at Karachi mentioned the address of respondent No,3 at Karachi. Along with the petition, the petitioner appended Form-A of respondent No,3 which was filed on 31.10.2013 which shows that the registered office of the Company is in Karachi which is subsequent to passing of the order of the change in the registered office from Punjab to Sindh. In these facts and circumstances, it is not possible that the petitioners were not aware about the change in the registered office of respondent No,3 in 2013, therefore, the bar of laches is applicable. The learned counsel for the petitioners, in order to overcome the hurdle of laches, has placed reliance on cases titled "Pakistan Post Office v.
Settlement Commissioner and others"(1987 SCM R 1119), "Masooda Begum through Legal heirs v.
Government of Punjab" (PLD 2003 Supreme Court 90) and "MCB Bank Ltd. v. State Bank of Pakistan"
10. In "MCB Bank Ltd. v. State Bank of Pakistan" (2013 CLD 1895), the Hon'ble Lahore High Court held that where act of an authority is void, unjust and improper, the principle of laches could not be pressed into. Reliance was placed on the decision of the Privy Council titled "Chief Kwame Asante v.
Chief Kwametawia" (PLD 1949 Privy Council 45), wherein it was held that if it appears before the Appellate Court that an order against which an appeal is brought has been made without jurisdiction, it can never be too late to admit and give effect to the plea that the order is a nullity.
11.In the case of "Pakistan Post Office v. Settlement. Commissioner and others" (1987 SCM R 1119), the Hon'ble Supreme Court held that mere fact that the order was void would not necessarily displace the bar of laches in equitable jurisdiction if the order was just and proper notwithstanding that is void, it need not be set aside in the Constitutional jurisdiction, if the same is filed after inordinate delay, however, only where the order was void; also unjust and improper, the High Court would have no hesitation in setting aside the same despite an objection regarding laches because the High Court would then be acting on a still higher principle than that of laches that is injustice is not perpetuated with the blessings of the Court in its discretionary jurisdiction as the discretion to dismiss the Constitution petition cannot be exercised in aid of injustice.
12. In the instant case, as observed above, the petitioners had given the address of Sindh in its petition under section 290 of the Companies Ordinance, 1984, (J.M. No,21/2014) and also appended with the petition Form-A dated 31.10.2013 (after the impugned Order) showing the registered office of respondent No,3 in Karachi/Sindh, therefore, it is not possible for the petitioners not to know about the change in the registered office of respondent No,3 from Punjab to Sindh, hence, the principle of laches is attracted and the petition is liable to be dismissed on that score.
13. Even otherwise, the petitioners had an alternate remedy by way of revision under section 477 of the Companies Ordinance, 1984, and since the same was not availed, therefore, the instant petition is not maintainable. In this behalf, reliance is placed on case titled "AVM (R) S.J. Raza v.
Securities and Exchange Commission of Pakistan" (2013 CLD 1886), wherein the. Hon'ble Division Bench of the Sindh High Court held that the Constitutional jurisdiction cannot be used to circumvent limitation and/or has a substitute of alternate efficacious remedy available under the law. Similar principle was laid down, by this Court, in case titled Naseemul Ali, Ex. Chief Executive Officer of Trust Management Services Pvt. Ltd. Trust Modarba v. Executive Director, Securities and Exchange Commission of Pakistan and another" (2013 CLD 216).
14. Even on merits, the petitioner has not been able to show the grievance regarding change in the registered office when the same was initially in Sindh and was subsequently transferred to Punjab and then was again changed to Sindh. The sole reason for assailing the order is that compliance to the provisions the companies Ordinance, 1984 has not been made, however, no material has been appended with the petition or during the course of arguments to substantiate the same. Respondent No,1, while passing the impugned order did fulfill the mandate of sections 21 and 23 of Companies Ordinance, 1984. In this behalf, under section 21(3) no notice was required to be served to any shareholder and under section 23 ibid discretion is to be exercised, keeping in view the interest of the members. The petitioners, in the instant petition, have failed to point out, as noted above, regarding any prejudice caused with the change in the registered office.
15. For the foregoing reasons, the instant petition is without merit and is accordingly dismissed.