This Civil Revision Petition is directed against the Judgment & Decree dated 12th October, 2012 passed by Civil Judge-W, Quetta, ("trial Court"), whereby the suit filed by the petitioners was dismissed and the Judgment & Decree dated 24th March, 2021, passed by the Additional District Judge-VII, Quetta ("appellate Court") whereby the appeal preferred by the petitioner was also dismissed.
2. Brief facts of the case are that predecessor-in-interest of Respondent Nos. 1 to 12 namely Muhammad Karim being plaintiff in Civil Suit No. 58/2009 filed a "suit for Recovery of Rs. 6,13,000/- with profit, Declaration, Permanent Injunction & Cancellation of Instruments" before the trial Court, stating therein that three companies with the name and style as "(i) Yalamlam Hajj Umra Services, Private Limited, (ii) Al-Matla Hajj & Umrah Services and (iii) Kalat Hajj & Umra Services," were registered with the Respondent No. 13 under the Companies Ordinance; that the Yalamlam Hajj & Umrah Services Pvt: Ltd; were hiving various members, who were having their equal shares of 25%, besides two other companies were also effective and were doing the same business; that in the month of November, 2006 dispute arose between the partners, and matter was referred to one Mr. Zafar Razzaq Durrani as President of Private Hajj Group Organization Balochistan, Quetta, who gave his award to the extent that some changes be made in the possession and ownership of the Hajj Services by the parties and in the light of decision of Arbitrator 50% share of one Atique-ur-Rehman in the Yalamlam Hajj & Umrah was replaced in place of predecessor in interest of Respondent Nos.
1 to 12 and Hafiz Abdul Waheed in the said Company was replaced with Al-Mata Umrah & Hajj Services and Hafiz Abdul Waheed, was brought in his place, but he was also Director on the basis of 25% shares each; that it was also resolved by the Arbitrator that an amount of Rs. 6,13,000/-be paid to the predecessor-in-interest of Respondent Nos. 1 to 12; that the petitioners had made some change in the directorship of the company, being not recognized by the law, thus were liable to be declared illegal. The suit was contested by the petitioners alongwith other defendants (deleted from the suit), by way of filing separate written statements and thereafter, the learned trial Court out of the pleadings of the parties framed the following issues: "i. whether the plaintiff is entitled to be declared as Director in Al-Malta (sic) Hajj and Umrah Services on basis of .25% share? ii. Whether the plaintiff is entitled for ex-profit of 2006 for amount Rs. 6,13,000/-(Rupees six lac thirteen thousand only? iii. Weather the plaintiff was deleted as Director from Al-Matla and Umrah Services by the defendants fraudulently through fake documents?
Amended issues: "i. whether the predecessor in interest of the plaintiffs is entitled to be declared as Director in Al- Malta (sic) Hajj and Umrah Services on basis of 25% share? ii. Whether the predecessor in interest of the plaintiffs is entitled for ex-profit of 2006 for amount Rs. 613,0001-(Rupees six lac thirteen thousand only? iii. Weather the predecessor in interest of the plaintiffs was deleted as Director from Al-Matla and Umrah Services by the defendants fraudulently through fake documents?
The learned trial Court after recording the evidence of both the parties and hearing the parties, decreed the suit vide judgment & decree dated 12th October 2012 and appeal filed by the petitioners before the appellate Court was dismissed vide judgment and decree dated 24th March 2021, hence this civil revision petition.
3. The learned counsel for petitioner at the very outset pointed out that the learned trial Court has failed to frame proper issue with regard to jurisdiction of the civil Court, as under Section 7 of the Companies Ordinance 1984, no Court, other than High Court as defined under .the Ordinance, has jurisdiction to entertain any matter relating to the title or share in the company, therefore, the impugned judgments passed by the Courts below being coram non judice, is liable to be set aside.
4. Conversely, the learned counsel for the respondents while supporting the judgments of the Courts below stated that there is no dispute with regard to title or share, rather the share has been defined, but the petitioners are reluctant to pay the same, whereas, fraudulently, the name of the predecessor-in-interest of the respondents have been removed from the Directorship, thus, apparently a factual controversy was involved, which could only be decided by the Court of Civil Jurisdiction and the Courts below have rightly passed the impugned judgments; he finally urged for dismissal of the petition.
Learned Dr. Parvaiz Ahmed Khilji, Advocate present on Court notice to assist the Court on legal preposition, stated that any issue with regard to title or shares between the parties is to be dealt with under the Provisions of Companies Act 2017 or the Ordinance 1984, while in the case in hand, the prayer was with regard to payment of share and title to declare the predecessor-in-interest of the respondents as Director, squarely falls within the jurisdiction of companies Court as defined under Section 5 of the Act or Section 7 of the Ordinance.
5. I have heard learned counsel for the parties and have perused the relevant record appended with memo of the petition.
6. The perusal of the record reveals that the respondents being plaintiffs have filed a suit with the following prayer:-- "a. Directions be made to Defendant No. 1 about official inquiry about created fake instruments against the Defendant No. 2. b. That that predecessors of the plaintiff be declared as Directors in the Al-Matla Hajj & Umrah Services, Private Limited, on the basis of 25% and also the Defendants No. 5 and 6 are directed to pay as ex-profit of 2006 Rs. 613,000/-and further profit of 2007 and 2008 till now to plaintiffs and also the Defendant No. 6 be declared as defaulter of same amount. c. That the instrument of deleting of the predecessor of the plaintiffs as Director from the Al-Matla Hajj & Umrah Services, Private Limited be declared as Null and void instrument under the law and also direction to be issued to official defendants of maintained status-quo about any change of both Hajj Companies also black listed profit money from the Bank. d. That the Defendant No. 6 be declared as fraudulent person and after due verification and inquiry directions be given to Defendant No. 1 to declare him as a black list and his Hajj Services be cancelled.
7. The respondents through the suit sought recovery of shares of their predecessor-in-interest in the Al-Matla Hajj & Umrah Services Private Limited, whereas the written statement filed by the official Respondent No. 14 clearly speaks that as per the official record maintained by the official respondent, the said Abdul Karim, (predecessor-in-interest of respondents) has never remained as director of the Al-Matla Hajj & Umrah Services Private Limited, and similarly also raised an objection about the jurisdiction of the Court under Section 7 the Companies Ordinance. 1984. Section 7 of the Companies Ordinance stipulates as under:
7. Jurisdiction of the Court.--(1) The Court having jurisdiction under this Ordinance shall be the High Court having jurisdiction in the place at which the registered office of the company is situate: Similarly, Section 5 of the Companies Act 2017 stipulates as under:
5. Jurisdiction of the Court and creation of Benches.--(I) The Court having jurisdiction under this Act shall be the High Court having jurisdiction in the place at which the registered office of the company is situate.
(2) Notwithstanding anything contained in any other law no civil Court as provided in the. Code of Civil Procedure, 1908 (Act V of 1908) or any other Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Court is empowered to determine by or under this Act.
(3) 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 for winding up.
(4) There shall be, in each High Court, one or more Benches on permanent basis, each to be known as the Company Bench, to be constituted by the Chief Justice of the High Court to exercise the jurisdiction vested in the High Court under this Act: Provided that Benches constituted under the Companies Ordinance, 1984 (XLVII of 1984), shall continue to function accordingly unless otherwise notified by the respective Chief Justice of the High Court: Provided further that provisions of section 6 shall be effective from the date of notification by the Chief Justice of the respective High Court within six months from the date of the commencement of this Act.
(5) There shall be a Registrar to be known as Registrar of the Company Bench/duly notified by the Chief Justice of the respective High Court who shall be assisted by such other officers as may be assigned by the Chief Justice of the respective High Court.
(6) The Registrar of the Company Bench shall perform all the functions assigned to it under this Act including all ministerial and administrative business of the Company Bench such 12 as the receipt of petitions, applications, written replies, issuance of notices, service of summons Wand such other functions or duties as may be prescribed under Section 423.
(7) The Chief Justice of the respective High Court, if deemed appropriate, may also establish a secretariat in each Company Bench of the respective High Court in such form and manner to provide secretarial support and to perform such functions as may be prescribed under Section 423.
The afore-referred provisions of the Ordinance 1984 and the Act 2017, clearly indicate that no Court, other than the High Court, where the company exists, shall have jurisdiction to entertain the matter.
In the case in hand admittedly, the respondents had sought declaration of title of their predecessor-in-interest as director of the Al-Matla Hajj & Umrah Private Limited, and profit as per shares owned by late Abdul Karim, thus, the matter squarely fell within the jurisdiction of the Company Judge. Reliance can be placed on the case of "Dr. Omar Masood & another v Syed Amir Hussain Naqvi and another" (2019 CLP 931), wherein it was held:
10. A combined reading of the provisions of the Act of 2017 unambiguously manifests the legislative intent. The legislature has intended that all matters relating to title or transfer of shares of a juridical person incorporated under the Act of 2017 shall be dealt with by the Court vested with jurisdiction under section 5 to entertain or proceed to determine under the Act of 2017. "
8. It is noteworthy to observe note here that despite raising a specific objection by the Respondent No. 14, before the trial Court with regard to jurisdiction, the learned trial Court neither framed any issue in this respect, nor decided the question of jurisdiction at first instance. It is settled law that whenever a challenge is made to the jurisdiction of the Court, such Court in the first instance is obliged to decide the matter of its jurisdiction by taking into account all the relevant facts.
However, the Courts have inherent jurisdiction to decide the question of their own jurisdiction with respect to a specific matter and jurisdiction of a Court is initially determined by the pleadings of the parties. If the Court reaches upon the conclusion that it does not have the jurisdiction to decide the his before it, the Court should return the plaint under Order VII, Rule 10, C.P.C. because decision will have a binding force only when same is passed by a Court of competent jurisdiction. Thus, without rendering any observation on merit of the case and deciding the issue finally, it would be in the best interest of the parties and justice, to remand the case to the trial Court with the direction to decide the question of jurisdiction at first instance, and if necessitated, the trial Court may frame issue and lead evidence to this extant only, and thereafter, proceed ahead, but strictly in accordance with the law.
Order accordingly.
The petition stands disposed of in the above terms, but with no order as to costs.