Shujaat Ali Khan, J: - Shorn of unnecessary details, the facts, as gleaned from this petition, are that the petitioner filed civil suit seeking declaration to the effect that he did not remain member of the Punjab Cooking Oil Private Limited ("the company") w.e.f. 06.01.2001 and Form-29, issued by the Securities and Exchange Commission of Pakistan ("SECP") treating the petitioner as director of the company and the act of the Customs authorities putting his property to auction was illegal and void ab initio. Upon service of notice, the defendants No.1 and 2 (respondents No.10 & 11 herein) entered appearance and filed their Written Statements. In addition thereto, they filed application under Order VII rule 11 CPC praying for rejection of the plaint of the suit, filed by the petitioner on the ground of being barred by law. After submission of reply to the said application by the petitioner and hearing learned counsel for the parties, learned Civil Judge, 1st Class, Lahore ("the learned trial court"), rejected the plaint of the suit vide order, dated 11.10.2018 against which the petitioner filed an appeal but without any success as the same was dismissed by the learned Additional District Judge, Lahore ("the learned appellate court") through judgment, dated 05.12.2019; hence this petition.
2. The submissions, made by learned counsel for the petitioner, can be summed up in the words that since the petitioner remained out of country from March 1997 to November 2006, he could not be treated as director of the company; that the petitioner approached the SECP for removal of his name from the list/register of the directors of the company but he was asked to approach the relevant forum; that mala-fide on the part of the Customs authorities is evident from the fact that though firstly they were bound to recover the disputed/assessed amount from the company or its assets and in the event of its failure, they could proceed against its directors but the Customs authorities instead of attaching/auctioning the properties in the name of the company, proceeded to take action against the petitioner merely on the ground that he was out of country at the relevant time; that both the Courts below failed to consider that since the petitioner did not challenge any order of assessm ent, his case was not covered under Section 217 of the Customs Act, 1969, hence his suit was maintainable; that when the Show Cause Notice, issued by the Customs authorities in the name of the company and the reply was filed by it to the exclusion of the petitioner, subsequent attachment and auction of his property was a nullity in the eye of law; that even if it is presumed that the petitioner was director of the company at the relevant time, no penal action could be taken against him without endeavoring for recovery of the assessed amount from the company in the first instance; that both the Courts below failed to consider that the civil court being court of ultimate jurisdiction was competent to adjudicate upon the suit filed by the petitioner, thus the rejection of the plaint of his suit was not justified; that though the learned appellate court was required to give independent findings without being influenced by the decision of the learned trial court but instead of discharging its obligation, it toed the line of the learned trial court; that when SECP filed conceding Written Statement, the plaint of the suit, filed by the petitioner, could not be dismissed and that it is well established by now that while dealing with an application under Order VII rule 11 CPC, only contents of the plaint can be looked into but the decisions of the courts below show that irrelevant material has been discussed therein. To fortify his contentions, learned counsel for the petitioner has relied upon the cases reported as Mst.
Rehmat Begum v. Mehfooz Ahmed and others (PLD 2024 SC 1108), Rashid Ahmad and others v.
Nazar Hussain and others (2022 SCMR 1842), A. Khalid Ansari v. Mir Shail ur Rehman (PLD 2011 Karachi 484), Iqbal v. Brigadier Zafar Mahmood and 3 others (2016 MLD 2031), Anjum Rashid and others v. Shehzad and others (2007 CLD 1210), Syed Ikhlaque Hussain Shah v. Sh. Muhammad Bashir and others (2007 CLC 872) and Messrs Sakhi Dattar Cotton Industries and Oil Mills through Authorized partner (2006 CLD 191).
3. Mr. Nouman Hassan Baloch, Advocate, representing respondents No.10 to 12, while opposing the submissions made by learned counsel for the petitioner, states that assertion of learned counsel for the petitioner that SECP filed conceding Written Statement runs contrary to the record inasmuch as while filing Written Statement/Comments, SECP clarified that the petitioner remained director of the company till 2001. Adds that since the assessment relates to the year 1991, the resignation of the petitioner in the year 2001 was inconsequential; that since the appeal, filed by the petitioner against the assessm ent order was dismissed, he was supposed to challenge the decision of the appellate forum through a Reference before this Court but having not done so, the impugned assessm ent against the petitioner has attained finality.
4. Mr. Ruman Bilal, Advocate, representing respondent No.13, states that question as to whether the name of a person has properly been listed as a director or not can only be adjudicated upon by a company Bench of this Court in terms of Section 197(5) of the Companies Act, 2017, thus the suit filed by the petitioner was not maintainable; that Section 466 of the Companies Act, 2017 ousts the jurisdiction of Registrar, thus filing of the proceedings by the petitioner before the said authority were erroneous.
5. Learned proxy counsel, appearing on behalf of respondent No.14, states that since no relief has been claimed against his client, its status is just that of a proforma respondent.
6. Since nobody entered appearance on behalf of respondents No.1 to 9 despite their service by way of publication in Daily 'Nawa-e-Waqt' dated 16.07.2021, they were proceeded against ex-parte vide order, dated 05.11.2021.
7. I have heard learned counsel for the parties at considerable length and have also gone through the documents, appended with this petition, as well as the case-law cited at the bar.
8. A perusal of the plaint, filed by the petitioner, shows that he sought declaration inter-alia to the effect that the act of SECP to treat him as a director of the company after the year 2001 was illegal and unlawful; Section 197 of the Companies Act, 2017 deals with the register of directors and officers of the company, which for convenience of reference is reproduced herein below:- "197. Register of directors, officers.--(1) Every company shall keep at its registered office a register of its directors and officers, including the chief executive, company secretary, chief financial officer, auditors and legal adviser, containing with respect to each of them such particulars as may be specified.
(2) Every person referred to in sub-section (1) shall, within a period of ten days of his appointment or any change therein, as the case may be, furnish to the company the particulars specified under sub-section (1).
(3) Every company shall, within a period of fifteen days from the date of appointment of any person referred in sub-section (1) or any change among them, or in any of their particulars, file with the registrar a return in the specified form: Provided that this sub-section shall not apply to the first appointment made at the time of incorporation of the company.
(4) Any contravention or default in complying with requirement of sub-section (1) or sub-section
(3) shall be an offence liable to a penalty of level 1 on the standard scale.
(5) If the name of any person is fraudulently or without sufficient cause entered in or omitted from the register of directors of a company the person aggrieved or the company, may apply to the Court for rectification of the register of directors.
(6) The Court may either refuse the application or may order rectification of the register on such terms and conditions as it may deem fit and may make order as to costs.
(7) Where the Court has passed and order under sub-section (6) that prima facie entry in or omission from, the register of directors the name or other particulars of any person, was made fraudulently or without sufficient cause, the Court may send a reference for adjudication of offence under sub-section (8) to the court as provided in section 482.
(8) Anyone who fraudulently or without sufficient cause enters in, or omits from the register of directors the name or other particulars of any person, shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to one million rupees, or with both.
(9) When it makes an order for rectification of the register of directors in respect of a company, the Court shall cause a copy of the order to be forwarded to the company and shall, by its order, direct the company to file notice of the rectification with the registrar within fifteen days from the receipt of the order."(emphasis provided)
Sub-section 5 of the afore-quoted provision clarifies that if the name of any person is entered in or omitted from the register of directors of a company fraudulently or without any sufficient cause, the person aggrieved or the company may apply to the court for rectification of register of directors. The term court has been defined under Section 2(23) of the Companies Act, 2017 in the following words:- "Court" means a Company Bench of a High Court having jurisdiction under this Act."
From above definition, it is crystal clear that no other forum except the Company Bench of this Court can deal with a matter relating to addition/deletion of the name of a person from the register of directors of a company.
9. It is relevant to note that as per section 4 of the Companies Act 2017, the said enactment has overriding effect over other laws, Memorandum of Articles of Association of a Company. Moreover, according to Section 5(2) of the Act 2017, the jurisdiction of Civil Court has expressly been ousted. In this back ground, filing of the suit by the petitioner before the Civil Court was erroneous, thus no illegality has been committed by the Courts below while rendering the impugned decisions.
10. Indisputably, the Companies Act, 2017 is a special law whereas the Civil Procedure Code is a general law. It is well established by now that when a matter is covered under special law, the application of general law is totally ousted. Reliance in this regard is placed on the case reported as Muhammad Iqbal and others v. Nasrullah (2023 SCMR 273) wherein the Apex Court of the country has inter-alia been held as under:- "Even otherwise, the Khyber Pakhtunkhwa Pre-emption Act is a special law and it is settled that where-ever there is a special and general principle of law applicable to a certain matter, the special law will prevail."
If the fate of the impugned decisions is seen in the light of the afore-referred judgment of the Hon'ble Supreme Court, there leaves no ambiguity that as any matter relating to addition/ deletion of the name of a person from the register of directors is exclusively amenable to the Company Bench of this Court in terms of sections 197(5) ibid, the jurisdiction of the civil court, working under Civil Procedure Code 1908, had no jurisdiction to try the suit filed by the petitioner, thus findings of the courts below are unexceptionable.
11. Now taking up the plea of the learned counsel for the petitioner that civil court, being forum of ultimate jurisdiction, was competent to try the suit filed by the petitioner, I am of the view that section 9 of Civil Procedure Code 1908 deals with the jurisdiction of the civil court which, for facility of reference, is reproduced herein below:- "9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred or for which a general or a special law is in force"
The above-quoted provision renders its crystal clear that though the courts, established under the Civil Procedure Code 1908, have the jurisdiction to try all suits of civil nature but they cannot take cognizance of a matter wherein their jurisdiction is expressly or impliedly barred. As far as the case in hand is concerned, not only the jurisdiction of the civil courts to take cognizance of a matter covered under the Companies Act, 2017 has expressly been ousted under section 5(2) ibid but also the Companies Act, 2017 has been given overriding effect over other laws. The Hon'ble Supreme Court of Pakistan in the case of Mst. Zahida Sattar and others v. Federation of Pakistan and others (PLD 2002 SC 408) while dealing with the question relating to power of the civil courts to try a suit wherein its jurisdiction has been barred, has inter-alia held as under:- "12. The question arises whether a Civil Court is vested with the jurisdiction to entertain a suit to try an issue which is subject-matter of a criminal charge for which an accused is being tried in a Criminal Court under special law i.e. NAB Ordinance. The answer: to this question revolves around the decision on the question whether the Civil Court can try a criminal charge which is exclusively triable by a criminal Court under the special law. The answer cannot be, but in the negative. If it had been a dispute between the real owner and the ostensible owners who were alleged to be the benamidars arising from-denial of latter's right for former, certainly it would have been a dispute of civil nature and only the Civil Court could B take cognizance of the same under section 9, C.P.C. which provides that a Civil Court shall (subject to the provisions herein contained) have jurisdiction to try all suits of civil nature except the suits of which their cognizance is either expressly or impliedly barred. In a case where accused holder of public office is being tried for accumulation of wealth acquired by him by illegal and corrupt practices by misusing his official capacity in the name of his spouses and other relatives, the dispute is not of a civil nature between two private parties, for there is no dispute between the accused i.e., the alleged real owner and his other relative spouses i.e. ostensible owners/alleged benamidars regarding title qua properties in question inter se which could be decided as a dispute of civil nature by the Civil Court."
If the fate of the impugned decisions, rendered by the courts below, is adjudged in the light of the afore-referred judgment of the Hon'ble Supreme Court, there leaves no doubt that they rightly held the suit of the petitioner as non-maintainable.
12. During the course of arguments, learned counsel for the petitioner put much emphasis on the fact that the property of the petitioner was attached/auctioned without confirming the fact as to whether he was director of the company or not but in my humble opinion, the said fact hardly had any impact upon the outcome of the application filed by respondents No.10 and 11 rather it was to be seen by the learned trial court as to whether the proceedings before it were maintainable or not.
If the petitioner is of the view that his property could not be attached without recovery of assessed amount from the company, it can resort to appropriate proceedings but said fact cannot be used to justify the proceedings, filed by the petitioner before the Civil Court.
13. A cursory glance over Order VII rule 11 CPC shows that plaint of a suit is liable to be rejected when the same is barred by law. As discussed above, since the jurisdiction of the civil court has been ousted to adjudicate upon a matter relating to addition/deletion of the name of a person from the register of directors of a company, the provisions of Order VII rule 11 CPC were fully attracted, thus no adverse inference can be drawn against the decisions, rendered by the courts below.
14. During the course of arguments, learned counsel for the petitioner argued with vehemence that since SECP filed conceding Written Statement, the plaint of the suit filed by the petitioner could not be rejected. Firstly, the comments/ Written Statement, filed on behalf of the SECP cannot be considered as conceding one and even if it is presumed that the said respondent admitted the claim of the petitioner, without examining it in evidence, the said Written Statement cannot be used for the benefit of the petitioner. Reliance in this regard can be placed on the case of Muhammad Ejaz and two others v. Khalida Awan and another (2010 SCMR 342).
15. While assisting the Court, learned counsel for the petitioner put much emphasis on the fact that while dealing with an application seeking rejection of plaint of suit in terms of Order VII rule 11 CPC, the court can see into the contents of the plaint alone. In this regard, I do not agree with the learned counsel for the petitioner for the reasons that before taking cognizance of a matter, the forum concerned is bound to decide the question relating to its jurisdiction in the first instance and then to proceed further in the matter. Further, a court cannot be bound down to decide application for rejection of the plaint only on the basis of the contents of the plaint rather, it can also take into consideration other available material while dealing with such application. If any case law is required, reference can be made to the case of S.M. Sham Ahmad Zaidi through Legal Heirs v.
Malik Hassan Ali Khan (Moin) through Legal Heirs (2002 SCMR 338) wherein the apex Court of the country, while dealing with the proposition under discussion, has inter-alia held as under:-
14. Besides, averments made in the plaint other material available on record which on its own strength is legally sufficient to completely refute the claim of the plaintiff, can also be looked into for the purpose of rejection of the plaint. It does not necessarily mean that the other material shall be taken as conclusive proof of the facts stated therein, but it actually moderates that other material on its own intrinsic value be considered alongwith the averments made in the plaint.If the plea urged by learned counsel for the petitioner is considered in the light of the afore-referred judgment of the Hon'ble Supreme Court of Pakistan, it stands clarified that it has little substance.
16. Now coming to the case law, referred by learned counsel for the petitioner, I am of the view that the same is not applicable to the facts and circumstances of the present case inasmuch as in the case of Mst. Rehmat Begum (supra), the Apex Court of the country has held that plaint cannot be rejected in piecemeal whereas, the plaint of the suit filed by the petitioner was rejected as a whole, thus referred case does not come to the rescue of the petitioner. As far as case of Rashid Ahmad and others (supra) is concerned, suffice it to note that in the said case, the Hon'ble Supreme Court of Pakistan has held the proceedings before Civil Court are maintainable on the ground that in addition to challenging the consolidation proceedings, the plaintiff also assailed the mutation as well as the sale deed. In the present case, the declaration, as to whether the petitioner was director of the company or not, can only be decided by the Company Bench of this Court as discussed earlier and if it is declared that the petitioner was not the director of the company, he can put a challenge to the action of the Customs authorities, thus the referred case also stand distinguished.
Now taking up the case of A. Khalid Ansari (supra), I am of the view that in the said case, the Hon'ble High Court of Sindh held that recitals of the plaint of the suit should be presumed to be correct whereas the question involved in the case in hand is as to whether the civil court had the jurisdiction to entertain a suit seeking declaration to the effect that the name of a person was fraudulently entered in the register of directors. The case of Iqbal (supra) deals with the protection provided to the government functionaries against their acts done during the course of their routine duties, which is not the position in case in hand. As far as cases of Anjum Rashid and others and Messrs Sakhi Dattar Cotton Industries and Oil Mills through Authorized partner (supra) are concerned, suffice it to observe that in the referred case, the Hon'ble High Court of Sindh inter-alia held that a company enjoys independent status and it has nothing to do with the properties of its directors and any liability outstanding against a company is to be discharged by it exclusively whereas in the case in hand, the question in pith and substance relates to maintainability of the suit filed by the petitioner before the Civil Court. Taking up the case of Syed Ikhlaque Hussain Shah (supra), I am of the view that this Court in the referred case held that if an act of the executive or tribunal is without jurisdiction, the same can be assailed in civil suit but the said fact cannot be used to maintain suit by a party in a matter wherein the jurisdiction of the Civil Court has expressly been barred.
17. There are concurrent findings of the Courts below whereby the suit of the petitioner before the Civil Court has been found not maintainable, which cannot be interfered in routine until and unless they are found to be arbitrary or capricious, which is not the position in case in hand.
18. For what has been discussed above, I have no hesitation to hold that the suit filed by the petitioner before the Civil Court was not maintainable, thus the findings of the courts below are unexceptionable. Consequently, this petition is dismissed with the observation that the petitioner would be at liberty to approach the forum concerned for redressal of his grievance, if so advised.
No order as to costs.