1. ' Request for urgent hearing is granted.
(2) By this application, the respondents seek recall of the order dated 4-2-1990, whereby my learned brother Abdur Rahman, J. Appointed Mr.Bashir Ahmed Memon. The official Assignee., as Provisional Liquidator before notice to the respondents. Mr. Mansoorul Arlin learned counsel for the respondents, has invited my attention to section 325(2) of the Companies Ordinance, 1984, which provides as under:- "(2) Before appointing a provisional Manager, the Court shall give notice to the company and afford to it a reasonable opportunity to make its reprsentations, if any, unless, for special ressons to be recorded, the Court thinks fit to dispense with such notice."
2. ' It may be pointed out that the petitioners have filed an apaplication under sections 305, 306 and 309 of the Companies Ordinance for winding up of the Company, M/s. Rawal Paper (Pvt.) Ltd., the respondents in this case, which is still pending for final disposal. Alongwith the main petition an application under section 325 of the Companies Ordinance was also filed seeking appointment of a provisional liquidator/manager pending disposal of the, main Petition. It is pertinent to point out that alongwith this application another application under rule 781 of the Sindh Chief Court Rules (O.S.) had also been filed. Both these applications were considered by my learned brother, Mr. Justice Abdur Rahman on 4-2-1990 and the following order was passed:- "My powei-s as a Companies Judge under section 8 of the Companies Ordinance, 1984 were for a specific period and have come to an end. Obviousely, therefore, I cannot hear this case any more.
3. Hence the office is directed to place this case before the Hon'ble Chief Justice and obtain orders for placing it before a Company Judge.
4. ' This should be done today as Mr. Mansoorul Arfin, learned counsel for the respondents, submits that the order dated 4-2-1990 is causing great hardship to the respondents. Mr. Mansoorul Arfin and and Mr. Afsar Abidi are directed to remain present before the Hon'ble Chief Justice today."
5. ' The respondents are now aggrieved by the order passed on the petitioner's application under section 325 of the Companies Act, because, as is evident from the order passed by my learned brother, the appointment of provisional liquidator was ordered without giving notice to the respondents first. No doubt, such a procedure could be adopted, but as has been provided in subsection (2) of section 325, which was reproduced earlier, special reasons for the same are to be recorded, which evidently was not done in the present case. Mr. Afsar Abidi, learned counsel for the petitioners, has raised a preliminary objection, which is necessary to dispose of first before this application can be considered on merits. The learned counsel has pointed out that the application purportedly filed under section 325 of the Companies Ordinance in fact embodies in itself a prayer for review of the order passed by my learned brother, dated 4-2-1990, therefore, as provided by rule 5 of order 47, this application can only be place before my learned brother for orders. No doubt, on first impression, the learned counsel appears to be correct, but the difficulty is that my learned brother is not functioning as a Company Judge any longer. In this respect Mr. Mansoorul Arifin has invited my attention to section 8 of the Companies Ordinance, which provides that "There shall in each High Court be one or more Benches, 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 section 7."
6. ' Consequently, this application can be disposed of only by a Company Judge. It is pertinent to point out here that Rule 5 of Order XLVII, after providing that an application for review is to be presented before the same Judge, who passed the earlier order, makes an exception in cases where a Judge is precluded from passing an order on account of his absence for a period of 6 months or other cause. In my opinion the expression 'or other cause' is capable of a wider connotation as it would include any reasonable cause on account of which the learned Judge, who, passed the earlier order, is precluded from considering the review application. Consequently, I agree with Mr. Mansoorul Arlin that even if the present application is regarded as an application for review under Order XLVII, C.P.C., I can still recall the order passed by my learned brother, if on merits the argument of Mr. Mansoorul Arfin is regarded to be of some substance.
7. ' Turning now to the merits of the case, Mr. Afsar Abidi has argued that the reasons, which necessitated dispensation of notice to the respondents are stated by the petitioners in para. 13 of the main petition. It has been pointed out by the learned counsel that in the affidavit filed on behalf of the petitioners, the petitioners had relied upon the averments made in the main petition and the Court was competent to take such averments into consideration. Apart from that the second contention of Mr. Afsar Abidi is that since now the order passed by my learned brother has already been implemented and a provisional liquidator has already been appointed and he has already sealed the factory premises of the respondents, therefore, the order, dated 4-2-1990 should not be recalled.
8. ' It may be pointed out that although I agree with Mr. Afsar Abidi to the extent that even if the reasons as provided by section 325 of the Companies Ordinance for dispensing with the requirement of notice to the respondents have not been recorded by the Court, but otherwise there are circumstances to justify making of such an order, then the same would not call for reveiw of the order. However, in the present case apart from the allegations made in para. 13 of the main petition that the business is being carried on by the respondents illegally and fraudulently and that the assets of the respondents are being wasted and illegally disposed off so as to defeat the rights of the creditors, no other material appears to have been placed before the Court in support of the allegations. No doubt, subsection (2) of section 325 is an enabling provision and the Court, as pointed out earlier, can dispense with the requirement of giving notice to the respondents before passing an order for appointment of a provisional manager/liquidator, but there must be circumstances to justify the adoption of such procedure by the Court. It has been pointed out by Mr. Mansoorul Arifin that the factory was a running factory and was giving production and, therefore, according to the learned counsel, the respondents would be seriously prejudiced by its closure.
9. In view of the above circumstances, I have no other option, but to recall the order dated 4-2-1990 except for such part thereof, which relates to the publication of notices under Rule 781 of the Sindh Chief Court Rules. The factory premises of the respondents shall, therefore, be descaled by the Official Assignee. Since the respondents are already on notice, Mr. Mansoorul Arlin seeks a week's time to file a counter-affidavit.
10. ' The application filed by the petitioners under section 325 will, therefore, come up for hearing on 21- 3-1990. Rejoinder, if any, may be filed in the meanwhile.