1. By this application the petitioner has prayed for a temporary injunction to restrain respondent No.2 from allowing any vote to -be cast by proxy at the 13th Annual Election of Sindh Zonal Executive Committee and Sindh Zone's Delegates on Central General Body of the respondent No.1, namely, Pakistan Poultry Association for the year 1992-93.
2. The main relief sought in the petition is similar to the temporary relief sought in the application. The sole ground on which the relief is claimed is that the respondent No.1, not being a company limited by shares the provisions of section 161(l) of the Companies Ordinance, 1984, are not, by virtue of proviso (a) thereto, applicable to it; and that the provision in the Articles of Association of the respondent No.1, permitting votes to be cast by proxy, being contrary to the statutory prohibition, is not valid.
3. Section 161(l) and proviso (a) thereto, of the Companies Ordinance, 1984, provide as follows: "Any member of a company entitled to attend and vote at a meeting of the company shall be entitled to appoint another person as his proxy to attend and vote instead of him, and a proxy so appointed shall have such rights as respects speaking and voting at the meeting as are available to a member: Provided that:--
(a) This subsection shall not apply in the case of a company-not having a share capital." and the argument advanced by Mr. Naqvi is that the effect of proviso (a) is to prohibit voting by proxy by members of a company not having share capital.
4. Prior to the enactment of the Companies Ordinance, 1984, no right to vote by proxy was conferred by any statute although such right was recognisd by section 79 of the Companies Act, 1913; and the existence of such a right depended upon a provision therefor in the Articles of Association of a company. However, by subsection (1) of section 161 of the Companies Ordinance the right to vote by proxy has been expressly conferred upon. Members of companies;andan exception to this provision is made by Proviso (a). The only effect of the proviso is that the right to vote by proxy which is conferred on members of the companies by virtue of section 161(l) is not so A conferred upon members of a company not having share capital. It does not follow that the right of a company not having share capital to provide by its Articles of Association for voting by proxy has in any manner been taken away by proviso (a). That right remains unaffected.
5. It needs hardly be stated that a proviso has to be construed strictly an d in the context of a provision to which it is a proviso. To construe proviso (a) in the manner contended for by Mr. Naqvi would amount to importing therein a provision to take away the right of a company not limited by shares to provide,, by its Articles of association, for voting by proxy. There is nothing in the language of proviso (a), either in express words or by necessary intendment, to warrant such construction.
6. Mr. Rehmani submits that the petitioners have not only failed to disclose any prima facie case but have failed to show also that the balance of convenience is on the side of. The petitioners or that any irreparable loss or damage would be caused to the petitioners if temporary injunction is refused.
7. I am satisfied that the petitioners have failed to disclose prima facie case. It is, therefore, not necessary to make any observation on the question of balance of convenience or irreparable loss.
8. In the circumstances, no case has been made out for temporary injunction and the application is hereby dismissed.
9. AA./M-15W/K