A.M.TIWANA, J.-- This civil revision is directed against the order, dated 16.2.1992, by which a learned Additional District Judge at Lahore, accepting the appeal of Mst. Kameez Begum, the plaintiff (now respondent), set aside the order, dated 3.12.1991, whereby a learned Civil Judge at Lahore had dismissed her application for temporary injunction. After the acceptance of her appeal. He issued temporary injunction against Mian Ijaz Siddiq and two others, the defendants (now petitioners), restraining them from operating accounts of the company known as M/s Nasic Exports (Pvt.) Ltd.
Without the signatures of the plaintiff-respondent and directing the Manager of the Standard Chartered Bank (defendant-respondent No.2) not to honour the cheques issued by the defendants- petitioners till the decision of the suit.
2. To be a little more precise, Mst.Kameez Begum respondent No.1 had instituted a declaratory suit with consequential relief of perpetual injunction against her son Mian Ijaz Siddiq petitioner and two others, alleging therein that she was one of the Directors' of M/s Nasic Exports (Pvt.) Ltd, a company incorporated under the Companies Ordinance, 1984 on 29.1.1991 and registered with the Registrar of Joint Stocks Company. According to her, in this company, in addition to her, there were three Directors, including her son Mian Ijaz Siddiq defendant, Miss Nusrat Siddiq, Mrs. Gulnar Ijaz and Mr. Ehsan-ul-Haq. She alleged that, according to the charter of the company, she was its Chairman and her son Mian Ijaz Siddiq defendant was its Chief Executive. She averred that the account of the company was opened in the City Chartered Bank, The Mall, Lahore on 12.10.1991 and on the following day she transferred to that account 78,000/- U.S. Dollars from her account in City Chartered Bank, Karachi. Subsequently on 26.10.1991 she transferred Rs.15,00,000/- more to the said account of the company in order to run the business of export. She contended that, according to the agreement, the account of the company was to be operated by her and her son Mian Ijaz Siddiq petitioner jointly but some time later, the latter, taking advantage of his close relationship with her, got a paper signed from her, on the basis of which he prepared a false resolution of the company whereby he nominated Mst. Hinna Ijaz, defendant No.2, as one of the Directors competent to operate account with him. She alleged that the resolution, which was prepared on 7.10.1991 clandestinely, was brought on the record of the said Bank and on the strength of this document, defendant No.1 and 2 (now petitioners) jointly signed a cheque for Rs.70,000/- and withdrew this amount from the accounts of the company apparently as travelling expenses for business trip lo Hong Kong and Singapore, but in fact for pleasure trip abroad and all this was done without her knowledge, but when this fact came to her notice, she directed the Bank Authorities to credit back her amount of Rs. 15,00,000/- to her account and the Bank acted accordingly on 29-10-1991. She further averred that a sum of 78,000/- U.S. Dollers was still in the account of the company and she was apprehensive that this amount might be withdrawn by defendants No.1, and 2 secretly for their personal use. It was alleged that she was filing an application before the Lahore High Court, Lahore, for winding up of the company under the provision of Companies Ordinance, 1984, as the business of the company had not been initiated nor the was any likelihood of the same being initiated. She prayed that the resolution dated 7.10.1991 be declared as not a valid one and on the basis thereof defendant No.1 and 2 may be declared not competent to operate the account of the company without her signatures. She also sought a declaration to the effect that Mst. Hinna Ijaz (defendant No.2) was neither a share holder nor the Director of the company. Alongwith the plaint she moved an application for temporary injunction seeking to restrain her opponents from operating the account of the company till the decision of the case.
3. Defendants-petitioners No.1 and 2 resisted the suit as also the application for temporary injunction. They challenged the jurisdiction of the civil courts and also pleaded estoppel against their opponent. They asserted that defendant-petitioner No.2 being a Director of the company, was competent to operate its account alongwith her co-petitioner, as per-resolution, dated 7.10.1991, which was duly signed by the plaintiff-respondent, and acting upon it, she had jointly with defendant-petitioner No.2 signed and encashed certain cheques from the bank of the company.
Defendant-petitioner No.1 claimed himself to be the Chief Executive of the company and asserted that he alongwith defendant-petitioner No.2 was fully competent to operate its accounts. They blamed the bank for withholding the funds of the company at the behest of the plaintiff- respondent and its collusive role in this respect, resulting in loss to the business of the company as it could not do any business due to lack of funds freezed under the impugned stay order.
4. The first main contention of the petitioner's counsel before this court was that u/s 7 of the Companies Ordinance, 1984, the jurisdiction of the ordinary civil court stood specifically barred because only a Judge of the High Court, notified as accompanies Judge, could decide the controversy of the nature now in hand and the respondent, as per her own allegations in the plaint, has approached the learned Judge for winding up the company.
5. On the other hand, the learned counsel for respondent No.1 with reference to United Bank Ltd. Vs. Messrs Pak Wheat Products Ltd. (PLD 1970 Lahore 235), submitted that despite the ouster of jurisdiction of ordinary civil courts by the relevant provisions of the Companies Ordinance, they still retained the jurisdiction with regards to the matters not covered by that Ordinance and the. Stay order issued by the learned Additional District Judge shall remain in force until a specific order to the contrary is passed by the learned Companies' Judge dealing with the same matter and he has passed no order-as yet.
6. Agreeing with the views of the learned counsel for the respondent, I am of the opinion that the civil courts, being the courts of planery jurisdiction, conferred on them by section 9 of the Code of Civil Procedure, would retain the jurisdiction even to deal with certain matters concerning the affairs of the companies being governed by the Companies Ordinance, 1984, to the extent those matters are not specifically dealt with by that Ordinance or any matter in respect of which no specific order has been passed by the learned Companies' Judge being simultaneously seized of the matter because under the maxim 'where ever there is wrong there is a remedy5 if neither the civil courts pass any order with regard to an affair of a company and no order in that respect is passed by the learned Companies' Judge seized of the matter, it would create a vacuum and even entail injustice. For instance, in the instant case, when the proceedings for winding up of the company are said to be pending before the learned Companies' Judge but no order so far has been passed by him with regard to the dispute between the petitioners and the respondents, who all are Directors of the . Company, and the latter apprehends that if the former are not restrained by a stay order, they shall draw all the funds of the company and after mis-appropriating the same, leave her high and dry. In these circumstances, the civil courts would be justified in effectively intervening in the matter till such time the learned Companies' Judge takes up the dispute and passes an effective order, either interim or final. I am, therefore, of the view that the learned Additional District Judge had the jurisdiction to pass the impugned order but it would cease to operate no sooner as the learned Companies' Judge passes any order in this. Matter, one way or the other, provided the impugned order satisfied other prerequisites such as prima facie case, irreparability of loss -and balance of convenience.
7. The next contention of the learned counsel for the petitioners was that due to the non- compliance of the mandatory provisions of Order 43 rule 3 CPC,, the appeal filed by the respondent before the learned Additional District Judge was not a legally constituted appeal and it was liable to be dismissed summarily. He explained that no prior notice thereof was given to the opposite party before filing the appeal in the court of the learned District Judge, nor an affidavit to the effect was filed that notice had been given to the defendants/petitioners. He complained that the learned Additional District Judge did not advert to various preliminary objections raised in this regard. In this connection he relied upon Mrs. Dino Manekji Chinoy and 8 others vs. Muhammad Matin (PLD 1983 S.C. 693) and Muhammad Ramzan and another vs. Haji Karim Bakhsh and 5 others (1988 CLC 448).
8. Learned counsel for respondent No.1 relying on the same authorities submitted that he gave notice to the opposite party by registered post before filing the appeal and attached with the memorandum of appeal the postal receipt. According to him, he could possibly do this much because actual service of notice on the defendant-petitioners was not within his control, competence or power or that of his client and it was sufficient compliance of the mandatory provisions of Order 43, rule 3 CPC.
9. The intention of the substituted provisions of Order 43, rule 3 ibid was to make the opposite party aware of the move or proposed move of the party aggrieved of the interim order to file an appeal so that it may not suffer the shock of surprise and should be in a position to oppose the appeal at the limine stage and get it nipped in the bud. Failure on the part of the appellant to give such notice is not visited by any penal consequence and the aforesaid provisions do not spell any and we ourselves cannot read or import therein. Therefore, the appeal, which is ? Right to approach the higher forum for the redressal of a grievance emanating from the order of the lower forum, remains unaffected in the event of non-issuance or non-service of requisite notice but at the same time it is inconceivable that non-compliance of a statutory obligation should have no consequence at all. In that event, it would become a mere superfluity, having no binding effect and this could never be the purpose of law, a command which all concerned are bound to obey on the pain of penalty. Non-compliance of the protrusions of order 43, rule 3 CPC may not entail dismissal of appeal, an extreme consequence, but the omission shall, at the same time, not go un-noticed.
10. If we look at the scheme of the law as contained in the Code of Civil Procedure, we do not fail to find that like these provisions, the Code has, at many places and at different stages, enjoined the plaintiff or the defendant, or both, to do or not to do certain things, without specifically providing a penal consequence for non-compliance of those obligations. In the event of non-compliance,- the courts, despite the absence of specific provisions spelling out adverse consequences, still enforce them by their inherent powers of imposing costs on the defaulting party and awarding costs to the other. These costs are some time compensatory and some they have the element of even being penal, showing displeasure of the Court for the omission of the defaulting party so that it may not repeat it and the other party should also know that in the event of any omission it can also be dealt with in the same manner. This process also puts other litigants and their lawyers on guard. In this was even those mandatory provisions of the Code, which do not spell legal consequence themselves, get due compliance by the parties and their counsel and the stream of Justice continue to run smoothly. Thus, in my opinion, the non-compliance of the mandatory provisions of Order 43, rule 3 CPC, shall, despite having no in-built penal consequence, get due compliance by the all concerned if the defaulting appellant, on an objection raised by the opposite parrty at the earliest opportunity, is subjected to adequate costs to be awarded to the opposite party suffering surprise on account of the omission of its opponent to give notice.
11. But the case in hand is on different footing. Respondent No.1 therein had, before filing the appeal in the appellate court, despatched a notice to the opposite party through a registered post and that was what she or her counsel could possibly do. Further action, that is, the service of notice on the opposite party was the function of postal authorities who could carry it promptly or leisurely to the addressee and, after obtaining its acknowledgement from him, return it to the sender. They might not carry the same to the addressee at all, or the addressee might not receive it, or could receive it but might not sign the acknowledgement or the postal authorities could, on account of negligence or otherwise, might not return it or return it after delay. So there could be many situations on which the sender had no control and to expect from him that while filing the appeal he shall also attach therewith the acknowledgement of the notice from him opponent in every case would be to expect too much from him. This portion of rule 3 is unrealistic and in certain cases impracticable. So the only thing that the appellant can do and should do is to attach with the memo, of appeal the postal receipt indicating the despatch of notice alongwith the copy of memo, of appeal in case these documents are sent through the post. If the appellant adopts any other mode of service, then he should either show the acknowledgement of the opposite party or its counsel or file an affidavit. The requirement of affidavit, in case the notice is sent through the registered post, losses its efficacy if the appellant produces the postal receipt. In this case the postal receipt was attached with the memo, of appeal and this was sufficient compliance of rule 3 ibid. There is, therefore, no force in this preliminary objection as well.
12. The last contention of the learned counsel was that after the respondent's money had found its way to the company's account, she ceased to have seisen over it and she could not withdraw from company's account, nor she could restrain the defendants-petitioners from dealing with it for compnay's business because the company is altogether a separate entity from individuals.
According to the learned counsel, the Directors of the company, including the respondent by means of their resolution, dated 7-10-1991, authorised the defendants-petitioners to jointly operate the account of the company and they withdrew some amount for company's business. The learned counsel contended that despite legal embargo, the respondent, in collusion with the bank, transferred from company's account a sum of Rs.15,00,000/- back to her personal account and for the security of the remaining amount of 78000 U.S. Dollers contributed by her towards the funds of the company, she has already obtained a valuable plot of land in Karachi from her son, the petitioner No.1, and he is ready to further assure her that her money was in safe hands.
13. The learned counsel for respondent No.1 on the contrary, was of the view that she had been duped by her son, the petitioner No.1, who fraudulently obtained her signatures from hern on certain papers and fabricating the so-called resolution, dated 7.10.1991, deprived her of the authority to countersign the cheques for the withdrawal of money from company's account and instead conferred on petitioner No.2, with whom he has developed sexual liaison, the authority to countersign the cheques after making her Director of the company in place of his were and sister, whom he pushed out of the company forcibly, and both the petitioners are bent upon to misappropriate the money of the company, rather, they have already misappropriated about 70 thousands. He, however, admits that respondent No.1 has transferred Rs.15,00,000/- from company's account to her own account recently and she has a plot belonging to petitioner No.1 in Karachi but this too is subject of litigation as he is not delivering its possession to her.
14. The manner in which petitioner No.1 has deprived his mother, the respondent, of her authority to countersign the cheques for the withdrawal of amount from the company's account, gives an impression of a fraudulent deal. He seems to have duped his mother, taking advantage of her love and affection. She is a divorced old lady at his mercy and he cannot be allowed to fleece her on the plea of his being the Chief Executive, competent to withdraw the money jointly with petitioner No.2 on the strength of the said resolution. At the same time, the affairs of the company, which is a separate legal entity and an independent juristic person, cannot be allowed to go to dogs, nor respondent No.1 be permitted to handle the accounts of the company in an unlawful manner. She had no authority to transfer a sum of Rs.15,00,000/- from company's account to her personal account. The bank did a wrong thing.
15. In view of the above, where the respondent is directed to retransfer the sum of Rs.15,00,000/- from her personal account to the account of the company is Standard Charted Bank Ltd., the Mall, Lahore (respondent No.2) petitioners are directed to furnish bank guarantee equal to 78000 U.S. Dollers to the satisfaction of the learned trial Judge and keep the same alive till the decision of the matter by the learned Companies' Judge, in order to compensate and indemnity respondent No.1 to the extent of the said amount. She shall retain the plot of petitioner No.1 at Karachi as security for Rs.15,00,000/- Only to this extent the revision is accepted and the impugned order is modified. After furnishing bank guarantee, as aforesaid, the petitioners shall be at liberty to utilize the company's funds fo. Its business, but this order shall always be subject to the orders of the learned Companies'
Judge.