' This appeal arises from an order of learned Single Judge; dated 20-2-1997 dismissing the appellants' application for interim relief. Since short questions were involved and both learned counsel had the opportunity to address at length, we decided to hear the appeal and dispose of it of finally.
2. By way of necessary background, it may be stated that the appellants are the legal heirs of the partners of a firm known as Nasir Industries engaged in the manufacture of plastic, wood, and metal products and registered in 1956. On 21-6-1963 the partners agreed to form a limited liability company known as Nasir Industries Limited (hereinafter mentioned as the Company) and on 2-8- 1963 an agreement was made between the firm and the company whereby the firm agreed to transfer its business and assets to the company. Apparently the company landed into financial difficulty and became indebted to the National Bank of Pakistan, who filed an application for winding up of the company on 8-1-1969. A winding up order was granted by the learned Company Judge on 25-5-1971 and the Official Assignee was appointed Official Liquidator. The Official Liquidator by an application dated 5-10-1971 sought leave of the Court under section 230-A of the erstwhile Companies Act, 1913 to disclaim the agreement of purchase from the firm dated 2-8-1963 which was granted by the then Honorable Chief Justice vide order dated 26-3-1973. The orders of the Court mentioned above attained finality.
3. In the meantime the company and the respondent, who were fully aware of the pendency of winding up proceedings, entered into an agreement of lease dated 26-9-1969 whereby the company agreed to lease out its assets including building, plant and machinery to the respondent for a period of three (3) years. Pursuant to the aforesaid agreement the respondent took possession of the same and continued to remain in possession till date. In 1994 the appellants filed a suit for possession, mesne profits, compensation for use and for return of machinery etc. Against the respondent. Alongwith the plaint an application of interim relief seeking to restrain the respondent from transferring possession or creating any third party interest in the land, building and specified fixture and machinery was made. This application was dismissed vide the impugned order whereby the learned Single Judge held that the appellants/plaintiffs had no prima facie case in their favour entitling them to grant of interim relief. It was earlier observed that a person who comes to Court after a lapse of two decades cannot be deemed to have any prima facie case.
4. Mr. Iqbal Kazi learned counsel for the appellants argued that section 227(3) of the Companies Act, 1913 which was operative on the date the so-called agreement between the company and the respondent was made, expressly stipulated that any dispossession of property made by a company after the commencement of winding up proceedings without leave of the Court was ab initio void. It may be pertinent to reproduce the aforesaid statutory provision which reads as under:-- "227(2). In the case of a winding up by or subject to the supervision of the Court, every disposition of the property (including actionable claims) of the company, and every transfer of shares, or alteration in the status of its members, made after the commencement of the winding up shall, unless the Court otherwise orders, be void."
5. Learned counsel further drew our attention to section 168 of the Act which stipulated that the winding up of a company by the Court shall be deemed to commence at the time of the presentation of the petition for winding up. Moreover, he pointed out that the respondent could not claim that they were not aware of the commencement of that winding up proceedings inasmuch as clause (15) of the so-called agreement dated 26-9-1969 itself refers to the winding up proceedings having been initiated by the National Bank of Pakistan. He therefore, argued that thelearned Single Judge was not justified in ignoring the mandatory provision of law while reaching the conclusion that the appellants did not have a prima facie case.
6. Mr. Iqbal Ahmed learned counsel for the respondent on the other hand contended that the appellants did not have any locus standi to file the suit inasmuch as there was no privity of contract between them and the respondent. Moreover, he stressed that the properties claimed in the suit vested in the company which was an independent legal entity and the appellant could not claim any title to the same. He also argued that in any event the appellants could not claim any right or interest without satisfying the claim of National Bank of Pakistan at whose behest winding up was ordered. Additionally he stated that the appellants could not claim the relief of possession without first claiming a declaration of title.
7. We have carefully considered the respective contentions of learned counsel and examined the relevant record. Indeed Mr. Iqbal Kazi's contention to the effect that the agreement of lease in favour of the respondent itself was void finds prima facie support from the relevant statutory provisions. We are, therefore, with profound respect to the learned Single Judge, unable to share the view that the appellants had not made out a prima facie case. No doubt the learned Single Judge was persuaded by the consideration that the suit was filed after more than two decades of the making of the agreement but in that case the proper course ought to have been to examine the question of limitation and reject the plaint in case his Lordship found the suit to be barred by limitation. No doubt the power to reject the plaint could have been exercised suo mote but on no principle of law could the Court hold that a prima facie case did not exist without properly examining the question of limitation. It well-settled that consideration of laches does not apply in civil suits covered by statutory provision of the Limitation Act. At the same time when the transaction was prima facie shown to be void, it needed to be considered whether statutes of limitation were at all applicable.
8. With regard to the question of locus standi and the appellants entitlement it might suffice to say that once permission to disclaim the agreement dated 2-8-1963 was granted to the Official Liquidator the properties prima facie reverted to the firm, its partners and their legal heirs.
Therefore, the principle that the company was a separate legal entity seems to be no help to learned counsel for the respondent. As regards the nature of relief claimed it might suffice to say that after the Supreme Court judgment in Ghulam Bibi v. Sarsa Khan PLD 1985 SC I, 345 an amendment of the plaint can always be sought and a technical objection in this respect is not of much consequence. As regards the question of liability towards National Bank. Mr. Iqbal Kazi contended that the appellants had themselves liquidated the same and referred to a letter.From Chief Manager of the Bank filed alongwith the affidavit dated 5-12-1998. We would however, refrain from commenting on it lest it may prejudice the trial.
9. In the circumstances, we are entirely unable to subscribe to the view taken by the learned Single Judge that the appellants/plaintiffs had not been able to establish any prima facie case. Indeed, Mr. Iqbal Ahmed is right to the extent that other factors i,e, balance of convenience, irreparable loss etc. Also needs to be considered while granting interim injunction. In this context the terms of the relief by way of interim injunction also need to be considered. Admittedly the respondents are in possession of the disputed property and are making full use of it. The appellants have not sought to deprive them of such use. All that has been prayed for is that the respondent be restrained from transferring such assets or creating third party interests therein. It is well-settled that the principal object of granting interim relief is to preserve the corpus of the dispute and ensure that in case the suit is decreed in favour of the plaintiffs, execution thereof does not become impossible or extremely difficult. Keeping this principle in view, we are of the opinion that the relief prayed for ought to be granted and we . The observations, if any, regarding the merits of the controversy are only tentative and will not influence the learned Single Judge on the, original side who will attempt to dispose of the suit expeditiously. The above are out reasons for the short order announced in Court on 26-1-2001.