P L D 1999 Lahore 456 (PLP)

The acts relevant for the disposal of this petition are rclativcly stmplc The petitioner on 26-10-1987 filed a suit against the respondent cotnpaw seeking damages of Rs.l Crore (Rupees one crore only). A written statemew was filed by the respondent company to the suit on 15-5-1988. Thereafter, the company went into member's voluntary liquidation under sections 3_58 and 359 of the Companies Ordinance, 1984. This happened pursuant to a resolution of the shareholders of the company dated 18-8-1990. A liquidator of the company was also appointed.. The respondent company then filed an application before the trial Court on 12-3-1992 under section 316 of the Companies 'Ordinance praying that the proceedings in the suit be stayed. In its application before the trial Court the company merely stated that the company had gone into voluntary liquidation and a liquidator had been appointed to affect its winding up.

2. The learned trial Court vide its order dated 18-10-1992 accepted the application filed by the respondent company and ordered that the proceedings of the case be stayed. The said order also directed the petitioner to submit his claim before the liquidator. The sole ground which weighed with the learned trial Court was that a liquidator had been appointed. It is on this basis that the trial Court held that the suit could not proceed. It is the order dated 18-10-1992 which has been impugned by the petitioner in the present revision petition. 3.Learned counsel for the petitioner contends that section 316 of the Companies Ordinance is applicable only to a winding up of a company by the Court or to. a winding up subject to the supervision of the Court. He contends that a member's voluntary winding up envisaged under sections 358 and 359 of the Companies Ordinance is not a winding up by the Court nor is it a winding up subject to the Court's supervision.

4. Learned counsel for the respondent company on the other hand has argued that section 316 is applicable even to a voluntary winding up. He has not been able to cite any provision of the Companies Ordinance to support his contention. Learned counsel for the respondent company further contended that the liquidator of the company had from time to time filed applications before this Court under section 391 of the Companies Ordinance seeking extension of time for completing the winding up. He further stated that the High Court in its jurisdiction under the Companies Ordinance had allowed such applications and had extended the time for completing the winding up of the respondent company. On this basis he contended that the voluntary winding up of the respondent company became a winding up subject to the supervision of the Court. This contention of the learned counsel for the respondent is without force and cannot, therefore, be accepted. A voluntary winding up retains its character as such unless the High Court of its own motion or pursuant to an application, assumes supervision of the voluntary winding up under section 396 of the Companies Ordinance. It is evident from the -record that no application has been moved by any person under section 396 of the Companies Ordinance and nor has the High Court assumed jurisdiction in the matter of the winding up - of the respondent company. Section 316 of the Companies Ordinance, therefore, has no application in the present case.

5. Learned counsel for the respondent company next contended that a revision petition to assail the impugned order was not maintainable. According to him the proper remedy for the petitioner was to approach this Court in its jurisdiction under the Companies Ordinance, 1984. This contention is also without force because the civil suit filed by the petitioner falls squarely within the competence of the Civil Court. The impugned order passed by the trial Court on the respondent's application under section 316 of the Companies Ordinance constitutes a case decided and is, therefore, open, to correction by this Court in the exercise of its revisional jurisdiction under section 115, C. P. C. 6.In view of the above discussion this revision petition is accepted and the impugned order dated 18-10-1992 is set aside. H.B.T./M-1158/1 Revision accepted