1980 PLP 57 (CLC)

M. M. Stddiqui for Petitioners. Fateh Ali Vellani for Respondents. Date of hearing : 5th November 1978. This is an appeal under rule 15, Sind Chief Court Rules (O. S.) as applicable to this Court against the orders of the Additional Registrar (O. S.) of this Court dated 29-8-1977, whereby he dismissed the application of the applicants under Order XXXIII, rules 1 and 2, C. P. C. Applicant No. 1 claims to be a public limited company registered on 26-10-1957, with the Registrar of Joint Stock Companies Government of Pakistan at Chittagong (the then East Pakistan). Applicant No. 2, on the other hand claims to be a permanent Co-operative Managing Director and Chairman of the applicant No. 1, company as well as its authorised Represen tative under an alleged express authority from applicant No.

1. It is the case of the applicants that the applicant No. 1 had acquired the ownership of a vessel named "m. v. Esso Ark" at a cost of Rs. 29,92,000 in the year 1961 and got it registered at Karachi under Pakistan Flag. On 2-8-1961 the aforesaid vessel was chartered by the respondents, Esso Pakistan and Charles. A. Rose, the General Manager of the former for a period of 20 years on agreed terms and conditions. It is alleged that due to the political upheaval in East Pakistan, the then Chairman of applicant No. 1 company resigned on 9-9-1971 and vested the responsibilities of his office in the applicant No. 2 in a special meeting of the Board of Directors. It is further alleged that the entire movable and other assets of the company including several vessels and 30 Launches etc. were `vested' in the applicant No. 2, under the same resolution in lieu of his share of certificate for Rs. One crore. Applicants further alleged that applicant No. 2 was, inter alia, authorised to open a branch of a company in what was then West Pakistan (now Pakistan). In pursuance of the aforesaid resolution and authority applicant No. 2 came over to Karachi in September 1971 and established a branch office of the company at Nazimabad, Karachi. In the holocaust that followed the dis turbances in East Pakistan nearly all the launches and steamers of the company available in East Pakistan were handed over to the Army and the records of the company were destroyed by the miscreants. After the fall of East Pakistan and establishment of Bangla Desh, the applicants made a demand on the respondents for payment of charter hire of the vessel m. v. Esso Ark but the respondents refused and denied their liability. The Applicants were informed that on 12-2-1972, the vessel has sunk resulting in total loss for the applicants. Upon these allegations the applicants have filed the present pauper suit seeking a declaration that applicant No. 2 is the Chairman and authorised representative of applicant No. 1 having power to control and manage the same ; and for recovery of Rs. 29,92,000 being the value of the vessel. In the alternative applicants pray that a decree for the amount of charter hire accrued and the amount of insurance recovered as a result of the loss of the vessel. The respondents resisted the prayer of the applicants for permission to sue in a forma pauperis. After hearing the evidence of the parties the Addi tional Registrar by his order in appeal dismissed the application holding that applicant No. 2 Company was not pauper, that the applicant No. 2 was guilty of not disclosing his assets in the schedule of properties and that no cause of action was disclosed by the application. Before me it was contended on behalf of the applicants that the Addi tional Registrar was not justified in refusing the application on the ground that the applicant No. 1 was not a pauper. In this behalf it was argued that all the assets and properties of the company have been left behind in Bangladesh and the company is not possessed of any assets in Pakistan so as to be able to pay the court-fee. It was pointed out by the learned counsel for the respondents in reply that admittedly the applicant No. 1 is a public limited company, registered at Dacca and on account of the constitutional changes resulting from the cessation of East Pakistan and establishment of the new State of Bangladesh, applicant No. 1 has become a foreign company. The authority of applicant No. 2 to represent the applicant No. 1 Company was also seriously disputed. It has been established on the record that the name of the company has been changed from Messrs Ark Navigation Company of Pakistan Limited to Ark Navigation Company of Bangladesh Limited vide certificate dated 7-7-1972, issued by the Registrar Joint Stock Companies, Bangladesh (Ex h. 5). The respondents have also produced in evidence form X11 and form VIII as required by the Companies Act, until the year 1975 in the changed name of the company which does not show the name of -applicant No. 2 as a Director or the shareholder of the company. In his evidence the applicant No. 2 has stated that his application to the Controller of Capital Issues, Islamabad, for the transfer of the office of the Company to Karachi, has been refused. As against this there is no docu mentary proof in support of the claim of applicant No. 2 as to his authority to act on behalf of the applicant No. 1 company except a printed copy of the alleged resolution of Board of Directors, authenticity of which cannot be established. Additionally, in view of the unimpeachable evidence produced by the respondents the applicant No. 1-Company seems to be covered by the defini tion of `Specified person' within the meaning of section 2 (f ) of the Abandoned Properties Act, 1975 as amended by Act 45 of 1976. Under this definition a company registered in the territories which constituted the pro vince of East Pakistan before 16-12-1971 and the registered office of which has not been shifted in pursuance of the Companies (Shifting of Registered Office) Ordinance, 1972 (V of 1972), was included within the definition of specified person. It is no body's case that the registered office of the applicant company has been shifted in accordance with the said Ordinance V of 1972. The effect of this would appear to be that the properties, assets and all other interests and rights belonging to the said company would constitute abandoned properties within the meaning and subject to the provisions of Abandoned Properties Act, 1975, and shall vest in the Federal Government. Therefore the applicants do not appear to have any cause of action to bring any suit in respect of such properties or rights. It was contended by the learned counsel for respondents that from the statements made in the application itself the suit appears to be barred by limitation. In this connection reference may be made to the relief clause of the application in which it was staffed that the vessel in dispute was sunk on 12-2-1972. The suit would be governed by Article 9 or Article 50 of the Limitation Act which prescribed a period of three years commencing from the date when the properties were wrongfully taken over or detained or when the hire becomes payable. The suit would, therefore be clearly barred by limitation. It was, however, argued by Mr. Siddiqui that in considering the question whether the appellants are entitled to sue as pauper, the Court has only to look into the allegations made by the applicants and cannot enter into the merits of the case, nor can it determine complicated questions of law and fact. Reliance in this behalf was placed on judgments reported in 1970 S C M R 77, P L D 1977 Lah. 492 (?) and P L D 1970 Lah.

298. As far as the proposition of law that complicated questions of law cannot be gone into at this stage is concerned there can be no dispute. However, the facts of the cases relied upon are distinguishable inasmuch as the question of the appropriate article of Limitation Act was involved and these were complicated questions which could only be relegated to be investi gated and adjudicated upon at the trial. Both on authority as well as on the bare provisions of Order XXXIII, C. P. C. the Court is entitled to dispose of any question on the perusal of the statements made in the application and the evidence of the applicants. The bar is only applicable to com plicated questions of law or fact. In the present case upon admitted facts, as discussed above, there are insurmountable difficulties in the way of the applicants to maintain this suit. Learned counsel for the applicants sought to contend that the Bangladesh Company is a usurper and has taken over the assets of applicant No. 1 illegally. At the same time he contended that the Bangladesh Company, on the change of its name has become a separate entity and that the applicant No. 2, represents the Pakistani Company. Apart from the legal objection and disabilities arising out of the Abandoned Properties Act, the contention on the face of it is devoid of force. In the application itself the applicants have described the company as having registered office at Dacca which is a clear admission that the claim is being set up on behalf of the same company. Be that as it may the right of the applicants to sue in forma pauperis has not been established on the evidence on record. In the first place applicant No. 1 is claimed to be a public limited Company having more than two lacs share holders and the suit in substances is an attempt to enforce the claim of the company. Admittedly the company owned large assets and there is nothing to show that all its assets have been destroyed or lost. In para. 10 of the application the applicants have made an implied admission that `nearly' all the Launches and Steamers of the company were handed over to Pakistan Army. Therefore, some of the Launches and Steamers of the company remained in its custody. Annexure `B' of the appli cation on which the applicants so strongly relied also shows the assets of the company to the tune of over Rs, fifty lacs. In his deposition applicant No. 2 hag also admitted that the company has assets but these assets are in East Pakistan. Thus, the applicants have totally failed to discharge the burden of proving that applicant No. 1 is not possessed of sufficient means to enable it to pay the fees prescribed by law for the plaint in this suit, In Laksh Kante v. Surendra Nath (A I R 1954 Cal. 483) it was held that in any case where Joint' application was made by two plaintiffs to sue as a pauper and one of they applicants is found not entitled to sue as pauper, such applicant must pay proper and entire court-fee leviable on the plaint. As regards the applicant No. 2 admittedly he owns fully paid shares worth Rs. One Crore and yet he did not disclose these shares in the Schedule of Properties attached to the application. The result is that the application could not be granted under any circum stances both because it does not show a cause of action accrued to the applicants as well as on account of claim being barred by limitation and the first applicant not being found to be a, pauper. 1, therefore, agree with the ueciston of the Additional Registrar and dismiss this appeal with no order as to costs. S. Q. Appeal dismissed.