1994 PLP 811 (SCMR)

SALEEM AKHTAR, J.‑‑-This order will dispose of all the above petitions for leave to appeal. By the impugned judgment the learned Judge in Chambers has granted application under section 24, C.P.C. tiled by the respondents.

2. The brief facts relevant to the present limited controversy are that Attock Oil Co. Ltd. was initially incorporated in the year 1913 in the United Kingdom. In the year 1977 its majority shares were acquired by Dr. Ghaith R. Pharaon, a Saudi National. Subsequently all the shares were purchased by him. Dr. Pharaon had advanced the initial four million dollars for the purchase from his own resources and the balance shares price was paid through loans advanced by International Credit and Investment Company (Overseas) Ltd. (ICIC). In 1979 Attock Oil Company Ltd (AOC) became a non‑resident company as far as UX was concerned. It amended its Articles of Association and shifted its domicile from U.K. to Pakistan and is duly registered under the Companies Ordinance, 1984. As ICIC was under liquidation, on an application made by its liquidator the High Court Judge in U.K. passed an ex parte interim order dated 28‑10‑1992 appointing a receiver and some directors of British nationality of AOC. Earlier on 25‑10‑1992 the Board of Directors of AOC had elected Dr. Pharaon. S. Dilawar Abbas and Khalid Attique Ghazi as directors. It has been alleged that as the directors appointed by U.K. Court attempted to take over the corporate management of AOC and its subsidiary companies, following four civil suits were filed by various plaintiffs in the Court of Senior Civil Judge, Rawalpindi:‑

(1) Attock Oil Co. Ltd and another v. Registrar, Joint Stock Companies and others, seeking declaration and injunction before the Senior Civil Judge, Rawalpindi against the ad interim ex parte order dated 28‑10‑1992 passed by the U.K. High Court. The learned Senior Civil Judge suspended the operation of the said order. (2) Concorde International Trading SA. incorporated under the laws of Panama filed suit seeking declaration and injunction challenging the proceedings and orders initiated by ICIC in U.K. (3) Attock Refinery Ltd. majority shareholding of which is held by AOC, also filed suit challenging the validity of the order passed by the High Court of U.K. dated 28‑10‑1992. (4) Pakistan Oilfields Ltd. which is also a subsidiary company of AOC holding its majority shares, filed a similar suit. All these four suits were contested by ICIC through the receiver and the U.K. Court appointed Directors of AOC. In all these suits application under Order VII, rule 11, C.P.C. was filed on the plea that the Civil Courts in Pakistan have no jurisdiction to try and dispose of the same.

3. A fifth civil suit was filed by Dr. Ghaith R. Pharaon, Concorde International‑Trading SA. and the Attock Oil Co. Ltd. for declaration as to title and ownership of AOC shares. Order of status quo was passed by the learned Senior Civil Judge, Rawalpindi, ICIC has challenged the jurisdiction of the Court to try the suit.

4. In the month of June, 1993 ICIC in the name of AOC filed four petitions under sections 152 and 290 of the Companies Ordinance, 1984, in the Lahore High Court, Rawalpindi Bench, which were registered as Original Nos. 5, 6, 7 and 8 of 1993. Through these petitions the applicant sought to change the Board of Directors of Pakistan Oilfields Ltd. (POL) and Attock Refinery Ltd. (ARL). It has been alleged by the petitioners that the said petitions were filed maliciously in the name of AOC. During the pendency of the company petitions, five transfer applications were moved by Mr. Raza Kazim, Advocate, in the name of AOC and others. According to the petitioners, Mr. Raza Kazim has been appearing and representing ICIC and that this was a malicious act on the part of the ICIC to use the name of AOC for creating confusion. In these transfer applications it was prayed that five civil suits referred to above be transferred to the High Court and be tried and disposed of by the High Court itself. All these transfer applications have been allowed by the impugned judgment. On 10‑11‑1993 AOC through Mr. Raza Kazim filed a civil suit against its directors, who were duly elected on 25‑10‑1992 seeking declaration and injunction, rendition of accounts and damages etc. before the Civil Judge, Islamabad. A transfer application was filed by ICIC and others for transfer of this suit to the High Court for trial with the company cases and other suits sought to be transferred on similar application. By the impugned judgment this application was also granted.

5. Mr. S.M. War, learned counsel for the petitioners has contended that as the respondents have challenged the jurisdiction of the Court, application under section 24, C.P.C. was not competent. The learned counsel contended that under section 24, C.P.C. only such suits and proceedings could be transferred which were competently filed before a Court having jurisdiction. Therefore, unless the question of jurisdiction is decided, section 24, C.P.C. cannot be pressed in service. The learned counsel has referred to (1) Mst. Razia Shafi v. Maj. M.S. Malik (PLD 1971 SC 247), (2) Gangumal Shewararn and others v. Nanikram Khubchand and another (AIR 1932 Sindh 215) and (3) Rehmatullah v. Ikramullah and another (1984 CLC 886).

6. Mr. Raza Kazim, learned counsel for the respondents contended that these judgments are not applicable as in these referred cases either pecuniary or territorial jurisdiction has been challenged whereas in the present case the jurisdiction of the Court has not been challenged on these grounds. According to the learned counsel, as there is a valid and enforceable decree passed by the U.K. High Court, the Courts in Pakistan cannot exercise jurisdiction to set it aside or refuse to enforce it. The contentions raise required consideration. We grant leave to consider inter alia these questions.

7. The respondents have filed an application under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980, in C.P.LA. No. 7 of 1994 praying that the petition should be dismissed having been filed in the name of wrong person not competent to file the same against the transfer order passed by the High Court in Transfer Application No.39 of 1993. The main objection is that AOC had filed a suit against Dr. Ghaith R. Pharaon and two others in the Court of Senior Civil Judge, Islamabad through one of the Directors, namely, David Waters, who is respondent in C.Ps. No.2, 3, 4 and 5 of 1994. It has been stated that this petition could not be filed by AOC against the order of transfer. The learned counsel for the petitioners has agreed to transpose AOC as a respondent in C.P.7/94, to which the learned counsel for the respondents has no objection. The petition may be amended accordingly and proper memo. of appeal be filed. The appeals shall be heard at an early date.

8. Operation of the impugned order is stayed. M.BA./A‑1132/S ??????????????????????????????????????????????????????????????????????????????? Order accordingly.