Preliminary objection

2020 PCrLJ 556 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 9(a)(iii), 16A, 18 & 32AppealPreliminary objectionJurisdictionDeterminationTransfer of case and filing of reference

Cases in which accused persons were convicted and sentenced to imprisonment by Accountability Court were transferred from ordinary criminal courts

Plea raised by accused persons was that Accountability Court had no jurisdiction to try their cases as proper procedure was not followed after transfer

Validity

Accountability Court under S. 18(a) of National Accountability Ordinance, 1999, could not take cognizance of an offence unless a reference was filed by Chairman National Accountability Bureau (NAB)

Such was only applied to investigations carried out by NAB under S. 18 of National Accountability Ordinance, 1999, and not transferred cases under S. 16(A) of National Accountability Ordinance, 1999

Provision of S. 16(A) of National Accountability Ordinance, 1999, was a distinct separate and independent provision which applied to situations where the investigation had already been carried out by an investigative agency other than National Accountability Bureau, based on a complaint received by that investigation agency and the concerned Court other than Accountability Court had already taken cognizance of the matter in proceedings with the same

All cases transferred under S. 16(A) of National Accountability Ordinance, 1999 prior to amendment would proceed under National Accountability Ordinance, 1999 without need for Accountability Court to take fresh cognizance of same

Such was always intention of Legislature that such cases were to be treated as references for which Accountability Court under S.18(a) of National Accountability Ordinance, 1999 did not need to take fresh cognizance as cognizance was already taken prior to transfer

Use of wording in S. 16(A) of National Accountability Ordinance, 1999 that 'it shall not be necessary for court to recall any witness or again to record any evidence that may have been recorded' and by finding such legislative intention no further delay would be caused in completion of trial

Such was in consonance with rest of statute that trials conducted under National Accountability Ordinance, 1999 should be speedy as per preamble and S. 16(a) of National Accountability Ordinance, 1999

Accountability Court rightly exercised its jurisdiction in circumstances.

2016 CLD 739 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 196Civil Procedure Code (V of 1908), O. XXIX, R. 1Suit filed by corporationResolution of Board of Directors, absence ofPreliminary objection

Suit for recovery of money was filed by plaintiff corporation and defendant raised preliminary objection to maintainability of suit on the plea that there was no resolution passed by Board of Directors to file the suit

Validity

Act of compromising the suit or releasing or relinquishing company's claim was dealt with by way of mandatory provision viz. S.196 of Companies Ordinance, 1984, which provided a penalty for non-compliance but with regard to filing of legal proceedings the provision was significantly silent

Such silence was due to the fact that filing law suit / legal proceedings was to be regulated by Articles of Association of plaintiff company

Chairman and Directors, besides other senior officials at the helm of affairs, had given their separate approvals for filing the suit, therefore, it could not be said that suit was incompetently filed or instituted

High Court decided preliminary issues and declared principal officer of plaintiff company duly authorized to file the suit, which had been competently filed in the name of plaintiff company

Objection was overruled in circumstances.

2016 CLC 878 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O.XXIX, R.1Companies Ordinance (XLVII of 1984), S.196Suit filed by corporationResolution of Board of Directors, absence ofPreliminary objection

Suit for recovery of money was filed by plaintiff corporation and defendant raised preliminary objection to maintainability of suit on the plea that there was no resolution passed by Board of Directors to file the suit

Validity

Act of compromising the suit or releasing or relinquishing company's claim was dealt with by way of mandatory provision viz. S.196 of Companies Ordinance, 1984, which provided a penalty for non-compliance but with regard to filing of legal proceedings the provision was significantly silent

Such silence was due to the fact that law suit/legal proceedings was to be regulated by Articles and Association of plaintiff company

Chairman and Directors, besides other senior officials at the helm of affairs, had given their separate approvals for filing the suit, therefore, it could not be said that suit was incompetently filed or instituted

High Court decided preliminary issues and declared principal officer of plaintiff company was duly authorized to file the suit, which had been competently filed in the name of plaintiff company

Objection was overruled in circumstances.