2009 C L D 839

[Lahore]

Before Syed Asghar Haider, J

HIRA TEXTILE MILLS LTD. through Director- --Petitioner

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE), KASUR and 4 others---

Respondents

Writ Petition No.739 of 2008, heard on 19th January, 2009.

Companies Ordinance (XLVII of 1984)---

----Ss.39 & 40---Registration Act (XVI of 1908), S.17---Constitution of Pakistan (1973),

Art.199---Constitutional petition---Changing name of company---Registration of fresh
transfer deeds---Grievance of petitioner company was that after change of name, it did not
require to get fresh transfer deeds registered from previous name to new name---Validity---
Petitioner company had not ventured or undertaken any exercise violating exceptions
contained in S.17(2) of Registration Act, 1908, because no transfer of immovable property
had taken place---Identity of petitioner company was same, therefore, it fell within the
exception to S.17 of Registration Act, 1908, as such it was not required to get any sale deed
registered---Petitioner company having acted under Ss.39 and 40 of Companies Ordinance,
1984, the same did not contemplate transfer of any property---Petition was allowed in
circumstances.

Mazhar Iqbal v. Falak Naz and 2 others PLD 2001 Lah. 495 and Mst. Nasima Fatima v.
Bashir Ahmad and others 2008 SCMR 644 ref.

Salman Akram Raja for Petitioner.

Shujat Ali Khan, A.A.-G. for Respondents.

Date of hearing: 19th January, 2009.

JUDGMENT

SYED ASGHAR HAIDER, J.---The petitioner is a limited company duly incorporated

in accordance with law, it commenced business in August, 1991 and is governed by the
provisions of Companies Ordinance, 1984. Initially being a corporate entity, it was
working under the name and style, Sharif Spinning Mills Ltd. through the then Chief
Executive, Haji Muhammad Sharif, it purchased property, which has been mentioned in
pares (ii)(a) of the petition, measuring 136 Kanals 18 Marlas. Pursuant to a special
resolution by the share holders, the name of the Company was changed from Sharif
Spinning Mills Ltd. to Hira Textile Mills Ltd., this change was duly approved by the
Corporate Law Authority on 14-6-1995 and a certificate in this context was duly issued
on 21-7-1996, thus for all intents and purposes the name of Hira Textile Mills Ltd. stood
substituted with earlier name of the Company, Sharif Spinning Mills Ltd. In 1996 the
petitioner moved an application to the Assistant Commissioner, Kasur, requesting that the
change of name be incorporated in the revenue record, the request was acceded to and a
letter bearing No.AC/CC/1914, dated 19-3-1996, was issued in this context and a
direction was also issued to the concerned Patwari to incorporate the necessary change.
On 21-2-2007 an application was moved to respondent No.2 praying that despite
incorporation of the name in the Roznamcha Waqiati, the needful has not been clone. The
application was forwarded to respondent No.1, who directed respondent No.2 to proceed
further in the matter in accordance with law, but instead of acceding to the request of the
petitioner, the revenue staff stated that the petitioner was a new entity and, therefore, it
was required to get a formal sale-deed registered in its name, and thereafter the necessary
change shall be incorporated in the revenue record. According to the petitioner the
demand made by the respondents is illegal and ultra vires of law, hence, this petition.
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2. The learned counsel for the petitioner contended, inter alia, that the petitioner is
governed by the Companies Ordinance, 1984, it is body corporate and a legal entity,
therefore, it is empowered under sections 39 and 40 of the same, to change its name as
and whenever it so desires, after fulfilling legal and codal formalities. In the instant case
the same was duly done as is reflected from Annex.D and letters issued by the Corporate
Law Authority and Securities and Exchange Commission of Pakistan.

3. The learned A.A.-G contested the contentions of the petitioner's counsel to plead that
former entity, Sharif Spinning Mills Ltd., was a separate entity with a different Chief
Executive and the present entity is totally different, therefore, the request for change in
revenue record was rightly declined. To further augment his submission he stated that the
petitioner is governed by the Land Revenue Act, 1967 (Sec. 114), therefore, unless a
formal sale-deed is executed no ululation can be sanctioned. To support his contention the
learned A.A.-G referred to Mazhar Iqbal v. Falak Naz and 2 others PLD 2001 Lah.495
and Mst. Nasima Fatima v. Bashir Ahmad and others 2008 SCMR 644.

4. Heard.

5. The main point for adjudication and decision in the instant petition is as to whether the
petitioner is governed by the provisions of the Companies Ordinance, 1984 and is there a
conflict between the Companies Ordinance, 1984 and the Land Revenue Act, 1967, and is
the petitioner required to get a formal sale-deed executed for incorporation of change in
its name in the revenue record or not. Perusal of record appended with the writ petition
clearly reflects that the petitioner Company initially was incorporated as Sharif Spinning
Mills Ltd., the Chief Executive was Haji Muhammad Sharif and a certificate to this effect
was duly issued by the Corporate Law Authority now Securities and Exchange
Commission of Pakistan on 10-8-1991, therefore, the petitioner is body corporate and
legal entity. It also is clear that in view of the incorporation referred to above, the
petitioner company is governed by the provisions of the Companies Ordinance, 1984.
Section 39 of the Companies Ordinance clearly envisages and authorizes a company to
change the name, if it so desires with the approval of the Registrar and section 40
authorizes registration of the name and its effect thereon. Thus, after invoking these
provisions the company opted to change its name from Sharif Spinning Mills Ltd. to Hira
Textile Mills. Ltd., but remains the same legal entity.

6. Section 114 of the Land Revenue Act, 1967, is applicable to recovery of arrears of land
revenue. In the instant matter the company has not in any manner prayed for remission
qua arrears of land revenue nor is it the case of the respondents that it has defaulted in
this context, therefore, this provision is inapplicable to the present dispute, thus, the
precedents referred to Mazhar Iqbal v. Falak Naz and 2 others PLD 2001 Lah.495 and
Mst. Nasima Fatima v. Bashir Ahmad and others 2008 SCMR 644 are inapplicable.

7. Section 17(1) of the Registration Act embodies the documents, which are required to
be compulsorily registered, they are:--

(a) Instruments of gift of immovable property;

(b) Other non-testamentary instruments which purport or operate to create,

declare, assign, limit or extinguish, whether in present or in future, any right, title
or interest, whether vested or contingent, of the value of one hundred rupees and
upwards, to or in immovable property;

Explanation.---In the case of an assignment of a mortgage the consideration for

the deed or assignment shall be deemed to be the value for registration;

(c) non-testamentary instruments other than the acknowledgment of a receipt or

payment made in respect of any transaction to which an instrument registered
under clause (o) relates (Added ibid) which acknowledge the receipt or payment
of any consideration on account of the creation, declaration, assignment,
limitation or extinction of any such right, title or interest; and

(d) lease of immovable property from year to year; or for any term exceeding one
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 year, or reserving a yearly rent:

Provided that the Provincial Government may, by order published in the official
Gazette, exempt from the operation of this subsection any lease executed in any
district, or part of a district, the terms granted by which do not exceed five years
and the annual rents reserved by which do not exceed fifty rupees.

(e) non-testamentary instruments transferring or assigning any decree or order of

a Court or any award when such decree or order or award purports or operates to
create, declare, assign, limit or extinguish, whether in present or in future, any
right, title or interest, whether vested or contingent or the' value of one hundred
rupees and upward, to or in immovable property:

Section 17(2) is an exception to clauses (d) and (c) as contained in section 17(1).
Section 17(2) relates to companies and it reads as under:--

(2) Nothing in clauses (d) and (c) of subsection (1) applies to

(i) any composition deed; or

(ii) any instrument relating to shares in a Joint Stock Company, notwithstanding

that the assets of such Company consists in whole or in part of' immovable
property; or

(iii) any debenture issued by any such Company and not creating, declaring,
assigning, limiting or extinguishing any right title or interest, to or in immovable
property except in so far as it entitles the holder to the security afforded by a
registered instrument whereby the Company has mortgaged, conveyed or
otherwise transferred the whole or part of its immovable property or any interest
therein to trustees upon trust for the benefit of the holders of such debentures; or

(iv) any endorsement upon or transfer of any debenture issued by any such
Company; or

(v) any document not itself creating, declaring, assigning, limiting or

extinguishing any right, title or interest of the value of one hundred rupees and
upwards to or in immovable property, but merely creating a right to obtain another
document which will, when executed, create, declare, assign, limit or extinguish
any such right, title or interest; or

(vi) -----

As is clear from the contents of this petition that the petitioner company has not ventured
or undertaken any exercise violating the exceptions contained in section 17(2) because no
transfer of immovable property has taken place, the identity of the petitioner is same,
'therefore, it falls within the exception of section 17 of the Registration Act, as such it is
not required to get any sale-deed registered. It also is equally clear that the petitioner
company acted under sections 39 and 40 of the Companies Ordinance, 1984, which do
not contemplate transfer of any property. Therefore, this petition is allowed as prayed for.
No orders as to costs.

M.H./H-6/L Petition allowed.

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P L D 2001 Lahore 495
Before Mian Nazir Akhtar, J.

MAZHAR IQBAL --- Petitioner

versus

FALAK NAZ and 2 others---Respondents

Writ Petition No.24904 of 2000, decided on 18th December, 2000.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S.9---Suit for maintenance by wife---Written statement ---Purpose--Defendant, for the

purpose of filing a written statement is bound to appear in the Family Court himself and
his attendance cannot be dispensed with--Where the written statement was filed by
special attorney of the defendant, the same did not deserve consideration in the eye of law
and Court was right in taking the view that the suit remained uncontested.

Khalid Mahmood Syed v. Razi Abbas Bokhari PLD 1979 Lah. 217 and Mst. Saeeda v.
Lal Badshah 1981 SCMR 395 distinguished.

(b) West Pakistan Family Courts Act (XXXV of 1964)--

----S. 11---Recovery of past maintenance---Statement of wife that she was Ghair Abad for
the last three years was not specifically challenged in cross-examination and thus would
be deemed to have been admitted---Wife was rightly found to be entitled to recover past
maintenance by the Court, in circumstances.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Filing of such petition by a person having a Special
Power of Attorney---Special Power of Attorney annexed to the petition merely authorised
the Special Attorney to defend and pursue the civil suit filed in the Courts of a specific
District and to attend lower as well as higher Courts and apply to Courts and officers for
copies of documents etc.---Power to attend the Courts merely authorised the attorney to
appear on behalf of the petitioner but did not authorise him to engage a counsel and
institute a petition in the High Court---Such petition filed by an unauthorised person thus
merited dismissal.

Ch. Arshad Mahmood for Petitioner.

ORDER
This petition has been filed to challenge order-dated 31-7-2000 whereby the appeal filed
by Mst. Falak Naz, respondent No.1 was allowed and she was granted past maintenance
for two and a half years.

2. The material on the record shows that the petitioner had contracted marriage with Mst.
Falak Naz, respondent No.1 on 5-5-1997. The petitioner lived with his wife for about 15
days and then proceeded to Norway. He contracted second marriage and deserted
respondent No. 1. Subsequently he contracted third marriage as admitted by his father,
Mian Khan, who appeared as D.W.1 on his behalf before the Family Court. After
considering the material on the record the Family Court allowed maintenance at the rate
of Rs. 3,000 per month to respondent No.1 from the date of institution of the suit and for
the period of Iddat vide judgment and decree dated 26-6-2000. The petitioner did not
challenge the said decree. However, respondent No.1 filed an appeal claiming past
maintenance for 30 months as well. The Appellate Court found that there was no written
statement on the record signed by the petitioner himself; that he failed to join the pre-trial
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as well as post-trial reconciliation proceedings and did not appear as a witness in the case,
therefore, the suit remained uncontested. The Court also observed that according to
section 18 of the West Pakistan Family Courts Act only a Pardanashin lady has been
allowed to appear in a family suit through her duly authorised agent but even she has to
appear in person as a witness. The petitioner's learned counsel tried to urge that no
objection was raised to appearance of the petitioner's attorney in the Court as a witness
and that it was also an act of omission on the part of the Family Court which should not
cause any prejudice to the petitioner.

3. The petitioner's learned counsel has relied on the judgment in the cases of Khalid
Mahmood Syed v. Razi Abbas Bokhari PLD 1979 Lahore 217 and Mst. Saeeda v. Lal
Badshah 1981 SCMR 395. These judgments are of no help to the petitioner. In the case of
Mst. Saeeda it was held that the provisions of section 18 of the West Pakistan Family
Courts Act do not take away right of an Advocate to appear and act for and on behalf of
his client in view of the express provisions of section 22 of the Legal Practitioners and
Bar Councils Act, 1973. Obviously the judgment does not deal with the right of a private
person to appear on behalf of a party to the suit before a Family Court. In the case of
Khalid Mahmood Syed it was held that the provisions of section 18 of the Act were
enabling in nature which were applicable where a person was required by any provision
of the Family Courts Act to appear before the Court their the Court is empowered to
dispense with the personal attendance of a Pardanashin lady and allow her to be
represented through an authorised agent but not when that the only provision whereby the
Act "requires" a party to put in appearance is found in section 9 which relates to a
defendant and not a plaintiff. Section 9 of the Act reads as under:--

"Section 9. Written statement.--(1) On the date fixed under clause (a) of

subsection (1) of section 8, the plaintiff and the defendant shall appear before the
Family Court and the defendant shall file his written statement and attach
therewith list of his witnesses alongwith a precise of the evidence that each
witness is expected to give.

(2) Where a defendant relies upon a document in his possession or power, he shall
produce it or a copy thereof in the Court along with the written statement.

(3) Where he relies on any other document, not in his possession or power, as
evidence in support of his written statement, he shall enter such documents in a
list to be appended to the written statement.

(4) Copies of written statement, list of witnesses and precise of evidence referred to
in subsection (1) and the documents referred to in subsection (2) shall be given to
the Plaintiff, .his agent or advocate present in the Court.

(5) If the defendant fails to appear on the date fixed by the Family Court for his
appearance, then---

(a) if it is proved that the summons or notice was duly served on the defendant, the
Family Court may proceed ex parte provided that where the Family Court has
adjourned the hearing of the suit ex parte, and the defendant at or before- such
hearing appears and assigns good cause for his previous non-appearance, he may
upon such terms as the Family Court directs, be heard in answer to the suit as if he
had appeared on the day fixed for his appearance; and

(b) if it is not proved that the defendant was duly served as provided in subsection (4)
of section 8, the Family Court shall issue fresh summons and notices to the
defendant and cause the name to be served in the manner provided in clauses (b)
and (c) of subsection (1) of section 8.

(6) In any case in which a decree is passed ex parte against a defendant under this
Act, he may apply within reasonable time of the passing thereof to the Family
Court by which the decree was passed for an order to set it aside, and if he
satisfies the Family Court that he was not duly served, or that be was prevented by
any sufficient cause from appearing when the suit rays heard or called for hearing,
the Family Court shall after service of notice on the plaintiff, and on such terms as
Page No. 2 of 3
 to costs as it deems fit, make an order for setting aside the decree as against him
and shall appoint a day for proceeding with the suit provided that where the
decree is of such a nature that it cannot be set aside as against such defendant
only, it may be set aside against all or any of the other defendant also. "

Thus it is evident that for the purpose of filing a written statement the defendant is bound
to appear in the Family Court himself and his attendance cannot be dispensed with. In the
present case the written statement was filed by Mian Khan, in his capacity as special
attorney of the petitioner Obviously it was not filed by the defendant/petitioner and did
not deserve consideration in the eye of law. The Appellate Court has rightly taken the
view that the suit remained uncontested.

4. Even if the statement of Mian Khan D.W.1 as special attorney for the petitioner is
taken into consideration it hardly rebuts the evidence of respondent No. 1. He merely
stated in examination-in-chief that he was special attorney of his son who had divorced
the plaintiff respondent NO. I on 4-4-2000; that Talaq was pronounced because the
parties could not pull on well together and that his son was residing abroad. In
cross-examination he stated that he had submitted the written statement but did not
remember whether at the time of submission of power of attorney he was competent to do
so or not that he is an illiterate person and did not remember whether after
pronouncement of Talaq his son had gone abroad; that his son had contracted third
marriage; that the plaintiff did not remain Ghair Abad for two and a half years. Mst. Falak
Naz, respondent No.1 appeared as P.W.1 and stated that she lived in the house of the
petitioner only for 15 days and that she was jbair Abad for the last three years- Her
statement was not specifically challenged in cross-examination and would be deemed to
have been admitted. Therefore, the appellate Court had rightly held that respondent No.1
was entitled to recover past maintenance for two and a hall years from the petitioner.

5. It may be mentioned at the end that even the present petition does not seem to have
been filed by a properly authorised person. The special power of attorney annexed -to this
petition merely authorises the special attorney to defend and pursue the civil suits filed in
the Courts at Gujrat and to attend lower as well as higher Courts and apply to Courts and
offices for copies of documents etc. The power to attend the Courts merely authorises the
attorney to appear on behalf of the petitioner but does not authorise him to engage a
counsel and institute a petition in this Court. The petition merits dismissal on this score as
well.

6. For the foregoing reasons, the petition is dismissed in limine.

M.B.A./M-593/L

Petition dismissed.

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2008 S C M R 644

[Supreme Court of Pakistan]

Present: Falak Sher, Mian Shakirullah Jan and Tassaduq Hussain Jillani, JJ

Mst. NASIMA FATIMA----Petitioner

Versus

BASHIR AHMAD and others----Respondents

C.P.L.A. No.672-L of 2001, decided on 16th June, 2005.

(On appeal from the judgment, dated 15-12-2000 passed by the Lahore High Court in
R.S.A. No.131 of 1970).

Punjab Pre-emption Act (I of 1913)---

----Ss. 4 & 5---Constitution of Pakistan (1973), Art.185(3)---Suit for preemption---

Superior right of pre-emption---Trial Court and Appellate Court below concurrently
decreed suit and High Court set aside said concurrent judgments and decrees and
dismissed on grounds that plaint had not been signed by petitioner; that petitioner did not
appear during evidence; that attorney, who appeared on behalf of petitioner, did not have
authority to either file suit or make statement in the Court; that claim of petitioner that
she was owner in estate, was factually incorrect and that land was not assessed to land
revenue---Counsel for petitioner had frankly conceded firstly that general attorney did not
stipulate any specific authority for attorney to file suit; and that general power of attorney
was executed on 18-2-1967, whereas suit-land was purchased by respondents on 24-8-
1967---Said attorney, had no authority to rile pre-emption suit with regard to suit-land---
In view of nature of suit land, it could be concluded that petitioner did not possess
superior right of pre-emption against respondents on the basis of land owned either as
sharer in Khata or owner in the estate---Contention of petitioner that High Court had set
aside concurrent judgments and decrees on grounds which were not taken in memo of
appeal, was repelled, because petitioner did not object to said grounds when those were
agitated before High Court during arguments nor anything to that effect had been
specifically, stated by petitioner in memo, of petition for leave to appeal---Impugned
judgment being unexceptionable, did not call for interference---No question of law of
public importance having been raised by petitioner, petition for leave to appeal, was
dismissed and leave was refused.

1997 CLC 127; Kint Ram v. Harbat Singh AIR 1940 Lah. 344; PLD 1989 SC 373(2);
PLD 1986 Lah. 242; Muhammad Naeem and others v. Ghulam Muhammad and others
1994 SCMR 559; Muhammad Hussain and others v. Muhammad Khan 1989 SCMR 1026
and Gul Taj Begum v. Lal Hussain Iqbal Hussain PLD 1980 SC (AJ&K) 60 ref.

Malik Azam Rasool, Advocate Supreme Court with Sh. Masood Akhtar, Advocate-on-
Record for Petitioners.

Tanvir Ahmad and Ch. Khurshid, Advocate Supreme Court for Respondents Nos.2 and 3.

Nemo for Respondents Nos.1, 4 and 5.

Date of hearing: 16th June, 2005.

JUDGMENT

TASSADUQ HUSSAIN JILLANI, J.---Leave is sought against the judgment, dated 15-
12-2000 passed by a learned Judge of the Lahore High Court vide which respondents-
defendants' R.S.A. No.131 of 1970 was allowed and the concurrent judgments and
decrees of the trial Court and of the Additional District Judge were set aside and
petitioner's suit for pre-emption was dismissed.

Page No. 1 of 2
2. Facts in brief are that petitioner-plaintiff pre-empted the sale of the suit-land claiming
superior right of pre-emption being co-sharer in Khata, owner in the estate and her
kinship with the vendor. The suit was contested. The learned trial Court vide its judgment
and decree, dated 13-4-1969 decreed the suit which was upheld by the learned Additional
District Judge in appeal vide the judgment and decree, dated 27-1-1970. The learned
High Court, however, set aside the concurrent judgments and decrees and dismissed the
suit as it was of the view that the suit was not properly instituted as the plaint had not
been signed by the plaintiff, that the plaintiff did not appear during evidence; that the
Attorney who appeared on her behalf did not have the authority to either file the suit or
make a statement in Court in the said suit; that the suit was hit by partial pre-emption;
that the claim of the plaintiff that she was owner in the estate is factually incorrect as the
land owned by her (in terms of Jamabandi Exh.P.1) was not assessed to the land revenue.

3. The learned counsel for the petitioner sought leave on the ground that the learned High
Court has set aside the concurrent judgments and decrees on grounds which were not
taken in the memo. of appeal (R.S.A. No.11 of 1970); that the suit was competently filed;
that the petitioner-plaintiff was owner in the estate and she was duly represented by her
attorney in Court who clearly stated that she had not only signed the plaint but was also
owner in the estate.

4. During the course of arguments, we specifically asked the learned counsel for the
petitioner as to whether the attorney who filed the suit and appeared in Court on behalf of
the petitioner-plaintiff had the power to do so in terms of the general power of attorney
which was placed on record before the trial Court to which he frankly conceded firstly
that the general attorney did not stipulate any specific authority for the attorney to file the
civil suit and further that the general attorney was executed as far back as 18-2-1967,
whereas the suit-land was purchased by the respondents-defendants on 24-8-1967.
Obviously, the said attorney had no authority to file the pre-emption suit with regard to
the suit-land. Petitioner's learned counsel has not been able to rebut the finding with
regard to the nature of the land i.e. "the land of the plaintiff is…….and not cultivated
since long and not assessed to land revenue hence cannot be termed as agricultural land,
therefore, it can be concluded that the plaintiff does not possess superior right of pre-
emption against the defendants on the basis of the land owned either as sharer in Khata or
owner in estate. It has been laid down in 1997 CLC 127 at page 130 that mere ownership
of land in revenue estate would not be of much assistance because to be an owner of
estate must own land in revenue estate which was also assessed to land revenue.
Reference can be made to Kint Ram v. Harbat Singh AIR 1940 Lah. 344, 7 Indian Cases
213; PLD 1989 SC 373(2) and PLD 1986 Lah. 242. (page 8 of the impugned judgment).
In a pre-emption suit where a specific challenge was thrown to the nature of the land
owned by the pre-emptor and in view of the objection raised in the written statement that
the plaint had not been properly filed it was necessary for the plaintiff to appear in
support of the averments made in the plaint. The absence of the plaintiff in the
circumstances referred to above weakens the case of the pre-emptor. This is in line with
the law laid down by this Court in Muhammad Naeem and others v. Ghulam Muhammad
and others 1994 SCMR 559; Muhammad Hussain and others v. Muhammad Khan 1989
SCMR 1026 and Gul Taj Begum v. Lal Hussain Iqbal Hussain PLD 1980 SC (AJ&K) 60.

5. So far as the arguments of petitioner's learned counsel that the High Court has set aside
the concurrent judgments and decrees on grounds which were not specifically taken in
the memo. of appeal (R.S.A. No.131 of 1970) is concerned, suffice it to say, admittedly
petitioner did not object to the afore-referred grounds when those were agitated before
the High Court during arguments nor anything to that effect has been specifically stated
by the petitioner in the memo. of the instant petition.

6. For what has been discussed above, the impugned judgment is unexceptionable and
does not call for interference. No question of law of public importance has been raised
either. The petition having no merit is accordingly dismissed and leave is refused.

H.B.T./N-73/SC Petition dismissed.

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