Jurisdiction at Directions Stage: judge must decide dismissal, stay, or advertisement before fixing final hearing.

Whether a judge must first exercise jurisdiction at the directions stage under Rule 733 before directing advertisement and fixing a final hearing: Rule 733 obliges advertisement but does not oust the judge's duty to consider at the directions stage whether a winding-up petition should proceed, be dismissed, or stayed; the judge must assess respondent showings before ordering advertisement and hearing. Outcome: the order directing advertisement and fixing a hearing without first deciding appellants' contentions was set aside and the matter remitted for the judge to consider the contentions and then dismiss, stay, or order advertisement and hearing; costs awarded.

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Issues: Whether the learned Judge (Mr. Justice Desai) erred by directing advertisement and fixing a final hearing under rule 733 of the High Court Rules without first exercising his jurisdiction to consider the appellants' contentions and deciding whether the petition should be proceeded with, dismissed or stayed.

Analysis: The Court examined rule 733 which requires advertisement of a winding up petition before its final hearing but does not oust the jurisdiction of the Judge to consider at the directions stage whether the petition should proceed to final hearing. The Companies Act appeal right under section 202 was noted as available where a judge fails to exercise jurisdiction. The practice described permits a Company Judge, after giving notice for directions, to dismiss the petition, stay it, or direct advertisement and fix a final hearing only after considering the respondent's showing. The endorsement by the earlier Judge was interpreted as listing the matter for directions, not as fixing a final hearing on merits, and therefore when the matter came before Mr. Justice Desai he was obliged to decide whether to proceed further or to dismiss or stay the petition before directing advertisement.

Conclusion: The order of Mr. Justice Desai directing advertisement and fixing a hearing without first deciding the appellants' contentions was set aside; the matter is remitted to Mr. Justice Desai to consider the petitioners' and appellants' contentions at the stage of notice for directions and then to make such order (including dismissal, stay, or advertisement and fixing of final hearing) as he deems proper. Costs of the appeal and costs in the petition were awarded.

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