P L D 1965 Supreme Court 345 (PLP)

CORNELIUS, C. J.=This appeal by special leave raises a question as to whether the High Court of East Pakistan at Dacca is invested with jurisdiction under the Presidency Towns Insolvency Act of 1909, which by amendment is now described as the Insolvency (Dacca and the Federal Territory of Karachi) Act. The relevant instruments have been set out in detail in the judgment of the learned Chief Justice of the High Court with whom Mr. Justice A. M. Abdulla agreed. It will be convenient for us to state at once the interpretation which seems to us to be the only correct construction that can be applied to these instru ments, on the basis of which we have arrived at the conclusion that the judgment of the High Court of East Pakistan holding that "the entire territorial jurisdiction of the District Judge of Dacca, in this behalf, (i.e., in respect of the insolvency jurisdic tion) has now vested in the Dacca High Court, that is to say, that the transference of jurisdiction includes the territorial limits for its exercise" cannot be sustained. By Article 5 of the High Courts (Bengal) Order, 1947, it is ' provided that the High Court of East Bengal (now East Pakistan) "shall have, in respect of the territories for the time being included in the Province of East Bengal, all such original appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of the said territories by the High Court in Calcutta." By clause 18 of its Letters Patent, the High Court at Calcutta was given insolvency jurisdiction, in the following words:‑ "And we do further ordain that the Court for relief of insolvent Debtors at Calcutta shall be held before one of the Judges of the said High Court of Judicature at Fort William in Bengal, and the said High Court, and any such Judge thereof, shall have and exercise, within the Bengal Division of the Presidency of Fort William, such powers and authorities with respect to original and appellate jurisdiction and otherwise as are constituted by the laws relating to insolvent debtors in India." Assuming that the "Bengal Division" comprised territories which are now included in the Province of East Pakistan, as well as those in the Indian Province of West Bengal, it would appear prima facie that the High Court of East Pakistan possesses the same jurisdiction under this Article as was possessed by ‑the High Court at Calcutta in respect of East Pakistan, immediately before the Partition. That jurisdiction was, however, curtailed by the effect of the relevant Indian statute, and cannot be held to cover the wide extent which the language of the clause might appear to indicate. For a clarification of the jurisdiction derivable from this clause reference may be made to two judgments of the Madras High Court, viz. Abdul Khader v. The Official Assignee of Madras (I L R 40 Mad. 810) and In re : Krishna Rao (I L R 51 Mad.540). In each of these judgments, the latter of which was pronounced by a Full Bench, the position is clearly admitted that the insolvency jurisdiction vested in the High Court of Madras by an Article in its Letters Patent (of the same content as Article 18 in the Letters Patent of the Calcutta High Court) was derivable from the Presidency Towns Insolvency Act, 1909, and not directly from clause

18. In the first‑mentioned of these judgments, it is held that in dealing with an insolvency petition under the Act of 1909, it was competent to the High Court of Madras, relying on the provisions of clause 18, to make a declaration regarding certain immovable property situated outside the limits of the ordinary original civil jurisdiction of the High Court. In the latter judgment, it was held that in the exercise of insolvency jurisdiction under the Act of 1909, it was open to the High Court of Madras, relying upon clause 18 of the Letters Patent, to make a garnishee order even when a garnishee was living outside the ordinary original civil jurisdiction of the High Court. It is clear therefore that for the purpose of making an order declaring a debtor to be insolvent, jurisdiction under the Act of 1909 was not extensible, by reference to clause 18 of the Letters Patent, but must be confined within the express terms of section 11 of that Act, which is expressed in negative terms, viz. :‑ "The Court shall not have jurisdiction to make an order of adjudication, unless‑ (a) .............. (b) the debtor, within a year before the date of the presentation of the insolvency petition, has ordinarily resided or had a dwelling house or has carried on business either in person or through an agent within the limits of the ordinary original civil jurisdiction of the Court ; (c) the debtor personally works for gain within these limits ; To ascertain the precise meaning of the expression "the limits of the ordinary original civil jurisdiction of the Court," i.e., the High Court in question, reference has to be made to clause 11 of the Letters Patent of the Calcutta High Court, which provides that that High Court "shall have and exercise ordinary original civil jurisdiction within such local limits as may, from time to time, be declared and prescribed by any law made by competent legislative authority for India, and until some local limits shall be so declared and prescribed, within the limits declared and prescribed by the proclamation fixing the limits of Calcutta issued by the Governor‑General‑in‑Council, on the Tenth day of September, in the year of Our Lord, one thousand seven hundred and ninety‑four, and the ordinary original civil jurisdiction of the said High Court shall not extend beyond the limits for the time being declared and prescribed as the local limits of such jurisdiction." For the Calcutta High Court the local limits of the ordinary original civil jurisdiction were defined by Central Act XV of 1918. This Act contains a very precise specification of boundaries, which limit the jurisdiction, as stated in the judgment of the High Court "to an area surrounded by what is known as the Circular Road and various other boundaries." It may be stated here that the boundaries so specified have the effect of defining an area included within the area of the city of Calcutta. At all relevant times, the jurisdiction of the Calcutta High Court to entertain an insolvency petition, on the original side, was confined to areas included within the limits of the town or city of Calcutta. At no time, was it ever coterminous with the limits of a district. The Act of 1909 as has been seen, had the effect of confining the insolvency jurisdiction of the High Court, under that Act, to the area specified by the Central Act XV of 1918, and it follows as a consequence, that at the time of the Partition, when the High Courts (Bengal) Order, 1947 took effect, there was in the Calcutta High Court, in consequence of section 11 of the Act of 1909, read with clause 11 of the Letters Patent of the High Court, and Central Act XV of 1918, no insolvency jurisdiction, of an original character, in respect of any area now falling in the Province of East Pakistan. Consequently, by the effect of the High Courts (Bengal) Order, 1947, no original insolvency jurisdiction under the Act of 1909 became vested in the High Court of East Pakistan at Dacca. Here, we would particularly, emphasise the closing words of Article 11, namely. "the ordinary original civil jurisdiction of the said High Court shall not extend beyond the limits for the time being declared and prescribed as the local limits of such jurisdiction." The words are firmly of a limiting and exclusive character, and do not, in our opinion, permit of any attempt at expansion or extension of the meaning of the Article. The Article itself is couched in negative, not to say prohibitive, terms. At the time of the Partition, the insolvency jurisdiction in the territories now falling within the Province of East Pakistan fell to be exercised under the Provincial Insolvency Act of 1920, by section 3 of which it was provided that "the District Courts shall be the Courts having jurisdiction under this Act". Consequently, the Court having original jurisdiction in insolvency matters in respect of the District of Dacca including the town of Dacca was the Court of the District Judge at Dacca. Following the Partition an amendment was made in the extent clause in the Act of 1920, which as amended laid down that the Act extended "to the whole of Pakistan, except the Capital of the Federation and Dacca". It is in our opinion not open to question that the words of exception were introduced into this clause to adapt it to the provisions of the Presidency Towns Insolvency Act of 1909, and the indication clearly is that the intention was to exclude "the Capital of the Federation" which may be described as the town of Karachi, as well as the town of Dacca, from the operation of the Act, and to bring these two towns within the ambit of the Act of 1909. The latter intention was attempted to be carried out by the following amendments, viz. the Act of 1909 was renamed "The Insolvency (Dacca and the Federal Territory of Karachi) Act," and section 3 of the Act specifying the Courts having jurisdiction was amended to state that these Courts were for the future to be the Chief Court of Sind and the High Court of East Bengal. A further amendment was made in the Act of 1909, which in its pre‑Partition condition contained a precise definition of the expression "limits of the ordinary original civil jurisdiction" in relation to the Chief Court of Sind, by specification of areas, and this provision was amended after the Partition so as to read as follows :‑ " `limits of the ordinary civil jurisdiction', mean in respect of the Chief Court of Sind the limits of the Capital of the Federation." The Act in its pre‑Partition shape did not contain any reference to the town of Dacca, which was then a District Headquarters town, and it is in this respect that an omission appears in the amended Act, viz. that while as amended it was intended to apply to Dacca, and again it was intended that the jurisdiction under the Act should be exercised by the High Court of East Bengal, no provision was made in the Act to define the limits of the ordinary original civil jurisdiction,. in respect of the High Court of East Pakistan. It is also clear that these limits have not been specified by this or any other Act. Referring now to clause 11 of the Letters Patent of the Calcutta High Court which is applicable to the High Court of Dacca and bearing in mind that this clause is worded in a firmly exclusive sense to indicate that the ordinary original civil jurisdiction of the High Court is confined strictly to an area to be prescribed by law, and is not derived from any inherent jurisdic tion possessed by the High Court as such High Court, it seems to us to follow that the High Court of East Pakistan at Dacca does not possess any ordinary original civil jurisdiction for the simple and sufficient reason that no limits within which such jurisdiction may be exercised have ever been prescribed by competent legislative authority in respect of that High Court. That being the case, whereas here, an application is made by creditors for the declaration as insolvent of a person resident in the town of Dacca, the consequences which appear to us to follow are that by virtue of the amendment made in the Provincial Insolvency Act of 1920, the District Judge of Dacca has no jurisdiction in the case, and equally, by virtue of the fact that no limits have been fixed for the ordinary original civil jurisdiction of the High Court of East Pakistan, that High Court also has no original jurisdiction to deal with the application. There is a lacuna in the law and that lacuna is not due to any defect of expression or any omission of words in the relevant Act, but is the consequence of the absence of a "law made by competent legislative authority." In our view, a requirement which by the relevant law is to be made by another law, cannot be fulfilled by a process of interpretation of the first‑1 mentioned law. And again m our view, as a result of reading the relevant provisions of the Acts of 1909 and 1920 in their present shape together, the exclusion of jurisdiction of the District Judge of Dacca, in original insolvency matters, is confined to the town of Dacca and not to the entire district of Dacca. It may be that this conclusion imports a certain vagueness, but we are clear in our minds that it is not the entire district of Dacca which is excluded from the District Judge's original insolvency jurisdiction, by virtue of the adaptation of the Act of 1920 to carry out an incompletely fulfilled intention to implement the Act of 1909, but only such area as can be held to be within the limits of the town of Dacca, however those may be defined. Assistance may perhaps be obtained in this respect from the definition of the boundaries of the municipality for the purposes of the relevant Act, but even in this limited respect, we may say that it was both desirable and necessary, in order to give a precise extent to the exclusion in the Act of 1920, that the Legislature should have adopted a more specific description, than merely the word "Dacca". The Calcutta precedents should have made the legislative requirement perfectly clear. The learned Judges in the High Court have construed the word "Dacca" to mean "the district of Dacca" and from what has been said above, it will be clear that we are‑ unable to agree with them, with due respect, in the extension of the High Court's original insolvency jurisdiction which is thus affected. A jurisdic tion which has always been confined to, or within, the limits of a town has thus been extended to cover a whole district. To adopt such a meaning is clearly to construe the relevant provisions in the Letters Patent, i.e., clause 11 as if they were intended to expand rather than to restrict jurisdiction. The restrictive meaning is the only one which the words of the clause can, in our opinion, reasonably be understood to carry. The learned Judges have sought to support this conclusion on some more general grounds, e.g., that to hold otherwise would lead "to the absurd result that the Legislature has created a vacuum in respect of an important system of law which has, by a side‑wind, ceased to operate in the district of Dacca." The correct position, we say so with respect, is that the exclusion is confined to the town of Dacca, and is carried out not by any side‑wind, but by express amendment of the Act of 1920. What is lacking is that the excluded jurisdiction of the District Judge has not been replaced by specific investment of jurisdiction in the High Court, which would require to be done in the manner prescribed by clause 11 of the Letters Patent, that is by "law made by competent legislative authority". The learned Judges have been impressed, and if we may say so with respect, rightly, by the fact that there is an absence of remedy in respect of a right which arises out of a situation in insolvency, and they have concluded that such rights cannot be left without a remedy. They have provided the remedy, in their own words "by interpreting the provisions of section 11 of the Act (of 1909) to mean that the limits of the ordinary civil jurisdiction of this Court are the same as those of the District Judge of Dacca," and have felt "no manner of doubt that by the aforesaid adaptations and amendments, the jurisdiction (including its territorial limits) of the District Judge was transferred to the High Court, in so far as insolvency matters were concerned." For reasons which have already been given, we are unable, with respect, to agree with this conclusion. From section 11 of the Act of 1909 alone, it is not possible, by a process of construction, to derive, or rather to confer ordinary original civil jurisdiction on the High Court or to effect such a transfer of jurisdiction from the District Judge as the learned Judges have found. They have expressed their consciousness "that by interpreting we are effecting a fresh importation into the language of the statute," but have stated that in the present day, the Courts have power so to supply the omissions of the Legislature. In our opinion, and again speaking with respect, Courts cannot supply a "law made by competent legislative authority" in order to give a .particular effect to another law, which makes the G existence of a law made by competent legislative authority, a pondition of such effect. The learned Judges have referred to, certain judgments of high authority, which appear to confer power upon Courts in their function of the construction of statutes to "reject words, transpose them, or even imply words, if this be necessary to give effect to the intention and meaning of the Legislature." They have not cited any authority, and in our opinion, speaking with respect, no such authority can ever be found, which will enable a Court while interpreting a defectively worded, or incompletely implemented law, to invest it with effectiveness in the absence of another law, without which in the relevant respect, the first‑mentioned law is expressed to be devoid of effect. Mr. Haider Mota for the respondents to the appeal was unable to do anything more than to contend that the intention of the Legislature should be carried out in the interpretation of the relevant instruments. He was unable, however, to contend that when the Legislature itself declares that its intention in a particular respect shall be carried out by a law of the competent legislative authority, and that requirement is not fulfilled, it is open to a High Court to meet that requirement by mere construction of any words in the first‑mentioned instrument, in the absence of implementation by law. For these reasons, we allow this appeal and setting aside the order of the High Court, we direct that the insolvency petition should be dismissed, but in the circumstances, we leave the parties to bear their own costs. A.H. Appeal allowed