P L D 1970 Dacca 521 (PLP)

We have heard Mr. Asrar ul Hussain, at some length, on the point as to whether this Court can entertain an appeal against a judgment and order passed under section 76 or section 79 of the Act by a Single Bench of this Court. We have also heard Air Haidermota, who has appeared on behalf of some of the applicants, as have been made respondents in the Memorandum of Appeal sought to be filed in this Court. In delivering the present judgment we have given due consideration to arguments addressed by Mr. Asrarul Hussain, at an earlier stage and also to that which has been advanced by Mr. Haidermota. It is curious to note that whereas in the course of the trial of the aforesaid application in this Court it was contended that orders made under section 76 and/or section 79 of the Act were not appealable, Mr. Asrarul Hussain, representing the same party has sought to argue that such an appeal lies in this Court, under clause 15 of the said Letters Patent. In course of a few weeks, the appellants have gone back on the contention which was advanced on their behalf during the hearing of the said application. We would like to observe, at the outset, that, although the office of this Court was justified in not registering the appeal in view of the observations made by the said Single Bench of this Court, such refusal does not finally settle the point, and we have, therefore, adopted the procedure which we have followed in regard to this matter. Having directed that the appeal be registered, we now proceed to decide the preliminary issue, whether the appeal is maintainable. Mr. Haidermota has accepted notice of the appeal on behalf of the respondents. The hearing of the preliminary point, has, therefore, proceeded after due notice to the parties. We would like to observe, at the outset, that matters decided under the Act in this Court by a Single Bench are not disposed of in the exercise of the ordinary original civil jurisdiction of this Court which has not yet exercised such jurisdiction. This Court does not exercise any ordinary original civil jurisdiction, although it has powers to do so, after necessary formalities, in connection therewith have been complied with. Cases under the Act are decided by way of a special statutory jurisdiction conferred upon this Court by the Act itself. It would be a misnomer to describe such jurisdiction as ordinary original civil jurisdiction. The Act is obviously designed to shorten litigation and, therefore, orders passed by Court, constituted under the Act, are final, except in cases where an order is made under section 38, 153 (7) or 202 thereof. it is only in respect of orders made under the sections enumerated above that an appeal lies and in no other case the judgment and order passed by the Court are appealable. It is a well‑settled principle that an appeal is a creature of law and that no appeal would lie unless the law provides for it. The Act has advisedly made orders passed under it non‑appealable except in case of three sections only. This is the scheme of the Act which does not countenance an appeal other than those which have been allowed, as stated above. It is important to remember this. The Act provides a complete Code of Procedure governing appeal and it has precluded appeals from judgments and orders made under the Act, except those as are made under the aforesaid sections, namely, sections 38, 153 (7) and 202 of the Act. The obvious reason for such a scheme is to give a finality to litigations in respect of matters relating to the Act. We would also like to observe that the Act provides, in section 3 thereof, that the Court within the meaning of the Act, would be the relevant High Court exercising jurisdiction over the place where the registered office of the company is situate or a relevant District Court, if notified under the Act. There can be no manner of doubt whatsoever, that if orders are made under sections 76 and 79 of the Act by a District Court, no appeal would lie. The question is, although no appeal would lie, under the Act, against orders, as stated above, would an appeal lie if such orders are made under the aforesaid sections by a Single Bench of the High Court? Must the scheme of the Companies Act be up set if orders are made by the High Court? Mr. Asrarul Hussain has argued (an argument which did not find favour with the EPIDC at an earlier stage) that an appeal against a decision of a Single Bench of this High Court would lie to this Court under the provisions of clause 15 of the Letters Patent of 1865 of this High Court, which is the same as the Letters Patent in respect of the High Court of Judicature at Fort William in Bengal (The Calcutta High Court). Is it correct to say so? The said clause 15 runs thus: "

15. And we do further ordain that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section 107 of the Government of India Act or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act made on or after the first day of February One thousand nine hundred and twenty nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge passed the judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council as hereinafter provided." Relying on the unqualified phraseology of the first part of the said clause, it has been argued that, under clause 15 of the said Letters Patent, an appeal would lie against any judgment passed by a Single Bench of this Court under the aforesaid provisions. It is true that the language of clause 15 is unqualified. But, the context of the Letters Patent itself imposes a qualification which must necessarily be spelt into the said provision. The word is "judgment" simpliciter. What i is the true import of the word "judgment" as used in the said clause? It is a cardinal principle of interpretation, based on logic and rules of grammatical construction, that the true meaning of a word has to be construed in the light of its context, that is, from what precedes and follows in the same document. In other words, a document or an instrument must be construed as a whole. The word "judgment", as used in the aforesaid clause 15 must therefore, be construed in the context of the Letters Patent as a whole. Such a course is not only permissible and proper, but has also been followed by the Judicial Committee of the Privy Council in the case of Ryots of Garabandho v. Zamindar of Parlakimedi (A I R 1943 P C 164). It is sufficient to state that one of the points, which was mooted and decided in the aforesaid case was whether the Madras High Court had power to issue a writ of certiorari on an individual or person outside the Presidency Town of Madras unless he was a British subject. It was argued that the said High Court was competent to do so under the provisions of clause 8 of the Madras Charter of 1800. The said clause 8 reads as follows: "

8. And it is our further will and pleasure, that the said Chief Justice, and the said Puisne Justices, shall, severally and respectively, be, and they are all and every of them hereby appointed to be Justices and Conservators of the Peace, and Coroners, within and throughout the Settlement of Fort St. George, and the town of Madras, and the limits thereof, and the factories subordinate thereto, and all the territories which now are, or hereafter may be, subject to, or dependent upon, the Government of Madras aforesaid; and to have such jurisdiction and authority as our Justices of our Court of King's Bench have, and may lawfully exercise, within the part of Great Britain called England, as far as circumstances will admit." It has been held by the Judicial Committee of the Privy Council that it would not be correct to say that clause 8 gave jurisdiction to the High Court to issue a writ of certiorari to a Court of the company throughout the province, notwithstanding the unfettered language of this clause that the authority and jurisdiction of Judges of the Madras High Court, as of a Judge of the Court of King's Bench, shall extend to "all the territories which now are, or hereafter may be subject to, or dependent upon, the Government of Madras aforesaid." It will be noticed that clause 8 aforesaid conferred, in general terms, a jurisdiction which was to be exercised over those who were within the territory administered by the Madras Government and subject to it and that it is within the competence of a Judge of the King's Bench to issue a writ of certiorari within the limit of the latter s jurisdiction. It was held that it was not possible to treat clause 8 as giving a separate jurisdiction over all persons in the province independently of clauses 21, 22, 33 and

34. Viscount Simon, L. C. in pronouncing the judgment of the Board, has construed the aforesaid clause 8 in its context, that is, in the light of the provisions of causes 21, 22, 33 and 34 clause 8 of the said Charter was construed to mean that the Judges of the Madras High Court would exercise the authority and jurisdiction of judges of the High Court of King's Bench throughout the territorial limits of the Madras Government pursuant to jurisdiction described by the Charter itself, namely those referred to in clauses 21, 22, 33 and

34. At page 174 of the report, Lord Simon, in second column, observes "These considerations lead necessarily, as their Lordships think, to the conclusion that clause 8 gives and in general terms defines an authority which is to be exercised over those who by the later clauses are made subject to . . . It is not possible to treat clause 8 as giving a separate jurisdiction over all persons in the province independently of clauses 21, 22, 33 and 34." This, if we may say so with respects, is consonant to logic and well‑established principles of interpretation. We are thus driven to the conclusion that the word "judgment" as used in clause 15 of the Letters Patent of 1865 of this Court has been used in respect of a judgment that has been passed pursuant to the Letters Patent which has described various jurisdictions and has exhaustively enumerated them in different clauses of a rather lengthy Letters Patent. If we now examine the Letters Patent in respect of this Court, it would be seen that clause 11 provides for defining the local limits of the ordinary original jurisdiction of the High Court; clause 12 relates to trial of suits in the said ordinary original civil jurisdiction; clause 13 deals with extraordinary original civil jurisdiction; clause 16 deals with appeals from Courts subject to the superintendence of the High Court; clause 17 provides for the exercise of jurisdiction in respect of infants aid lunatics; clause 18 is a provision with respect to insolvency proceedings; clauses 22, 23, 24, 25, 26, 27, 28 and 29 deal with various kinds of criminal jurisdiction of the High Court; clauses 32 and 33 deal with admiralty or vice‑admiralty jurisdiction; clause 34 deals with testamentary and intestate jurisdiction. This exhausts the various categories of jurisdictions exercised by the High Court under the Letter Patent of 1865 and the categories are exhaustive. Any other kind of jurisdiction exercised by this Court is a special jurisdiction which arises by virtue of statutory powers conferred on this Court or by any other law which can confer a jurisdiction upon this Court and not by the Letters Patent itself. Such jurisdiction must be governed by the provisions of the statutes which confer such special jurisdiction. In this context, in our opinion, the word "judgment" as used in clause 15 of the Letters Patent, must necessarily mean a judgment which is pronounced in the exercise of various jurisdictions enumerated in the said Letters Patent. It must be a judgment which must appertain to the Letters Patent. Can it be said that the judgment of one Judge of this High Court, in awarding prizes in a sporting, event or an essay contest, would be appealable? Reductio ad absurdum, it could be argued that the material provision reads as follows, namely, that "an appeal shall lie from a judgment of one Judge of the said High Court." It is patent that a judgment pronounced by a Judge of this Court in a sporting event or in an essay contest will not be a judgment passed by him in his capacity as a Judge of this Court but, in a personal and private capacity, which is do hors the Court itself. This must necessarily follow from the context in which the word "judgment" is used in the Letters Patent. We had asked Mr. Asrarul Hussain to put his finger on a single case in which it was argued and held that such an appeal was competent and that it would lie under clause 15 of the Letters Patent. He has not been able to cite one single case in which it was so held on the point being specifically mooted in Court. He, however, cited instances where some High Courts have, in fact, exercised appellate jurisdiction in matters relating to act which are not made appealable by the Act itself. He has cited the cases of Marwarl ,Stores Ltd. v. Gouri Shanker (A I R 1936 Cal. 327); Pudumjee & Co. v. N. H. .Moos (A I R 1926 Bom. 28) and Ananthalakshmi v. T. B. A. & P. Ltd. (A I R 1952 Mad. 60). But, just because the aforesaid appeals were heard without any objection being raised that those appeals were incompetent, it cannot be affirmatively held that such appeals were, in fact, competent. It would be seen that in none of the cases mentioned above it was argued and debated that an appeal was incompetent and it was held that such an appeal would lie. Mr. Asrarul Hussain referred to the case of Indian Spinning Mills Ltd. v. His Excellency Lt.‑General Madam Shum Sher Jung Bahadur Rana (56 C W N 398) where an appeal from an order made under section 79 (3) of the Act was dismissed by a Division Bench of the Calcutta High Court (in hearing an appeal from an original order). It would be interesting to observe that in the judgment pronounced by Harries, C. J., it has been observed (at page 406 of the report) as follows: "A point was taken as a preliminary point that no appeal lay in this case. I do not think it is necessary to discuss that matter, but I wish to make it clear that we do not hold that an appeal does lie. However as there are no merits in the appeal it is unnecessary to consider that preliminary point, be cause even if an appeal lay it would fail. "In the result therefore this appeal must be dismissed with costs." Mr. Asrarul Hussain has argued that, in the aforesaid case, an appeal was, in fact, entertained although it was dismissed. This line of argument is of no assistance, particularly, in view of the observation of the learned Chief Justice to the following effect: "I wish to make it clear that we do not hold that an appeal does lie." There is another point of view from which it must be held that the present appeal is incompetent. If we again revert to the fact that in exercising a jurisdiction under the Act this Court exercises a special statutory jurisdiction, it would follow that, when the statute itself provides a complete Code as to what matters are appealable and what are not, then there cannot be any appeal against the requirement of the statute by a necessary and positive implication of its provisions. We have noticed that an appeal would be incompetent from a judgment and order passed by a District Judge, either under section 76 or under section 79 of the Act or under both. Why, then, would such an appeal be competent if the judgment is passed under the aforesaid sections by a Single Bench of the High Court? In our opinion, such an incongruous situation would not arise. The question as to whether an appeal would or would not lie must be answered with reference to the Companies Act which must prevail over the general provisions of clause 15 of the Letters Patent, even if the square peg furnished by the latter law could be made to fit into the round hole of the Act. Even if it could be said, in regard to other kinds of statutory jurisdiction, that, in the absence of any embargo which can be spelt against an appeal therefrom, an appeal would lie because of the general provisions of clause 1 5 of the Letters Patent, as stated above, there can be no doubt that, if the statute, conferring jurisdiction upon this Court, precludes an appeal, such an embargo must prevail over the general provisions of clause 15 of the Letters Patent. As we have stated above, this High Court derives jurisdiction to try matters relating to the Companies Act under the provisions of section 3 of the Act itself, and not under the Letters Patent. The necessary corollary, therefore, is that such jurisdiction must be exercised subject to the provision of the Act with regard to appealable or non‑appealable orders made thereunder. A special jurisdiction must be subject to a special Code relating to appeals as provided by the statute which creates the said jurisdiction. The law which must govern the situation is the Companies Act itself. To our mind, this is a point which settles the question. A special law must prevail over what is general law, even if it is held that the general law, as enunciated by clause 15 of the Letters Patent, provides for such an appeal. This view of the matter will be further confirmed if we look at the question from another point of view, namely that the Letters Patent itself is liable to be amended by any other law which can confer upon or take away any such jurisdiction from this Court. Undoubtedly the Companies Act of 1913 is such a law. When the said Act has provided a separate Code governing appeals relating to matters decided under the Act, it is deemed to have modified any provision of clause 15 of the Letters Patent to the extent that the latter provision militates against the former. This view finds support in a case, which was cited by Mr. Haidermota, namely, the case of Union of India v. Mohindra Supply Co. (A I R 1962 S C 256). In the aforesaid case, construing clause 10, which is identical with clause 15, the Supreme Court of India has held that although by clause 10 of the Letters Patent of the same High Court, an appeal from a judgment of a Single Judge, with specified exceptions, lies to the same High Court section 39 (1) of the Arbitration Act has amended that provision of clause

10. In the judgment pronounced by the Supreme Court relevant authorities have been discussed and we need not again deal with them here. Having heard arguments addressed to us by the parties before us and also on consideration of various authorities which were cited before us, we kept our judgment reserved and have delivered the same today, on re‑hearing the parties before u; after the Memorandum of Appeal has been registered. We hive, however, directed that a certified copy of this judgment and order be made available forthwith to the appellants and/or respondents, on an appropriate application in this behalf, so that an aggrieved party may seek his remedy elsewhere, if so advised. During the course of the hearing of the matter at an earlier date, Mr. Asrarul Hussain asked us, whether, pending the delivery of our decision, the proposed meeting of the shareholders, as directed by the Single Bench, which heard the application under the Companies Act, should not be stayed. We think that it is neither necessary nor desirable that the proposed meeting should be stayed, having regard to the evidently chaotic condition in which the company is placed and having regard to the course of events which were disclosed during the trial of the aforesaid application, as reflected in the impugned judgment. It is in the interest of the company itself that a more effective control over its administration and management should be effected, even if the appellants succeed in an appeal in some other forum. If necessary, the newly elected body can easily constitute an ad interim receiver, appointed by Court, even if the matter is heard, on appeal, by a higher tribunal. Such an elected body would come into existence under the direction of this Court and under the direct supervision of officers appointed by Court. It would be, by no means, difficult to enforce any decision made by a subsequent Appellate Court, even if the proposed meeting of the shareholders is held. Suitable orders can subsequently be made. The election directed by the impugned order would in any event, bring about a suitable interim arrangement calculated to promote the best interest of the company. Mr. M. H. Khandkar has argued before us that section 38 of the Companies Act, 1913 confers a general jurisdiction upon this Court to hear the present appeal. Is it correct to say so? Section 38 of the Act provides for appeal in respect of matters relating to that section only, that is, matters with regard to rectification of the register of a company. The result, therefore, is, that, according to us, the logical view is that the word "judgment" in clause 15 of the Letters Patent means a judgment which is passed in exercise of a jurisdiction as created by the Letters Patent and, in any event, even if clause 15 includes other kinds of judgments as o well, the special scheme of the Companies Act must prevail over' the general provisions of clause 15 of the said Letters Patent] In other words the Companies Act of 1913 must be deemed to have modified the general provisions of clause 15 of the Letters Patent. Mr. Khandkar has further urged that since the Supreme Court of Pakistan may grant a special leave to appeal in respect of the impugned judgment, it would be better, if we refrain from disposing of the appeal on a preliminary point alone and that we should also hear the appeal on its merits. Having held that no appeal lies in this Court there would be no point in exercising a jurisdiction which according to us, does not exist. We hold that no appeal lies in this Court against the impugned order and judgment passed by a single Bench of this Court under sections 76 and 79 of the Act. Since our decision on the preliminary point is adverse to the appellants, we dismiss the appeal without any order as to its costs. A. S. CHOWDHURY, J.‑

I agree. A. F./S. A. H. Appeal dismissed.