P L D 1964 Dacca 773 (PLP)

"3. (1) The District Courts shall be the Courts having jurisdiction under this Act:

. But the said Provincial Insolvency Act was amended by the Central Laws (Statute Reform) Ordinance, 1960, and the former subsection (2) of section 1 was substituted by a new subsection (2) which reads: "(2) It extends to the whole of Pakistan, except the Capital of the Federation and Dacca." From what we have stated above, the position, so far as Dacca is concerned, is, that the District Judge of Dacca has been divested of his jurisdiction to deal with insolvency matters and his jurisdiction has been vested in the High Court of East Pakistan at Dacca. But, section 11 of the Act provides that the jurisdiction under the Act would be exercised by this Court in its ordinary original civil jurisdiction. This is where the bone of contention lies and where the difficulty comes in. Such a contingency, in so far as the application of the afore said Act to the town of Karachi is concerned, has been met by the insertion into section 2 of the Act, the provisions of sub section (bbb) which have been quoted above. Thus, it has been very rightly contended before us that there has been a complete divestment of jurisdiction in such insolvency matters so far as the District Judge of Dacca is concerned. It has also been conceded that such a jurisdiction has been vested in this Court. It has further been conceded that, so far as the town of Karachi is concerned, by the amendment of Act III of 1909, the adapted clause to section 2 thereof, namely, sub section (bbb), has defined the limits of the Chief Court of Sind to mean the limits of the Capital of the Federation. Unfortuna tely, no such provision has been made so far as Dacca is con cerned. Mr. Asrarul Hussain has vigorously contended that until this Court is possessed of a defined limit within which it can exer cise its ordinary original civil jurisdiction, no such jurisdiction can be exercised at all. In support of his argument he has relied upon the decisions of the Judicial Committee of the Privy Council in the cases of Hamid Hasan v. Banwarilal Roy (AIR 1947 P C 90) and Ryots of Garabandho v. Zamindars of Parlakimedi (A I R 1943 P C 164). He has also relied upon the cases of Sree Meenakshi Mills Limited v. Provincial Textile Commissioner, Madras (LR76 IA 191) and an unreported decision of this Court in the case of All Mia and another v. Moulvi M. Nazir Ahmad Choudhury and others Writ Petition No. 2 of, 1954. Akbar, J., (as he then was), in pronouncing the judgment of a Single Bench of this Court in the last mentioned case, had to construe the applicability of section 45 of the Specific Relief Act, in so far as it concerned the jurisdiction of this Court. The relevant portion of section 45 of the Specific Relief Act runs thus:-- "

45. The High Court of East Bengal may make an order requiring any specific act to be done or forborne, within the local limits of its ordinary original civil jurisdiction, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or inferior Court of Judicature:" It was contended from the Bar that under the Indian Independ ence Act, 1947, this High Court was born with the Charter of the Calcutta High Court as well as with various other instruments conferring jurisdiction on the said High Court at Calcutta. Therefore, the further argument which was addressed to Akbar, J., in the aforesaid Writ Petition, was, that the jurisdiction con ferred upon the High Courts in the Presidency Towns in India, namely, Calcutta, Madras and Bombay, could also be prayed in aid to confer jurisdiction upon this Court. The difficulty that was posed in repelling that contention was, that in the absence of a definition of original jurisdiction of this Court, there could be no exercise of any original jurisdiction at all. In coming to the aforesaid conclusion, reliance was placed on one or other of the decisions of the Privy Council, stated above. The gist of the aforesaid decisions is, that the territorial limits of the ordinary original civil jurisdiction of the Calcutta High Court began to shrink from time to time and, on the eve of Independence, such original jurisdiction of the Calcutta High Court was confined to an area surrounded by what is known as the Circular Road and various other boundaries specified by law. Akbar, J., in the aforesaid case held that section 45 of the Specific Relief Act could not confer any original jurisdiction upon this Court until the territorial limits of such original jurisdiction were specified by a relevant law. We would like to say at the very outset that for the present moment we are not called upon to give any opinion upon the ratio decidendi of the aforesaid case or the cases decided by the Privy Council. They were all directed against the extension of the boundaries of the territorial jurisdiction of the aforesaid High Courts. Besides, the aggrieved persons were not entirely without other kinds of remedies. We have already noted the distinctive feature of the case before us, namely, that with regard to an important branch of law (of a wide and common application for a long period of time), there has been a divesting and re‑vesting of jurisdiction from one forum to another. Can it be said that the entire corpus of such law stands suspended for want of a precise definition of the territorial limits of the forum which can exercise jurisdic tion with regard to it? The contention which has been strenu ously canvassed before us by the learned counsel for the appel lant boils down to this: It is true that the District Judge of Dacca has been divested of the aforesaid jurisdiction which has now vested in this Court; but this Court is impotent to exercise such jurisdiction. Why? Because it is said that the territorial limits of the original jurisdiction of this Court have not yet been defined. He has simply pointed his fingers to the aforesaid cases and asked us to hold that we are equally impotent to exer cise the jurisdiction. But the most important thing which stares us in the face is, that such an argument necessarily postulates that there is to‑day no Court or Tribunal which can deal with insolvency matters, so far as the district of Dacca is concerned. It is said that so far as the Insolvency Laws are concerned, they must remain in a state of suspended animation because after the coming into force of the said Central Laws (Statute Reform) Ordinance, 1960, there is no Tribunal in the district of Dacca where an insolvent person under the Insolvency Act could get a redress of his grievance or enforce his rights. In our opinion, this very fact constitutes a distinctive feature of this case which is absent from the afore said cases that were cited before us. In the absence of a jurisdiction exercisable under section 45 of the Specific Relief Act, an aggrieved person could always go to the normal civil Court to get redress of his grievance. Section 45 had provided him, in the Presidency Towns of Calcutta, Madras and Bombay, with a further and speedier relief when other remedies were inadequate, but, none‑the‑less available. But, it could not be said in respect of the aforesaid cases that an aggrieved person or a person seeking to enforce his right, was without any remedy in law, if he was unable to obtain a speedier relief.. It has been conceded by the learned counsel for the appellant that one cannot get away from the fact that his argument was based upon the proposition that there was now such a gap in the law of this country that the entire corpus of Insolvency Laws has come at a standstill so far as Dacca is concerned. If his contention has to be upheld, it 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. It would also militate against all well- established canons of interpretation which have prevailed in matters like this. Without discussing a long series of decisions in England as also in this sub‑continent to the effect that the Courts will fill in the gaps in a piece of legislation, where a plain construction would lead to absurd results, we may simply refer to a decision of our Supreme Court in the case of Muhammad Amir Khan v. Controller of Estate Duty (P L D 1961 S C 119). We need not set out, in any detail, the facts of that case and it is enough, for our purpose, to say that they centered round the provisions of law with regard to levying of estate duty. It was found that there was such a gap in the said legislation as would lead to a sad and absurd result. In this connection, we would like to quote the observations of Kaikaus, J., at pages 143‑144 of the report, which are as follows:- "But while we reject this contention of the Attorney‑General we find force in the other two contentions. We are satisfied that this is a case where the Court can modify the language of an enactment. It will be observed that there cannot be the slightest doubt in the present case as to the intention of the Legislature. In fact, it is admitted on behalf of the applicant that the failure to make a consequential amendment in section 57 could only be due to a slip. After providing that the Con troller could determine value subject to an appeal to the Appellate Tribunal the Legislature could not possibly have intended that duty should be paid only on the account which was filed by the accounting party itself. All that has hap pened is that the draftsman failed to refer in section 57 to the provisions relating to determination in accordance with the amended Act. That we can modify the language of an Act to give effect to the manifest and undoubted intention of the Legisla ture is a proposition which is well supported by authority and well justified in reason. As stated in Crawford on Statutory Construction (section 201 p. 348): If the true meaning of the Legislature appears from the entire enactment, errors, mistakes, omissions and misprints may be corrected by the Court, so that the legislative will may not be defeated. As a result, spelling, grammar, numbers and even words, may be corrected. This, as already stated, is simply making the strict letter of a statute yield to the obvious intent of the Legislators. But it must clearly, or at least with reasonable certainty, appear that the error is in fact one before the Court will be justified in making the proper correc tion or amendment or the Court will invade the province of the Legislature and exercise legislative power. But when satisfied of the error, the Court may make the necessary correction. In accord with this principle, an erroneous description may be made to describe the thing actually intended or a misnomer made to name the thing really meant." In Maxwell's Interpretation of Statutes the rule is thus stated on p. 229, 1953 Edition. "Where the language of the statute in its meaning and gram matical constructions, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the mean ing of the words, and even the structures of the sentence." In Salmon v. Duncombe and others (11 A C 634), their Lordships of the Privy Council said: "It is however, a very serious matter to hold that when the main object of a statute is clear it shall be reduced to a nullity by the draftsman's unskilfulness or ignorance of law. It may be necessary for a Court of Justice to come to such a conclusion, but their Lordships hold that nothing can justify it except necessity or the absolute intractability of the language used. And they have set themselves to consider, first, whether any substantial doubt can be suggested as to the main object of the Legislature, and, secondly, whether the last nine words of section 1 are so cogent and so limit the rest of the statute as to nullify its effect either entirely or in a very important particular. There being no doubt in the present case that the duty which the Legislature intended to be realised was that which was to be determined in accordance with the provisions of the Act. We find we have jurisdiction to modify section 57 so as to rectify the draftsman's mistake and to read in it references to the Controller and the Appellate Tribunal, etc., and we would hold that the proper duty could be realised in spite of the defective wording of section 57." Along with the aforesaid weighty observations made by the Supreme Court of Pakistan, we might, in order to illustrate another principle, which had been adumbrated earlier, go back to the old case of Ashby v. White ((1703) 2 Ld. Raym 938), where the off‑quoted and famous observation of Holt, C. J., is as follows: "Indeed it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal." The said decision in Ashby v. White has been followed across centuries, in a large number of cases, and we will content ourselves by referring to Constantine v. Imperial Hotels, Limited (L R (1944) 1 K B 693). If there is any gap (and Hasan, J., is of opinion that there is no such gap), we are compelled to fill in such gap interpret ing the provisions of section 11 of the Act to mean that the limits of the ordinary original civil Jurisdiction of this Court are the same as those of the District Judge of Dacca. The High Court, by the aforesaid provisions of law, being substituted in place of the District Judge of Dacca, such a result is not merely irresistible but inescapable. There can be no manner of doubt that by the aforesaid adaptations and amendments, the jurisdic tion (including its territorial limits) of the District Judge was transferred to the High Court, in so far as insolvency matters were concerned. We are conscious of the fact that by interpreting we are effecting a fresh importation into the language of the statute. It is rather too late in the day to say that we cannot do so in an appropriate case. Courts have also supplied the omissions of the Legislature when the import and purpose of an enactment necessitated such a course of action. In the light of the principles discussed above, there is no room for any doubt that there has been (if, at all) an inadvert ent omission in the aforesaid legislation, although the intention of the Legislature is clear, that is, to effect a substitution of the forum and to transfer the jurisdiction of the District Judge of Dacca to the High Court at Dacca within the territorial limits of the jurisdiction of the former Court. We cannot conceive that the Legislature intended that the said Act would become a dead letter in the district of Dacca. Such an absur‑d1ty cannot be imputed to the Legislature and we hold that, according to accepted norms of construction, it is permissible for us to fill up the gap as specified above. Hasan, J., has come to the conclusion that a rational con struction of the relevant provisions of law leads to the conclusion that the District Judge of Dacca is replaced by the High Court of Dacca. We are in agreement with the views expressed by him and we have merely appended additional reasons for coming to the same conclusion. We have cited the case of Ashby v. White to expose the absurdity which would be the inevitable result of our accept ance of the contention of the learned counsel for the appellant. If we uphold the argument advanced, on behalf of the appellant, it would mean that an aggrieved person desiring to exercise a right would have no means to enforce a right or to obtain a remedy against an infringement of a right. This would militate against a salutary principle deeply embedded in our jurispru dence, namely, that there can be no right without a remedy. The body of law, known as, "Insolvency Laws", creates rights and remedies for the protection and relief of citizens. The appel lant's argument is that although the insolvency laws (which are not dead) create rights and remedies, they cannot be enforced or obtained in the district of Dacca because there appears to be a slip in the legislative process. If any further authority is required, we might cite the case of Rex v. Ettridge ((1909) 2 K B 24) where it has been observed: "We are of opinion that we may in reading this statute reject words, transpose them, or even imply words, if this be neces sary to give effect to the intention and meaning of the Legislature; and this is to be ascertained from a careful consideration of the entire statute." In the aforesaid case a number of earlier authorities were cited, including Hall v. Knox ((1905) 2 K B 748) and Salmon v. Duncombe (11 A C 627). We would only like to add a comment of our own, and, that is, that although Judges are most anxious to deny that they arrogate to themselves the function of legislation, the real position is, that whenever called upon to interpret a provision of law, they have, of necessity, under the well‑settled canons of construction, travelled into the domain of legislation. The passage quoted by Kaikaus, J., in Muhammad Amir Khan's case from Crawford in sufficient authority for this candid statement of law. However, in obedience to the normal practice of Courts of law, w would like to say that we have been compelled to introduce modification into the language of section 2, subsection (bbb), of the Act and to introduce into it the following words: "The limits of the ordinary original civil jurisdiction of the High Court of East Bengal (that is the High Court of East Pakistan at Dacca) means the limits of the ordinary original civil jurisdic tion of the District Judge of Dacca". Such an importation is imperative in order to give a sensible and workable meaning to the provisions of law noticed above. We cannot but hold that it was obviously the intention of the Legislature to confine the territorial limits of the ordinary origi nal civil jurisdiction of this Court in respect of insolvency matters to the territorial boundaries of the ordinary original civil jurisdic tion of the District Judge of Dacca who has divested of his jurisdiction upon a consequent conferment of such jurisdiction upon this Court. There can be no doubt that the Legislature intended that the ordinary original civil jurisdiction of this Court in insolvency matters would be the same as the ordinary original civil jurisdiction of the District Judge of Dacca. Viewed in the aforesaid light, we have supplied an omission which serves to fulfil the obvious intention of the Legislature and, in this respect, we are doing nothing more than giving effect to what, according to us, seems to be the obvious design of the Legislature. We have already said, and we repeat here, that we concur in the opinion expressed by Hasan, J., that the plain meaning of the relevant provisions of law leads to the inference that the entire territorial jurisdiction of the District Judge of Dacca, in this behalf, has now vested in the Dacca High Court, that is to say, that the transference of jurisdiction includes the territorial limits for its exercise. If there is any need for supplying any omission, we would do it in the manner specified above. For reasons stated above, we dismiss the appeal and uphold the order which has been passed by Hasan, J., in respect of the preliminary point raised by the appellant. Having regard to the difficult nature of the problem that has been mooted before us, we make no order as to costs of this appeal. The application for stay of further proceedings, which was directed to be heard along with this appeal, is rejected. The petition will proceed according to law before an appro priate Bench of this Court. K. B. A Appeal dismissed.