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Judgment
Kapur, J.—This is a Petitioner for leave to appeal to the Supreme Court and is headed as being under Order 45, Rule 3, Code of Civil Procedure.
The Batala Engineering Company Ltd. and Mohammad Mukhtar made an Appellant under Sections 162, 239 and 79, Companies Act praying that (a) an order for the compulsory winding up of the assets of the Company in India be passed; (b) meeting of the shareholders be called u/s 79 or sectuin 239, Companies Act, 1913 to consider the agenda sot out in Aunexure "A" to the Petitioner; and (c) such other order as this Court considered just and proper may be passed. The Petitioner was put up before Achhru Ram J. and by an order dated 21-4-1949 he refered the case for; hearing by a D.B. of this Court and it was then; heard by Achhru Ram J. and myself. Achhru Ram J, had framed several issues which were:
Whether the regd. office of the Company was validly changed from Batala to Lahore?
Whether the Muslim evacuee share-holders are not entitled to attend personally or by proxy general meeting of the Company or vote thereat or exercise other rights respect of shares held by them? If so, do the said right the vest in and are exercisable by the Custodian?
Whether Muslim share holders of the Company who were residents of the areas now comprised in Pakistan before partition are not entitled to attend personally or by proxy general meetings of the Company or vote thereat or exercise other rights in respect of the share held by them? If so, do the said rights vest in and are exercisable by the Custodian?
Whether any valid Board of Directors was constituted 17-11-1947, and has been functioning at Batala since then?
4a. If so, whether the acts of the said Board including the allotment of shares and registration of transfer share are invalid?
Whether the Muslim Directors of the Company ceased be Directors thereof after their evacuation in Pakistan.
5a. Could those Directors, assuming that they continued to be such Directors hold meetings of the Board of Directors at Lahore and function from that place?
Were the general meetings dated 7-12-194 7-1-1948, 29-11-1918 and 28-1-1949, validly convened held and were the proceedings of these meetings including the alteration of the articles of Assocn. the appointment of Managing Agents, and the removal and appointment directory Motors, valid ?
After considering the entire evidence it held by the Court that the regd. office of the Company had not been transferred to Lahore as was claimed by the petitioning Company and Mohammad Mukhtar but it had "always been and still is at Batala and h never been validly shifted to Lahore." It w also held that the shares were evacuee property both in case of shareholders who resided what subsequently became East Punjab and other parts of India, as also those who originally residence in what became Pakistan. The findings summed up by Achhru Ram J. at p. 142 of the judgment and were as follows:
In the light of what I have said above, my findings the matters covered by the second and third issue are:
The shares held in the Company by Muslim share-hold who left, on or after 1-3-1947, the territories comprisal in the East Punjab on account of civil disturbances the fear of such disturbances, or the partition of country, do vest in the Custodian;
The shares held in the Company by Muslims who (sic) before the partition resided within the territories comprised in Pakistan, but who, for the reasons mentioned above, are unable personally to supervise or was their interests in or enforce their right to such sh(sic) also vest in the Custodian;
The vesting of the aforesaid shares of both desertions in the Custodian involves the vesting in him of totality of their rights and liabilities in respect of; shares including the right to convene a meeting, right to make a requisition for a meeting being coat and the right to vote at a meeting when convened;
However, the custodian cannot exercise any of the foresaid rights except after having his names registered in place of the names of the evacuee share-holders;
The Petitioner is still pending and beyond the dings which were given in this order dated 8-7-1949, excepting that incidental orders have en passed, nothing has been finally decided. It as against this Order that leave to appeal to the Supreme Court was sought.
By way of preliminary objection it was submitted by the learned Counsel for the responses that the Petitioner was barred by time. Reliance was placed on Sub-section (2) of Section 12, Limitation Act, which says:
In computing the period of limitation prescribed for an Appellant for leave to appeal..., the day on Which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from...shall be excluded.
The submission was that as there was no final order in this case the time taken in obtaining a copy of the order passed on 15-7-1949 could not be excluded. I am unable to agree with this submission. The word used is "order" and not "final order" and I do not see how this Appellant has become barred by time.
Mr. Ved Vyas for the Petitioners wanted to bring this Appellant for leave to appeal firstly under Article 133 of the Constitution it then under the mended Section 109(b), CPC An objection was taken that both those provisions will not apply because the order was passed before the Constitution on came into force or Clause (b) of Section 109 was amended, at appeal is a substantive right and ordinarily it should 8 governed by the law in force at the time an order sought to be appealed against is made or a hen the original proceedings started, and unless 138 of the Constitution has a retrospective the feet or the new amendment of the section of the code has a similar effect a Petitioner cannot have a right to appeal under those provisions. Reliance has placed on a judgment of their Lordships of the P.C, in AIR 1927 242 (Privy Council) Lord Blanesrgh observed:
The principle which their Lordships must apply in (ling with this matter has been authoritatively enunted by the Board in the Colonial Sugar Be fining Company Irving, (1905) A. C. 369 : 74 L.J. P.C. 77, where it effect laid down that, while provisions of a statute ling merely with matters of procedure may properly, is that construction be textually inadmissible, have inspective effect attributed to them, provisions which right in existence at the passing of the statute not to be applied retrospectively in the absence of enactment or necessary intendment. Their Lord-can have no doubt that provisions which, if applied reactively, would deprive of their existing Quality which, when the statute came into-force, were are provisions which touch existing rights.
In Rishindra Nath Sarkar Vs. Sakti Bhusan Ray, this case followed where a revn. was sought of an order used by the Chief Judge of the Court of Small leg under Article 227 of the Constitution. It was there held that that Article was not retrospective. Article 138 of the Constitution also is not retrospective and would not apply to the facts of this case. I But even if it did, there would be no right to appeal u/s 109(b), CPC because the order complained against is neither a final order nor a judgment. It was admitted that it was not a final order but it was sought to be brought under the word "judgment". There again in my opinion the case is not covered by that word. The word'' "judgment" appearing in Article 133 of the Constitution or in Section 109(b), Code of Civil Procedure, must have some meaning and must be differentiated both from the decree it final order. This word as used in Article 133 of the Constitution has recently been interpreted by a judgment of Harries C.j., and Mitter j. in Chandra Singh Dudhoria and Others Vs. The Midnapore Zemindary Co. Ltd., where this distinction was drawn and when this was pointed out to Mr. Ved Vyas, he dropped this line of argument and submitted that the case in any case came within Sub-clause (c) of Section 109 i.e., an appeal against an interlocutory order.
u/s 109(c), CPC there are certain ''difficulties which the Petitioners have to get over. In the first place, it has been held that leave u/s 109(c) of the Code is to be very sparingly given. In Banarsi Prosad v. Kashi Krishna 23 ALL. 227 : 28 I.A. 11 P.C., the amount in dispute was little more than Rs. 4.000/- and it was hold by their Lordships interpreting Section 109(c) that that provision was
clearly intended to meet special case; such for example as those in which the point in dispute is not measurable by money, though it may be of great public or private importance. To certify that a case is of that kind though it is left entirely in the discretion of the Court, is a judicial process which could not be performed without special exorcise of that discretion, evinced by the fitting certificate....
Again, their Lordships in Radha Krishna v. Krishna Chand 23 ALL. 415 at P. 419 : 28 I.A. 182 P.C., said:
It is noticed, in the judgment of this Board, in the case to which their Lordships have just refd., that there was a prevailing impression in the High Court that the mere existence of a substantial question of law was sufficient to give the Court jurisdiction to give leave to appeal to her Majesty in Council.
Lord Hobhouse said:
It is only upon the assumption that there was such an impression in the minds of the learned Judges that this certificate can have any meaning attached to it at all....
The Calcutta High Court in Binoy Krishna Mukerjee and Another Vs. Satish Chandra Giri and Another, has held that leave to appeal against interlocutory order should be given sparingly Rankin J., there observed at p. 549:
Interlocutory orders are certainly within the ambit of Clause (c) of Section 109; ''but what Lord Hothouse in Banarsi v. Kashi 23 All. 227 and Lord Buckmaster in Baclha Krishna v. Sivaminatha 44 Mad. 293 : AIR 1921 P.C. 25 have said as to this clause is not specially addressed to this particular class. They point out that where a right is decided, public or private importance may take the place of a high money value as a ground for leave to appeal especially in oases, e.g., as to caste rights which are not capable of being valued in terms of money. There are, however, two cases in this Court as to interlocutory orders Damra Coal Company Vs. Benares Bank, and Siva Prosad Singh Vs. Rani Proyag Kumari Devi and Others, (the Jheria case). These are both cases in which it was thought doubtful whether the order complained of was not such as to incapacitate one of the parties from effectively maintaining this case.
It was further held in that Case that leave for appeal should be granted only when the case involves practical considerations of a special character such as when" the order complained of is oppressive or in its cumulative effect crippling. Ordinarily interlocutory proceedings should net be protracted by granting leave to appeal from orders passed in thorn inasmuch as that would make the litigation oppressively expensive and postpone the real elucidation of the facts by a trial of the suit.
In Babu Govind Das and Another Vs. Mt. Indrawati and Others, it was observed that
C1ause (c) of Section 109 applies even to interlocutory orders a in appropriate oases such orders can be made the subject of an appeal to His Majesty in Council
Before leave to appeal can be granted the Court must be satisfied that the case is a fit one for such appeal.
One of the matters to be taken into consideration in this connection must invariably be whether the permission to appeal is or is not calculated to unduly delay the disposal of the sustantive dispute between the parties on its merits. If the interlocutory order, the validity of which is sought to be tested by an appeal to his Majesty in Council, is one that is not calculated to prejudicially affect the right of either party to the litigation to have the substantive matters in dispute in the litigation decided by a competent Court, ordinarily leave to appeal ought not to be granted.
In Srinibash Prosad v. Kesho Prosad 10 I.C. 444 : 13 C.L.J. 681, it was held that Section 109(c) is clearly intended to meet cases which are of special importance and that the right to seek leave under this section is not absolute one and leave can only be given within the discretionary power of the Court and that also sparingly. Quite recently in Badhakisan Laxminarayan Toshnival v. Sridhar Bamohandra Alshi AIR 1950 Nag. 177, it was held that the Court. had discretion in granting leave under this section. The Petitioners must, therefore, show something more than substantiality of a question of law to obtain leave under this clause and they must further show why discretion should be exercised in their favour in the present case.
It was next submitted by Mr. Ved Vyas that the decision of this Court. affected the rights of a large number of people inasmuch as a decision had been given as to the situs of a Company and whether shares held in a Company were or were not evacuee property and in order to succeed on this point ho has to show that the case is a fit one for appeal under the section. This phrase has boon interpreted as being one which is of great public or private importance: see Banarsi Prosad v. Kashi Krishna Narain ILR 23 ALL. 227 . It is not a case which would Jail under the phrase "of great public importance" nor is it so contended. One of the points to which objection has been" taken is that the finding given by this Court on the first issue dealing with the change of regd. office from Batala to Lahore is wrong, but it wa9 submitted that the case is one of great private importance because the finding of the Court on this issue of the change of regd. office was of great importance to the share-holders and secondly whether the shares were or were not evacuee property was also of great private importance to some of the shareholders. But within this rule the case is not to be of great importance to one of the parties but it must be of great importance to both the parties. In AIR 1943 266 (Oudh) it was held that
the mere existence of a substantial question of law does not give jurisdiction to give leave to appeal under Clause (c), Section 109. The question involved in the case must be one of great public or private importance. A question which does not affect any large bodies of persons or communities cannot be said to bo one of great public importance. By private importance is meant private importance to both parties to the litigation and not only to one of them.
Reliance was in this case placed on a F.B. decision of the Madras High Court in Raja of Ramnad v. Tiruneelakantam AIR 1923 Mad. 232 : 79 I.C. 250 , N. Kesava Mudaliar Vs. V.S. Govindachariar and Others, it was held that the question had to be of great private importance to both parties and almost of public importance before it may be certified to be a fit one for leave to appeal. In an appeal to the P.C. from '' the Supreme Court of Canada reported as Albright v. Hydro Electric Power Commission of Ontario (1923) A.C. 167 : 92 L.J.P.C. 80 it was said by Lord Haldane:
It has been the policy of their Lordships Board not to entertain Appellant which will prevent the decision the Supreme Court being final on general questions connected with the mere construction of agreements which do not rail either far-reaching questions of law or matters of dominant public importance. Here there was an individual; agreement it may have been construed rightly or wrongly by the Supreme Court of Canada, but it is an individual; agreement and the decision turned upon a question of construction. The view taken is a view, the effect of which may be obviated in future agreements by the employment of apt language.
The Appellant was, therefore, refused by their Lord ships.
In reply to this part of the argument Mr. Gossain submitted that the law with regard to evacuee property was now contained in Central Act the Administration of Evacnes Property Act, XXXI (31) of 1950. Section 2(d), define an "evacuee" and Section 2(f) defines "evacuee perty". Section 7 of the Act gives the power to the Custodian after certain preliminaries have gone into for deciding whether any property or is not evacuee property. Section 10(1) makes previsions for the vesting of shares in custodian gives him the power to exercise certain of a holder of Bhares of a particular Company Section 28 gives a finality to the orders made by a Custodian; Virtue of the powers conferred on him by the Act. The decision of this Court on the question Whether in a particular set of circumstances, shares are or are not evacuee property or vest or i not vest in the Custodian is not a matter of neb great importance as to fall within Section 109(c). I am, therefore, of the opinion that this objection that the matter is not of public importance or of private importance to both the parties is well-Bounded and must be given effect to.
Mr. Ved Vyas then relies on certain cases to show in what circumstances this Court should give leave to appeal to the Supreme Court. The principles, I think, are by now well established. The only question is whether his case falls under any one of those principles. In my opinion, it does not.
I feet greatly obliged to the counsel who argued civil Misc. No. 40-C of 1950 Messrs Gokal Chand-Gain Chand v. Messrs Ishar Das Durga Vas, and who discussed all the various cases and aspects which are relevant in deciding the question of leave to appeal to the Supreme Court the majority of the eases that I have discussed above were really those which were cited in that case.
The Petitioner, therefore, fails and I would dismiss it with costs.
Khosla, J.
I agree.