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Case Number

Civil Miscellaneous No. 21-C of 1950.

Attorney(S)

Ved Vyas and Bal Raj Tuli,
K.L Gosain,

Judges

Khosla
Kapur, JJ.

Acts

Central Act - the Administration of Evacuee Property Act, XXXI [31] of 1950. S. 2 (d),
S. 79 or S. 239, Companies Act, 1913
Ss. 162, 239 and 79, Companies Act
sub-s. (2) of S. 12, Limitation Act,

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Smart Summary

Structured Summary of the Opinion (Kapur, J.)

Factual and Procedural Background

The Batala Engineering Co. Ltd. and Mohammad Mukhtar filed a petition under Sections 162, 239 and 79 of the Companies Act seeking (a) compulsory winding up of the company's assets in India; (b) that a meeting of shareholders be called under Section 79 or Section 239 (Companies Act, 1913) to consider an annexed agenda; and (c) such other orders as the Court considered just and proper. The petition was placed before Achhru Ram J., who on 21-4-1949 referred the case for hearing by a Division Bench. Achhru Ram J. and Kapur J. heard the matter and Achhru Ram J. framed several issues relating to (inter alia) validity of change of the company's registered office from Batala to Lahore, entitlement of Muslim/evacuee shareholders to attend meetings and exercise rights, constitution and acts of the Board of Directors, and validity of several general meetings.

After evidence, the Court held that the registered office had not been validly transferred to Lahore and remained at Batala. The Court also held that the shares were evacuee property in specified circumstances and that such shares vested in the Custodian, subject to the Custodian first getting his name registered in place of evacuee shareholders. The petition remained pending beyond the Court's findings given in an order dated 15-7-1949, and the present petition was an application for leave to appeal to the Supreme Court against that order.

Legal Issues Presented

Whether the registered office of the Company was validly changed from Batala to Lahore.
Whether Muslim evacuee shareholders are entitled to attend or vote at general meetings or whether those rights vest in and are exercisable by the Custodian.
Whether Muslim shareholders who resided in what became Pakistan before partition are entitled to attend or vote at general meetings or whether those rights vest in and are exercisable by the Custodian.
Whether a valid Board of Directors was constituted on 17-11-1947 and whether it has been functioning at Batala since then.
If a Board was constituted, whether its acts (including allotment of shares and registration of transfers) are invalid.
Whether Muslim directors ceased to be directors after their evacuation to Pakistan, and if not, whether they could hold board meetings and function from Lahore.
Whether the general meetings dated 7-12-1947, 7-1-1948, 29-11-1948 and 28-1-1949 were validly convened and whether proceedings of those meetings (including alteration of articles, appointment of managing agents, and removal/appointment of directors) were valid.

Arguments of the Parties

Petitioners' Arguments (Counsel: Mr. Ved Vyas)

The petitioners sought leave to appeal to the Supreme Court initially under Article 133 of the Constitution and then under the amended Section 109(b) of the Civil Procedure Code.
When the above route was challenged as inapplicable because the order was passed before the Constitution/amendment came into force, counsel relied on the interpretation of the word "judgment" and on precedents (including Chandra Singh) but ultimately abandoned reliance on Section 109(b) and Article 133 and sought leave under Section 109(c) (interlocutory orders).
Petitioners contended that the decision affected the rights of a large number of people, including the situs of the company and whether shares were evacuee property, which, they argued, made the matter of public or private importance warranting leave to appeal.
Petitioners relied on several authorities to show circumstances in which leave to appeal should be granted.

Respondents' Arguments

A preliminary objection was raised that the petition was barred by time; reliance was placed on sub-section (2) of Section 12 of the Limitation Act to exclude the day of the judgment and time taken to obtain a copy, and it was argued that the order of 15-7-1949 being not final meant that time taken to obtain copy could not be excluded.
Mr. Gossain for the respondents argued that the law on evacuee property was now contained in a Central Act (Administration of Evacuee Property Act, XXXI of 1950). He pointed to definitions (Section 2(d) and 2(f)), the Custodian's powers under Sections 7 and 10(1), and the finality of a Custodian's orders under Section 28. On that basis he submitted that the question whether particular shares are evacuee property or vest in the Custodian was not of such special importance as to merit certification under Section 109(c).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Delhi Cloth and General Mills Co. v. Income-tax Commissioner, Delhi (a. i. R. (14) 1927 P.C. 242)	Principle distinguishing retrospective effect of procedural provisions versus those affecting existing substantive rights (quoting Colonial Sugar Refining Co. v. Irving).	Used to support the proposition that Article 133 and amended procedural provisions do not have retrospective effect so as to give a new right of appeal where none existed when the order was made.
Colonial Sugar Refining Co. v. Irving (1905) A.C. 369	Authoritative statement that procedural provisions may be given retrospective effect but provisions touching existing rights should not be applied retrospectively without express enactment or necessary intendment.	Quoted (via Delhi Cloth) to justify the view that Article 133 or an amendment to Section 109 should not be applied retroactively to create a substantive appellate right where it did not exist.
Rishindra Nath v. Sakti Bhusan, 54 C. W. N. 793 : (a. I. R. (37) 1950 Cal. 512)	Held that Article 227 of the Constitution was not retrospective; used as authority on non-retrospectivity.	Followed to support the conclusion that Article 133 of the Constitution is not retrospective and thus does not afford a right of appeal in the present case.
Chandra Singh v. Midnapore Zemindary Co. Ltd., 54 C. W. N. 874 : (A. i. R. (38) 1951 Cal. 300)	Interpretation of the word "judgment" as used in Article 133 and Section 109(b); distinction drawn between "judgment", "decree", and "final order".	The Court relied on this interpretation to accept that the present order could not be characterized as a "judgment" for purposes of Article 133 or Section 109(b), leading petitioners to abandon that line of argument.
Banarsi Prosad v. Kashi Krishna, 23 ALL. 227 : (28 I. A. 11 P.C.)	Held that leave under Section 109(c) is to be granted sparingly and is meant for special cases of great public or private importance not measurable by money alone.	Applied to emphasize that Section 109(c) is limited and should be used only in exceptional cases; helped the Court determine that the present case did not meet that stringent standard.
Radha Krishna v. Krishna Chand, 23 ALL. 415 : (28 I. A. 182 P.C.)	Warned against the impression that the mere existence of a substantial question of law is sufficient to grant leave under Section 109(c).	Relied upon to support the proposition that a substantial question of law alone does not entitle a party to certification under Section 109(c).
Binoy Krishna v. Satish Chandra, 31 C. W. N. 540 : (A.I.R. (14) 1927 Cal. 481)	Calcutta High Court held that leave against interlocutory orders should be given sparingly; set out practical situations where leave may be justified (e.g., where an order incapacitates effective maintenance of the case).	Used to illustrate appropriate instances for leave under Section 109(c) and to support the Court's reluctance to grant leave in the present interlocutory context.
Darma Coal Co. v. Benares Bank, 21 C.L.J. 281 : (A. I. R. (2) 1915 Cal. 624)	Example (in Binoy Krishna) of interlocutory orders potentially justifying leave where incapacity to maintain the case is at issue.	Cited (through Binoy Krishna) as precedent illustrating narrow circumstances warranting leave; the Court found the present case did not fall within such narrow circumstances.
Shiva Prasad v. Prayag Kumari, 49 Cal. 967 : (A. I. R. (9) 1922 Cal. 479)	Another case (in Binoy Krishna) illustrating situations where interlocutory leave may be justified.	Referred to as part of the judicial context that leave against interlocutory orders is exceptional; applied to reject broad certification here.
Govind Das v. Mt. Indrawati, I.L.R. (1940) ALL. 11 at p.16 : (A.I.R. (27) 1940 ALL. 38)	Confirmed that Section 109(c) applies to interlocutory orders and that leave can be granted in appropriate cases; court must be satisfied the case is fit for appeal.	Invoked to state that while interlocutory orders may be appealed, leave must only be granted where the Court is satisfied the appeal is a fit one; used to deny leave here.
Srinibash Prosad v. Kesho Prosad, 10 I.C. 444 : (13 C.L.J. 681)	Held Section 109(c) is intended for cases of special importance; leave is discretionary and sparingly exercised.	Relied upon to reinforce the discretionary and sparing nature of leave under Section 109(c), supporting the refusal of the petition.
Radhakisan Laxminarayan Toshnival v. Sridhar Ramchandra Alshi, A.I.R. (37) 1950 Nag. 177	Held that the Court has discretion in granting leave under Section 109(c).	Quoted to confirm that the petitioners must show why the Court should exercise its discretion in their favour; the petitioners failed to do so.
Mahesh Pratap Narain Singh v. Mt. Sadhana, A.I.R. (30) 1943 Oudh 266 : (204 I.C. 608)	Held that mere substantial question of law does not suffice; the question must be of great public or private importance to both parties.	Applied to conclude that although the matter might have private importance to some shareholders, it was not of great private importance to both parties and therefore did not qualify for leave under Section 109(c).
Raja of Ramnad v. Tiruneelakantam, A.I.R. (10) 1923 Mad. 232	Authority from Madras indicating the need for great private importance to both parties before leave is granted.	Used to support the proposition that private importance must be mutual to justify certification; the petition failed this test.
Kesava Mudaliar v. Govindachariar, 76 I.C. 811 : (A.I.R. (11) 1924 Mad. 231)	Also cited on the requirement of significant private importance to justify leave.	Cited to reinforce the standard for granting leave and to support refusal in this case.
Albright v. Hydro Electric Power Commission of Ontario ((1923) A.C. 167)	Expressed the policy of the Privy Council to avoid appeals that prevent a High Court's decision being final on general contractual construction questions that do not raise far-reaching law or public importance.	Quoted to show reluctance to entertain appeals on individual contractual or construction questions that do not raise dominant public importance; used analogously to deny the petition.
Messrs Gokal Chand-Gain Chand v. Messrs Ishar Das Durga Das (Civ. Misc. No. 46-C of 1950)	Referenced as a recent matter discussing various cases relevant to leave to appeal to the Supreme Court.	The Court acknowledged counsel's assistance in that matter and that many cases discussed in the present judgment were cited in that case; no different result arose here.

Court's Reasoning and Analysis

The Court proceeded in a series of discrete analytical steps, grounded in the facts and procedural posture presented:

Preliminary determination of the nature of the order sought to be appealed: the Court observed that the order dated 15-7-1949 was not a final order and that the petition for leave to appeal to the Supreme Court was directed against that interlocutory order or order given in the course of proceedings that remained pending.
On the time-bar objection, the Court rejected the respondents' submission that the petition was barred by limitation under sub-section (2) of Section 12 of the Limitation Act. The Court held that the statutory language uses the word "order" (not "final order") and therefore the time taken in obtaining a copy of the order could be excluded; accordingly, the petition was not barred by limitation.
The petitioners' contention that they had a right to appeal under Article 133 of the Constitution or the amended Section 109(b) of the Civil Procedure Code was examined. The Court applied authoritative precedent (including Delhi Cloth and Rishindra Nath) to conclude that Article 133 was not retrospective and therefore did not apply to orders passed before the Constitution came into force. It further held that the order sought to be appealed against was not a "judgment" within the meaning of Article 133 or Section 109(b), citing Chandra Singh for the interpretive distinction between "judgment", "decree", and "final order".
Having abandoned reliance on Article 133 and Section 109(b), petitioners sought leave under Section 109(c) (appeal against interlocutory orders). The Court undertook a considered review of the jurisprudence governing Section 109(c), noting repeatedly that leave under this clause is to be exercised sparingly and only in special cases of public or private importance. The Court cited authorities (Banarsi Prosad, Radha Krishna, Binoy Krishna, Govind Das, Srinibash Prosad, Radhakisan Laxminarayan, Mahesh Pratap Narain Singh, and others) to extract guiding principles:
- Leave under Section 109(c) is not an absolute right and is discretionary.
- The mere existence of a substantial question of law is insufficient to warrant leave; the question must be of great public or private importance.
- Private importance means importance to both parties, not just to one.
- Leave should not be granted where doing so would unduly delay the substantive dispute or where the interlocutory order will not prejudicially affect either party's ability to have the substantive matters decided by a competent Court.
The petitioners argued that the decision affected a large number of persons and raised important questions about the situs of the company and whether shares were evacuee property. The Court addressed that submission and concluded that the case did not qualify as being of great public importance; nor was it of such private importance to both parties as to justify leave. The Court specifically relied on Mahesh Pratap Narain Singh and related authorities to require mutual private importance.
The Court considered the respondents' submission (through Mr. Gossain) that the Administration of Evacuee Property Act (XXXI of 1950) now provides a statutory scheme for determination of evacuee property, vests powers in the Custodian (Sections 7 and 10(1)), and confers finality on Custodian orders (Section 28). On that basis the Court found the question of whether certain shares vested in the Custodian was not of such special importance as to warrant Section 109(c) certification.
Weighing the authorities, the discretionary considerations and the specific circumstances of the present case, the Court concluded that the petitioners had not established that this was an appropriate or "fit" case for leave to appeal to the Supreme Court under Section 109(c).

Holding and Implications

PETITION DISMISSED.

The Court dismissed the petition for leave to appeal to the Supreme Court and ordered that it be dismissed with costs. Khosla, J. concurred.

Implications:

The immediate effect is that the petitioners' application for leave to appeal against the interlocutory order of 15-7-1949 is refused and the case will proceed without interlocutory appeal to the Supreme Court.
The Court found no basis for applying Article 133 or an amended Section 109(b) retrospectively to create a right of appeal where none existed at the time the order was made.
The Court applied settled precedent that certification under Section 109(c) is exceptional and discretionary, requiring great public or mutual private importance; it concluded no new precedent was being laid down beyond application of these existing principles to the facts at hand.

Note: This summary is prepared strictly on the basis of the text of the provided opinion and does not add facts or inferences beyond what is contained in that opinion.

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The Batala Engineering Company Ltd., And Another, v. Custodian Evacuee Property East Punjab, Simla And Others,

Judgement

Kapur, J. :- This is a petn. for leave to appeal to the S. C. and is headed as being under o. 45, r. 3, Civil P. C.

2. The Batala Engineering Co. Ltd. and Mohammad Mukhtar made an appln. under Ss. 162, 239 and 79, Companies Act praying that (a) an order for the compulsory winding up of the assets of the Co. in India be passed; (b) meeting of the shareholders be called under S. 79 or S. 239, Companies Act, 1913 to consider the agenda set out in Annexure "a" to the petn.; and (c) such other order as this Ct. considered just and proper may be passed. The petn. was put up before Achhru Ram J. and by an order dated 21-4-1949 he refd. the case for hearing by a D. B. of this Ct. and it was then heard by Achhru Ram J. and myself. Achhru Ram J. had framed several issues which were :

1. Whether the regd. office of the Co. was validly changed from Batala to Lahore ?

2. Whether the Muslim evacuee share-holders are not entitled to attend personally or by proxy general meetings of the Co. or vote thereat or exercise other rights in respect of shares held by them ? If so, do the said rights vest in and are exercisable by the Custodian ?

3. Whether Muslim share holders of the Co. 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 Co. 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 ?

4. Whether any valid Board of Directors was constituted on 17-11-1947, and has been functioning at Batala since then ?

4 a. If so, whether the acts of the said Board including the allotment of shares and registration of transfers of share are invalid ?

5. Whether the Muslim Directors of the Co. ceased to 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 ?

6. Were the general meetings dated 7-12-1947, 7-1-1948, 29-11-1948 and 28-1 1949, validly convened and 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 of directors, valid ?

3. After considering the entire evidence it was held by the Ct. that the regd. office of the Co. had not been transferred to Lahore as was claimed by the petitioning Co. and Mohammad Mukhtar but it had "always been and still is at Batala and has never been validly shifted to Lahore." It was also held that the shares were evacuee property both in case of shareholders who resided in what subsequently became East Punjab and other parts of India, as also those who originally resided in what became Pakistan. The findings were 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 on the matters covered by the second and third issue are :

1. The shares held in the Co. by Muslim share-holders who left, on or after 1-3-1947, the territories comprised in the East Punjab on account of civil disturbances or the fear of such disturbances, or the partition of the country, do vest in the Custodian;

2. The shares held in the Co. by Muslims who even before the partition resided within the territories now comprised in Pakistan, but who, for the reasons mentioned above, are unable personally to supervise or to watch their interests in or enforce their right to such shares also vest in the Custodian ;

3. The vesting of the aforesaid shares of both descriptions in the Custodian involves the vesting in him of the totality of their rights and liabilities in respect of such shares including the right to convene a meeting, the right to make a requisition for a meeting being convened, and the right to vote at a meeting when convened : 4. However, the custodian cannot exercise any of the aforesaid rights except after having his names registered in place of the names of the evacuee share-holders;

* * * * *

4. The petn. is still pending and beyond the findings which were given in this order dated 15-7-1949, excepting that incidental orders have been passed, nothing has been finally decided. It was against this order that leave to appeal to the S. C. was sought.

5. By way of preliminary objection it was submitted by the learned counsel for the resp. that the petn. was barred by time. Reliance was placed on sub-s. (2) of S. 12, Limitation Act, which says:

"In computing the period of limitation prescribed for

.... an appln. 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 appln. has become barred by time.

6. Mr. Ved Vyas for the petnrs. wanted to bring this appln. for leave to appeal firstly under Art. 133 of the Constitution and then under the amended S. 109 (b), Civil P. C. An objection was taken that both these provisions will not apply because the order was passed before the Constitution came into force or Cl. (b) of S. 109 was amended. Appeal is a substantive right and ordinarily it should be governed by the law in force at the time an order sought to be appealed against is made or when the original proceedings started, and unless Art. 133 of the Constitution has a retrospective effect or the new amendment of the section of the Code has a similar effect a petnr. cannot have a right to appeal under those provisions. Reliance was placed on a judgment of their Lordships of the P. C. in Delhi Cloth and General Mills Co., v. Income-tax Comr., Delhi, 9 Lah. 284 : (a. i. R. (14) 1927 P. c. 242) where at p. 290 Lord Blanesburgh observed :

"The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the Colonial Sugar Refining Go. v. Irving, ( 1905) a. c. 369 : ( 74 L. J. p. C. 77), where it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights."

7. In Rishindra Nath v. Sakti Bhusan, 54 C. W. n. 793 : (a. I. R. (37) 1950 Cal. 512), this case was followed where a revn. was sought of an order passed by the Chief Judge of the Ct. of Small Causes under Art. 227 of the Constitution, It was there held that that Article was not retrospective. Art. 133 of the Constitution also is not retrospective and would not apply to the facts of this case. But even if it did, there would be no right to appeal under S. 109 (b), Civil P. C. 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 Art. 133 of the Constitution or in S. 109 (b), Civil P. C , must have some meaning and must be differentiated both from the decree and final order. Tbis word as used in Art. 133 of the Constitution has recently been interpreted by a judgment of Harries C. J., and Mitter J. in Chandra Singh v. Midnapore Zemindary Co. Ltd., 54 C. w. n. 874 : (A. i. R. (38) 1951 Cal. 300) 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-cl. (c) of S. 109 i. e., an appeal against an interlocutory order.

8. Under S. 109 (c), Civil P. C. there are certain difficulties which the petnrs have to get over. In the first place, it has been held that leave under 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. 4000 and it was held by their Lordships interpreting S. 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 Ct., is a judicial process which could not be performed without special exercise 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 H. 0. 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.

9. The Calcutta H. C. in Binoy Krishna v. Satish Chandra, 31 C. W. N. 540: (A.I.R. (14) 1927 Cal. 481) has held that leave to appeal against interlocutory order should be given sparingly Bankin J., there observed at p. 549:

"Interlocutory orders are certainly within the ambit of cl. (c) of S. 109 ; but what Lord Hobhouse in Banarsi v. Kashi, 23 All. 227 and Lord Buckmaster in Radha Krishna v. Swaminatha, 44 Mad. 293: ( A. i. R. (8) 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 cases, e. g., as to caste rights which are not capable of being valued in terms of money. There are, however, two cases in this Ct. as to interlocutory orders Darma Coal Co. v. Benares Bank, 21 C.L.J. 281; ( A. I. R. (2) 1915 Cal. 624) and Shiva Prasad v. Prayag Kumari, 49 Cal, 967 : ( A. I. R. (9) 1922 Cal 479) (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 not be protracted by granting leave to appeal from orders passed in them inasmuch as that would make the litigation oppressively expensive and postpone the real elucidation of the facts by a trial of the suit.

10. In Govind Das v. Mt. Indrawati, I. L. R. (1940) ALL. 11 at p. 16: (A.I.R. (27) 1940 ALL. 38), it was observed that

"Cl. (c) of S. 109 applies even to interlocutory orders and in appropriate cases such orders can be made the subject of an appeal to His Majesty in Council."

Before leave to appeal can be granted the Ct. 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 substantive 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 Ct., ordinarily leave to appeal ought not to be granted."

11. In Srinibash Prosad v. Kesho Prosad, 10 I. c. 444 : (13 c. L. J. 681), it was held that S. 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 Ct. and that also sparingly. Quite recently in Radhakisan Laxminarayan Toshnival v. Sridhar Ramchandra Alshi, A. I. R. (37) 1950 Nag. 177, it was held that the Ct. had discretion in granting leave under this section. The petnrs. 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.

12. It was next submitted by Mr. Ved Vyas that the decision of this Ct. affected the rights of a large number of people inasmuch as a decision had been given as to the situs of a Co. and whether shares held in a Co. were or were not evacuee property and in order to succeed on this point he has to show that the case is a fit one for appeal under the section. This phrase has been interpreted as being one which is of great public or private importance: see Banarsi Prosad v. Kashi Krishna Narain, I. L. R. 23 ALL. 227. It is not a case which would fall 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 Ct. on the first issue dealing with the change of regd. office from Batala to Lahore is wrong, but it was submitted that the case is one of great private importance because the finding of the Ct. 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 Mahesh Pratap Narain Singh v. Mt. Sadhana, A. I. R. (30) 1943 Oudh 266 : (204 I. C. 608), it was held that

"the mere existence of a substantial question of law does not give jurisdiction to give leave to appeal under cl. (c), S. 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 be 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 H. C. in Raja of Ramnad v, Tiruneelakantam, A. I. R. (10) 1923 Mad. 232 : (72 I. C. 250), Kesava Mudaliar v. Govindachariar, 76 I. C. 811 : (A. I. R. (11) 1924 Mad. 231), 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 S. C. 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 applns. which will prevent the decision of the S. C. being final on general questions connected with the mere construction of agreements which do not raise 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 S. C. 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 appln. was, therefore, refused by their Lordships.

13. In reply to this part of the argument Mr. Gossain submitted that the law with regard to evacuee property was now contained in a Central Act - the Administration of Evacuee Property Act, XXXI [31] of 1950. S. 2 (d), defined an "evacuee" and S. 2 (f) defines "evacuee property". S. 7 of the Act gives the power to the Custodian after certain preliminaries have been gone into for deciding whether any property is or is not evacuee property. S. 10 (1) makes provisions for the vesting of shares in custodian and gives him the power to exercise certain powers of a holder of shares of a particular Co. S. 28 gives a finality to the orders made by a Custodian in virtue of the powers conferred on him by the Act. The decision of this Ct. on the question whether in a particular set of circumstances, shares are or are not evacuee property or vest or do not vest in the Custodian is not a matter of such great importance as to fall within S. 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-founded and must be given effect to.

14. Mr. Ved Vyas then relies on certain cases to show in what circumstances this Ct. should give leave to appeal to the S. C. The principles, I think, are by now well established. The only question is whether his case falls under any one of these principles. In my opinion, it does not.

15. I feel greatly obliged to the counsel who argued Civ. Misc. No. 46-C of 1950, Messrs Gokal Chand-Gain Chand v. Messrs Ishar Das Durga Das, and who discussed all the various cases and aspects which are relevant in deciding the question of leave to appeal to the S. C. the majority of the cases that I have discussed above were really those which were cited in that case.

16. The petn., therefore, fails and I would dismiss it with costs.

17. Khosla, J. :- I agree.

Petition dismissed.

The Batala Engineeri... v. Custodian Evacuee Pr...