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.