1. ' SALEEM AKHTAR, J.---This judgment will dispose of all the aforesaid appeals which arise from the same judgment and common questions of law and facts are involved. The appellant with the leave of the Court has challenged the judgment of the High Court of Sindh passed in Appeal No,12/80 filed by the respondents and Miscellaneous Appeal No, 15/80 filed by the appellant. Both these appeals were allowed by the learned Judge in Chamber by the impugned judgment. The leave has been granted merely to consider the question whether an appeal filed before the High Court was maintainable under the provision of Life Insurance (Nationalization) Order. The related questions such as waiver, estoppel and consent to jurisdiction and bar of jurisdiction under Article 45 were also to be considered. Since the controversy is restricted to right of appeal under the Order only necessary facts relevant to it are stated.
2. ' On promulgation of Life Insurance (Nationalization) Order, 1972 (hereinafter referred to as the 'Order') on 20th March 1972, the management of respondent No,1 'Insurance Company' vested in Federal Government of Pakistan as provided by Article 4 of the Order. Under Article 15 of the Order from 1st November, 1972 all the assets and liabilities pertaining to the Life Insurance business of respondent No,1 stood transferred and vested in the Federal Government. The appellant carried out examination and inspection of the books of accounts of respondent No,1 and found that funds and assets were misused by the respondents. Accordingly, the appellant filed an application before the Insurance Appellate Tribunal claiming various amounts against respondent No,1, its director and other respondents. The respondents disputed the claim but the Tribunal held serveral amounts claimed by the appellant payable by the respondents. In respect of one issue in which Rs,4,59,363 were claimed only Rs,25,000 (twenty-five thousand) without interest was decreed. The appellant filed appeal before the High Court against the award of Rs,25,000 only while the respondents filed appeal against the claim which had been decreed against them. Both the appeals were allowed to the extent of the amounts mentioned therein.
3. ' The appellant filed one petition challenging the judgments of the High Court. At the time of hearing the petition for leave to appeal, considering that there were two appeals which were diposed of by the High Court and only one petition was filed, the learned counsel for the appellant stated that he would press the petition only against the judgment delivered in Miscellaneous Appeal No,12 of 1980 filed by respondents and not against the judgment passed in Miscellaneous Appeal No,15 of 1980. In these circumstances, leave to consider the question stated above was granted.
4. ' Mr. Mohsin Tayebaly the learned counsel for the appellant contended that under the Order no appeal is provided from order of the Insurance Appellate Tribunal passed in application under Article 22 of the Order. Article 22 provides for the relief the appellant can seek in respect of certain transactions of the insurer. It also provides that such claim can be filed before the Tribunal which may make such order against any of the parties to the application as it thinks just having regard to the extent of responsibility for the transaction or benefit derived from it and all other circumstances of the case. It is clear that Article 22 does not provide for an appeal against the order passed by the Tribunal. The learned counsel then contended that Article 38 of the Order makes certain provisions of the Insurance Act applicable to the Order including section 110 under which appeal could be made.
5. ' Section 110 has been made applicable only in cases where "the Federal Government has also entrusted to the Claim Settlement Board the settlement of disputes relating to life insurance claims." The contention of the learned counsel is that applicability of section 110 which provides for an appeal is limited to particular cases in which the present case does not fall. To properly appreciate the contention of the learned counsel Article 38 is reproduced as follows: "38. Applications of the Insurance Act. --(1) The following sections of the Act shall, so far as may be, apply to a Corporation as they apply to any other insurer, namely section 3B (in so far as it relates to reinsurance, 3BB, 3D, 3E, 10, 11,12A, 13, 14, 15, 20, 21, 22, 23, 25, 27, 28, 29, 30, 33, 34, 35, 36, 37, 38, 39, 40, 40A, 40B, 42, 42A, 43, 44, 45, 46, 47A, 47B, 47C to 47L and where the Federal Government has also entrusted to the Claims Settlement Board the settlement of disputes relating to life insurance business claims, sections 50A, 102 to 110, 110C, 111, 113, 114 and 116A.
(2) The Federal Government may, by notification in the Official Gazette, direct that all or any of the provisions of the Act other than those specified in clause (1) shall apply to a Corporation subject to such conditions and modifications as may be specified in the notification."
6. ' As according to the learned counsel section 110 does not contemplate an appeal from the type of the order which was passed by the Tribunal and was impugned by both the parties in the High Court, it is necessary to examine this provision also which reads as follows: "110. Appeals.--(1) Except as otherwise provided in this Act, any person aggrieved by any order, direction or decision in respect of the following matters may within a period of thirty days from the date of the communication of such order, direction or decision appeal against it to the Insurance Appellate Tribunal constituted under subsection (2) namely:--
(a) withholding of registration under section 3;
(b) cancellation of registration under clause (f) or clause (g) of subsection (4) of section 3;
(c) alteration of memorandum and Articles of Association under section 3-B;
(d) the mortality table, the statement of yield and the level of expenses published under subsection
(3) of section 3-BB on the basis of which the rates of premium are required to be determined;
(e) withholding a certificate under section 3D for insurance or reinsurance outside Pakistan;
(f) modification of reinsurance treaty or reinsurance arrangement under subsection (6) of section 3D;
(g) change of name under section 5;
(h) any order issued under section 21;
(i) modification of remuneration under subsection (1) of section 32A;
(j) any direction under section 34A;
(k) removal of a director, manager or other officer under section 34C;
(1) refusal to issue or renew, or cancellation of, a licence under section 42;
(m) refusal to issue or renew or cancellation of, a certificate under section 42A;
(n) termination of a contract of an agent or employer of agents by an insurer;
(o) refusal to issue or renew; or cancellation of, a certificate under section 44A;
(p) refusal of cancellation of registration under section 70;
(q) refusal to renew registration under subsection (1) of section 70A;
(r) imposition of penalty under subsection (4) of section 70A;
(s) refusal to register amendment of rules under section 75;
(t) direction to remedy defects under section 87; and
(u) refusal to sanction a scheme under section 87A.
(2) The Federal Government shall, for the purpose of hearing appeals under subsection (1), constitute an Insurance Appellate Tribunal consisting of such number of members not exceeding seven, including a Chairman as it may appoint.
(3) The Chairman shall be a person who is qualified to be a Judge of the High Court and the other members shall be persons possessing such qualifications and experience as may be prescribed.
(4) The Chairman and other members shall hold office for a period of three years from the date of appointment on such terms and conditions as may be prescribed.
(5) The Chairman may constitute such number of Benches of the Tribunal as may be necessary for the expeditious disposal of appeals under subsection (1); and each such Bench shall consist of such number of members not less that two, as may be prescribed.
(6) Subject to the provisions of this Act and the rules made thereunder the Tribunal shall regulate its own procedure and 'shall for the purpose of hearing an appeal have the same powers as are vested in a Civil Court trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of the following matters namely:--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any documents;
(c) receiving evidence on affidavits; and
(d) issuing commissions for the examination of witnesses or documents.
(7) .If, in the course of the hearing of an appeal, any member of the Tribunal ceases, for any reason, to hold office the proceedings of the Tribunal shall be stayed and the Federal Government shall appoint another member in his place; and the hearing may continue before the Tribunal from the stage at which it was stayed as if there has been no change in the membership of the Tribunal.
(8) If, in the course of the hearing of an appeal, any one of the members is, for any reason, unable to attend the sitting of the Tribunal, the hearing shall continue before, and the decision may be given by the remaining members.
(9) If upon any matter requiring the decision of the Tribunal there is difference of opinion amongst its members, the opinion of the majority shall prevail and the decision of the Tribunal shall be expressed in terms of the views of the majority: ' Provided that where the members are equally divided on any point it shall,---
(a) in the case of the Tribunal or of a Bench of which the Chairman is a member, be decided in accordance with the views of the Chairman; and
(b) in the case of a Bench of which the Chairman is not a member be referred to the Chairman and decided in accordance with the views.
(10) The Tribunal shall be deemed to be Civil Court for the purpose of section 195 of the Code of Criminal Procedure, 1898 (Act V of 1898), and a Court subordinate to High Court within the territorial limits of whose jurisdiction the Tribunal sits to hear an appeal for the purpose of the Contempt of Courts Act, 1926 (XII of 1926), and any proceedings before the Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Pakistan Penal Code (Act XLV of 1860).
(11) The Tribunal may issue a stay order against any order of the Federal Government or the Controller of Insurance.
(12) Any person aggrieved by a decision of the Tribunal may appeal to the High Court if the case is certified by the Tribunal in the prescribed manner, to be a fit one for appeal to the High Court.
(13) In this section, unless the context otherwise requires,---
(a) "Chairman' means the Chairman of the Tribunal;
(b) "member" means a member of the Tribunal; and
(c) "Tribunal" means the Tribunal constituted under subsection (2) and includes a Bench thereof constituted under subsection (5);"
7. It is true that by Article 38 the applicability of section 110 is limited to cases where Federal Government has entrusted to the Claims Settlement Board, the settlement of disputes relating to life insurance business claims. Therefore merely on the basis of Article 38 and section 110 an appeal could not be filed.
8. ' Mr. Mansoorul Arlin, the learned counsel for the respondents contended that the right of appeal was conferred on the respondent by virtue of Article 40-A of the Order which was introduced at a later stage. Article 4-A reads as follows:- "40-A. Conduct of Tribunal's proceedings and enforcement of order. --(1) For the conduct and disposal of proceedings under this Order, the Tribunal shall have the same powers as are vested in it under section 110 of the Act, including the power to regulate its own procedure, and may review any of its decisions in the event of there being a mistake apparent on the face of the record or correct any arithmetical or clerical error therein.
9. (2). Any decision of the Tribunal shall be enforced in the principal Court of civil jurisdiction within whose local limits the insurer or other person against whom the decision is to be enforced has its principal place of business or, as the case may be, actually and voluntarily resides and carries on business or personally works for gain or owns any property, as if it were a decree passed by that Court."
10. This Article was added in the yeat 1973. It provides for conduct of proceedings and confers on the Tribunal all the powers contained in section 110 of the Act and the power to review its decision or to correct any arithmetical or clerical error. Section 110 (12) provides that any person aggrieved by a decision of the Tribunal may appeal to the High Court if the case is certified by the Tribunal to be a fit case for appeal to the High Court. Article 38 applied section 110 to cases of limited nature specified therein but in respect of other claims, orders and cases no provision for appeal was made in the Order. Perhaps realising this deficiency and practical difficulty in the enforcement of the provision of the Order amendment was brought by Act XLVII of 1973 Life Insurance (Nationalization) (Amendment) Act, 1973 gazetted on 29th September 1973 to inter alia provide for remedy against the order passed by the Tribunal. However, this remedy has been restricted with the condition that the right of appeal is subject to certification by the Tribunal. Unless leave is granted by the Tribunal no appeal can be filed. Article 40-A was added with the intention to regulate the conduct and disposal of proceedings' under the Order. Therefore the powers of the Tribunal as provided by section 110 have been specifically incorporated in the Order, such provisions of this Article shall be deemed to have been lifted and embodied in the Order. One of these provisions is subsection (12) which provides for appeal.
11. ' Mr. Mohsin Tayebaly contended that if the effect of Article 40-A is to confer a right of appeal then that part of Article 38 which applies section 110 will be redundant. The fear expressed is unfounded.
12. As discussed above Article 38 applies section 110 to the Corporation in a limited manner to the specified case. It further makes applicability of section 110 subject to notification issued by the Federal Government which may impose such conditions and modifications on its applicability as may be specified in the notification. Where any statutory law is changed there is a presumption that it affects change in the legal rights to the extent provided by such amendments. The amending provisions have to the read alongwith the unamended provisions as they are part of the same Act. Sutherland in Statutory Construction, 3rd Edition, Vol. III at page 412 writes as under: "Because it is defined as an Act that changes an existing statute, the Courts have declared that the mere fact that the Legislature enacts an amendment indicates that it thereby intended to change the original Act by creating a new right or withdrawing an existing one. Therefore, any material change in the language of the original Act is presumed to indicate a change in legal rights.
13. ' The Legislature is presumed to know the prior construction of terms in the original Act, and an amendment substituting a new term or phrase for one previously construed indicates that the judicial or executive construction of the former term of phrase did not correspond with the legislative intent and a different interpretation should be given to the ne y term or phrase. Thus, in interpreting an amendatory Act there is a presumption of change in legal rights. This is a rule peculiar to amendments and other Act purporting to change the existing statutory law...And as to changing statutory law there is a presumption against the implied repeal or amendment of any existing statutory provision. In accord with this conservative attitude, an amendatory Act is not to be construed to change the original Act or section further than expressly declared or necessarily implied."
14. ' Further, Crawford in Statutory Construction has observed as follows: "Since an amendment, becomes a part of the original statute, both must he construed together as if they constituted one enactment, even if the amendment occurs merely by implication. Their provisions should be harmonized, if possible, but where there is irreconcilable conflict, the provisions of the amendment must prevail over those of the original statute on the theory that the former constitutes the last expression of the will of the Legislature. The amended statute should also be construed as if it had been originally passed in its amended form, since the amendment becomes a part of the original enactment. And words used in original statute should, at least be presumed to be used in the same sense in the new statute."
15. The amending Act does not have the effect of changing the original law more than what has expressly been declared or can be necessarily implied. Legislature could not incorporate something in the Act which would be inconsistent or repugnant to the object of the Act. The amendment made provided for the right of an appeal by any person aggrieved by an order passed by the Tribunal. It does not in any manner come in conflict with the object of the Order nor is it irreconcilable with other provisions of the statute.
16. Subsection (12) of section 110 confers on any person aggrieved by the decision of the Tribunal a right of appeal to the High Court provided the case is certified by the Tribunal to be a fit one for "appeal to the High Court". This provision not only provides a right of appeal but specifies that it shall lie to the High Court. Where a substantive right has been provided, remedy must follow. The law does not provide right in vacuum. The fact that the law confers right of appeal to be filed in a particular Court without any specific declaration that such Court was not to exercise jurisdiction in such matter the said Court shall have the jurisdiction to entertain, hear and decide the appeal and enforce the right. Reference can be made to Mary Board v. William Board (AIR 1919 P.C. 233). In this case an Act set up a Supreme Court of the Province of Alberta and the right of divorce was part of the substantive law of the territory. The question arose whether Supreme Court has the jurisdiction in matrimonial causes including divorce. Holding in the affirmative it was observed: "The right to divorce had, before the setting up of a Supreme and Superior Court of record in Alberta, been introduced into the substantive law of the Province. Their Lordships are of opinion that, in the absence of any explicit and valid legislative declaration that the Court was not to exercise jurisdiction in divorce, that Court was bound to entertain and to give effect to proceedings for making that right operative."
17. ' If the right exists, the presumption is that there is a Court which can enforce it, for if no other mode of enforcing it is prescribed, that alone is sufficient to give jurisdiction to the King's Courts of Justice.
18. In order to oust jurisdiction, it is necessary, in the absence of a special law excluding it altogether, to plead that jurisdiction exists in some other Court."
19. The respondent had the right of appeal as provided by section 110 (12) and incorporated in the Order by virtue of Article 40-A which could be filed before and determined by the High Court. The appeal is dismissed with no order as to costs.