' AMIR-UL-MULK MENGAL, J.---This is an appeal filed under section 3 of the Law Reforms Ordinance, 1972 read with section 10(2) of the Companies Ordinance, 1984 and section 15, C.P.C. (as amended) against the order of the Single Judge of this High Court dated 22-11-1992 by which Civil Petition No,2 of 1992 has been dismissed.
2. Similarly High Court Appeal No,3 of 1993 titled Industrial Development Bank of Pakistan v. M/s. Sarela Cement Limited has been filed challenging a similar order passed by a Single Judge of this Court dated 4-4-1993 in Civil Petition No,3 of 1992.
3. Since a common question of law as regards maintainability of both the appeals before a Division Bench of this Court is involved, therefore, it is thought proper and expedient to dispose of both these appeals by this common judgment.
4. Before proceeding further it is important to point out that at the time of admission an observation was made that the appeals are admitted subject to all just exceptions about maintainability of appeal as apparently, no provision exists for filing the same before a Division Bench of this Court under the Companies Ordinance, 1984. It was thus made clear that in the event of appeal being incompetent failure of appellant to approach the Hon'ble Supreme Court within the prescribed period shall be at the risk of the appellant.
5. In the impugned judgment passed by the Single Bench the petition for winding up of the respondent under section 305 of the Companies Ordinance, 1984 was dismissed in Civil Petition No,3 of 1992. Similarly Civil Petition No,2 of 1992 has also been dismissed vide order dated 22-11-1992, which was also a petition for winding up of the respondent company under section 305 of the Companies Ordinance, 1984. The abovementioned two appeals have been filed challenging the dismissal order for winding up of the companies.
6. Heard Mr. A. I. Chundrigar, Advocate for appellants and Mr. Basharatullah for respondents.
7. The pertinent question was competency of appeals before a Division Bench in view of the fact that section 10 of the Companies Ordinance, 1984 provides an appeal before the Hon'ble Supreme Court. For the sake of convenience the above provision is reproduced hereinbelow:-- "10. Appeals against Court orders: --(1) Not Withstanding anything contained any other law, an appeal against any order, decision or judgment of the Court under this Ordinance shall lie to the Supreme Court where the company ordered to be wound up has a paid up share capital of not less than one Million rupees and, where the company ordered to be wound up has a paid up capital of less than one million rupees, or has no share capital, such appeal shall lie only if the Supreme Court grants leave to appeal.
(2) Save as provided in subsection (1), an appeal from any order made or decision given by the Court shall lie in the same manner in which and subject to the same conditions under which appeals lie from any order or decision of the Court.
(3) An appeal preferred under subsection (2) shall be finally disposed of by the Court hearing the appeal within ninety days of the submission of the appeal."
From plain reading of the abovementioned section it becomes clear that an appeal against any order, decision or judgment of the Court under this Ordinance shall lie to the Supreme Court where the company ordered to be wound up has a paid up share capital of not less than one million rupees, and where the company ordered to be wound up has a paid up capital of less than one million rupees or has no share capital such appeal shall lie only if the Supreme Court grants leave to appeal. Subsection (2) makes it further clear that an appeal from any order made or decision given by the Court shall lie in the same manner in which and subject to the same conditions under which appeals lie from any order or decision of the Court. The Court has been defined under section 2 of subsection (11) of the Ordinance which means, the Court having jurisdiction under this Ordinance.
8. The question calling for determination is whether appeal against the judgment of the Company Judge lies before the Supreme Court or an Intra Court Appeal is maintainable before Division Bench of this Court.
9. According to Mr. A. I. Chundrigar, Advocate an appeal is competent under section 10(1) to the Supreme Court only in case where the order of winding up of the company has been passed by the Company Judge as of right where the company ordered to be wound up has a paid up share capital of not less than one million rupees and by leave where the company ordered to be wound up has a paid up capital of less than one million rupees, or has no share capital. After perusal of the relevant section we fully agree with the argument so advanced, as the same is evident from bare perusal of section 10(1) of the Companies Ordinance, 1984. But the real controversy cropped up when it was argued that if a petition filed for winding up of a Company is dismissed, no appeal is provided under section 10 of the Companies Ordinance, before the Hon'ble Supreme Court. The learned counsel in order to supplement the above contention relied on a reported judgment of Hon'ble Supreme Court (1993 SCM R 80).
10. From perusal of the aforementioned judgment we found that an application under sections 153 and 153-A of the Companies Act was filed for reconstruction/re-organization of the Company.
During the course of proceedings an order was passed by the learned Judge wherein learned counsel appearing for the Creditor Banks stated that they had no objection to the bifurcation/re- organization of S. Muhammad Din and Sons (Private) Ltd., into four companies as indicated. In any case it was not at all a case of winding up of a Company, therefore, the Hon'ble Supreme Court in concluding and operative para. Ruled as under:-- "7. Contention of learned counsel for the respondents is valid as an appeal against an order of a learned Company Judge is only competent where an order or decision has been made in proceedings when the company has already been ordered to be wound up. In the case in hand there is no order of winding up of the company. The application out of which these proceedings arise was filed for reconstruction/re-organization. For such purpose provision is provided in Part IX whereas the provision for winding up is in the Part XI of the aforementioned Ordinance, 1984. The two sets of provisions are separate and distinct. Therefore, appeal against the impugned (vier is not competent. Hence, it is dismissed."
' The ratio decided of this judgment in our calculated view is inapt to the facts of the present case which is a case of a winding up but the prayer for winding up has been dismissed. As is evident from the operative portion of the aforementioned judgment (supra) that for such purpose provision is provided in Part IX whereas the provision for winding up is in the Part XI of the aforementioned Ordinance, 1984. The two set of provisions are separate and distinct, therefore, appeal was not competent. But here as pointed out earlier, the application was for winding up, thus under Part XI of the Ordinance. This case, therefore, lends no support to the proposition formulated in the present appeals. Our attention was then drawn to PLD 1991 Lah.
467. This is a Division Bench Judgment of Lahore High Court which has taken into consideration Law Reforms Ordinance XII of 1972. In this judgment the learned Judges of the Division Bench dismissed the appeal with the following observations:-- "We are unable to agree with the contention raised as above. A plain reading of section 10(1) of the Companies Ordinance, 1984 shows that appeal against any order, decision or judgment of the Court passed under the Ordinance shall lie to the Supreme Court where the company ordered to be wound up has a paid up share capital of no less than one million rupees; and, where the company ordered to be wound up has a paid up capital of less than one million rupees, or has no share capital, such appeal shall lie only if the Supreme Court grants leave to appeal."
' However, the pertinent observation which has much relevance has been made on page 469 and is hereby reproduced for ready reference:- "4. The learned counsel while relying on the cited judgment of the Sindh High Court has stated that aforementioned provision viz. Section 10(1) should be read so as to be only applicable where a winding up order is to be challenged. Such a contention on the face of it is not tenable as the words used in section 10(1) in unequivocal and unambiguous terms are 'appeal against any order, decision or judgment of the Court ' The word 'any' has a significant meaning and cannot be thrown out as redundant; it being the cardinal principle of interpretation that every word used in a provision has to be given effect unless there be any repugnancy or contradiction. Such a situation is not prevailing in the case in hand and therefore, word 'any' has to be read in the provision which has sweeping connotation to cover all orders, decisions or judgments of the Court passed under the Ordinance when the winding up order has already been made. The appeal envisaged by section 10(2) to our mind appears to be in such a case where the winding up order has not yet been passed. The two provisions viz. Subsection (1) and subsection (2), therefore, stand reconciled that in case an appeal is to be preferred against any order, decision or judgment when an order of winding up has been passed, it will lie to the Supreme Court of Pakistan whether in the shape of appeal or petition for leave to appeal as the case may be and subsection (2) of section 10 will be attracted in respect of an order when winding up has not already been directed. This 'aspect of the matter was neither in issue in the cited judgment of the Sindh High Court nor has been discussed."
11. From the above discussion it is concluded that section 10(1) and section 10(2) of the Companies Ordinance, 1984 stand reconciled and are not contradictory to each other. In section 10(1) an appeal shall lie as of right to the Supreme Court against an order for winding up provided company ordered to be wound up has a paid up share capital of not less than one million rupees whereas such appeal shall lie by leave where the company ordered to be wound up has a paid up capital of less than one million rupees or has no share capital. But as far as section 10(2) is concerned, an appeal shall lie in the same manner as regards any order passed, decision made or judgment given under Chapter XI of the Companies Ordinance, 1984 meaning thereby that if the Court is pleased to dismiss a petition for winding up, an appeal shall lie to the Supreme Court as is appealable under section 10(1) of the said Ordinance and subject to the same conditions. Thus, in our calculated estimation in case the Court does not pass a winding up order but dismisses the petition for winding up, then section 10(2) of the Companies Ordinance is attracted. Thus, an appeal before a Division Bench of this Court is not maintainable in view of the clear provisions as discussed hereinabove.
12. Learned counsel then relied on section 3 of the Law Reforms Ordinance, 1972 (Ordinance XII of 1972) as substituted by Law Reforms (Amendment) Act (Act VIII of 1972) reported in PLD 1972 Central Statute 783 which reads as under:-- "3. Appeal to High Court in certain cases. ---(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in exercise of its original Civil jurisdiction.
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (2) of Article 201 of the Interim Constitution of Islamic Republic of Pakistan, not being an order made under subparagraph (i) of paragraph (b) of that clause: ' Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 201 arises out of any proceedings in which the law applicable provided for at least one appeal to any Court, Tribunal or Authority against the original order.
(3) No appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court.
(4) Nothing contained in this Ordinance shall be construed as affecting:--
(a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908), which was pending immediately before the commencement of this Ordinance; or
(b) any appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972."
The plain reading of the above section makes it crystal clear that an appeal to a Bench of two or more Judges has been provided for, against a decree passed or final order made in exercise of original civil jurisdiction (underlining is ours). Obviously jurisdiction under Companies Ordinance, was not in exercise of original civil jurisdiction but under a special statute, therefore, ex facie an appeal is not competent before a Division Bench of this Court. This view is fully supported by PLD 1988 Peshawar 19 in which the legal history has been traced ably and it was concluded that the legislature has intentionally used the word "original civil jurisdiction". This view is further supplemented by PLD 1980 Lah.
69. The relevant provisions of both the aforementioned judgments are reproduced here in below:-- ' PLD 1988 Pesh.
19.
"When Letters Patent Appeals were abolished, then a right of appeal to a Bench of two or more Judges of the High Court was given to challenge the order finally disposing of the matter by a Single Judge in exercise of the original Civil jurisdiction of the High Court and then in the year 1980 an appeal was also allowed to a Bench of two or more Judges of the High Court from an interlocutory order passed by a Single Judge of the Court in the exercise of its original Civil jurisdiction. It should be clearly understood that the appeal which was allowed to be made by the amending Ordinance of 1980 was with regard to an interlocutory order made by a Single Judge in the exercise of its original civil jurisdiction of the High Court. The appeal was allowed only with regard to the assumption of jurisdiction by a Single Judge of the High Court exclusively in original civil matters pending before him. In both the amending Ordinance and the amending Ordinance of 1980 the emphasis was on the proceedings pending in the exercise of original civil jurisdiction by the High Court and decidedly the exercise of original civil jurisdiction by the High Court is under the provisions of the Code of Civil Procedure."
' PLD 1980 Lah. 69 relevant page 78.
"28. With the above background of the various provisions of the Companies Act it will be seen that the powers of the High Court under the Companies Act are not that of a Court of 'original civil jurisdiction' but are, in fact, powers of a statutory nature conferred on the High Court as such by a special statute.
29. The expression 'original civil jurisdiction' has been the subject of judicial interpretation in a judgment of the Supreme Court, Ahmad Khan v. The Chief Justice and the Judges of the High Court, West Pakistan (PLD 1968 SC 171). It has been held in the said judgment that this expression was confined to the trial of suits arising within the local limits of that jurisdiction. The relevant portion of the aforementioned judgment as it appears at page 181 is reproduced hereunder:-- ' Speaking with great respect, the mere fact of a matter coming directly before the High Court under a law would not suffice to bring it within the ordinary original civil jurisdiction, however, frequent such occasions may be, if the words in clauses 12 and 13 of the relevant Letters Patent be given their full effect. The ordinary original civil jurisdiction was confined to the trial of suits arising within the local limits of that jurisdiction. The extraordinary original civil jurisdiction was given for the removal and trial of suits pending or falling within the jurisdiction of Courts subordinate to the High Court. Every other jurisdiction of a civil nature conferred by the Letters Patents would, as contended by the learned Attorney-General, be statutory jurisdiction, since some of those jurisdictions were to be exercised under existing statutes. In the case of the Lahore High Court, there was no power to receive suits in the ordinary civil original jurisdiction, there being no provision in the relevant Letters Patent in that behalf. The Lahore High Court had testamentary and intestate jurisdiction to be exercised in accordance with law, and matrimonial jurisdiction exercisable under its own law. The jurisdiction Of a general nature that it possessed was that conferred by clause 9 and described as extraordinary original jurisdiction, which was confined to power to remove and try suits pending before the subordinate Courts.'
30. Inasmuch as the orders passed in winding up proceedings under the Companies Act cannot be described as having been passed in exercise of original civil jurisdiction within the meaning of subsection (1) of section 3 of the Law Reforms Ordinance, the inhibition against maintainability of appeals from certain orders as contained in subsection (3) will not operate in bar of an appeal against orders passed under the Companies Act."
Thus, it has become clear that appeal under section 3 of the Law Reforms Ordinance, as amended is not maintainable in view of the inhibition embodied in this section.
13. The third contention raised as regards maintainability of the appeal was that as per section 15 of Ordinance X of 1980 (i,e, Code of Civil Procedure (Amendment) Ordinance, 1980 an appeal shall lie to a Bench of two or more Judges of a High Court from an interlocutory order made by a Single Judge of that Court in the exercise of its original civil jurisdiction. Obviously this section has made appealable to a Bench of two or more Judges only an order which is interlocutory in nature and secondly which has been passed in exercise of its original civil jurisdiction. On both the counts appeal is not maintainable because neither the impugned order is an interlocutory order nor it has been passed in exercise of original civil jurisdiction. However, learned counsel relied on the case of Mirza Munawar Ahmad and another v. Official Liquidator and 3 others reported in PLD 1980 Lahore page 86. This case lends no support to the contentions raised by the counsel for the appellants as in para.14 of the judgment the Court clearly held as under:-- "It may be stated at the outset that section 3 of the Law Reforms Ordinance is not applicable to a company cases as held in. Eastern Company (Private) Ltd. v. Mst. Gul Begum."
' This observation is a complete reply to the dispute requiring determination.
14. From the aforementioned discussion the conclusions are that an appeal shall lie before a Bench of two or more Judges only when order passed, decision made or judgment given is in exercise of original civil jurisdiction but not in exercise of jurisdiction conferred on the High Court by a special statute such as Companies Ordinance. Furthermore, the Companies Ordinance contains provisions for appeal under section 10 which speaks of filing of appeal before Supreme Court, against any order passed under the said Chapter.
15. The upshot of the above discussion is that these appeals are not maintainable before a Division Bench of this Court, the same are thus dismissed as being filed incompetently. In fact the learned counsel for the appellant was apprised of this proposition of law but he pursued the appeal at his own risk and costs. Both the appeals are thus dismissed with costs.