MIAN ALLAH NAWAZ, J.--1. The primary issue, falling for determination in the instant four I.C.As. Nos.
3/L-91, 4/L-91, 2./L-95 and 5/L-95, at this stage, is whether a Bench of this Court comprising to or more than to Judges has the jurisdiction to entertain and decide these appeals filed under section 10(2) of the Companies Ordinance (No. XLVII of 1984) (hereinafter referred to as the 'Ordinance').
This issue has arisen out of the following circumstances; I.O.A. No. 3/L-91 and I.C.A. No. 4/L-91 call in question the order dated 14-11-1990^ whereby the learned Company Judge dismissed C.O. No. 1 of 1990 and 20 of 1990 rejecting the grayar for winding up respondent's company. I.C.A. No. 2/L-95, by Kay-Tax Mills Ltd., is directed against the order, dated 1-3- 1995, whereby the learned Company Judge dismissed the petition filed by the appellant under section 290 of the Ordinance and directed the appellant/Company to seek relief under section 8 of the Arbitration, Act before competent forum. I.C.A. No. 5/L of 1995 seeks to challenge the order dated 18-4-1995 whereby the learned Company Judge recalled his previous order and disallowed the application for grant of interim injunction/staying the proceedings in suit brought by respondent No. 1. It is common ground between the parties that no winding up order had been passed in all these matters and so these appeals had been preferred under sub-section (2) of section 10 of the Ordinance.
2. I.C.A. No. 2/L-95 was heard on 8-5-1995 and 14-5-1995. Ch. Rafique Ahmad Bajwa, Advocate the learned counsel for the respondents, raised objection that Intra-Court appeal before us was incompetent and it lay to Supreme Court. Dr. A Basit, Advocate on the contrary maintained that Intra-Court Appeal was competent before us. I.C.A. No. 5/L-95 was argued on 15-5-1995 and 16-5- 1995. Mian Nisar Ahmad, Senior Advocate, appearing on behalf of the appellants, supported the maintainability of the appeal. He was supported by Mr. M. Saleem Sehgal, Advocate who appeared on behalf of the respondent No; 2 in this '.C.A. Mr. Aftab Ahmad Khan Advocate, maintained that the I.C.A, under section 10(2) was not competent before this Bench but should have been filed in the Supreme Court, Mr. M. S. Baqir, Advocate also supported Mr. Aftab Ahmad Khan, Advocate, Dr. A.
Basit, Mr. Aftab Ahmad Khan and Mr. Saleem Sehgal, Advocates filed written notes in support of their respective contentions. Mian Nisar Ahmad and Mr. M.S. Baqir, Advocates, however, did. Not submit written submissions. I.C.A. No. 3/L-91 and 4/L-91 were argued by Mr. Hamid Ali Shah, Advocate. He adopted the line of arguments of Dr. A. Basit, Advocate.
3. The arguments, put forth in support of maintainability of these appeals before us, can be conveniently summarised as below: Firstly: that the word 'Court' used in sub-section (2) of section 10 of the Ordinance, was significant and it meant that appeal under section 10(2) was competent before Division Bench of this Court in the same manner as other appeals against orders/decision of Single Judge passed in ordinary original jurisdiction. According to the learned counsel, sub-section (1) of section 10 of the Ordinance, prescribed that orders/decisions enumerated therein were appealable before the Supreme Court. According to him, this will ensure expeditious disposal of Company matters by eliminating one forum. This sub-section was however, subject to conditions that the Company Judge had wound up the Company. While subsection (2) pertained to those orders which were {Missed by the Company Judge, before passing of winding up order. On this difference, it was suggested that the scope, of sub-section (1) of section 10 was wholly different from sub-section (2).
The object of section 10(2) of the Ordinance is to decide interlocutory matters as quickly as possible. According to the learned counsel the jurisdiction, of the Bench of this Court comprising to or more Judges, in such matters was not taken away.
Secondly: the words "same manner" and "subject to same conditions" in sub-section (2) of section 10, related to circumstances of presentation of appeals, their period of limitation and so on and so forth. These words did not mean that appeal envisaged under section 10(2) were to be filed before the Supreme Court as mandated by subsection (1) of section 10 of the Ordinance. Reliance was placed on in the matter of East India Cotton Mills Ltd. (1948) 52 C.W.N. 534, Mulk Raj v. Official Liquidator Peoples Bank AIR 1938 Lah. 658, Abdul Ghafoor v. Registrar, Joint Stock Co., Karachi PLD 1976 Kar.. 85 and Shankar Lai v. Shankar Lai AIR 1965 SC 507.
Thirdly: that the Court was to read section 10(2) of Ordinance alongwith section 2(11), sections 7, 8 and 9 of the Ordinance. On the reading of the above sections, according to the learned counsel, it was clear, that the order passed/decision made by the Company Judge, where the Company has not been wound up, was subject, to appeal before a Bench coni prising-to or more than to Judges of High Court. It was further stressed that section 3 of the Law Reforms Ordinance, 1972 was applicable to order made?/decision rendered ' which fell under section 10(2), notwithstanding the controversy that jurisdiction of Company Judge was statutory or ordinary original civil jurisdiction.
According to learned counsel, the jurisdiction of Company Judge, under Ordinance embodies all the attributes of Ordinary Civil jurisdiction. Reliance was placed On Tata Iron & S. Co. v. C. Revenue 1923 PC 148, Jyoti Bhushan v. Benqras Bank Ltd. AIR 1962 SC 403 and Muhammad Arjumand Malik and others v. Haji Abdul Ghani and others PLD 1967 Kar.. 44 Mr. M. Saleem Sahgal, in his written notes, submitted that the view taken in Eastern Company (Pvt.) Ltd. v. Gul Begum (PLD 1980 Lahore 69) was not correct.
4. The arguments, advanced by the learned counsel for the other side, can be summed up as follows:- Firstly: that the language of sub-section (2) of section 10 of the Ordinance is plain, unambiguous and it firmly states that the appeal under this subsection is subject to same manner and subject to same conditions prescribed in section 10(1) of the Ordinance. According to the learned counsel, the words 'same manner' and 'subject to same condition' clearly demonstrate that forum provided in section 10(1) was the same for appeals filed under section 10(2) of Ordinance. Strength was sought from sub-section (3) of section 10 of the Ordinance for this construction.
Secondly: that underlying object of section 10 was to provide mechanism for expeditious disposal of the company matters. In order to achieve afore-stated objectives, the learned counsel asserted, the appellate jurisdiction of the Division Bench of this Court was brought to an end under the Ordinance. Reliance was placed on Mulk Raj v. Official Liquidator Peoples Bank (AIR 1938 Lah. 658), Suraj Mian v. The Pioneer Bank Ltd. (PLD 1970 Dacca 648), M.Y. Siddique v. Bawaqar Company Ltd.
(PLD 1968 Kar.. 231), Abdul Ghafoor v. Registrar, Joint Stock Co., Karachi (PLD 1976 Kar.. 85), Ch. Jamil Ahmad v. Nippon Robbin Company Pakistan Ltd. (PLD 1991 Lah. 467), Muhammad Din and Sons Pvt.
Ltd. v. Allied Bank of Pakistan (1993 SCMR 80). Much reliance was placed on rule laid down in Ittifaq Sugar Mills Ltd. v. Mian Miraj Din and 22 others (PLD 1995 SC 320) to say that in this case the Supreme Court entertained a CPSLA against an interim order passed by the Company Judge directing that appointment of an Inspector by -Corporate Law Authority. This appeal was under section 10(2) of the Ordinance and was finally disposed of by the Supreme Court. On the above circumstances, it was contended that the appeal against an interim order passed under section 10(2) of the Ordinance was competent before the Supreme Court.
5. The preliminary issue, noted above, is a vexed question of law/pertaining to construction of section 10(2) of the Ordinance. Before proceeding further, we find it necessary to have brief chronological account of laws relating to Company matters. No doubt, the Company Laws, in the Sub-Continent, were patterned on the lines of their counter-part in England. British Parliament enacted English Companies Act in 1844. Pursuant to it, an Act for registration of Joint Stock Companies (Act XLHI of 1855) was promulgated in Sub-Continent. This was followed by Indian Companies Consolidation Act, 1913 (hereinafter shortly stated Act of 1913). With the dawn of independence, this Statute was continued with necessary amendments and adoption till 1984 when it was repealed by Companies Ordinance, 1984 (XLVII of 1984). This is, in all, the short history of Ordinance. A few words about Letters Patent and its successor Legislation that is the Law Reforms Ordinance, 1972. The various High Courts, in the Sub-Continent were constituted by British Government under the instrument known as Letters Patent issued in exercise of its power under section 108 of the Government of India Act, 1935. This instrument was continued thereafter and was continued by the Government of Pakistan with necessary amendments and by means of various adoption orders till 1972. In that year the Law Reforms Ordinances, 1972 was enacted on 14th April, 1972. By means of section 3 of this Ordinance, the Letters Patent appeals and second appeals in certain cases were abolished. Subsequently an amendment was made in this Law Reforms Ordinance, 1972 by amending Ordinance (No. .XXXIV of 1972) whereby section 3 was amended to provide for an appeal to the Bench of to or more Judges of the High Court from decree passed or final order made by a Single Judge of that High Court in exercise of its original civil jurisdiction. So appeal against interlocutory orders was not still provided. In year 1980, section 3 of the Ordinance was further amended by section 15 of the C.P.C. (Amendment Act X of 1980) whereby the appeals against the interlocutory order passed by a Single Judge of the High Court in exercise of its original civil jurisdiction was made appealable before a Division Bench.
6. Having briefly, recounted the history of Act, 1913, the Ordinance of 1984, the Letters Patent and Law Reforms Ordinance, 1972, we turn to the relevant provisions of a forenoted law and applicable case-law cited by the parties. The Act of 1913 contained to provisions relating to appeals i.e., section 153(7) and section 202. None of the afore stated provisions specified the forum for appeal. As the language of section 202 was unclear, it generated heated controversy before .The superior judiciary. We would not like to encumber this judgment with all those judgments, except the case reported in the matter of East India Cotton Mills Ltd. (AIR 1949 Cal. 69). This judgment has been treated as classic one on the subject. After comprehensively dealing with the arguments advanced by the learned counsel for the parties, the Division Bench held that the expression "in the same manner and subject to same condition" did not relate to forum of appeal but it referred to procedure for presentation of limitation for, court-fee and all other like matters of appeals. Dealing with the words "ordinary civil jurisdiction" it was held that the jurisdiction of the High Court under section 202 ibid was original as well as appellate. It would be instructive to quote para. 29 of this Report which is as follows: "The section prescribes for hearings of and appeals from orders made in the matter of the winding up of a company by the Court in the same "manner" and "conditions" as are to be followed and observed in an appeal from an order of that Court in a case within its ordinary jurisdiction, it appears to me that the expression "manner" indicates the procedure and the expression "conditions" connotes the essential requirements for maintaining the appeal. Confining myself to proceedings on the original side of the High Court, it is quite clear that an order of the High Court in a case within its ordinary jurisdiction is appealable if it is a "judgment" within the meaning of C1.15 of the Letters Patent unless such appeal is barred by any special law and the appeal from such an order has to be initiated on a memorandum of appeal filed according to prescribed rules and has to be brought before the Division Bench appointed for hearing such appeals. An appeal from an order made by a Judge of the High Court in the matter of the winding up of a company can, therefore, according to this section, be applicable if it is "judgment" and such appeal must be initiated on a memorandum of appeal and brought before the Division Court appointed to hear appeals from the Original Side. There can be no doubt that an order for winding up is a "judgment" within CI. 15 of the Letters Patent and, therefore, satisfies one of the conditions of appealability laid down by the section but this application cannot possibly be regarded as an appeal, for, omitting for the moment the capacity of the petitioners to maintain an appeal which question will be discussed later on, it is quite clear that this application has not been initiated or brought before an appropriate Court in the manner prescribed for an appeal. The question, then, is: Can this application be supported as a rehearing of the order of Edgley, J."?
7. The rule laid down in East India Cotton Mills Ltd. Supra, was followed by the Division Bench of this Court in Mulk Raj v. Official Liquidator Peoples Bank (AIR 1938 Lah. 658), and Division Bench of the Karachi High Court in Abdul Ghafoor v. Registrar, Joint Stock Co., Karachi (PLD 1976 Kar.. 85). We, now, reach the case reported as Eastern Co., (Pvt.) Ltd. v. Gul Begum (PLD 1980 Lah. 69). In this case Mst. Gul Begum and 7 others moved a petition under section 162 of the Act for winding up Eastern Company (Pvt.) Ltd. And 2 others appellants therein alongwith the petition, an application was filed for the appointment of provisional liquidator. The petition as well as the application were resisted.
The appellants also submitted a petition under section 151, C.P.C. (C.M. 66 L-78) calling in question the maintainability of petition for winding up. The learned Company Judge disposed of C.M. 66/L- 78 arid held that petition for winding up was competent. Against this order, the appellants had filed a petition for special leave to appeal before Supreme Court. The learned Company Judge, while dealing with application for appointment of Provisional Liquidator, appointed Mr. Muhammad Idrees, Advocate as Receiver with the power to conduct business and complete" on going contracts. Against this order, the Eastern Company (Pvt.) Ltd. And 2 others, preferred I.C.A. No. 3/Commerce 78. During the hearing of this appeal, a preliminary objection was raised that this I.C.A, was filed against an interlocutory order and so was incompetent under section 3 of the Law Reforms Ordinance, 1972. This objection was examined with thoroughness and was not sustained.
Speaking for the Bench his Lordship Mr. Justice Mehboob Ahmad (as he then was) said:- "27. It would not be out of place to mention here that the High Court in the present context of legislation has been invested with various types of jurisdiction. The jurisdiction conferred upon it under the Constitution is called "Constitutional jurisdiction". The High Court has the "extraordinary civil jurisdiction" under which it transfers to itself for trial any case of civil nature pending before a subordinate Court. Then there is the jurisdiction of the High Court conferred under various statutes, for example, tha jurisdiction under the Companies Act, under the Insurance Act and jurisdiction as was vested in it under section 21 of the Displaced Persons (Land Settlement) Act, 1958. Such type of jurisdiction are termed as "statutory jurisdiction".
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. -------------------------------------------------
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 sub- section (1) of section 3 of the Law Reforms Ordinance, the inhibition against maintainability of appeals from certain orders passed under the Companies Act.
31. Before parting with the discussion on this aspect of the matter, it seems appropriate to refer once again to the provisions contained in section 202 to, the effect that the appeal thereunder may be had in the same manner and subject to the same conditions in and subject to which appeals may be had from any order or decision of the same Court within its ordinary jurisdiction.
It would be seen that section 202 does not limit the right of appeal merely against an order but also confers the right of appeal against a decision. In our opinion the right conferred is not only a substantial right but a very valuable right and the Court must be anxious not in any way to cut down or impair that right. The order or decision given by the Court in a winding up proceeding to be appealable must be such as would in any way deprive or affect the right of a party and which would impel him to come to a higher Court for getting the order passed rectified.
32. The proper construction to put upon section 202 is that the first part of this section confers a substantive right on a party aggrieved by an order made or a decision given by a Company Judge in winding up and the second part which deals with the manner and the conditions in which an appeal may be preferred only refers to the procedural aspect of an appeal and the forum to which an appeal would lie. The second part of this section does not in any way cut down or impair the substantive right already conferred by the first part of section 202 ibid for to suggest that the right of appeal conferred under the first part of section 202 must be construed and interpreted as subject to the second part which deals with merely the procedural implications of the appeal would, in any cases, practically and substantially deny the right of appeal to a party affected by an order made in the winding up proceedings. As to the scope of appeal under section 202, reference can usefully be made to Seth Harbibans Prasad Ajodhia Prasad v. The National Sugar Mills Ltd.- Delhi AIR 1931 Lah. 8 and Samar Chand and others v. Punjab Industrial Bank Lid., Lahore ILR 10 Rom.
806.
33. Besides, it was not the case of any of the parties that the present appeal does not lie under section 202 of the Companies Act but the contention was that appeal is barred by the provisions of section 3(3) of the Law Reforms Act which, as discussed above, does not operate in bar of the present appeal.
34. In the light of the above discussion, we are of the view that the preliminary objection taken by the learned counsel for the respondents as to the maintainability of the appeal cannot be sustained and the same is overruled.'
The view taken in Eastern Company (Pvt.) Ltd. 's case, supra was followed by a Division Bench of this Court in Munawar Ahmad v. Official Liquidator (PLD 1980 Lah. 86) in following terms: "14. The learned counsel for the respondents raised a preliminary objection to the maintainability of the appeals under section 202 of the Companies Act and section 3 of the 1 Law Reforms Ordinance.
It may be stated at the outset that section 3 of the Law Reforms Ordinance is not applicable to company cases as held in Eastern Company (Private) Ltd. v. Mst Gul Begum (PLD 1980 Lahore 69), by this Court. The criterion of appealability under section 202 is the same as in an order passed by a Judge on original side of the High Court, under clause 10 of the Letters Patent. An order, refusing to wind up a company and adjourning the petition after hearing it on merit was held to be appealable in Bachhery Factories Ltd. v. Hirjee Mills Ltd. (AIR 1955 Bom. 355). It was held in Seth Hanbalis v. National Sugar Mills (AIR 1931 Lah. 8) and Lala Mulk Raj Bhatia v. Official Liquidator Peoples Bank (AIR 1938 Lah. 658), that this section is wide enough to cover appeals against any order made in the matter of winding up provided such an order finally decides a dispute between the parties or deprives the applicant of a substantial or important right and is not a mere formal or interlocutory order. Same view was taken in the case of Sausar Chand v. Punjab Industrial Bank (AIR 1929 Lah. 707). In G.M. Bahri v. Maudaland Bahri Ltd. (AIR 1930 Lah. 721), an order for voluntary liquidation under supervision was held appealable. Reference be also made to the case of Dayabhai v. Munigappa Chettyar (AIR 1935 Rang. 267) where it was held as under:- "I am of opinion that in the Letters Patent of the High Courts, the word judgment means and is a decree in a suit by which the rights of the parties at issue in the suit are determined. The term 'suit' in the Letters Patent includes suits instituted by a plaint or by an originating summons in the manner prescribed under the rules of the Court.
A final judgment is a decree in a suit by which all the matters at issue therein are decided. A preliminary or interlocutory judgment is a decree in a suit by which the right to the relief claimed in the suit is decided, but under which further proceedings are necessary before the suit in its entirety can be determined. All other decisions are orders, and are not 'judgments' under the letters patent, or appealable as such."
Undoubtedly, the learned Company Judge has finally decided about the ownership of the property.
That question is not only substantial and important but stands decided finally between the parties.
As for the Bank also the decision is not only final but important. The legal right of the Bank has been taken away and the property has been removed from it by lawful authority."
9. We, now, come to the case reported as Ch. Jamil Ahmad v. Nippon Bobbin Company Pakistan Ltd. PLD 1991 Lah. 467. I.C. No. 6/86 and I.C.A. No. 26/86 were filed against the order of Company Judge dated 7-7-1986 and 7-7-1987. Admittedly the learned Company Judge had passed the order of winding up of and the appeals were filed under section 10(1) of the Ordinance. The learned counsel for the appellant relied upon Mehboob Industries Ltd. v. P.I.C. And I.C. Ltd. 1988 CLC 866 to contend that I.C. As were competent. The Bench of the Court did not sustain this plea and held that the appeals lay to Supreme Court. It will be useful to reproduce the relevant part of para, which is as follows:--
(3) .... 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 not less than one million rupees; and, where The company ordered to be wound up has a paid-up capital or less than one million rupees, or has no share capital, such appeal shall lie only if the Supreme Court grants leave to appeal."
10. In Muhammad Din and Sons Private Ltd. 1993 SCMR 80 S. Muhammad Din and Sons Limited filed an application under sections 153 and 153-A of the Companies Act for reconstruction/ reorganization of the company. With the consent of the parties, the learned Company Judge passed the order on 22-4-1990 in the following terms:-
2. These conditions are acceptable to the shareholders/directors. The companies which on reorganization are to come into existence are as under:--
(1) S. Muhammad Din & sons (Rahim Private) Limited.
(2) S. Muhammad Din & Sons (Aziz Private) Limited.
(3) S. Muhammad Din & Sons (Majid Idrees Private) Limited.
(4) S. Muhammad Din & Sons (Nazir Private), Limited.
3. The one-fourth of the amount payable to the Banks will be paid by S. Muhammad Din &. Sons (Rahim Private) Limited whereas the other three companies will pay the balance amount in the following ratio:-- S. Muhammad Din & Sons (Aziz Private) 25% Limited S. Muhammad Din & Sons (Majid Idrees) 39.7% S. Muhammad Din & Sons (Nazir Private Ltd. 10.3%
4. The afore stated four bifurcated companies will pay the amount in cash as down payment as well as furnish securities to the respective banks by 30th December, 1987.
5. SA. Rahim will approach Habib Bank Limited and United Bank Limited to the extent of liability of S. Muhammad Din & Sons (Rahim Private) Limited. S.M. Idris, S.M. Majid, S.A. Aziz and SA. Nazir will discharge their liabilities by fulfilling the a forenoted conditions of Allied Bank of Pakistan and Habib Bank Limited to the extent of their liabilities. The bifurcated companies may however, make adjustment inter se for liquidating the liability towards the Banks. It may also be clarified that in case any relief is allowed by the Banking Council or Government of the Pakistan, the Banks will, of course, give necessary adjustment accordingly.
6. The suits filed by the creditor Banks will of course be withdrawn as and when the down payment is made by the parties and the amount outstanding stands secured by furnishing the securities."
C.M. 479/L of 1989 was moved praying for rechecking of account of banks. This application was contested and was dismissed by the learned Company Judge on 22-4-1990 in the following words:-- "In view of what has gone above, I am not inclined to allow the company to recheck the accounts with the Banks. They are bound to go by the terms referred to above and they shall at accordingly.
In case they do not at in accordance with the agreement, appropriate order will be passed in the light of the relevant law. The C.M. Is disposed of accordingly."
Feeling dissatisfied with this order, Muhammad Din & Sons filed an appeal before Supreme Court.
Learned counsel for the respondent raised an objection that appeal was filed under section 10(2) of the Ordinance, and so was not competent' before the Supreme Court. Preliminary objection, so raised, was upheld by the Supreme Court. Speaking for Bench, his Lordship Mr. Justice A.S. Salam the then Judge of the Supreme Court, said:-- "Contention of the 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/reorganisation. 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 to sets of provisions are separate and distinct. Therefore, appeal against the impugned order is not competent. Hence, it is dismissed."
11. The survey of case-law will not be complete without taking into consideration the rule laid down in Messrs Industrial Development Bank of Pakistan and 3 others v. Messrs Kamal Enterprises Ltd. PLD 1995 Quetta 41. After examination of the case-law and relevant applicable provisions of law, the Division Bench came to the conclusion that appeals filed under section 10(2) of the Ordinance were competent before the Supreme Court and not before the Bench of this Court comprising to or more than to Judges. We would like to quote paras. Nos. 14 and 15 of the report.
14. From the aforementioned discussion the conclusions are I that an appeal shall lie before a Bench of to 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."
12. From the above discussion, it becomes clear that expressions "same manner", "same condition", "ordinary jurisdiction" and "in exercise of civil jurisdiction", are key to the owner to the aforesaid preliminary issue. These phrases are not new. The first three phrases were embodied in section 202 of the Act of 1913. These have been borrowed from that section and put in section 10 of the Ordinance. These were differently interpreted by various High Courts of the Sub-Continent. We have not purposely examined various views and have followed the construction of above words given in East India Cotton Mills Ltd. AIR 1949 Cal. 69 which had been treated by His Lordship Mr. Justice Dorab Patel (as he then was) as a classic judgment. It was held therein that the expression "same manner" and "same condition" in section 202 of the Act of 1913 had no nexus with forum of appeal. These words referred to the procedure of presentation of, limitation and court-fee for appeals. The parties, feeling aggrieved from the order passed or decision made by the learned Company Judge, were required to follow the procedure prescribed for filing of appeals against the decision of the learned Single Judge of the High Court. It was further held that the phrases "ordinary jurisdiction" meant original as well as appellate jurisdiction of the High Court. The forum of the appeal was not given in section 202 of the Act of 1913 and it was found that the forum was provided by Article 10 of the Letters Patent. In depth study of Eastern Company's case supra, makes it manifest that this cannot be treated as authority for the rule that the appeal under section 10(2) of the Ordinance were to be filed before the Supreme Court as mandated under section 10(1) of the Ordinance. A close study of above case-law shows that an objection was raised that appeal under section 3 of the Ordinance, 1972 was not competent against the interim orders. This objection was not upheld and it was found that the appeals, on account of amendment (Act X of 1980) were competent. In Munawar Ahmad's case it was found that appeals were competent under section 202 of the Act of 1913. So is the position of Ch. Jameel Ahmad's case PLD 1991 Lah. 467. In this case the appeals were filed under section 10(1) of the Ordinance and so it was rightly held that the appeals lay before the Supreme Court. The meanings of a forenoted phrases given by East India Cotton Mills Ltd. 's case, supra had been and being followed by our Court. We find no reason to differ with the above constructions.
13. Having completed the survey of all the relevant case-law we now come to section 10(2) of the Ordinance with reference to context of section 10(1) of the Ordinance.
14. A bare outlook of this section shows that it has three sub-sections. There is no controversy as regards sub-section (1) of section 10 of the Ordinance. In this sub-section the appellate forum is specifically provided i.e. The Supreme Court. It says that appeal against any order or decision made or judgment rendered by the Court under this Ordinance shall lie to Supreme Court where a Company ordered to be wound up has a paid-up share capital of not less than one million rupees.
Such appeal is as a matter of right. Second part of this subsection states that if the paid-up capital of wound-up company is less than one million of rupees or has no share capital, such appeal shall lie only, if the Supreme Court grants leave to appeal. We now come to crucial sub-section (2) of section 10. First and foremost feature of this sub-section is that it does not prescribe forum of appeal. It states that order made or decision given by the Court shall lie "in the same manner" in which and subject to "same condition" under which an appeal lies from any order or decision of the Court. The words "same manner" and "same condition" already noted, have been borrowed from section 202 of the Act of 1913. The word "Court" also has been taken from the aforesaid provision and has been defined in section 2(11) of Ordinance. We accordingly find that "same manner" and "same condition" used in this sub-section do not pertain to forum of appeal mentioned in sub- section (1). These expressions/words carry an edict that a party dissatisfied with the order of Company Judge (wherein that company had not been wound up) under the Ordinance had to follow the procedure and all other like matters in filing, appeal which is applicable to any other order made or decision rendered by the learned Single Judge of the High Court in exercise of its ordinary jurisdiction. This would solve the problem for present. The issue will then turn upon the construction of word "Court" used in sub-section (2). It was not disputed by any side that the word "Court" means Company Judge as defined in section 2(11) of the Ordinance. Section 7 enacts that the Court having jurisdiction under this Ordinance shall be the High Court having jurisdiction in the place where the registered office of the Company is situated. Proviso to section 7(1) no doubt, empowers the Federal Government to confer the powers upon any Civil Court. However, the word "Court" used in sub-section (2) of section 10 means the High Court under sub-section (1) of section 7 of the Ordinance or the Court notified by the Federal Government in exercise of power under the proviso to section 7. Section 9 contemplates the procedure to be followed by the Company Judge while dealing with the matter under this Ordinance. Now the question is whether the jurisdiction of this Court under section 7 is statutory jurisdiction/original jurisdiction/civil jurisdiction. The question seems to be of academic significance. The study of Ordinance clearly demonstrates that all the matters under Ordinance, are initiated before the Company Judge by moving an application and by filing of reply to it. It is true that the Company Judge is to follow the summary procedure while deciding the petitions moved under the Ordinance. The jurisdiction of Company Judge is original jurisdiction conferred by the statute. It is settled position that the civil jurisdiction is a jurisdiction which is in contradistinction to criminal jurisdiction. It deals with the determination of the rights of the warring parties. From the above analysis we have come to a conclusion that the jurisdiction of the Company Judge under the Ordinance has all the attributes of original civil jurisdiction. On these findings, we hold that the nature of the jurisdiction of the Company Judge under the Ordinance is original civil jurisdiction and so the order passed by the Company Judge in which the Company is not wound up is subject to appeal before the Bench of this Court comprising of to or more than to Judges under section 3 of the Law Reforms Ordinance, 1972.
15. The above view is consistent with the rule of organic construction that a provision of statute is to be construed after taking into consideration the context in which it appears and by reading whole of the statute. The construction must be beneficial and it should advance the cause of justice and suppress the mischief. From the analysis of section 10(1) it becomes clear that the legislature has designated the Supreme Court as an appellate forum against the orders and decisions of the Company Judge when the Company has been wound up. The underlying object of this change has been to provide expeditious mechanism of matters/disputes under Ordinance when the company has been ordered to be wound up. The remaining orders of Company Judge were made appealable under sub-section (2) of section 10 of the Ordinance and the jurisdiction of this Court comprising of to Judges or more Judges was not ousted for the reason that these orders were interim and the lis was still pending before Company Judge. Time for the decision of the appeal in such matter, was also fixed under sub-section (3) of section 10 of the Ordinance. This Clearly augments our view that the jurisdiction of the Bench of this Court comprising of to or more Judges has not been taken away with regard to appeals filed under sub-section (2) of section 10 of the Ordinance. On this conclusion the preliminary objection of the correspondents is repelled. The view taken by a Division Bench of Quetta High Court, in our view, is not legally correct. It was stated that one of us (Mian Allah Nawaz, J.) had taken a different view in some case. Unfortunately that case was not cited before us. However, we have no hesitation in saying that we do not endorse that view.
The office shall now enlist the aforesaid Intra-Court Appeals for final hearing on their turns.