MEHBOOB INDUSTRIES LTD. Versus PAKISTAN INDUSTRIAL CREDIT AND INVESTMENT CORPORATION LTD.

AJMAL MIAN, J .‑‑This High Court Appeal is directed against the judgment dated 5‑4‑1987 passed by the Company Judge in J. Misc. No.51 of 1983 granting the petition under section 162 read with section 166 of the Companies Act ordering the winding up of the appellant. The appellant being aggrieved by the above judgment has filed the present appeal under section 202 of the Company Act (hereinafter referred to as the Act) and section 3 of the Law Reforms Ordinance Act, 1972. The above appeal had come up for regular hearing on 3‑11‑1987 when Mr. Aziz A. Munshi, learned counsel for the respondent had raised a preliminary objection as to the main tainability of the above appeal, in view of section 10 of the Company Ordinance, 1984 (hereinafter referred to as the Ordinance).

2. In order to appreciate the respective contentions of the learned counsel for the parties, it may be advantageous to reproduce section 10 of the Ordinance, which reads as follows;

"10. Appeals against Court orders.‑‑(1) Notwithstanding anything contained in 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."

3. A plain reading of the above section indicates that notwithstanding anything contained in any other law an appeal against any order, decision or judgment of the Court 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 of less than one million rupees or has no share capital, such appeal shall lie only if the Supreme Court grants leave to appeal. It may further be noticed that subject to the above provision contained in subsection (1) of section 10, an appeal from any order made or decision given by the Court is to 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. It may also be noticed that an appea1i under subsection (2) of section 10 is to be disposed of within ninety days of the submission of the appeal.

4. It is, therefore, evident that the intention of the law‑makers is that an appeal against an order, decision or judgment of winding up of a company notwithstanding anything contained in any other law, shall lie to the Supreme Court and not to High Court but an appeal in respect of any other order, decision or judgment other than relating to the winding up shall lie to the High Court. However, Mr. S.A. Jamali, learned counsel for the appellant has submitted that since the winding up petition was filed under the Act and not under the Ordinance the appeal shall lie to the High Court which was provided under the Act read with section 3 of the Law Reforms Act, 1972, notwithstanding the repeal of the Act. In furtherance of his above submission, he has referred to subsection (2) of section 508 of the Ordinance which provides that the mention of particular matters in this section or in any other section of this Ordinance shall not prejudice the general application of section 6 of the General Clauses Act, 1897 (X of 1897) with regard to the effect of repeals. He has, therefore, submitted that in view of the express saving of section 6 of the General Clauses Act the above appeal is competent before this Court. Whereas, Mr. Aziz Munshi, learned counsel for the respondent has urged that the application of section 6 of the General Clauses Act is subject to qualification, namely, that there should not appear to be contrary intention which in the present case is evident from the language of subsection (1) of section 10 of the Ordinance. Mr. Jamali has referred to the following case

(i) Sahibzada Sharafuddin and 15 others v. Town Committee, and 2 others Pindigheb (1984 C L C 1517) in which a learned Single Judge has held that provision of any other law later in sequence will be deemed to claim preference. It has also been further held that all parts of enactment are to be read together and efforts must be made to harmonize seemingly inconsistent provision and in case of any inconsistency last must prevail.

(ii) Pakistan International Airlines Corpn. v. M/s. Pak. Saaf Dry Cleaners (P L D 1981 S C 553). In the above case the Hon'ble Supreme Court while allowing an appeal against the judgment of the earstwhile High Court of Sind and Baluchistan held that the right of appeal is a substantive right and the change in law during a pendency of a suit had not taken away such right and, therefore, the High Court was wrong in dismissing the appeal as being incompetent under section 39 of the Arbitration Act after the Law Reforms Ordinance (XII of 1972).

(iii) Idrees Ahmed and others v. Hafiz Fida Ahmad Khan and 4 others (P L D 1985 S C 376) in which the Hon'ble Supreme Court while construing section 6 of the General Clauses Act held that unless a different intention appears from the repealing Act, the repeal ipso facto will not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed or effect any investigation, legal proceeding or remedy. It has also been held that the right of appeal given under the repealed enactment is such a right which survives the repeal unless repealing enactment either expressly or by necessary implication curtails such right in any manner.

5. There cannot be any cavil with the propositions that in case of any conflict between the two provisions of an enactment the efforts should be made to harmonize the seemingly inconsistent provision and in case such an effort fails, the provision, later in sequence shall prevail. It seems also the well‑settled principle of law that a right of appeal is a substantive right and any change/repeal in law during the pendency of a proceeding does not affect such right unless the amending/ repealing enactment either expressly or by necessary implication curtails such right in any manner.

6. In the present case we do not find any inconsistency between subsection (1) of section 10 and subsection (2) of section 508 of the Ordinance. The application of section 6 of the General Clauses Act by the above subsection (2) of section 508 does not change the legal position as the former i.e. section 6 of the General Clauses Act itself provides that the same shall not be applicable if a different intention appears by the repealing Act.

7. Since different intention is evident from the subsection (1) o section 10 of the Ordinance, the above section 6 of the General Clauses Act will not save the right of appeal under the repealed Act, i.e. the Companies Act. We are, therefore, of the view that the above appeal is not competent before this Court as in terms of subsection (2) of section 10 of the Ordinance the appeal should have been filed before the Hon'ble Supreme Court.

8. For the aforesaid reasons, we sustain the above preliminary objection of the learned counsel for the respondent and hold that the above appeal is not competent in view of subsection (1) of section 10 of the Ordinance. However, there will be no order as costs.

M . B . A . /M‑383/ K Objection sustained.