F.I.Rebello, C.J. - (1.) A preliminary objection has been raised on behalf of the respondent-Company that the Letters Patent Appeals, as filed would not be maintainable. It is submitted that considering Section 483 of the Companies Act, an appeal would lie only in respect of the order made or decision given in the matter of winding up. In the instant case, it is pointed out that the appeals arise not from an order in winding up, but an order for reconstruction of debts and in these circumstances, the appeals ought to be dismissed.
(2.) On the other hand, on behalf of the appellant and respondent No. 2, it is sought to be contended that merely because there is no appeal provided under Section 483 of the Companies Act, would not oust the jurisdiction of this Court to entertain an appeal under Rule 5 Chapter VII! of the Allahabad High Court Rules. It is, therefore, submitted that the appeals as filed are maintainable and the preliminary objection ought to be rejected. We may reproduce Rule 5 Chapter VIII of the Allahabad High Court Rules, which reads as under : "5. Special appeal.-An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award-(a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act or one Judge." It is also not necessary to trace the history of the said Rule considering that the matter has been considered at length in a Full Bench judgment of this Court in the case of The Notified Area Committee and another v. Sri Ram Singhasan Prasad Kalwar, AIR 1970 All 561. We may gainfully refer to paragraphs 11,12,13 and 14 of the said judgment, which are as under: "11. In the former High Court of Allahabad, upto July 25,1948, an appeal from the judgment of a single Judge passed in the exercise of original civil jurisdiction lay to a Division Bench under CI. 10 of the Letters Patent. On July 26,1948 the said High Court and the Chief Court of Oudh were amalgamated and a new High Court was constituted. The new High Court was named the Allahabad High Court. The amalgamation of the two Courts was brought about by the U.P. High Courts (Amalgamation) Order, 1948. This order was issued by the Governor-General under Section 229 of the Government of India Act, 1935. 12. From July 26,1948 the Letters Patent ceased to have effect in virtue of CI. 17 (a) of the Order. Clause 9 of the Order, however, provided that the law in force on July 25, 1948 "with respect to practice and procedure' in the former High Court would apply in relation to the new High Court. Clause 13 of the Order provided that the law in force on the said date "relating to the powers of..................division Courts' of the former High Court would apply in relation to the new High Court. Clause 9 or CI. 13 preserved CI. 10 of the Letters Patent for the new High Court. National Sewing Thread Co. Ltd. v. James Chadwick, 1953 SCR 1028: (AIR 1953 SC 357) till the commencement of the Constitution. 13. Article 225 of the Constitution provides that the jurisdiction of and the law administered in any High Court and the powers of the Judges thereof in relation to the administration of Justice in the Court shall be the same as immediately before the commencement of the Constitution. Article 225 keeps alive the U.P. High Courts (Amalgamation) Order and consequently CI. 10 of the Letters Patent. 14. Rule 5 of Chapter VIII of Rules of Court now provides for a special appeal from the judgment of a single Judge in the exercise of original civil jurisdiction. Evidently Rule 5 is a reproduction of CI.10 of the Letters Patent, and not a new provision. A Single Judge hearing a writ petition under Article 226 of the Constitution exercises original jurisdiction. His order deciding the petition is generally a judgment. So an appeal will lie from his judgment before a Bench of two Judges under Rule 5." Rule 5 of the Allahabad High Court Rules provides that an appeal shall lie against the judgment. As to what is the judgment, is also in our opinion, no longer res integra.
(3.) A learned Division Bench of this Court in the case of Prof. Y.C. Simhadri, Vice Chancellor, B.H.U. and others v. Deen Bandhu Pathak, Student, 2001 (4) AWC 2688, was considering this very Rule in the context of exercise of the contempt jurisdiction. While considering the issues involved, the learned Division Bench was pleased to hold as under; "17. It appears that on 26.3.2001, when the learned Judge passed the said order, he was allotted and assigned the determination with regard to the following matters by the Chief Justice as appears from the printed cause list: "Fresh writs in educational matters (except service writs) for orders, admission and hearing and all Single Judge writ-C for order, admission and hearing including bunch cases," The learned Judge on the face of the record, therefore, had no determination assigned to him by the Chief Justice with regard to the matters relating to contempt and the said jurisdiction had been assigned to another Hon'ble single Judge. 18. In view of the rule as already noted that the power to constitute Benches and allotment of work to learned Judges vests absolutely in the Chief Justice and the Rules 1, 6 and 17 of Chapter V and Rules 2 of Chapter VIII of the Allahabad High Court Rules also clearly provide for the same. In that view of the matter, the order passed by the learned single Judge in the instant case appears to us to be without jurisdiction and void. 19. As noted above, arguments have been advanced by the learned counsel for the respondent-petitioner that the special appeal is not maintainable. Moreover it has also been submitted that the direction issued in the instant case by the learned single Judge, is in the nature of a proceeding initiated by virtue of the power vested in the High Court to punish for contempt and it does not amount to a judgment or a final order." The issue involved in that case was answered and for that purpose, paragraphs 24 and 25 of the said judgment are relevant, which read as under: "24. In the instant case, admittedly, the question of jurisdiction is involved and, as such, the order falls within the meaning of "judgment' under the relevant clause of Rule 5 of Chapter VIII of the High Court Rules and accordingly appears to us to be appealable. 25. In the instant case, since the order passed by the learned single Judge was beyond his competence or jurisdiction to pass such order, it is void and non-est and is accordingly appealable. The appeltant being Vice Chancellor of the Banaras Hindu University, who is holding a responsible position, issue of notice by the order impugned, which is without jurisdiction, has adversely affected his rights and the rights of the appellant having been adversely affected, the appeal appears to be maintainable." It will, thus, be clear that in a matter where there is wrong assumption of jurisdiction, in other words, the Court has no jurisdiction, Rule 5 Chapter VIII of the Rules will be applicable and an appeal would be maintainable, even if remedy by way of an appeal is maintainable, in some circumstances under the Contempt of Courts Act especially against interlocutory orders. This position has now been settled by the Supreme Court. In the case of Midnapore Peoples' Coop. Bank Ltd. v. Chunilal Nanda and others, (2006) 5 SCC 399. Under the Contempt of Courts Act, an appeal lies under Section 19 against the order passed in the contempt proceedings. The question was in respect of the order, which may not fall under Section 19 of the Contempt of Courts Act and whether an intra Court appeal would lie, especially against an interlocutory order. Three questions were framed for consideration, of which questions 1 and 2 are relevant and we may gainfully refer to the same from paragraph 9 of the judgment, which read as under: "9. On the aforesaid facts and the contentions urged, the following questions arise for consideration: (i)Where the High Court, in a contempt proceeding, renders a decision on the merits of a dispute between the parties, either by an interlocutory order or final judgment, whether it is appealable under Section 19 of the Contempt of Courts Act, 1971? If not, what is the remedy of the person aggrieved? (ii)Where such a decision on merits is rendered by an interlocutory order of a learned Single Judge, whether an intra-Court appeal is available under clause 15 of the Letters Patent? (iii)............' After considering the first question, the Court was pleased to hold that the law could be summarized and we may gainfully refer to paragraph 11 of the said judgment, which reads as under: "11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus: I. An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is an order imposing punishment for contempt. II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution. III. In a proceeding for contempt, the High Court can decide whether any contempt of Court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties. IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of "jurisdiction to punish for contempt" and, therefore, not appealable under Section 19 of the CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under Section 19 of the Act, can also encompass the incidental or inextricably connected directions. V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-Court appeal (if the order was of a learned Single Judge and there is a provision for an intra-Court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases). The first point is answered accordingly.";