GOLAM MOSTAFA CHAUDHURY Vs. MUNSIR BAP

JUDGEMENT

(1.) The question for consideration in both the appeals is the same, namely whether this Court or the High Court established for the Province of East Bengal has jurisdiction to deal with the applications made therein. In the first case the application is for extending the time to put in the amount of paper book costs due on a supplementary estimate. In the second case the application relates to the appointment of a guardian-ad-litem of a minor respondent. In both the cases the subject-matter of the suits is land situate in that part of the District of Sylhet which is within the "territory assigned to the Dominion of Pakistan and the Courts of origin are situated within that Dominion. In both the cases, this Court passed the decrees and gave the certificates under Section 110, Civil P.C., before 15-8-1947, "the appointed date", and the appeals to His Majesty in Council were finally admitted before that date. The records, which are to be printed in India, have not been printed yet, and so they have not been transmitted to England. On these facts the question is whether these two Privy Council appeals stand transferred to the High Court established at Dacca. If that is the position, this Court's jurisdiction to deal with any matter which relates to these two appeals had ceased from "the appointed date". As the question is of general importance we took time to consider the matter after the learned Advocates had exhaustively argued it from various aspects. The question ultimately depends upon the construction of Art. 13, para. (3), High Courts (Bengal) Order, 1947, (hereafter called the Bengal Order). But for the purpose of construing that paragraph we have to take into consideration Art. 12 of that Order, Art. 3, High Court (Calcutta) Order 1947, (hereafter called the Calcutta Order), some clauses of the Letters Patent of the Calcutta High Court; Rules 11, 13 and 51 of the Judicial Committee Rules, 1928, promulgated by the Order in Council dated 2-5-1925 and paras. 5 and 10, India (Adaptation of Existing Laws) Order, 1947.

(2.) The first thing of importance to notice is that by Art. 3 of the Calcutta Order, the High Court in Calcutta continues to exist as before and continues to have, save as expressly provided for by the Bengal Order, all such original, appellate and other jurisdiction as it had immediately before 15-8-1947. Art. 12 of the Bengal Order refers to appeals to His Majesty in Council and defines the law to be applied to such appeals as would be coming from the High Court of Best Bengal. It does not in our opinion deal with the jurisdiction such as the Calcutta High Court had in respect of appeals to His Majesty in Council after the certificate had been granted under Section 110, Civil P.C., and before the records had been transmitted to England and the petition of appeal lodged in the Registry of the Privy Council. Art. 13 of the Bengal Order enacts that on and from the appointed day the Calcutta High Court is (ceases?) to have jurisdiction over the territories for the time being included in the Province of East Bengal. That paragraph, however, presarves the jurisdiction of the Calcutta High Court over proceedings pending in its original side, and over appeals from judgments of a Judge sitting on its original side, and in respect of review of orders made by a Judge of that Court, notwithstanding that the subject-matter or part of the subject-matter of the suit or proceeding is situated in the Province of East Bengal. Paragraph 3 of the said Article, namely Art. 13, deals with proceedings pending in the appellate side of this Court on the appointed date. Paragraph 3 of that Art. opens with the words "subject to the preceding provisions of this Article," and those words in our opinion give some indication that the phrase "proceedings pending on the appellate side of the High Court in Calcutta" refers to proceedings pending on the appellate side in respect of which this Court could have given an adjudications on the merits in the same manner and to the same extent as it could have in respect of the matters mentioned in Clause (a) to (c) of para. 2 of that Article, that is to say, to appeals and revisions pending on the appellate side of this Court which could have been finally disposed of by this Court.

(3.) We are fortified in this view by Clause (7) of Art. 13 which provides that: Proceedings shall be deemed to be pending in a particular Court until that Court has disposed of all issues between the parties, including any issues with respect to the taxation of the costs of the proceedings. "Issues" in its ordinary meaning denotes some material proposition of fact or law concerning which there is controversy between the parties, and will not, we think, include such matters as arise for disposal by this Court after the certificate has been given under Section 110, Civil P.C., and before the despatch of the record to England. In any event apart from these considerations the phrase "proceedings pending on the appellate side of the High Court at Calcutta" is ambiguous and may be so construed as to refer to proceedings of the nature we have indicated above, that is to say, proceedings in respect of which this Court exercises appellate or revisional jurisdiction or it may be construed to refer also to proceedings in pending Privy Council appeals. But in our judgment the last mentioned construction should not be adopted, for it is an established rule of construction that if two constructions are possible that one should be discarded which would make the provision ultra vires.