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13. Let me at the outset notice relevant rules of the Supreme Court (1965 revision) framed under the Companies Act, 1948, and styled as Court Procedure (England). Rule 3 provisos that an application under section 116 of the Act for rectification of the register of members of a company may be made by originating summons or originating motion. Rule 4 provides for those applications which ought to be made by originating motion. Rule 4 provides for those applications which ought to be made by originating motion. Rule 5 provides for those applications which must be made by petition. It may be noted in passing that in England an application for rectification of register under section 116 has to be made by an originating summons or originating motion. Under our Companies Act, section 643 confers power on the Supreme Court to frame rules and in exercise of those powers the Supreme Court has framed the Companies (Court) Rules, 1959, which came into force on 1st day of October, 1959. Rule 10 provides that, unless otherwise provided by the rules or permitted by the judge, all applications under the Act shall be made by petition or by a judge's summons as hereinafter provided. Rule 11 provides those application which ought to be made by petition. Item (6) of rule 11(a) provides that an application under section 155 for rectification of the register of members shall be made by petition. Sub-clause (b) of rule 10 provides that all other applications under the Act or under the Rules shall be made by a judge's summons, returnable to the judge sitting in court or chambers as hereinafter provided. First distinction which, therefore, comes to surface on comparison of the provisions is that in England an application for rectification of register has to be made by an originating summons or originating motion, though my attention was also drawn to the provisions prior to the 1965 Rules. I do not propose to take them at present into consideration, because for the purpose of the present contention under examination rules as are found in 1965 rule are sufficient to bring out the distinction herein above pointed out by me.

14. Originating Summons has been defined in Order I, rule 3(U.K.), as every summons, other than summons in a pending cause or matter. Order VII, rule 2 (U.K.), makes provision with respect to originating summons. It provides that every originating summons must be in the form prescribed and the party taking out an originating summons has to be described as plaintiff and the other party shall be described as defendant. Order VII, rule 3 (U.K.), provides that every originating summons must include a statement of the questions on which the plaintiff seeks the determination or direction of the High Court or, as the case may be, a concise statement of the relief or remedy claimed in the proceedings begun by the originating summons with sufficient particulars to identify the cause or causes of action in respect of which the plaintiff claims that relief or remedy. Order XXI, rule 1 of U.K. 1959 Annual Practice, page 681, says that a petition is a cause or matter and, therefore, inspection may be had under rules 15 to 18 of Order XXXI. It further reads to the effect that the petitioner as plaintiff may interrogate. Rule 1 also provides for inspection of documents referred to in the pleadings or affidavits. Rule 19-A provides for supplying of verified copies instead of inspection of original documents. On an application of a party, the court or a judge has power to order discovery of particular document or class of documents. Order IX (U.K.) (1965) sets out general provisions with respect to petitions. Rule 5 may be taken into consideration with advantage because it clearly makes out a distinction between an application and a petition when it provides that no application in any cause or matter may be made by petition. Petition, therefore, stands by itself as special kind of pleading in respect of certain specified matters. Now, below rule 5, there is a note that even in a petition evidence can be given by affidavit. That aspect need not detain me because it would only mean that ordinarily in a petition parole evidence can be given but that can be departed from by permitting party to give evidence by affidavit. If such a permission is given, Order IX, rule 1, enables the court on a motion of party or on its own to call upon the person who has filed affidavit to stand the test of cross-examination. Therefore, the important thing to be noted is that in England under the relevant Rules an application for rectification of register of members under section 116 of the U.K. Act can be made by originating summons or originating motions while in India it has to be made by petition. There is understandable and appreciable difference between a petition and an originating summons which would be clearly discernible from the various provisions herein before set out. The marked difference lies in how the court has to deal with an originating summons or originating motion and a petition.

15. In this connection, however, Mr. Mehta, learned counsel who led on behalf of the respondents, urged with considerable emphasis that the court should attach no importance to the procedural wrangle by which a party can come to the court and invoke its jurisdiction under section 155. It was said that form of pleadings is not determinative of the jurisdiction conferred on the court. The proposition is not open to such over-simplification. On the technicalities of procedure, English law is rather very precise. In India we have a different outlook, because of our local conditions and especially our standard of literacy and development of masses in rural areas. If we were to attach importance to form of pleadings we may be faced with a situation where we may have to reject 101 out of 100 cases. We are long since attended to the legal adage that pleading in mofussil need not be strictly construed or examined. Therefore, here at any rate we are not obsessed by this wangle of form of pleadings or procedural angularities unless they impinge upon justice or overlooking it may leas to miscarriage of justice. But when the view taken by the court with regard to jurisdiction in certain matters in England is pressed in to service, this court cannot sidetrack highly technical approach of English courts and emphasis placed on the form of pleadings directly related to the jurisdiction of the court. To some extent because of our historical and long connection with Anglo-Saxon jurisprudence by which we are governed for nearly two centuries we also sometimes pay undue and undeserved respect to the form rather tenth substance. Consequently, we have, in our Companies (Court) Rules, provision for applications that can be made by petition and those which can be made by judge's summons returnable to the judge in court or in the chambers. In any event, as we have borrowed this distinction, we must stand by. The Supreme Court must not have made any exercise in futility when it said that certain applications enumerated in rule 11 must be made by petition. If the body of our Companies Act provide a mirror reflection of English law and also follow to see extent its pattern and yet the Supreme Court has made a notable departure, such noticeable difference, the court must bear in mind. While in England under the rules hearing above quoted it is made distinctly clear that an application for rectification under section 116 of the U.K. Act can be made by originating summons or originating motion, in India it has to be made by petition. Why did the Supreme Court make this departure ? It must be with some purpose. The Supreme Court has before it rules prior to 1965 U.K. Rules which also had identical provision, namely, that an application for rectification of register in England may be made by originating summons or originating motion. Even with that experience in mind and distinction made by the rule-making authority in England, the Supreme Court deliberately provided in rule 11 that a petition for rectification must be made by petition. Departure being conscious must be given due weight and effect.

18. With this statutory position being kept in the background let me turn to some of the diffusion to which my attention was drawn at the hearing of this matter. Before I advert to these decisions, I would start by referring first to Halsbury's Laws of England, fourth edition, volume 7, page 178, para. 309, wherein the following is to be found :

"The application must be made to the court having jurisdiction to wind up the company. It may be initiated by originating summons or originating motion or by an action commenced by writ. If by reason of its complexity or on the ground that there are matters requiring investigation or otherwise the court thinks that the case could more satisfactorily be dealt with by and action, it will decline to make an order on a motion, without prejudice to the right of the applicant to institute an action. An action may be instituted for rectification of the register without any direction by the court, a course which should be followed where there is much complexity, or where other relief is required. The court will not give substantive relief by way of rectification of the register on an interlocutory application in an action, nor will it rectify the register in the absence of third parties whose rights will be affected by the rectification." The last line in the quotation will be sufficient to reject one of the contentions of the respondents that as a relief is sought also against some persons who are non-members, the petition is not maintainable, because it in terms says that if relief cannot be granted without the presence of third party, the court will not rectify the register in the absence of third party, meaning that if those third parties are impleaded as respondents, the court could proceed to inquire into the allegation of the petitioner and court's jurisdiction would not be lost merely because third parties are required to be impleaded. Now, let it be remembered that an application for rectification has to be initiated by originating summons or originating motion or by an action commenced by a writ. Ordinarily, in such proceedings parole evidence is generally avoided. Where disputed questions of fact arise in a proceedings before a court exercising writ jurisdiction, it would ordinarily decline to examine them leaving the party to the ordinary remedy of a suit though the recent trend is that the court should not avoid examining it if it is necessary to do justice between the parties. At an appropriate stage in this judgment I will refer to one decision of the Supreme Court against the judgment of this High Court wherein the Division Bench of this High Court has heard parole evidence for a good number of days and that aspect was sought to be commented upon in the Supreme Court and the decision of this High Court was affirmed. Therefore, merely because parole evidence may become necessary that itself would not deprive jurisdiction if the court otherwise possess it. But in England where the prescribed procedure required that an application for rectification must be made by an originating summons or motion or by an action commenced by writ, it brought within its wake the limitations imposed upon courts that in such proceedings disputed questions of facts are not investigated and the party is relegated to a suit and the court may decline to make an order on motion. The court would thus decline jurisdiction as the matter was commenced by originating motion. It is not said that such would be the approach of the court in the matter brought before it by way of petition. Therefore, the proposition hearing above quoted cannot be construed to mean that as soon as some complex questions arise even when action is commenced by a petition for rectification of register, the court on that ground alone has no jurisdiction to proceed with the matter or in its discretion and wisdom must decline to proceed with the matter. Bearing in mind the relevant important distinction about how the action for rectification in England and in India is to be commenced, which again suggests the procedure the court must adopt in dealing with such action, it is not correct to accept the view that the jurisdiction of the court while dealing with a petition under section 155 is of a summary nature. Same would be the position while dealing with decisions of courts in India and especially the Bombay High Court prior to 1st October, 1959, when the Companies (Court) Rules came into force.