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 Article 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 Article 12 of that Order, Article 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 Article 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. Article 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. Article 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 Article 13, deals with proceedings pending in the appellate side of this Court on the appointed date. Paragraph 3 of that Article 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 Article 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.
4. The Bengal and the Calcutta Orders have been promulgated by the Governor-General by virtue of the powers given to him by Section 9 (1)(i), Indian Independence Act, 1947, and the Adaptation (of Existing Laws) Order, 1947, have been promulgated by him by virtue of the power given by Section 9 (1) of the said Act of Parliament. The last mentioned paragraph, however, gives him the power to make omissions from, additions to and adaptations and modifications of (a) the Government of India Act, 1935; and (b) Orders in Council, rules and other instruments made under the Government of India Act, 1935, in their application to the separate new dominions. No power has been conferred accordingly to the Governor-General to modify the Letters Patent of this Court. In fact he has not by the Adaptation (of Existing Laws) Order attempted to alter the Letters Patent of this Court. The schedule to that Order does not refer to any provision of the Letters Patent. Articles 5 and 10 of that Order are, however, of a general character. They are intended to provide for omissions in the schedule annexed to that Order. Article 5 is not very material. Article 10, however, confers the power on the Court, tribunal or authority to adapt the 'existing Indian Law' which it is required or empowered to enforce for the purpose of rendering it consistent with the Indian Independence Act and the Government of India Act, 1935. In our opinion the Letters Patent establishing a High Court does not fall within the definition of 'existing law' as given in that Order. An Order in Council made under an Act of Parliament is also expressly excluded by that definition. The Judicial Committee Rules, 1925, cannot thereto re be the subject-matter of adaptation by Court by virtue of the power conferred on Courts by Article 10 of the Adaptation (of Existing Laws Order. Clause 42 of the Letters Patent Still remains as it is. As the two appeals to His Majesty in Council are against the judgments and decrees of this Court, this Court will have to certify under the seal of this Court and to transmit the record to the Privy Council by virtue of what is contained in that clause of the Letters Patent, and the Registrar of this Court will have to give the certificate relating to service of notice etc., in the lines of R, 11 of the Judicial Committee Rules, 1925, and to transmit to copies of the printed record to England, if the appellant to England had chosen to print them hence, after certifying one copy by signing at ovary eighth page thereof by reason of what is contained in Rule 13. Rule 51 would require this Court to give a certificate that a particular person is the proper person to be substituted. Those provisions cannot be modified and have not been modified by the Governor-General acting on the powers conferred on him by the Indian Independence Act. This Court and the Registrar of this Court would not be able to do these things if the records of pending Privy Council appeals preferred against the judgments, orders and decrees of this Court delivered before the appointed day are to stand transferred to the High Court at Dacca. The interpretation which would include appeals to His Majesty in Council, the records of which are still in this Court and have not been transmitted to England, within the phrase 'proceedings pending in the Appellate Side etc.' occurring in para. 3 of Article 13 of the Bengal Order would require modification of Clause 42 of the Letters Patent of this Court and those rules of the Judicial Committee Rules, which the Governor-General was not competent to do by making an Adaptation Order as his power in that respect has been limited to the matters mentioned in Section 9, sub-Section (1), Clause (c), Indian Independence Act. It is also pertinent to observe that whereas the High Court for the Province of East Bengal has been created by the Bengal Order, the Calcutta Order continues this Court as it was, and subject to the Bengal Order, this Court is to have such original, appellate and other jurisdiction as it had immediately before the appointed day. The Bengal Order curtails its appellate jurisdiction by taking away its jurisdiction over the territories of the Province of East Bengal and in regard to matters pending on the Appellate Side, where the Court of origin falls within that Province. Notwithstanding the division of territories its original jurisdiction over matters pending on the appointed date is preserved and in our opinion its jurisdiction over matters pending in this Court on the appointed date is preserved where those matters fall within its 'other' jurisdiction, that is to say not within its original or appellate jurisdiction. We accordingly hold that para. 3 of Article 13 of the Bengal Order is not applicable to Privy Council appeals pending in this Court on the appointed date and that this Court still retains jurisdiction in respect of them, though the subject-matters thereof are situated in the Province of East Bengal and the Court of origin is also within that Province. This view of ours would not introduce complications or difficulties in future as the orders to be passed by this Court shall also be considered to be orders of the High Court of East Bengal by reason of the provisions of Sub-clause (b) of para. (4) of Article 13 of the Bengal Order.
5. We accordingly hold that we have jurisdiction to pass orders in the two cases mentioned above.