S. B. MAJMUDAR, J. ( 1 ) IN this Company Application the applicants have sought dismissal of the main Company Petition No. 62 of 1986 in view of certain preliminary objections about maintainability of the petition as they seek to raise by way of this application. ( 2 ) IN order to appreciate the nature of the controversy posed for my consideration in this application it is necessary to note a few introductory facts. Respondent Esma Industries Private Limited has filed main Company Petition No. 62 of 1986 in this Court. The said petition is filed under Secs. 391 and 398 of the Companies Act 1956 (the Act for short ). It seeks to challenge certain alleged acts of omission/commissions said to have been committed by original respondents Nos. 2 and 3 of the company petition who are in charge of the management of the Company. It is alleged that they are conducting the affairs of the Company in a manner oppressive to its shareholders and also in the manner prejudicial to the interest of the Company. At admission stage this petition was opposed vehemently by the present applicants. Ultimately after healing both the parties this Court (G. T. Nanavati J.) was pleased to admit the company petition to final hearing on 14/11/1986 So far as interim relief is concerned Company Application No. 57 of 1986 was moved by the respondents (ori. petitioners ). The learned Judge did not grant interim relief as prayed for therein. ( 3 ) AGAINST admission of the company petition the original applicants preferred 0. J. Appeal No. 13 of 1987 in this Court. They also challenged the order passed by G T. Nanavati J in Company Application No. 57 of 1986 on 14 1986 refusing to grant interim relief. They first moved the Supreme Court by way of petition for Special Leave to Appeal (Civil) No. 15518 of 1986. That petition was allowed to be withdrawn with liberty to the respondents to prefer an appeal before a Division Bench of this Court. Accordingly O. J. Appeal No. 20 of 1986 was moved before the Division Bench of this Court against the order of the learned single Judge refusing to grant interim relief to the respondents. That petition was allowed to be withdrawn with liberty to the respondents to prefer an appeal before a Division Bench of this Court. Accordingly O. J. Appeal No. 20 of 1986 was moved before the Division Bench of this Court against the order of the learned single Judge refusing to grant interim relief to the respondents. So far as O. J. Appeal No. 13 of 1987 was concerned by an order dated 15-7-1987 the Division Bench of this Court consisting of P. R. Gokulakrishnan C. J. and R. C. Mankad J. was pleased to permit the learned Advocate for the appellant in that appeal i. e. the present applicants to withdraw the appeal as the learned Advocate for the present applicants before the Division Bench stated that he will have the right to raise the preliminary question of maintainability of the petition before the learned single Judge and if the learned Judge decides that such a question can be raised he can record evidence if necessary and page appropriate orders. The Division Bench also recorded statement of the learned Advocate for the respondent Mr. Jethmalani that he will not raise an objection to the effect that the Court cannot go into the question by reason of the fact that the petition has been admitted. It was made clear that the respective parties will have full opportunity to make their submissions as to whether the issue of maintainability should be heard as a preliminary issue. In view of the concensus arrived at between the parties O. J. Appeal No. 13 of 1987 was withdrawn. So far as O. J. Appeal No. 20 of 1986 was concerned it was admitted by the Division Bench and limited ad interim relief was granted pending further orders on 22-12-1986 by the Division Bench consisting of R. C. Mankad and B. S. Kapadia JJ. ( 4 ) IT is in the light of the concensus arrived at before the Division Bench of this Court in O. J. Appeal No. 13 of 1987 that the applicants have preferred this Judges summons. The prayers as sought for in this Judges summons read as under:" (A) to dismiss Company Petition No. 62 of 1986 in view of the preliminary objections regarding the maintainability of the petition raised by the applicants in the present application. The prayers as sought for in this Judges summons read as under:" (A) to dismiss Company Petition No. 62 of 1986 in view of the preliminary objections regarding the maintainability of the petition raised by the applicants in the present application. (b) to try the question regarding maintainability of the petition raised in the affidavit in support of the Judges summons as a preliminary objection and hear the same before proceeding with Company Petition No. 62 of 1986. (c) pending final hearing and disposal of the Company Petition No 62 of 198d to stay further proceedings in Company Petition No. 62 of 1986 and connected matters to stay the operation of interim orders passed in the aforesaid proceedings". ( 5 ) IN the affidavit it has been contended that the petition as filed by the respondents is not maintainable on the following grounds: (1) On the date of presentation of the petition i. e. 19-4-1986 the petitioner of the petition did not hold 10% of the issued share capital of the first respondent Company. That the issued share capital was raised to Rs. 7. 15 crores. Pursuant to the decision of the extra-ordinary general meeting of the shareholders held on 15 the issued share capital was raised to Rs. 7. 15 crores and the Board of Directors at the meeting held on 28-2-1986 resolved to raise the issued share capital and application forms were sent to the shareholders inviting them to subscribe to the higher issued share capital. In these circumstances since the issued share capital was increased to Rs. 7. 15 crores and application forms for subscribing to the shares so issued were posted to the shareholders the decision of increasing the issued share capital has been acted upon and made irreversible. Under the circumstances since the petitioner and those who have consented to the petition claimed to hold shares worth approximately Rs. 40 lacs they are holders of less than 10% of the issued share capital of the Company and therefore this petition is not maintainable in view of the provisions of Sec. 399 of the Act. This objection is reflected by para 41 of the affidavit-in-reply filed in the main Company Application. (2) The petition is not maintainable as the consent given by the holders who are alleged to constitute 10% of issued share capital have not given a valid consent acceptable in law. This objection is reflected by para 41 of the affidavit-in-reply filed in the main Company Application. (2) The petition is not maintainable as the consent given by the holders who are alleged to constitute 10% of issued share capital have not given a valid consent acceptable in law. There is nothing on record to show that the averments in the petition were considered by the consenting shareholders and that they had applied their mind to the allegations raised in the petition. A consent letter of Smt. Devkidevi Ruparel has been filed. To the best of information of the applicants she does not know English and therefore could not have understood even the contents of the petition or the contents of the consent letter filed alongwith the petition. This objection was raised in para 41-F of the affidavit-in-reply to the main Company Petition. (3) In order to maintain a petition under Secs. 397-398 it will be necessary to establish that the Company deserves to be wound up on the ground that it is just and equitable to do so. No case has been made out nor averments made in the petition to this effect. The attempt has been made to show that the financial substratum has vanished. Surprisingly for purchasing shares in such a company the petitioner claims to have paid twice the market price and face value of the shares. The averments in the petition are contradictory. The latest financial position of the Company as on 30-4-1986 clearly established the inherent financial worth of the Company. Therefore there being no justification for winding up there is no question of maintaining a petition under Secs. 397 and 398 of the Act. This objection is raised in para 41-F of the affidavit-in-reply to the Company Petition. (4) In order to maintain a petition under Secs. 397 and 398 of the Act apart from showing that the Company deserves to be wound up it is also necessary to show that the passing of an order of winding up would unfairly prejudice the petitioners. The petitioners have not made any attempt to show as to how the passing of an order of winding up would unfairly prejudice the petitioners nor have they made any averments in that behalf. The petitioners have not made any attempt to show as to how the passing of an order of winding up would unfairly prejudice the petitioners nor have they made any averments in that behalf. Under the circumstances the petition deserves to be dismissed not only because it fails to make out an adequate cause for the passing of a winding up order but also because it does not make out a case that the passing of an order of winding up would unfairly prejudice the petitioners. This objection is also raised in para 41-G of the affidavit in-reply etc. the Company Petition. ( 6 ) ON the basis of the aforesaid preliminary objections the following preliminary issues are sought to be raised by the applicants with a request to try them as such: (1) Whether in view of Sec. 399 of the Companies Act the petitioners can maintain and prosecute the petition under Secs 397 against the respondent No. 1 Company ? (2) Whether the petitioners held 10% of the issued share capital of the Company on the date of the presentation of the petition ? (3) Whether the petitioner and those who support the petition had given valid consent on the date of the presentation of the petition so as to ensure that the persons holding atleast 10% of the issued share capital of the Company have validly consented on the date of filing of the petition. ( 7 ) THIS application has been opposed by the respondents by filing affidavit-in-reply of Mr. Premjibhai K. Ruparel a Director of the respondent-Company. It is submitted that the proposed preliminary issues cannot be tried as such for the reason that such an exercise would be barred under tender 14 Rule 2 of the Code of Civil Procedure (the Code for short ). That these issues are not pure issues of law but they are mixed issues of law and fact and that evidence will have to be led to prove or disprove these issues That they do not touch upon the question of jurisdiction of the Court nor do they indicate about bar of maintainability of the suit under any provisions of law. Even on merits it has been submitted that it is not correct to suggest that the petition is not maintainable on any of the grounds as sought to be made out by the applicants as per these issues and therefore the application deserves to be dismissed with costs. ( 8 ) IT has been further submitted that it is not true to suggest that on 10-4-19865 the issued share capital of the Company was Rs. 715 crores. It was only Rs 4 crores. The Companys resolution for increasing the companys equity share capital passed at its general meeting held on 15-1-1986 as well as the decision of the Companys Board of Directors to issue additional equity share capital are contrary to the provisions of the Act and void. The validity of the decision of the Company at its extra-ordinary general meeting as well as of the decision of the Companys Board of Directors have been challenged on grounds both factual and legal. There has been as yet no issue of the additional equity share capital of the Company of Rs. 3. 15 crores or any part thereof. The question whether the issued share capital of the Company on the date of the presentation of the petition was or is Rs. 7. 15 crores would depend upon the decision of the question whether the companys decision at its extra-ordinary general meeting held on 15-1-1986 to raise its equity share capital and the decision of the Companys Board of Directors to issue additional equity share capital are valid. Therefore even if the issues relating to the maintainability of the petition were to be heard as preliminary issues the same themselves should involve investigation on merits and therefore there would be no meaning at ail in not hearing all issues arising in the petition together. It is therefore contended that there is no case for raising any preliminary issues and trying them as such. ( 9 ) MR. Anil Diwan learned Counsel for the applicants in support of this application contended that the proceedings under Sec. 397 and 398 of the Act are a complete code by themselves. That the Court has ample power under Sec. 402 of the Act to pass appropriate orders in public interest and in the interest of the Company and all the shareholders. Anil Diwan learned Counsel for the applicants in support of this application contended that the proceedings under Sec. 397 and 398 of the Act are a complete code by themselves. That the Court has ample power under Sec. 402 of the Act to pass appropriate orders in public interest and in the interest of the Company and all the shareholders. That this type of proceedings are not strictly speaking analogs to a suit between two private parties but these are proceedings in which members of the public are vitally interested and consequently provisions of Order 14 Rule 2 of the Code cannot be pressed in service for deciding the present proceedings. It was submitted that provisions of Order 14 Rules 1 and 2 of the Code apply in their full vigour to suits before the Civil Court and they do not automatically apply to the proceedings of present nature before the Company Court and that this Court has ample jurisdiction to raise and try any issue as preliminary issue if it goes to the root of maintainability of the petition even if such issue involves decision on merits by recording of evidence. Merely because an issue is mixed issue of law and fact its trial as a preliminary issue is not precluded so far as the present proceedings are concerned. Mr. Diwan submitted that if this Court in its discretion holds that these issues need not be tried as preliminary issues it would be a different matter. But provisions of Order 14 Rule 2 of the Code cannot be made applicable to the present proceedings. He therefore submitted that these issues may be raised and tried as preliminary issues ( 10 ) MR. Jethmalani learned Counsel for the respondents on the other hand submitted that though personally speaking he will have no objection if these preliminary issues are tried as such and decided as in his view there is no substance in these preliminary issues as an officer of the Court he submitted that such issues cannot be raised and tried as preliminary issues and that strict bar of Rule 14 Rule 2 squarely applies to the present case. Placing reliance on Sec. 141 of the Code and Rules 6 and 9 of the Companies (Court) Rules 1959 it was submitted that there is nothing to indicate that provisions of Order 14 Rule 2 of the Code can be ruled out while trying petition under Secs. 397 and 398 of the Act. It was submitted that these provisions do not contraindicate applicability of provisions of Order 14 Rule 2 of the Code. That these provisions are salutary in nature. They avoid protected and piece-meal trial of the proceedings and possibility of remand after number of years. They also rule out the tendency of having short cuts in deciding such matters and consequently there is no reason why full-fledged trials of such petition should not be insisted upon nor is there any reason to try such proceedings in a piece-meal manner as suggested by the applicants. It was submitted that public interest and interest of the Company and interest of the entire body of shareholders as such clearly indicate that provision of Order 14 Rule 2 of the Code should be made applicable to such proceedings and there is no reason why they should be ruled out. On the contrary ruling them out would be contrary to the public interest and contrary to the interest of all concerned. ( 11 ) IN view of the aforesaid rival contentions the following points arise for my determination: (1) Whether provisions of Order 14 Rule 2 of the Code apply to company petition under Secs. 397 and 398 of the Act ? (2) Whether the suggested issues can be tried as preliminary issues ? (3) What order ? ( 12 ) POINT No. 1 So far as the first point is concerned it is necessary to look at the relevant statutory provisions. Section 10 of the Act deals with jurisdiction of Courts and sub-sec. (1) thereof states that the Court having jurisdiction under this Act shall be:" (A) the High Court having jurisdiction in relation to the place at which the registered office of the company concerned is situated except to the extent which jurisdiction has been conferred on any District Court or District Courts subordinate to the High Court in pursuance of sub-sec. (2); and xxxxx "sections 397 to 409 occur in Chapter VI which deals with prevention of oppression and mismanagement. (2); and xxxxx "sections 397 to 409 occur in Chapter VI which deals with prevention of oppression and mismanagement. Concerned relevant provisions prior to their amendment by the Company (Amendment) Act 1988 provided as under. As per Sec. 397 (1) any member of a Company who complain that the affairs of the Company are being conducted in a manner prejudicial to public interest or in a manner oppressive to any member or members including any one or more of themselves may apply to the Court for an order under the section provided such members have a right so to apply in virtue of Sec. 399. Sub-sec. (2) thereof provides that if on any application under sub-sec. (1) the Court is of opinion: (A) that the Companys affairs are being conducted in a manner prejudicial to public interest or in a manner oppressive to any member or members; and (b) that to wind up the Company would unfairly prejudice such member or members but that otherwise the facts would justify the making of a winding up order on the ground that it was just and equitable that the Company should be wound up". The Court may with a view to bringing to an end the matters complained of make such order as it thinks fit. Section 398 provides for application to the Court for relief in cases of mismanagement. The Court may with a view to bringing to an end the matters complained of make such order as it thinks fit. Section 398 provides for application to the Court for relief in cases of mismanagement. It lays down that Any members of a Company who complain: (A) that the affairs of the Company are being conducted in a manner prejudicial to public interest or in a manner prejudicial to the interests of the Company; or (b) that a material change not being a change brought about by or in the interests of any creditors including debenture holders or any class of shareholders of the Company has taken place in the management or control of the Company whether by an alteration in its Board of Directors or of its managing agent or secretaries and treasurers or in the ownership of the Companys share or if it has no share capital in its members ship or in any other manner whatsoever and that by reason of such change it is likely that the affairs of the Company will be conducted in a manner prejudicial to public interest or in a manner prejudicial to the interests of the Company;may apply to the Court for an order under this section provided such members have a right as to apply in virtue of Sec. 399. Sub-sec. (2) thereof provides that if the Court is of the opinion that the affairs of the Company are being conducted as aforesaid or by reason of any material change in the management or control of the Company it is likely that the affairs of the Company will be conducted as aforesaid the Court may with B view to bringing to an end preventing the matters complained of or apprehended make such orders as it thinks fit. Then follows Sec. 399 which deals with right to apply under Secs. 397 and 398. Then follows Sec. 399 which deals with right to apply under Secs. 397 and 398. It will be necessary to extract the entire Section as under:"399 (1) The following members of a company shall have the right to apply under Sec. 397 or 398: (a) in the case of a company having a share capital not less than one hundered members of the company or not less than one tenth of the total number of its members of whichever is less or any member or members holding not less than one tenth of the issued share capital of the company provided that the applicant or applicants have paid all calls and other sums duo on their shares; (b) in the case of a company not having a share capital not less than one fifth of the total number of its members (2) For the purposes of sub-sec. (1) where any share or shares are held by two or more persons jointly they shall be counted only as one member. (3) Where any members of a company are entitled to make an application in virtue of sub-sec. (1) any one of more of them having obtained the consent in writing of the rest may make the application on behalf and for the benefit of all of them. (4) The Central Government may if in its opinion circumstances exist which make it just and equitable so to do authorise any member or members of the company to apply to the court under Sec. 397 or 398 notwithstanding that the requirements of clause (a) or clause (b) as the case may be of sub sec. (1) are not fulfilled. (5) The Central Government may before authorising any member or members as aforesaid require such member or members to give security for such amount as the Central Government may deem reasonable for the payment of any costs which the court dealing with the application may order such member or members of pay to any other person or persons who are parties to the application". Section 400 deals with procedure of issuing notice to be given to Central Government of applications under Secs. 397 and 398. Section 401 lays down right of Central Government to apply under Secs. 397 and 398 while Sec. 402 deals with powers of the Court on application under Sec. 397 or 398. Section 400 deals with procedure of issuing notice to be given to Central Government of applications under Secs. 397 and 398. Section 401 lays down right of Central Government to apply under Secs. 397 and 398 while Sec. 402 deals with powers of the Court on application under Sec. 397 or 398. ( 13 ) THE Supreme Court in exercise of its powers conferred upon it by sub-secs. (1) and (2) of Sec. 643 of the Act has made Companies (Court) Rules 1959 Rule 2 (4) defines Code to mean Code of Civil Procedure 1908 Sub-rule (5) defines Court to mean Court having jurisdiction under the Act; while sub-rule (13 defines Act to maen Companies Act 1956 Rule 6 of these Rules lays down practice and procedure of the Court and about the applicability of provisions of the Code to Court proceedings. It states that Save as provided by the Act or by those Rules the practice and procedure of the Court and the provisions of the Code so far as applicable shall apply to all proceedings under the Act and those Rules. Rule 9 deals with inherent powers of Court. It is analogous to Sec. 151 of the Code. It provides that nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to give such directions or pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. As per Rules 11 (a) (12) and (13) applications under Secs. 397 and 398 have to be made in the forms of petitions and as per Rule 12 (a) such petitions are to be heard in open Court. Rules 88 to 91 deal with procedure regarding filing of petitions under Secs. 397 and 398 of the Act and prescribe requirements about relevant averments to be contained in the petition and format of notice to be issued to the Central Government and other procedural details for effectively carrying out the orders passed under these provisions by the Court. Section 141 of the Code is another important provision which is required to be noticed at this stage. It reads as under:"the procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable in ail proceedings in any Court of civil jurisdiction". Section 141 of the Code is another important provision which is required to be noticed at this stage. It reads as under:"the procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable in ail proceedings in any Court of civil jurisdiction". ( 14 ) IT is true that as submitted by Mr. Diwan for the applicants that proceedings under Sec. 397 of the Act are not like suits between private parties and it is also true that as held by the Supreme Court in the case of Cosmosteels P. Ltd. v. Jairam Das Gupta 48 company Cases 312 these provisions represent a complete Code by themselves. However the question remains whether provision of 0. 14 R. 2 of the Code applies to these proceedings or not. The combined thrust of Sec. 141 of the Code and Rule 6 of the Companies (Court) Rules clearly indicates that provisions of 0. 14 R. 2 of the Code would apply to these proceedings as far as they can be made applicable. The phrase gas far as applicable has been construed by the Supreme Court in the case of Babulal Muljibhai Patel v. Nandlal Khodidas AIR 1974 SC 2105 :"to mean that concerned provisions may be made applicable to the given proceedings keeping in view the nature of proceedings and the relief claimed therein. It has therefore to be found out whether applicability of 0. 14 R. 2 is in any way ruled out by the settings in which petitions under Secs. 397 and 398 are entertained. The most questions are whether there is anything in these provisions which by necessary implication contra-indicate applicability of these provisions? Whether applicability of 0. 14 R. 2 would whittle dawn or stultify effective operation of these provisions ? If they are found to be so stultifying these proceedings then it can legitimately with held that 0. 14 R. 2 in its vigour cannot apply to these proceedings. Whether applicability of 0. 14 R. 2 would whittle dawn or stultify effective operation of these provisions ? If they are found to be so stultifying these proceedings then it can legitimately with held that 0. 14 R. 2 in its vigour cannot apply to these proceedings. But if on the other hand it is found that they do not whittle down the play and efficacy of these provisions and they can harmoniously co-exist with those provisions they would squarely set attracted and get superimposed on these proceedings by the combined thrust of Sec. 141 of the Code and Rule 6 of the Companies (Court) Rules" ( 15 ) PLACING reliance on a decision of the Bombay High Court in the case of Kelly and Henderson P. Ltd. In re 50 Company Cases 646 at p. 650 it was submitted by Mr. Diwan for the applicants that provisions of 0. 23 R. 3 of the Code were held not to apply in their vigour to the proceedings under Secs. 397 and 398 of the Act by the Bombay High Court. Mrs. Sujata Manohar J. in that case was concerned with the question whether proceedings under Secs. 397 and 398 can be disposed of as compromised between the parties in the light of 0 23 R. 3 and whether further inquiry by the Court in the matter was ruled out. Mrs. Sujata Manohar J. speaking for the Bombay High Court considered the scheme of Secs. 397 and 398 of the Act and took the view that if 0. 23 R. 3 was applied in its vigour to all such proceedings then such proceedings would get stultified and the very purpose of that provision would be frustrated if such proceedings can be get compromised between the parties and the Court would feel helpless in the light of 0. 23 R. 3 and would be bound to pass a decree or order in terms of compromise. In this connection it was held:"basically the provisions of both these sections provide for relief in cases of oppression of minority shareholders and in cases where the affairs of the company are being conducted in a manner prejudicial to public interest or in a manner oppressive to any member or members. Wide powers are given under these sections to the Court to pass an order which will be in the interests of the company. Wide powers are given under these sections to the Court to pass an order which will be in the interests of the company. Similar posters are given when a relief is asked for in the case of mismanagement. In such a situation where the petitioners ask for relief from oppression or mis-management any compromise which deals with the manner in which the affairs of the company will be conducted in future must be scrutinised by the Court before the Court gives its sanction to the compromise. In the case of such a petition the parties to the petition cannot insist on an order being passed simply the ground that the parties to the litigation have agreed to it. In the else of a compromise therefore which is arrived at in a petition under Secs. 397 and 398 of the Companies Act the compromise must be examined by the Court to ascertain whether such a compromise will be in the best interests of the company". ( 16 ) THUS provisions of 0 23 R. 3 of the Code were supplied with due modification to the proceedings under Secs. 397 and 398 of the Act. Mr. Diwan for the applicants also invited my attention to another decision of the Bombay High Court in the case reported in 24 Company Cases 25 (Vadilal C. Gandhi v. Thakorlal C. Munshaw) wherein provisions of 0. 23 R. 3 of the Code were applied to Liquidators misfeasance summons. ( 17 ) IN my view therefore before applying any provision of the Code to the proceedings under the Act it would be necessary to find out the nature of the proceedings and the relief claimed therein and the effect of the applicability of the concerned procedural provisions of the Code to these proceedings meaning thereby whether applicability of procedural provisions would in any way thwart or stultify these proceedings and the reliefs claimed therein 7 If the concerned procedural provisions are found to have such obnoxious effect their applicability will have to be suitably modulated so that the procedural provisions may not over-reach the substantive provisions. But if on the other hand the concerned procedural provision is not found to have such obnoxious effect and if it is found running parallel to it and also found to stream line the procedure and make it more effective such procedural provisions instead of being found to be deleterious would be found to be fully commensurate with the substantive provisions of the Act and can fully and harmoniously co-exist in all its vigour and rigour with the concerned provisions of the Act. With this preclude let us have a look at the relevant provisions of the Code around applicability of which the present controversy rotates. Order 14 Rule 2 reads as under:" (1) Notwithstanding that a case may be disposed of on a preliminary issue the Court shall subject to the provisions of sub-rule (2) pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit and the Court is of opinion that the case or any part thereof may be disposed of on a Issue of law only it may try that issue first if that issue relates to (a) the jurisdiction of the Court or (b) a bar to the suit created by any law for the time being in force. and for that purpose may if it thinks fit postpone the settlement of the other issues until after that issue has been determines and any deal with the suit in accordance with the decision on that issue". After the amendment in this provision in 1976 it becomes clear that the legislature has frowned upon trial of suits piece-meal. The reason is obvious. If on a preliminary issue the suit is tried and if the issue is decided one way or the other it would lead to further proceedings by way of appeal or revision. Number of years would lapse and ultimately when the highest Court which is approached in hierarchy decides the matter one way or the other a stage may be reached where the suit has to be tried further and that would involve lot of delay and the parties would get completely exhausted and exasperated by passage of time underlying such piece-meal trial of suits. With a view to avoiding such delay and exasperation to the litigating public this provision of 0. 14 R. 2 in the amended form has been brought in the statute book. With a view to avoiding such delay and exasperation to the litigating public this provision of 0. 14 R. 2 in the amended form has been brought in the statute book. Consequently underlying principle of this provision is laudable and beneficial one. As per this provision it is indicated by the legislature that suit must be tried as a whole on all issues. Save and except in the following exceptional circumstances wherein trial of preliminary issues can be permitted: (1) That the concerned issue must be a pure issue of law meaning thereby no question of leading evidence to prove or disprove the issue would be countenanced Even mixed issue of law and fact cannot be tried as preliminary issue. (2) Even 85 pure Issue of Jew preliminary issue can be framed and tried only if it touches upon the question of jurisdiction of the Court; or (3) Such pure issue of law raises the question about proceedings being barred by any provision of law". As for example A suit being barred by any express provision of law like Sec. 85 of the Tenancy Act or suit being barred on account of not giving of a statutory notice like Sec. 80 of the Code or similar such provision. In all other cases even if preliminary objections are taken about maintainability of the proceedings issues either of pure law or issue raising mixed questions of law and fact cannot be tried as preliminary issues. This is clear mandate of 0. 14. R 2. Let us see whether application of this mandate to proceedings under Secs. 397 and 398 of the Act would in any way frustrate these proceedings under the Act or would whittle them down in any manner. It is no doubt true that proceedings under Secs. 397 and 398 of the Act are not in the strict sense of term proceedings between private parties like plaintiff and defendant in the suit and they have wider coverage and they touch upon public interest of large body of creditors shareholders and they are taken to be in the best interest of the Companys business in the commercial world. In these proceedings even the Central Government has interests. In these proceedings even the Central Government has interests. However when in these proceedings an objection is taken by the other side who is interested in getting these proceedings dismissed that these proceedings are not maintainable is it necessary to try such objection as a preliminary issue? So far as this question is concerned I fail to appreciate how non-considering of such issue as preliminary issue would frustrate these proceedings which are initiated in the best interest of the Company body of creditors and shareholders. It is pertinent to note that by way of general practice when such petitions are moved they are placed for admission unlike suits. The concerned Company Judge issues notice to the other side to have their say in the matter before deciding to admit the petition to final hearing At that stage all preliminary objections about maintainability of the petition can obviously be pointed out by the other side to the learned Company Judge. If despite these objections being raised and considered the learned Company Judge decides in his discretion to admit the petition there is no reason why such dispute should be further raised by way of preliminary issue and bifurcating trial of the main petition on merits this issue should be tried as a preliminary issue if it is not a pure issue of law pertaining to jurisdiction of the Court or dealing with the question of the petition being barred by any provision of law If any interim relief is granted in these proceedings against the other side it has every right to prefer O. J. Appeal before a Division Bench of the High Court and get appropriate relief. That remedy is always available to the other side against whom interim relief is granted by the learned single Judge. If on the other band no interim relief is granted) the other side is not affected at all. Mere admission of the petition by itself would naturally not be treated as amounting to harassment to the respondent. Merely because petition remains pending for couple of years on the file of the High Court without any interim relief it cannot be said that the other side get harassed and therefore in order to alleviate this harassment issue of maintainability of such petition should be treated as d preliminary issue as provision of 0. 149 R. 2 of the Code would not permit such exercise. 149 R. 2 of the Code would not permit such exercise. It is also pertinent to note that even against orders admitting such petitions appeals are usually filed before the Division Bench of this Court by way of O. J. Appeals as was done in the present case itself. It is also pertinent to note that as per Sec. 483 of the Act appeals lie from any order made or decision given in matters of winding up of the companies by the Court. Thus O. J. Appeals are available in plenty against the orders of decision of the Court dealing with various company petitions under the Act. Even L. P. As. are also permitted under Clause 15 of the Letters Patent against any order or decisions which are judgments within the meaning of the clause when such judgments are given by Court exercising original jurisdiction under the Act. Consequently if 0. 14 R. 2 of the Code is made applicable to these proceedings it cannot be said that the nature of the remedy and the relief claimed in these proceedings would get whittled down by applicability of these procedural provisions. On the other hand applicability of these provisions would really streamline these provisions and would make them more effective. It is obvious that if petition under Secs 391 and 398 is decided on preliminary issue de hors the provisions of 0. 14 R. 2 and if it is held that such proceedings are not maintainable and after going through hierarchy of appeals before the High Court and the Supreme Court ultimately it is held that such proceedings were maintainable there would be possibility of remands after number of years and the proceedings would be revived on the file of the High Court possibly after a decade if not alone and by that time all necessary data and evidence would be last and the revived proceedings may even fail on merits on account of paucity of data and absence of relevant evidence which may have been lost over passage of years. This would frustrate affective use of provision of Sec. 397 and 398 of the Act and the very purpose underlying these provisions would get frustrated and would get blunted by passage of time. This would frustrate affective use of provision of Sec. 397 and 398 of the Act and the very purpose underlying these provisions would get frustrated and would get blunted by passage of time. If on the other hand 0 14 R. 2 is applied in its fall vigour to such a petition all that would happen is that save and except pure preliminary issues as contemplated by 0. 14 R 2 all other issues should be tried at a time by the High Court all evidence would be led and comprehensive decision would be rendered at the earliest by the learned single Judge so that all concerned parties may know where they stand on issues of maintainability of the petition as well as on merits and a final decision can be rendered at a time so that once and for all these proceeding3 come to an end before the first Court with the result the appellate Court can also go into these questions comprehensively in appeal against the decision of the first Court. This situation would result if provisions as of 0l 14 R. 2 are applied to these proceedings. It therefore become clear that applicability of provisions of 0. 14 R. 2 to proceedings under Secs. 397 and 398 will avoid unnecessary protraction of trial and avoidable delay and will rule out possibility of these proceedings getting stultified and frustrated by paucity of evidence due to delay that may result in piece-meal trial of these proceedings while non applicability of those provisions or their applicability in a diluted form on the contrary would frustrate these very proceedings and public interest underlying them and would make these proceedings in a given contingency abortive and meaningless. In that view of the matter it cannot be said that importing of provisions of O. 14 R. 2 in their vigour and rigour via Rule 6 of the Companies (Court) Rules and Sec. 141 of the Code would in any way frustrate the proceedings under Secs. 397 and 398 of the Act as submitted by Mr. Diwan for the applicants nor can it be said that applicability of these procedural provisions is in any way contraindicated by the some of these provisions. 397 and 398 of the Act as submitted by Mr. Diwan for the applicants nor can it be said that applicability of these procedural provisions is in any way contraindicated by the some of these provisions. On the same reasoning on which applicability of O. 232 R. 3 of the Code stricto sensu was ruled out by the learned single Judge of the Bombay High Court in 50 Company Cases 646 applicability of O. 14 R. 2 stricto sensu to these very proceedings would remain fully justified so that public interest underlying these proceedings may get buttressed rather than battered. ( 18 ) I entirely agree with the submission of Mr. Jathmalani for the respondents that by applying O. 14 R. 2 in ail its vigour to the present proceedings public interest underlying these proceedings would get better subserved rather than by ruling out applicability of these provisions to these proceedings. For all these reasons therefore it must be held that provisions of O. 14 R 2 of the Code apply in their entirety to the proceedings under Secs. 397 and 398 of the Act. Point No. 1 is answered accordingly. ( 19 ) POINT No. 2: Once it is held that provisions of O 14 R. 2 of the Code fully apply to these proceedings it becomes at once clear that preliminary objections which are put forward by the applicants to the maintainability of the main Company Petition No. 62 of 1986 cannot be countenanced in the light of the sweep of O. 14 R. 2. These preliminary objections require at least affidavit evidence to be led as fairly stated by the learned Advocate for the applicants. Therefore they are not pure questions of law but they are mixed questions of law and fact. Consequently they cannot be tried as preliminary issues as enjoined by O. 14 R. 2 but even that apart preliminary issues which are sought to he raised and argued by the applicants do not touch upon the jurisdiction of the Court nor they do raise any question regarding the main proceedings being barred by any express provisions of law. Alleged non-maintainability of petition under Sec. 399 of the Act on account of personal disability of the concerned petitioners moving the petition cannot be equated to bar of proceedings under any express provision of law. Alleged non-maintainability of petition under Sec. 399 of the Act on account of personal disability of the concerned petitioners moving the petition cannot be equated to bar of proceedings under any express provision of law. But even assuming that such bar can be involved under Sec. 399 of the Act such objection cannot be decided without going into the factual controversy whether on the date of the petition the petitioners commanded shares worth 10% of issued capital. This is the additional reason why such issues cannot be raised and tried as preliminary issues in the present proceedings. None of these preliminary issues therefore as suggested by the learned Advocate for the applicants can be tried as preliminary issue. Order 14 Rule 2 clearly ruled out such an exercise. Point No. 2 is answered accordingly. ( 20 ) AS a result of the aforesaid discussion it therefore follows that prayer (b) in Company Application No. 90 of 1987 cannot be granted. So far as prayer (a) is concerned the objection reflected therein cannot be tried as preliminary issue but it will have to be tried along with other issues on the merits of the petition and will have to be answered ultimately while deciding the main company petition on merits. Prayer (a) therefore is treated to be premature at this stage and hence cannot be entertained. It is however clarified that the question whether company petition is maintainable in law and in fact will have to be decided ultimately on merits while considering the main petition. This is not the stage to express any opinion one way or the other on this aspect. Subject to this clarification therefore it is held that none of the final prayers as put forward in Company Application No. 97 of 1987 can be granted at this stage. Consequently Company Application fails and is rejected. There will be no order as to costs in the facts and circumstances of the case. Notice discharged. Application dismissed. .