Sunday, January 1, 2012

Letter Patents Appeal/ Intra Court Appeal, Interlocutory Orders and Original Civil Jurisdiction

1996 SCMR 1209 @ 1210
Feeling aggrieved thereby, the Petitioner filed Intra Court Appeal which was dismissed vide impugned order on the short ground of non maintainability. The High Court was of the view that Intra Court Appeal was not competent against an interim order passed by the learned single judge during the hearing of a constitution Petition.
2001 YLR 1239 @ 1240
S. 3 --- Intra Court Appeal --- Interim order passed in a constitutional Petition had been assailed in Intra Court Appeal which was not maintainable --- even otherwise the impugned order being in accordance with law Intra Court Appeal was dismissed accordingly.
2004 MLD 1578 @ 1582
We of the view that the appeal is not competent as the learned single judge has not exercised his original civil jurisdiction at the time of passing the impugned order. In arriving to this conclusion we are fortified by the law laid down by the Division Bench of this Court in Begum D.F. Hassan v. Habib Bank Limited, Lahore (PLD 1974 Lahore 117). The relevant observation is reproduced hereunder.
            “Furthermore, under the provisions of subsection (1) of section 3 an appeal is competent against an order passed by single judge in exercise of this court’s original civil jurisdiction. Even if the Appellant’s argument was to be accepted that the jurisdiction exercised by the High Court while dealing with the constitutional Petitions is an original jurisdiction, the jurisdiction exercised shall at beset be its ‘special original jurisdiction’ and not its ‘original civil jurisdiction’ as observed by the Supreme Court while considering the nature of this court’s jurisdiction the nature of this court’s jurisdiction qua Writ Petitions dealt with in this court. As appeals under the ordinance and the law Reforms (Amendment) Act, 1972 are competent only if they fall within the terms of the provisions of section 3. The present appeal must be held to be incompetent as it is not covered in terms, either by the provisions of subsection (1) or by subsection (2) of the above enactments.”
            It is also settled principle of law that the constitutional jurisdiction through original jurisdiction is distinct from the civil jurisdiction as observed by the learned judges of the Supreme Court in Ahmad Khan v. The Chief Justice and Judges of the High Court, West Pakistan, Lahore and 2 others (PLD 1968 Supreme Court 171).
PLD 1974 Karachi 345 @ 359
I would respectfully follow this observation that the writ jurisdiction of this court is a constitutional jurisdiction, and, therefore, it follows that a judgment deciding a constitutional Petition would not be a judgment in the exercise of the original civil jurisdiction of this court within the meaning of subsection (1) of section 3 of the Act.


PLD 1975 Lahore 1372 @ 1377
There is a claim of authorities for the contrary view that in disposing of a constitutional Petition under Article 199 of the Constitution, the High Court does not pass the order in exercise of its civil original jurisdiction. In this connection recently a full bench of the Sind & Baluchistan High Court in the reported case of Asad Ali and others v. Settlement & Claims Commissioner, Karachi.
PLD 1992 Supreme Court 263
Writ Petitions filed and interim orders passed which were challenged before the Supreme Court through petition for leave to appeal and objection was raised regarding maintainability and it was held that no Intra Court Appeal is competent against an interim order of the High Court.
PLD 2005 Supreme Court 831 @ 836
6.         Section 3 of Law Reforms Ordinance, 1972 as reproduced above, provides in subsection (1) that an appeal from a decree or final order made by a single judge of High Court shall lie to a Bench of two or more judges of the same High Court in case the judgment rendered is in the exercise of its original civil jurisdiction. In the instant case, the judgments rendered are not in the exercise of original civil jurisdiction but constitutional jurisdiction, hence, subsection (1) of section 3 of the Ordinance, 1972 is not applicable.
PLD 1968 Supreme Court 171 @ 182
The jurisdiction exercised under Article 98 of the Constitution of 1962 is declared as a constitutional jurisdiction of original kind.
            Original is not to be confused with ordinary original jurisdiction”.
PLD 1974 Lahore 117 @ 118, 119 & 120
3.         In the case of Ahmad Khan v. Chief Justice and Judges of High Court, West Pakistan (1) the Supreme Court, while discussing the nature of the jurisdiction exercised by the High Court when it dealt with the Petition under Article 98 of the Constitution of 1962, explained this aspect of the matter and also made observations regarding the import of the phrase “original civil jurisdiction” of the High Court. The following observations appear to be particularly relevant and may, therefore, be cited with advantage hereunder:-
“…………the mere fact of a matter coming directly before the High Court under a law would not suffice to bring it within the ordinary original civil jurisdiction …… The ordinary original civil jurisdiction was confined to the trial of suits arising within the local limits of that jurisdiction. The extraordinary original civil jurisdiction was given for the removal and trial of suits pending or falling within the jurisdiction of court subordinate to the High Court. Every other jurisdiction of a civil nature conferred by the letters patent would as contended by the learned Attorney General, be best described as special jurisdiction or as statutory jurisdictions, since some of those jurisdictions were to be exercised under existing statutes.”
So far as the jurisdiction exercised by the Lahore High Court, while dealing with the Petitions under Article 98 of the abrogated constitution was concerned, it was observed that the same could best be described as a “constitutional jurisdiction of an original kind”. Reading the observation quoted above and the observation made just referred to, it can be inferred that the exercise of, what is commonly termed as the writ jurisdiction, was considered to be a special original jurisdiction of the High Court and not ordinary original civil jurisdiction. The same view was also expressed in Hussain Bakhsh v. Settlement Commissioner (1).


5.         It seems thus to be clear that the jurisdiction exercised by the High Court, under Article 102 of the 1962 Constitution was of a supervisory nature. It was not original jurisdiction because it did not envisage the trial of suits by the High Court in exercise of that jurisdiction. Exercise of an original jurisdiction appears to connote that proceedings should start before that forum and are finally disposed of, by it.
            Undoubtedly the jurisdiction exercised is a civil jurisdiction, when the original cause in respect of which scrutiny is required of a civil nature. But in order to determine whether it is “original civil jurisdiction” it is the nature of the function exercised by it while dealing with the case that is more pertinent. Since the original proceedings are pending in a court other than the High Court it is manifest that the High Court in exercise of its jurisdiction under Article 102 of 1962 Constitution cannot be said to be exercising its “original civil jurisdiction”.
6.         Furthermore, under the provisions of subsection (1\) of section 3 an appeal is competent against an order passed by a single judge in exercise of this court’s original civil jurisdiction. Even if the Appellant’s argument was to be accepted that the jurisdiction exercised by the High Court while dealing with the constitutional Petitions is an original jurisdiction, the jurisdiction exercised shall at best be its “special original jurisdiction” and not its “original civil jurisdiction” s observed by the Supreme Court while considering the nature of this court’s jurisdiction qua Writ Petitions dealt with in this court. As appeals under the Ordinance and the Law Reforms (Amendment) Act, 1972 are competent only if they fall within the terms of the provisions of section 3. The represent appeal must be held to be incompetent as it is not covered in terms, either by the provisions of subsection (1) or by subsection (2) of the above enactments.
2010 MLD 533 @ 542, 543
21.       A bare reading of section 3 of subsection (3) of the Law Reforms Ordinance, 1972 thus clearly provides that no appeal is competent against an interim order. This legal position has further been confirmed by the Honourable Supreme Court of Pakistan in the judgment reported as Messrs National Security Insurance Co. Limited., Vs. Messrs Hoechst Pakistan Limited., and others (PLD 1990 Supreme Court 709) and Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others (PLD 1992 Supreme Court 263).
27.       The case cited by the learned counsel for the Respondent highlights the settled proposition of law on the concept of order passed by the High Court in exercise of original constitutional jurisdiction and in original civil jurisdiction. It is authoritatively and consistently held that the orders passed by the Honourable High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be termed as order passed in Original civil jurisdiction of the court so as to make the appeals competent against the consequent orders by it, under the Law Reforms (Amendment) Ordinance, 1972 read with section 15 of Code of Civil Procedure, (Amendment Ordinance of 1980) Ordinance (XX) of 1980 whereby an appeal to a bench or two or more judges was provided against an interlocutory order made by a learned single judge of this court in exercise of its original civil jurisdiction.
28.       In view of all the above discussion, this court, is of the view that the order passed by the learned single judge of this court, dated 28.08.2009 on C.M. No.3428/ 2009 is an interim or an interlocutory order which does not have the effect of disposing of the entire case put up before the court in C.M. No.3428/2009, thus, the present Intra Court Appeal No.153/2009 against the said order is not maintainable as it is strictly barred by subsection (3) of section 3 of the Law Reforms Ordinance, 1972. The instant Intra Court Appeal is, therefore, dismissed without any orders as to costs.


2006 SCMR 1202 @ 1209
13.       On the legal plane, it was argued on the strength of the provisions of section 3 of the Law Reforms Ordinance, 1972 especially the provisions contained in subsection (3) thereof and also on the strength of a number of precedent cases cited before us that no Intra Court Appeal was competent against an interim order and that in the circumstance, the impugned order was an order without jurisdiction. It was, however, submitted on behalf of the Respondents that the said order had the trappings of final order and an Intra Court Appeal was thus maintainable against the same. The learned single bench had mentioned in its order in question that whatever had been mentioned in the said order was only tentative in nature and that complicated questions of law arose in the matter which required to be settled. “Appeal Allowed”.
PLD 1993 LAHORE 545 @ 547
8.         Although it is correct by virtue of section 15 aforesaid an appeal has been provided against as interlocutory order made by a learned single judge of the High Court but it is subject to the condition that the interlocutory order should have been made in the exercise of the original civil jurisdiction of the High Court.
PLD 1992 Supreme Court 263
S. 3 --- No Intra Court Appeal is competent against an interim order of the High Court.
2007 CLC 414 @ 415
S. 3 --- Constitution of Pakistan, 1973, Art. 199 --- Intra Court Appeal --- Maintainability --- Ad interim injunction was passed by single judge in exercise of constitutional jurisdiction --- Authorities assailed such order in Intra Court Appeal --- Validity --- Order having not been passed by single judge in exercise of its original civil jurisdiction under any statute or law but in exercise of jurisdiction under Article 199 of the Constitution, therefore, no appeal lay under section 3(1) & (2) of the Law Reforms Ordinance, 1972, from the order being interlocutory and such order did not dispose of the entire case before the court, because the case had already been fixed for hearing  --- Intra Court Appeal was dismissed in limine.
2003 CLD 621 @ 623
In the case of Brother Steel Mills Limited, and others v. Mian Ilyas Miraj and 14 others (PLD 1996 SC 543) and an unreported judgment in the case of Ch. Muhammad Hussain  v. Pakistan Industries and Credit Investment corporation Limited, and others CMA No.943 of 2002 C.A. No.648 of 2002, decided on 25.07.2002), this court has held that all orders passed under subsection (2) of section 10 of the Ordinance in exercise of original civil jurisdiction of the High Court as per provisions of section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 (X of 1980) are appealable before a Division bench of the High Court.
2000 SCMR 184 @ 196 & 197
It cannot be disputed that the order, dated 14.12.1993 was passed by the learned single judge in exercise of his original civil jurisdiction. Mr. A.H. Pirzada, the learned counsel for Respondent No.1 rightly contended that the right of appeal against such an order was available under section 15 of the Ordinance X of 1980 which reads as follows:-
“15.     Appeal to High Court in certain cases: Notwithstanding anything contained in section 3 of the Law Reforms ordinance, 1972, an appeal shall lie to a bench of two or more judges of a High Court from an interlocutory order made by a single judge of that court in the exercise of its original civil jurisdiction.”
The fact that under subsection (11) of section 39 of the Ordinance, an appeal is provided only against an order passed under subsections (7) & (9) of section 39 does not mean that against an order not covered by subsection (7) or subsection (9) no appeal would be competent. There is no provision under the Ordinance which prohibits filing of appeal against the order which is otherwise permissible under any other enactment. In the absence of any specific provision prohibiting filing of appeal against the orders passed under section 39 of the Ordinance, the general provisions contained under Ordinance x of 1980 providing for an appeal from an interlocutory order passed by a learned single judge of the High Court would be clearly available to a party. Since the order accepting bid of Appellants was interlocutory in nature, in our view, the appeal was competent before a bench of the High Court as provided under section 15 of the Ordinance X of 1980.
2004 CLD 1 @ 77 and 78
Further, appealability of an order is not to be seen with reference to the provisions of the Civil Procedure Code because of specific provision in the form of section 10(3) of the Companies Ordinance, 1984. It may be added that by virtue of section 15 of the Code of Civil Procedure (Amendment) Ordinance (No. X) of 1980, even an interim order passed in exercise of original civil jurisdiction is appealable before a Bench of two Judges.
PLD 2008 Supreme Court 707 @ 713
12.              The term “original jurisdiction” means jurisdiction in the first instance”, jurisdiction to take cognizance of a cause at its inception, try it, and pass judgment upon the law and facts. As per Black’s Law Dictionary, “Original jurisdiction” is the authority of a court to hear a case in the first instance, i.e., to function as a Trial Court and the “Appellate jurisdiction” is the authority of a court to hear a case that has first been decided by a lower court. Jurisdiction of a court is never in a statute or the constitution. “Original civil jurisdiction” of a court is such jurisdiction where it is empowered to entertain suits and such proceedings of civil nature which are initiated before the said court and entertained by it as a court of first instance and are decided by it. Sub Article (2) of Article 175 of the Constitution of Islamic Republic of Pakistan, 1973 enshrines that, “|No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or under any law”. The statute which may be provided for initiating the proceedings in that court as a court of first instance having power to entertain and decide it. Such court will thus be vested with original jurisdiction. If it relates to civil disputes, it will be termed as “original civil jurisdiction”. It is also a common proposition that statutes are promulgated conferring jurisdiction on the High Court to initiate proceedings as a court of first instance for purposes of exercise of jurisdiction.
13.              The High Court enjoys the “original jurisdiction” under Article 199 of the Constitution of the country and under different statutes like the Companies Ordinance, 1984, the Banking Companies (Recovery of loans, advances, credits and finances) Ordinance, 2001 etc.
PLD 1989 Peshawar 155 @ 158 & 160
However, section 15 of the CPC stood amended by the Code of Civil Procedure, (Amendment) Ordinance (X) of 1980 and thereby the effect of subsection (3) of section 3 of ordinance XII against an interlocutory order arising out of the proceedings in the original civil jurisdiction of a single judge of a High Court stood negated inasmuch as the amended section 15 CPC states:-
“Notwithstanding anything contained in section 3 of the Law Reforms ordinance, 1972, an appeal shall lie to a bench of two or more judges of a High Court from an interlocutory order made by a single judge of that court in the exercise of its original civil jurisdiction.”
So one aspect is established beyond any doubt that no Intra Court Appeal shall be competent against an interlocutory order passed by a single judge of the High Court in a matter under clause (1) of Article 199 of the Constitution. To this extent, as also relating to incompetency of an appeal against an interlocutory order, this court in the case Muhammad Ismail v. Secretary to Government of NWFP reported in PLD 1988 Peshawar page 19 has correctly laid down the law. unfortunately the Law Reforms (Amendment) Act, 1972 nor for that matter Law Reforms (Amendment) Act, 1974 was brought, by either party, to the notice of the learned judges at the time of hearing of the aforesaid case.
It is clear from the wording of the proviso that the requirements of the availability of an appeal in the law applicable, is not in relation to the impugned order in the constitutional Petition.
PLD 2001 Supreme Court 182 @ 189
The mere fact of a matter coming directly before the High Court under a law would not, however, suffice to bring it within the ordinary original civil jurisdiction. The ordinary original civil jurisdiction was confined to the trial of suits arising within the local limits of the jurisdiction. The extraordinary original civil jurisdiction was given for the removal and trial of suits pending or falling within the jurisdiction of courts subordinate to the High Court. Every other jurisdiction of civil nature conferred by the Letters Patent would, be best described as special jurisdiction or as statutory jurisdiction, since some of those jurisdictions were to be exercised under existing statutes. An order passed by a Single Judge in exercise of the jurisdiction vested in the High Court while dealing with Constitutional petitions was not open to appeal before a Bench of two or more judges. 
PLD 2003 Supreme Court 124 @ 125
4.         In the case of Brother Steel Mills Limited and others. Vs. Mian Ilyas Miraj and 14 others PLD 1996 SC 543 and unreported judgment in the case of Ch. Muhammad Hussain v. Pakistan Industrial and Credit Investment Corporation Limited and others C.M.A. No. 948 of 2002 in C.A. No. 648 of 2002, decided on 25-07-2002), this court has held that all orders passed under subsection (2) of section 10 of the Ordinance in exercise of original civil jurisdiction of the High Court as per provisions of section 15 of the code of Civil Procedure (Amendment) Ordinance (X of 1980) are appealable before a Division Bench of the High Court.
PLD 2005 Lahore 107 @ 112
8.         The Petitioner had knocked the Constitutional jurisdiction of this court which is distinct from the civil jurisdiction as laid down by the learned judges of the Honourable Supreme court of Pakistan incase of Ahmad Khan v. the Chief Justice and the Judges of the High court, West Pakistan, through the Registrar, High Court of West Pakistan, Lahore and 2 others (PLD 1968 SC 171) wherein it is observed that the writ jurisdiction is clearly an original jurisdiction. Equally clearly, it does not fall within the extraordinary original civil jurisdiction. The writ jurisdiction has been conferred on the High Court by an Article of the Constitution for the purpose of implementing the high directive in Article 25 that no person should be treated otherwise than in accordance with law.
PLD 1988 Peshawar 19 @ 23
Can it be said that the High Court, when exercising jurisdiction under Article 199 of the Constitution, exercises original civil jurisdiction under the Code of Civil Procedure, 1908. We would answer this question in the negative for the reason that these are two different jurisdictions. Original civil jurisdiction is exercisable under the provisions of Code of Civil Procedure, 1908 and writ jurisdiction is exercisable under the provisions of Article of the Constitution. The mere fact that the principles of Code of Civil Procedure, 1908 are applicable to the proceedings commenced under writ jurisdiction, would not mean that the latter proceedings were commenced under the Code of Civil Procedure, 1908 and pertain to the original civil jurisdiction of the High Court. Although writ jurisdiction is original jurisdiction but it’s not original civil jurisdiction and in this connection we draw support from the case of Ahmad Khan V. Chief Justice and judges of the High Court, West Pakistan through Registrar, High Court of West Pakistan, Lahore PLD 1968 SC 171 wherein it has been clearly laid down that “writ jurisdiction is clearly an original jurisdiction and equally clearly it does not fall within the extraordinary original civil jurisdiction”. We are, therefore, of the confirmed opinion, that original civil jurisdiction and writ jurisdiction of the High Court are two separate and distinct jurisdictions. Having arrived at this conclusion we would now see the provisions of section 15 of the amending ordinance of 1980. According to these provisions an appeal lies to a bench of two or more judges of the High Court from an interlocutory order made by a single judge of the court in the exercise of its original civil jurisdiction. What we want to emphasize here is that this appeal would be competent in those cases only where an interlocutory order has been made by a single judge of the High Court exercising original civil jurisdiction under the Code of Civil Procedure, 1908 and such appeal would not be competent when a judge of the High Court has made any interlocutory order in the exercise of writ jurisdiction under Article 199 of the constitution.
PLD 1966 Supreme Court 276 @ 284 & 286
The writ jurisdiction of the High Court of West Pakistan exercisable under the Laws of (Continuance in Force) Order, 1958, is certainly not synonymous with the technically described “ordinary original civil jurisdiction” to try suits arising within certain territorial limits, such as is enjoyed by the Karachi Bench of the High Court. But it can be described as “original jurisdiction” as contrasted with “appellate jurisdiction” generally, and these are the two categories of jurisdictions mentioned in section 108 of the Government of India Act.
In view of the above discussion we have reached the conclusion that an order passed by a single judge in writ jurisdiction, pertaining to a civil matter, amounts to exercise of original jurisdiction within the contemplation of section 108 of the government of India Act and would therefore b appealable as a judgment under clause 10 of the Letters Patent of the High Court.
1987 CLC 1259 @ 1261
Therefore, the instant appeal directed against the interlocutory order passed in the exercise of constitutional jurisdiction is not covered by section 15 of Ordinance X of 1980 and is clearly hit by section 3(3) of Ordinance XII of 1972, hence the same is incompetent. In the result this appeal being not maintainable is hereby dismissed in limine.


JUDICIAL REVIEW OF PUBLIC ACTIONS (Volume 1)
Justice (R) Fazal Karim
Pakistan Law House (2006)
Classification of Jurisdiction Constitutional and Statutory Jurisdiction @ 411 & 414
The jurisdiction conferred upon the Supreme Court, such as original and writ jurisdiction under Article 184, appellate jurisdiction under Article 185 and upon the High Courts, such as writ jurisdiction under Article 199 of the constitution, is constitutional jurisdiction. This jurisdiction is to be distinguished from the jurisdiction which the Supreme Court, the High Courts and the ordinary civil and criminal courts exercise under various statutes such as the Code of Civil Procedure, 1908, the Criminal Procedure Code 1898, the Companies Act, 1913, the Insurance Act, 1938. This latter jurisdiction is called “statutory jurisdiction”.
A constitutional jurisdiction thus is the jurisdiction conferred by the constitution and a statutory jurisdiction in one conferred by a statute, that is, a sub-constitutional legislation.
Original Jurisdiction
Original jurisdiction is the jurisdiction conferred on a court in the first instance. It may be constitutional or statutory jurisdiction, and may be conferred upon a superior or subordinate court. Thus, civil judges exercise, in trying the suits, original civil jurisdiction and the Magistrates and Session Judges exercise, in trying criminal offences, original criminal jurisdiction. Also, the High Courts, in exercising writ jurisdiction under Article 199 of the Constitution of Pakistan, and the Supreme Court, in exercising writ jurisdiction under Article 184, clause (3), exercise original jurisdiction. The jurisdiction which the High Courts exercise under the Companies Ordinance, 1984 is an instance of original jurisdiction conferred by statute.

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