1996 SCMR 1209 @ 1210
The Petitioner was directed to amend the Writ Petition and implead the Applicant (Ch. Sultan Mahmood) as a party in the Writ Petition. 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.
We have heard Mr. Bashir A. Muhahid, Advocate, learned counsel for the Petitioner. We find that in view of the provisions of section 3(1) of the Law Reforms Ordinance, 1972 the division bench of the High Court was fully justified in holding the Intra Court Appeal of the Petitioner as not maintainable. Relevant provision i.e. section 3(1) reads as follows:-\
“An appeal shall lie to a bench of two or more judges of a High Court from a decree passed or final order made by a single judge of that court in the exercise of its original civil jurisdiction.”
Learned single judge has simply allowed the application of Respondent No.3 for impleading him as a party in the Writ Petition. The main Writ Petition is still pending. The well settled practice of this court is not to interfere interim orders unless exceptional ground exists necessitating interference in the interest of justice which is non existent in this case.
Leave to appeal is, therefore, refused and the Petition is dismissed.
Petition dismissed.
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.
We have considered the contentions of the learned counsel for the Appellant and perused the record ourselves. The learned single judge, directed the counsel for the Appellant to produce the Appellant before the court. The leaned counsel for the Appellant failed to produce the Appellant before the court as directed by the learned single judge and wanted to withdraw the Writ Petition. Meaning thereby circumvented the order of the learned single judge. The Appellant has challenged the vires of the interim order dated 24.05.2001 through this appeal. It is settled principle of law that Intra Court Appeal is not maintainable against an interim order, by virtue of the provisions of Law Reforms Ordinance, 1972 as laid down by the superior courts.
2004 MLD 1578 @ 1582
We have considered the contention of the learned counsel for the Appellant and perused the record ourselves. We are 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
“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). The jurisdiction must obviously be described in constitutional jurisdiction of an original kind, therefore, Intra Court Appeal is not maintainable as per principle laid down by the Division Bench of this court in Khushi and others v. Agha Hassan Raza (1990 ALD 207(1)). These proceedings are not akin the original nature of proceedings referred in section 3 of the Law Reforms Ordinance, 1972. It is not conceivable that any order passed by this court on the office objection would be an order in the exercise of original civil jurisdiction amenable to Intra Court Appeal, therefore, this appeal is imcompetent and the same is dismissed.”
In the judgement relied upon by the learned counsel for the Petitioner reported as Mst. Perveen Akhtar v. Director FIA, Lahore (PLD 1996 lahore 328), the question of maintainability was not raised and not decided, therefore, Mst. Perveen’s case (supra) is not attracted in the given circumstances. The office has raised objection in a Petition filed by Muhammad Riaz Bhatti under the High Court Rules and order Vol. V, Chapter 1-A. Rule 9, which was upheld by the honourable Chief Justice of this court vide order dated 25.04.2002. Muhammad Riaz Bhatti being aggrieved filed a Petition before the honourable Supreme Court, which was dismissed, which is reported as Muhammad Riaz Bhatti v. Federation of Pakistan and others )2004 SCMR 1120).
In view of what has been discussed above, neither the review Petition nor the Intra Court Appeal is maintainable in view of the aforesaid circumstances. Therefore, the office objection is upheld.
PLD 1974 Karachi
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.
18. Mr. Akthtar mahmood then submitted that their Lordships had taken a contrary view in Hussain Buxs’ case. The question there was whether the West Pakistan High Court was competent to entertain a review application against a judgment or order given by it in the exercise of its constitutional jurisdiction. The facts were that as the constitutional Petition fild by the Appellant had been dismissed by the High Court he had filed a reviw application which was dismissed on the short ground that the court had no power to review the orders passed by it in the exercise of its constitutional jurisdiction. The view thus taken was challenge by the Appellant in the Supreme Court on the ground that as constitutional Petitions were civil proceedings in the High Court, the provisions of the Code of Civil Procedure, 1908 were applicable to them and therefore the High Court had erred in holding that it had no power to review its own decisions. Thus, the only question before their Lordships was whether the provisions of the Code of Civil Procedure, 1908 were applicable to constitutional Petitions. M.R. Khan, J. (as he then was), who delivered the judgment of the court, referred to the earlier judgments of the courts in Mumtaz Khan’s case and Ahmad Khan’s case and observed with reference to Ahmad Khan’s case; “In the second case the jurisdiction under Article 98 of the constitution was held to be a constitutional jurisdiction of an original kind. The Writ jurisdiction under the said article, in any event, is an original jurisdiction. The question then arises as to whether the provisions of the Code of Civil Procedure, 1908 other than the provisions expressly excepted shall apply in the exercise of the Writ jurisdiction by the High Court under the said article”. Then, after examining the erelevant provisions of the Code of Civil Procedure, 1908 and in view of section 117 of the code, M.R. Khan, J. allowed the appeal. He observed at page 9 “As the High Court has been found to have power under clause (b) of section 114 of the Code of Civil Procedure, 1908 to review an order made in its writ jurisdiction in a civil matter, the appeal succeeds.” In my humble opinion, this is the true ratio of the case, but Mr. Akhtar Mahmood referred us to the following observations at page 7: “A proceeding under Article 98 of the constitution concerning a civil matter being a civil proceeding relating to the High Court’s original civil jurisdiction and section 114 of the code conferring power of review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under the said section 114 if that section is otherwise applicable”. Learned counsel relied on the words “the High Court’s original civil jurisdiction” in this passage, but in my humble opinion, these words had reference to the narrow question for consideration before their Lordships, which was whether it could be said that a constitution Petition was an original matter of a civil nature in the sense of having originated in the High Court within the meaning of section 114 of the CPC. It is also not irrelevant to mention here that th validity of the viw taken by their Lordships in Ahmad Khan’s case was not even questiond, therefore, in my humble opinion, the passage relied upon by Mr. Akhtar Mahmood does not help his submission, and on the contrary, the observation of Cornelius, C.J. in ahmad Khan’s case are fatal to his submission.
PLD 1975 Lahore
8. At first the learned Deputy Attorney General appearing before us for the Appellant made a half hearted attempt to contend that this order passed by the learned judge under Article 199 of the constitution was an order passed by him in the exercise of original civil jurisdiction and was appealable under subsection (1) of section 3 of the Law Reforms Act. But this contention has no force and need not detain us any longer. 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 held that a judgment deciding a constitutional Petition under Article 98 of the constitution of Pakistan, 1962 (corresponding to article 1999 of our present constitution), is not a judgment passed by the High Court in the exercise of its original civil jurisdiction within the meanings of subsection (1) section 3 of the Law Reforms Act, 1972.
PLD 1992 Supreme Court 263 @ 270
15. Now all these three matters have come up for hearing after notice to all concerned. A preliminary objections has been raised that as an Intra Court Appeal was competent, these Petitions do not lie before the Supreme Court.
Under the Law Reforms Ordinance, 1972, there is no appeal competent against an interim order. It is by and large the interim orders which are the subject matter of these Petitions and they could be the subject matter of appeals by leave of the court under Article 185(3) of the Constitution wherein final order is not mentioned.
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.
8. Both the learned counsel for PIA wanted derive benefit from proviso to subsection (2) of section 3 of Ordinance, 1972 canvassing the view that the Petitions brought before the High Court under Article 199 of the constitution arose out of proceedings in which the law applicable provided for at lease one appeal, revision or review. They were presumably of the view that the proceedings before the High Court were referable to service laws where provision of appeal was available and, henc the Petitioners could not have challenged the final order before the same court and that the present appeals were competent. We are of the view that the Appellants and the Petitioner cannot avail any benefit of the aforesaid proviso; firstly, because the Petitions before the High Court could not be identified with “any proceedings” and secondly that such Writ Petitions were not directed against any original order of any departmental authority against whom any appeal could lie in the proceedings relevant to such law. the Respondents have directly challenged the vires of a regulation enforcing their fundamental rights conferred by article 25 of the constitution, not capable of being identified with “any proceedings” taken under any other law where any original order had been passed by any authority. We are of the considred view that the impugned judgments, falling within the ambit of the proviso were appealable before the bench of two or more judges of the same High Court under subsection (2) thereof and appeals and the Petition before this court are not maintainable.
9. Mst. Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344 was placed reliace upon. In this case, this court has elaborately discussd section 3 of Law Reforms Ordinance, 1972 with particular discussion on “the proceedings” referred to in proviso to subsection (2) thereof. The principle discussed therein is in consonance with what we have arrived at but the conclusion was based on a dispute arising from proceedings under displaced person (compensation and rehabilitation ) act of 1958 and where the authorities concerned had also passed idffernt orders. In the instant case, the conditions are not covered by proviso to subsection (2\) of section 3 of the ordinance, 1972.
PLD 1968 Supreme Court 171 @ 182
Speaking with great respect, 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, however, frequent such occasions may be, if the words in clauses 12 & 13 of the relevant Letters Patent be given their full effect. 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 courts 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. In the case of Lahore High Court, there was no power to receive suits in the orindary original civil jurisdiction, there being no provision in the relevant Letters Patent in that behalf. The Lahore High Court had testamentary and intestate jurisdiction to be exercised in accordance with law and matrimonial jurisdiction exercisable under its own law. the jurisdiction of a general nature that it possessed was that conferred by clause 9 and described as extraordinary original jurisdiction, which was confined to power to remove and try suits pending before its subordinate courts.
On that view, it would appear that the use of the expression “extraordinary original civil jurisdiction” in section 4 of the Court Fees Act is clearly apt to cause confusion. The section read with the two schedules gives the impression that in the contemplation of the legislature, which passed the court Fees Act, with reference to a court such as the Lahore High Court its extraordinary original civil jurisdiction covered not only the jurisdiction given by clause 9, but also that conferred by clauses 24 & 25 of its Letters Patent. That assumption cannot be supported on the working of Letters Patent itself, but it does not either affect the validity of the charges specifically provided in the schedules or oblige the courts to regard matters falling under clauses 24 and 5 of the Letter Patent of the Lahore High Court as falling under the extraordinary original civil jurisdiction conferred on the Lahore High Court by clause 9 aforesaid.
When this distinction is made, that is to say between matters falling in the extraordinary original civil jurisdiction given by clause 9 and those in the special or statutory jurisdictions referred to in clauses 24 and 25, it becomes necessary to consider in which category the jurisdiction involved in the present case should be placed. It is clearly an original jurisdiction. (Vide, the judgment of this court in the case of Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner (1) and the Privy counsil case of Hamid Hassan v. Banwarilal (2). Equally clearly, it does not fall within the extraordinary original civil jurisdiction. To refer to it as special would be to minimize its standing and importance, for it is given by an article in the constitution for the purpose of implementing the high directive in article 2 that no person should be treated otherwise fthan in accordance with law. the jurisdiction must obviously be described as a constitutional jurisdiction of an original kind. Being invoked invariably for gaining substantial relief, the Petitions that are filed cannot be brough under item 1 in the Second Schedule to the court fees act. Court fees have always been charged on such Petitions not only by the Lahore High Court but also by the Presidency High Courts, which are of much longer standing. It is necessary to examine th source of power which enabled the Presidency High Courts to impose these fees. A number of judgments from the Madras High Court have been cited, which furnish a clear and correct answer to this question. In the case of Muhammad Ishaq v. Muhammad Moideen (1) it was observed as under:-
“It has always been maintained that the power under which fees are levied on the original side of the High Court was derived from the general powers to issue general rules for regulating the practice and procedure of the courts. It is argued and I think it is rightly argued, that the power to make regulations for procedure necessarily includes imposition of fees and the collection of them, and the court can collect the fees only through its proper officers.”
In the case of Abdul Hakim (2) it was pointed out that the court fees act does not prescribe fees payable in the ordinary original civil jurisdiction and the High Court’s power to frame rules to prescribe such fees was undoubted, but as to the extraordinary original civil jurisdiction, the court fees act directly applies and the High Court cannot frame rules to the contrary. In the case of Seshadri (3) it was held that the High Court had power to prescribe court fees where none are specified by the legislatures. This power was derived from clause 37 of the Letters Patent of the Madras High Court, but it was conceded that the power of the legislature to prescribe court fees was superior to that of the High Court.
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
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).
4. Coming now to the question of the nature of jurisdiction conferred on High Court under Article 102 of the abrogated constitutional of 1962 it will be observed that Art. 102 states.
“Each High Court shall supervise and control other courts that are subordinate to it.”
While its marginal note reads as follows:
“High Court to superintend the subordinate courts”
Thus the jurisdiction exercisable by the High Court under the provisions of Article 102 is that of Supervision and superintendence. In fact a division bench of West Pakistan High Court, to which one of us was party, in the case of Karim Bakhsh v. Mubarik Jan (2) has held to the same effect, as is evident from the following quotation from the said judgment.
“Articl 102 of the constition on the contrary merely empowers the High Court to supervise and control all courts subordinate to it. The power is meant to enable the High Court to discharge its duties as a superior court towards fair and proper administration of justice.
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 @ 537, 542, 543
8. It is contended by the learned counsel for the Appellant that the order dated 28.02.2009 is not an interim or intelocutory order as it has the effect of granting the entire relief prayed for in CM No.3428 / 2009. The learned counsel for the Appellant has relied upon the judgment reported as Mst. Sakina Begum and 21 others v. Khalid Mustafa and 11 others (2007 CLC 1865) and Sheri CBE and others v. Lahore Development Authority and others (2006 SCMR 1202) in support of his contentions to strengthen the arguments that the Intra Court Appeal is competent in such a situation even against an interlocutory order. Alternatively the learned counsel for the Appellant took the stand that in the year 1980 an amending Ordinance Code of Civil Procedure (Amendment) Ordinance, 1980 was enforced to the following effect.
S. 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 exercise of its original civil jurisdiction.
The learned counsel argued that even if the order, dated 28.08.2009 passed by the learned single judge is treated as interim/ interlocutory order, the same has been made amenable to an appeal before a bench of two or more judges as provided for in the referred to above amending ordinance of 1980 as according to the learned counsel the order dated 28.08.2009 passed by the learned single judge was passed in exercise of its original civil jurisdiction.
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”.
14. The questions, whether in he said circumstances, an Intra Court Appeal was or was not competent and the same requires examination.
15. It was also contended that the order in question of the learned Single bench dated 23.02.2006 which had been suspended by the learned ICA Bench had only admitted the Writ Petition to regular hearing directing its fixation for final hearing within six weeks and had till then restrained the Respondents from raising any further construction on the dispute site. It was submitted that not a word had been mentioned in the impugned appellate order about the non existence of prima facie case or the balance of convenience not being in favour of Writ Petitioners or there being no possibility of accrual of any irreparable loss which could have militated against the admission of the Writ Petition or the grant of interim relief. It was added that likewise not a word had been said by the learned Appellate bench of the High Court as to how the land in question could never be found to be a public amenity area and why it was advisable to permit the Respondents to continue to invest Millions of public rupees in a project whose fate hung in a balance being subjudice and what were the compelling reasons on account of which the Respondents could not hold their hands even for six weeks to await the outcome of the litigation about the matter in question.
44. The learned Advocate Supreme Court for the Petitioners, at this juncture, reminded us of an earlier ruler of this province who, despite being not an elected representatives of the people, had resisted all templations of converting available vacant spaces in the city into residential and commercial coplexes and had blessed the people of Lahore with powerful public lungs in the form of Race course (now JIlani ) Park, Gulshan e Iqbal Park, Model Town Park, Iqbal Park (Old Minto Park), Jallo Park, Lahore Park, a park adjacent to pearl Continental Hotel on the mall and so on and that thousands of hands rose a recent judgment of this court relating to public amenity area in Islamabad and added that such examples could be a valuable guide and a good food for thought for all concerned.
45. These, inter alia, are then the reasons for the order passed by us on 14.04.2006.
46. We are conscious of the unusual volume and length of this leave granting order but then the learned Advocates Supreme Court for the parties who assisted us in the matter for more than two days, did not leave us with any other option and while parting with this order we wish to place on record our appreciation of the assistance rendered by them especially the assistance by Mr. S.M. Zafar, Senior Advoate Supreme Court, Mr. Mansoor Ali Shah, Advocate Supreme Court and by the learned Advocate General for Punjab.
Petition dismissed.
PLD 1993 LAHORE
5. It was next argued by the learned counsel for the Appellant that this appeal is maintainable in view of Code of Civil Procedure (Amendment) Ordinance, 1980 section 15 of which provides for appeal against he interlocutory order passed by the learned single judge of this court in the exercise of its original civil jurisdiction.
6. In support of his contention that the constitutional jurisdiction exercised by this court is its original civil jurisdiction, reliance was placed by the learned cousel on Subedar Muhammad Hussain v. Mst. Shah Begum and others reported as 1990 MLD 2100.
7. We are afraid this contention of the learned counsel has no force. Section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 on which reliance has been made by the learned counsel to support the maintainaibliity of his appeal reads as under:-
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 exercise of its original civil jurisdiction.
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.
9. We find ourselves unable to agree with the learned counsel that the constitutional jurisdiction exercised by this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is its original civil jurisdiction. No detailed discussion on the subject is called for in view of the pronouncement of the Supreme Court of Pakistan in Ahmad Khan v. Chief Justice and judges of the High Court of West Pakistan through Registrar, High Court of West Pakistan Lahore reported as PLD 1968 SC 171 wherein it was held that \
“Speaking with great respect, 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, however, frequent such occasion maybe, if the words in clauses 12 and 13 of the relevant letters patent be given their full effect. 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 rmoval and trial of suits pending or falling within the 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 jurisdiction, since some of those jurisdictions were to be exercised under existing statutes. In the case of Lahore High Court, Lahore Lahore
10. We may also refer to a judgment of the Division bench of this court in Eastern Company (Pvt) Limited Lahore and 2 others v. Mst. Gul Bgum and others reported as PLD 1980 Lah. 69 comprising one of us and Shaiur Rahman, J. (as his Lordship then was). After noticing various kinds of jurisdiction being exercised by the High Court and following Ahmad Kha’s case (supra), it was held that:-
“It would not be out of place to mention here that the High Court in the present context of legislation has been invested with various types of jurisdiction. The jurisdiction conferred upon it under the constitution is called the constitutional jurisdiction. The High Court has the extraordinary civil jurisdiction under which it transfers to itself for trial any case of civil nature pending before a subordinate court. then there is the jurisdiction of the High Court conferred under various statutes, for example the jurisdiction under the act, under the Insurance Act and jurisdiction as was vested in it under section 21 of the Displaced Person (Land Settlement) Act, 1958. such type of jurisdictions are termed as statutory jurisdiction.
11 From the above it is obvious that the jurisdiction which is exercised by this court under Article 199 of the constitution cannot be termed as its original civil jurisdiction but can more appropriately be called as its constitutional jurisdiction.
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
At the outset, when confronted about the maintainability of the present Intra Court Appeal under section 3 of the Law Reforms Ordinance, 1972 the learned counsel contends that notwithstanding anything contained in section 3 of the ordinance, 1972 an appeal is maintainable to the bench of two or more judges of the High Court from an interlocutory order made by a single judge in exercise of original jurisdiction on the mandate of section 15 of the Ordinance X of 1980, Code of Civil Procedure (Amendment) Ordinance, 1980. To substantiate his plea he has relied on the case reported as Brothers Steel Mills Limited and others v. Mian Ilyas Siraj and 14 others PLD 1996 SC 543. Further contends that since the order has been passed in the Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, in which principles of the Code of Civil Procedure, 1908 are applicable to the proceedings and the constitutional jurisdiction is original civil jurisdiction therefore, the appeal is competent.
Section 15 of the Ordinance X of 1980 Code of Civil Procedure (Amendment) Ordinance, 1980 is reproduced as under:-
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 exercise of its original civil jurisdiction.
5. The main question about the maintainability of the appeal can be resolved by quoting the above provisions of law. before we proceed to interpret the above quoted provisions of law, it is important to read Argicle 175 of the Constitution of Islamic Republic of Pakistan, 1973 which is reproduced hereunder:-
175. Establishment and jurisdiction of courts.
1. There shall be a Supreme Court of Pakistan, a High Court for each province and such other courts as may be established by law.
2. No court shall have any jurisdiction save as is or may be conferred on it by the constitution or by or under any law.
3. The judiciary shall be separated progressively from the executive within fourteen years from the commencing day.
Under article 175 of the constitution, a court is vested with the jurisdiction as is, or may be conferred on it by the constitution or by law, therefore, the jurisdiction can be conferred on any court, including a High Court, by enactment of the parliament, which may provide for initiating the proceedings in that court as a court of original civil jurisdiction. If it relates to the civil dispute, it will be termed as original civil jurisdiction. Under the above Article of the constitution, jurisdiction can be conferred on the court, including on the High Court, by a statute conferring jurisdiction to resolve civil disputes in its original jurisdiction as a court of first instance. For instance, under section 2(f)(ii) of the Banking Companies (recovery of loans) Ordinance, 1979, in respect of cases in which the amount of loan exceeds Rs.1 Million the High Court in exercise of original civil jurisdiction assumes the jurisdiction. Similarly in the Companies Ordinance, original civil jurisdiction has been conferred on the High Court. under section 7 of the Companies Ordinance, 1984, the court having the jurisdiction under the ordinance shall be the High Court. the case of sunrise textile Limited and others v. mashreq Bank PSC PLD 1996 Lah. 1 supports the contention that jurisdiction of the court under the Companies Ordinance, 1984 is original civil jurisdiction. While interpreting the provisions of section 3 of the Law Reforms Ordinance, 1972 and section 15 of the Ordinance X of 1980 a Division bench of Peshawar High Court in the case reported as Muhammad Ismail v. secretary to Government of NWFP. Settlement/rehabilitation Department, Peshawar
7. Since the impugned order has not been passed by the learned single judge in exercise of its original civil jurisdiction under any statute or law by in exercise of jurisdiction under Article 199 of the constitution, therefore, no appeal lies under subsection (1) and (2) of section 3 of the Law Reforms Ordinance, 1972 from an order being interlocutory and the order which does not dispose of the entire case before the court, because the case had already been fixed before the learned single judge for 28.11.2006.
8. For what has been discussed above, this Intra Court Appeal fails and is dismissed in limine.
Appeal dismissed.
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.
5. In the case in hand identical question of law and facts are involved. The impugned order being an interlocutory in nature is governed by the aforesaid provisions of law against which an Intra Court Appeal before a division bench is the only remedy.
6. Accordingly, the Petition being not maintainable is dismissed and leave refused.
Petition dismissed.
2000 SCMR 184 @ 196 & 197
However,, this does not mean that against such an order no appeal at all was competent. Subsection (10) of section38 provides that the order of attachment or sale of property shall be carried into effect as far as may be in the manner provided in the Code of Civil Procedure, 1908 for the attachment or sale of property in execution of a decree, as if the Bank were the Decree Holder. It is therefore, quite clear that the order of the court accepting the offer ibid in respect of property put to sale by the court would be regulated in accordance with the provisions of Code of Civil Procedure, 1908. 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
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
It however comes crystalised that in the law as it stands today a clear distinction has been drawn between a decree or final order made by a single judge of a High Court in the exercise of its original civil jurisdiction as per subsection (1) of section 3 and an order passed by a single judge under section (1) of article 199 of the constitution not being made under sub para, (i) of para, (b) of that clause as per subsection (2) of section 3 of the ordinance XII.
We are therefore, out of the realm of controversy of the orders of a single judge liable to be appealed against in exercise of the original civil jurisdiction and civil jurisdiction simplicitor, inasmuch as only two categories of jurisdiction are mentioned in the amended section 3 of Ordinance XII, namely, the original civil jurisdiction and the constitutional jurisdiction exercised by a single judge of the High Court. we are thus left to exclusively examine the applicability of the proviso to sub section (2) of section 32 of Ordinance XII which has already been reproduced above in extensor.
Since we are confined to the question of competency of this appeal, therefore, we would refrain to enter into the merits of the case before us, yet a few admitted facts may be relevant for the just decision of this case.
It is stated that the property in question consists of two rooms of the house which was initially transferred by the Deputy Settlement Commissioner to one Muhammad Ahmad on 24.11.1959 whereby PTO was issued to him on 06.05.1960. The same year on 15.09.1960, he surrendered his rights in favour of Respondent No.3 and a fresh PTO was issued to him on 24.09.1960 and later a PTD was also issued on 07.05.1962. Respondent No.3 allegedly inducted the Appellant in the two rooms of the ground floor of the house in dispute on 09.04.1964. There were some litigation under the west Pakistan Rent Restriction Ordinance, also between the Appellant and Respondent No.3 ending in an eviction order passed in favour of Respondent No.3. meantime, it is stated, the Appellant submitted a fresh form for the transfer of the property in his favour to the settlement authorities on 22.10.1973 claiming the portion of the house in his possession as an independent unit. The Deputy Settlement Commissioner Peshwar on 17.06.1975 by a short order held that the property in possession of the Appellant does not form part of the house of Respondent No.3 filed two revision petitions against both the aforementioned orders which were dismissedo and 10.11.1976. Against this order a Writ Petition No.5/77 was filed in this court which was allowed by Mian Burhanuddin, J. (as he then was) as per his order for further inquiry into the matter and a fresh decision thereon. The Settlement Commissioner vide his order dated 24.12.1980 held that the property in dispute formed part of the house transferred to and in possession of Respondent No.3. Against this order the present Appellant filed a Writ Petition No.28 of 1981 which was dismissed vide judgment dated 20.06.1987 of s single judge of this court. this judgement is impugned by the present Intra Court Appeal.
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. The test to determine which order is the original order passed in the proceedings and subject to an appeal, disregarding the fact whether the remedy of appeal os provided was availed of or not, obviously is the one with which the proceedings under the relevant status commenced.
In this context, the word “proceedings” itself is a term which enjoys a wide meaning and includes every step, right from the first to the last, taken towards achieving the final object from the commencement of an action to the execution of the final judgment.
An almost identical situated came before the Supreme Court in a case Mst. Karim Bibi V. Hussain Bakhsh reported in PLD 1984 SC 344. In that case too the Deputy Settlement Commissioner had passed an order, in favour of predecessor in interest of the Appellant before the Supreme Court, on 25.07.1960 and PTD was issued on the house which were converted into shops and rented out to the Respondent were transferred to them under scheme No.6 and PTD was also issued in their favour on 24.11.1964.
With reference to the term proceedings and the phrase “original order” the learned judges of the Supreme Court, after examining after connotation in the context of the statute, arrived at a conclusion that the original order in the case before them was obviously the one passed by the Deputy Settlement Commissioner in favour of the predecessor in interest of the Appellants on 25.07.1960. It is observed:
“10. The original order in this case was obviously the one passed by the Deputy Settlement Commissioner in favour of Sher Muhammad predecessor in interest of the Appellants on 25.07.1960. The portions of the property in dispute consisting of the two shops was subsequently transferred to the first Respondent by the Deputy Settlement Commissioner on 24.08.1963, which order was set aside by the Additional Settlement Commissioner vide his order dated 24.11.1973 in suo motu revisional jurisdiction, which order was impugned in the constitutional petition filed by the said Respondent. Therefore, at the time the original order dated 25.07.1960 in favour of predecessor in interest of the Appellants was passed by the Deputy Settlement Commissioner as well as at the time the subsequent order dated 24.08.1963 was passed by him, the law as it stood provided for an appeal. The constitutional petition arose out of the proceedings with regard to the Transfer of Property in dispute in favour of the predecessor in interest of the Appellants, inasmuch, as the final order passed by the Additional Settlement Commissioner restoring the transfer in his favour was challenged in the constitutional Petition and the original order was subject to appeal when it was passed. This is sufficient to satisfy the requirements of the proviso which is thereby attracted to the present case.”
It was further held.
“The obvious intention underlying the provision was to abolish Intra Court Appeal in cases in which the impugned order in the constitutional order arises of the proceedings in which the original order was appealable. Necessarily therefore, the question whether the original order was appealable or not will be determined with reference to the law that was applicable on the date of such original order and not the date when the matter came before the High Court in constitutional jurisdiction.
And it was also observed that:
“it is also not possible to construe the language of the proviso to hold that the relevant date for determining whether appeal lay against the original order passed by the Settlement Authorities, or not was the date when the impugned order was passed by the Additional Settlement Commissioner on 24.11.1973.”
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 1996 SC 543 @ 555, 561
Section 8 provides that the chief justice of the High Court shall constitute one or more benches each known as company bench to exercise jurisdiction under section 7. the procedure of the court is provided by section 9 which shall be summary. From tehse provisions it is clear that the High Court or a court empowered under section 7(1) has been vested with the jurisdiction to entertain, hear, try and decide the matters and cases arising under the ordinance. Such jurisdiction has been conferred by the ordinance. The proceedings under the jurisdiction has been conferred by the ordinance. The proceedings under the ordinance are initiated in the High Court as a court of first instance. While exercising such jurisdiction it has the characteristics and attributes of original jurisdiction. In this regard, reference may be made to the relevant provisions which provide for appeal against the judgment, order or decision passed by the court.
In hussain bakhsh v. settlement commissioner PLD 1970 SC 1 it was observed that ““as proceeding which deals with a right of a civil nature does not cease to be so merely because the right is sought to be enforced by having recourse to the writ jurisdiction. Judged from these aspects, a proceeding under Article 98 of the Constitution relating to a civil matter is a civil proceeding although the High Court’s jurisdiction in such a proceeding is constitutional jurisdiction of an original kind.” It clearly indicates that constitutional or statutory jurisdiction can be of original nature having all the characteristics of an original jurisdiction. It was followed in D.F. Hasan V. Habib Bank Limited PLD 1974 Lahore
8. Under Article 175 of the Constitution, a court is vested with jurisdiction “as is or maybe conferred on it by the constitution or by or under any law: Therefore, the jurisdiction can be conferred on any court including a High Court by a statute which may provide 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 dispute will be termed as original civil jurisdiction. It is not uncommon that statutes are promulgated conferring jurisdiction on the High Court to initiate proceedings as a court of first instance for purpose of exercises of jurisdiction. For instance under section 2(f)(ii) of the Banking Companies (Recovery of Loans) Ordinance, 1979, in respect of cases in which the amount of loan exceeds Rs. 1 Million the High Court in exercise of original civil jurisdiction is the special court. Hereby statute jurisdiction has been conferred on the High Court to exercise original civil jurisdiction (i.e. having authority to entertain suits and try it) is given, then Lahore High Court, High Court of Baluchistan and Peshawar High Court not having original civil jurisdiction in this technical sense cannot exercise jurisdiction conferred by the Banking Companies (Recovery of Loans) Ordinance, 1979. This will create absurdity which cannot be attributed to law. therefore, in the statute under consideration the term original civil jurisdiction has been used in the general sense. In Pakistan Fisheries Limited, Karachi
“It seems to us that by the expression original civil jurisdiction as used in the ordinance, is meant the trial of the suit on the original side of the High Court. the term has not been used in the technical sense as understood with reference to letters Patent of some of the High Court in the subcontinent, but has been employed in contradistinction to the appellate and revisional jurisdiction exercised by the High Court.”
Sunrise Textile Limited and others v. Mashreq Bank PSC PLD 1996 lahore
PLD 1993 SC 109 @ 123
9. It may be pointed out that some ofhte High Courts in the undivided India were vested with original civil jurisdiction, but no such jurisdiction was conferred on the High Court of judicature at Lahore Bombay Japan Cotton and General Trading Co. Limited (PLD 1961 (WP) Karachi
“It is therefore perfectly clear that this jurisdiction is of a special nature and is not the ordinary civil jurisdiction of West Pakistan High Court otherwise ther was no necessity of saying that the Karachi bench of High Court of west Pakistan shall have the same original civil jurisdiction for the civil district of Karachi as was exercisable by the chief court of sindh under section 8 of the sindh Courts Act, 1926. It will be further observed that original civil jurisdiction in respect of civil suit in Karachi ws not conferred on the High Court as a whole as in the case of Calcutta, Madras and Bombay under their Letters Patent, but only to the Bench at Karachi. The nature of this jurisdiction is further clarified under para. 7 of the amendment in Part A of schedule of President’s Order No.2 of 1956. In sub clause (4) of para 7 which replaces the original section 45 of Sindh Courts Act, 1926, it is provided that all decrees and orders in suits and proceedings wherein the subject matter in amount or value does not exceed Rs.25000/- or such sum as the Central Government may by order under the proviso to subsection (2) of section 22, prescribe, passed before the appointed day, by the bench of High Court of west Pakistan at Karachi functioning or exercising the powers and performing the duties as the principal Civil Court of original jurisdiction shall be deemed for the purpose of execution to have been passed by the district court of Karachi. It is quite plain that the Karachi bench of west Pakistan High Court is functioning or exercising the powers and performing the duties as the principal Civil Court of original jurisdiction in the civil district of Karachi and not original civil jurisdiction of the High Court as understood under the Ltters Patent of some High Courts in this sub continent.”
PLD 2005 Lahore
8. The question that boiled down for determination before this court is that whether the order passed byteh learned single judge, sustaining the office objection, is a judicial order and has been passed in original civil jurisdiction of the High Court. the learned single judge had neither exercise his original civil jurisdiction by passing the impugned order nor passed the same on merits as it was not a civil matter. 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.
9. The extraordinary original civil jurisdiction arises from the Code of Civil Procedure, 1908 and the objection cases placed before the learned single judge, were not the cases to have been dealt with under the said code, therefore, the exercise of jurisdiction by the learned single judge cannot be termed as original civil jurisdiction. Constitutional jurisdiction of the High Court though original jurisdiction but is not original civil jurisdiction of court. Reliance can be placed to Khushi Muhammad and 10 others v. Agha Hassan Raza and 2 others (1990 ALD 207(1).
10. The Intra Court Appeal is competent before two or more judges of the High Court from a decree passed or final order made by a single of that court in exercise of is original civil jurisdiction as provided in sub clause (i) of section 3 of Law Reforms Ordinance, 1972. Although sub clause 2 of section 3 of the said ordinance provides an appeal to two or more judges of the High Court made from an order by single judge of that court under clause 1 of article 199 of the Constitution of Islamic Republic of Pakistan, 1973 but the Intra Court Appeal could be entertained, had the single judge passed the order on merits of the case. it is admitted position that the merits of the case were not argued before the learned judge and he did not touch the factual or legal position of the contents of the Writ Petition therefore, it could not be termed as judicial order.
PLD 1988 Peshawar
There is no cavil with the point that the principles of Code of Civil Procedure, 1908 are applicable to Writ Petitions but the question requiring determination now is whether the exercise of jurisdiction in respect of writ petitions in commensurate with the exrcise of original civil jurisdiction under the Code of Civil Procedure, 1908 and it has also got jurisdiction under Article 199 of constitution. 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. In the case of Hussain Bakhsh v. Settlement Commission PLD 1970 SC 1 it was held that “as proceeding which deals with a right of a civil nature does not cease to be so merely because the right is sought to be enforced by having recourse to the writ jurisdiction. Judged from these aspects, a proceeding under Article 98 of the Constitution relating to a civil matter is a civil proceeding although the High Court’s jurisdiction in such a proceeding is constitutional jurisdiction of an original kind.
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. It would be taking a too narrow view of this constitutional enactment if it is to be held that the section was confined to the jurisdictions that vested in the High Court at the date of the Government of India Act, 1915, or that of the Government of India Act, 1935. the words of a constitution must receive a progressive and liberal interpretation to make it a working instrument in future continginencies and any new jurisdiction conferred on the High Court, at any subsequent time, provided it falls, in the general sense, within the ambit of original or appellate jurisdiction, should be held to be within clause 10 of the India Act. The writ jurisdiction of the High Court was first created by the insertion of section 223A in the Government of India Act, 1935 and its successor provisions are contained in Article 170 of the 1956 constitution and article 2 of the Laws (Continuance in force) Order, 1958. The provisions of Article 98 of the constitution of 1962 though they refer to directions and orders rather than writs are in the direct line of descent from the same jurisdiction and partake of its character. Provided it falls within the purview of original jurisdiction, this new power should not be considered to be outside the contemplation of section 108 of the Government of India Act, 1915. this question appears to have received consideration in some cases arising in the Indian jurisdiction, e.g., in Budge Budge Municipality
In Hamid Hasan v. Banwari Lal (2), their Lordship of the privy council expressed the view that the issue of High Court prerogative writs is exercise of original jurisdiction. Their Lordships observed “it cannot be disputed that the issue of such writs is a matter of original jurisdiction. The writ jurisdiction we are considering here is akin to the power to issue high prerogative writs and may fairly be described as original jurisdiction. The proceedings originate in the High Court itself and may be directed against orders of subordinate judicial or semi judicial tribunals or even in certain cases, of administrative tribunals or authorities and may be described as pertaining to the extraordinary original jurisdiction of the High Court. it may be recalled that the high prerogative rits have also been replaced in England
Order in civil matters passed by a single judge of the High Court under the corresponding provisions of article 226 of the Indian Constitution to be appealable under the letters patent. Ramayya v. State of madras (3), Budge Budge Municipality v. Mongra Mia; Nanak Chand v. State of Uttar Pradesh
1) Air 1953 Cal.
3) Air 1952 Mad.
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.
This concludes the appeal. However, Mr. A.R. Shaukat for the Appellant wanted his client’s case to be considered on the merits as well. It appears that Mumtaz Khan had gone up in appeal fro m the order of the Deputy Settlement Commissioner which awarded the house to the Respondent but that his appeal was held to be barred by time. The Additional Settlement Commissioner who heard the appeal,. Refused to condone the delay and dismissed it. This, he was entitled to do, and we do not therefore consider that on the merits, Mumtaz Khan could have challenged the order of the Settlement authorities, successfully, in writ jurisdiction.
The appeal fails and is hereby dismissed, but in view of the nature of the questions involved in the this case, we make no order as to costs.
Appeal dismissed.
1987 CLC 1259 @ 1261
Plain reading of the aforementioned provisions of law makes us clear that original civil jurisdiction of the High Court is quite distinct from the jurisdiction exercised under clause (1) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 which is commonly known as “constitutional jurisdiction”. The legislature in their wisdom have also separately provided right of appeal to the aggrieved party from the order passed in the exercise of original civil jurisdiction under subsection (1) and from the order passed in the exercise of constitutional jurisdiction under subsection (2) of section 3 of the Law Reforms Ordinance, 1972. Section 15 of the Ordinance X of 1980 creates exception to subsection (3) of section 3 of Ordinance XII of 1972 as it specifically provided right of appeal from the interlocutory order passed by single Judge exercising original civil jurisdiction, 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
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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