Ch. NAZIR AHMAD vs Moulvi MASOOD UR REHMAN KHAN and 6 others

ORDER

' The backdrop of this Intra Court appeal is that respondents Nos.1. To 6 filed a W.P.No,2514 of 2008 contending that Akhbar Farosh Union is a registered body under Societies Registration Act, 1860 and is under a lawful obligation to file annual return before the Registrar Joint Stock Companies with regard to particulars of persons in the Managing/Governing Body but the said society had not filed return from 1979 to 1991, as is evident from notice issued by the Registrar on 7-8-1991, society has not held elections and members are denied access to the account, the assets and funds of the society are mutualized and misapplied by management and as such seeking a direction from the High Court through the writ petition to respondent No,4 for initiation of action against the delinquent management. However, the writ petition was disposed of through order dated 19-3- 2008 particularly on the ground that the petitioners should have availed the remedy available to them under section 16-A of the Societies Registration Act, 1860 at the first instance and as the petitioners in the writ petition did not avail the said remedy hence their writ petition cannot proceed being incompetent due to availability of an alternative remedy. However, while disposing of the writ petition, the learned Single Judge in chamber directed the petitioners to approach the relevant forum for the redressed of their grievances.

2. Aggrieved by the order dated. 19-3-2008 the appellant filed this I.-C.A. For setting aside the order impugned.

3. Arguments heard; available record perused.

4. First of all we have to decide that whether the ICA is competent or not and for that we have to advert to section 3 of the Law Reforms Ordinance No,XII of 1972 which reads as under:-- "1. An appeal shall lie to the 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.

2. An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an Order made under subparagraph (i) of paragraph (b) of that clause: ' Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order.

3. No appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court.

4. Nothing contained in this Ordinance, shall be construed as affecting---

(a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908) which was pending immediately before the commencement of this Ordinance; or

(b) any appeal or petition of leave to appeal from a decree, judgment or order of a single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972."

5. In the present case admittedly the aggrieved persons have an alternate remedy for the redressal of their grievances under section 16-A of the Societies Registration Act, 1860. Relevant provisions are reproduced as under:- "Notwithstanding anything contained in the memorandum of association, rules or regulations of a society registered under this Act, Government of the Province of registration may dissolve the governing body of such society and reconstitute or reorganize the governing body and entrust thereto the management of the affairs of the society subject to such conditions as it may deemed fit to impose."

6. It is also undisputed that prior to invoking the jurisdiction of the High Court, no one has approached the relevant authorities under section 16-A of the Societies Registration Act, 1860 but have directly filed the writ petition.

7. We have dilated upon the main issue regarding the maintainability of the I.-C.A. In view of the provisions in section 3 of the Law Reforms Ordinance, 1972 and have gone through a series of judgments wherein it is held, that "where the law applicable to the proceedings, subject-matter of the petition under Article 199 of the Constitution, provided for at least one appeal, or one revision, or one review to any Court, Tribunal or authority, there would be no appeal to a Bench of two or more Judges of the High Court from the order made by a Single Judge of the same High Court under Article 199 of the Constitution of Pakistan." Reliance in this respect can be made to Allah Rakha Chaudhry v. Presiding Officer Vth Sindh Labour Court, Karachi and 2 others 1999 PLC 128, Deputy Commissioner/Administrator, District Council Attock and another v. Lawrencepur Woollen Textile Mills Ltd. 1999 SCM R 1357 and Syed Arif Raza Rizvi v. Messrs Pakistan International Airlines through Chairman/MD PLD 2001 SC 182.

8. In the light of the above referred judgments and the provisions of section 3 of the Law Reforms Ordinance, 1972 we hold that if a remedy in the form of an appeal, review or revision is available under the law and despite the fact whether the remedy has or has not been availed before filing of a writ petition then ICA shall not be competent/maintainable against an order of a Single Judge of the High Court.

' In the present controversy, remedy under section 16-A of the Societies Act, 1860 is undisputedly available to the aggrieved persons hence the Intra Court appeal against the order of the learned