Mst. SARWAR SULTANA vs MUHAMMAD NAWAZ AND Other
The petitioner sought leave to appeal against the dismissal of an application for a certificate of fitness under clause 10 of the Letters Patent of the High Court, following the in limine dismissal of her regular appeal by a learned Judge of the High Court who subsequently retired. The core legal question was whether a judge other than the one who passed the judgment can issue a certificate of fitness for a Letters Patent Appeal when the original judge has retired. The Supreme Court held that on the plain language of clause 10 of the Letters Patent, the certificate of fitness could only be granted by the specific Judge who passed the judgment, and upon that Judge's retirement, the right to obtain such a certificate lapsed. The Court laid down the principle that the clear and unambiguous wording of a statutory provision or jurisdictional clause cannot be judicially rewritten or expanded on grounds of hardship.
- Can a judge other than the one who passed the judgment grant a certificate of fitness under clause 10 of the Letters Patent after the retirement of the original judge?
- Whether the clear and unambiguous language of clause 10 of the Letters Patent can be construed flexibly to prevent hardship?
- Does the right to seek a certificate of fitness under clause 10 of the Letters Patent survive the retirement of the judge who delivered the judgment?
- Clause 10, Letters Patent of the High Court
- Rule 5, Order XLVII, Code of Civil Procedure 1908
DORAB PATEL, J.-The petitioner had filed an appeal in the Lahore Seat of the West Pakistan High Court against the judgment and decree passed against him by the District Judge, Campbellpur. As this appeal was dismissed in limine by Mr. Justice Ortcheson on 18-1-1965, the petitioner filed an application oz 16-2-1965 under clause 10 of the Letters Patent of the High Court for permission to file a Letters Patent Appeal, Mr. Justice Ortcheson had retired from the High Court before this application could be heard, therefore, it was placed on 28-2-1973 before the Chief Justice of the Lahore High Court who dismissed it on the ground that the certificate of fitness could have been granted only by the Judge who had dismissed the petitioner's appeal. Hence this petition for leave.
2. Clause 10 of the Letters Patent, in so far as it is relevant reads "And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore from the judgment ... Of one Judge of the High Court where the Judge who passed the judgment declares the case is a fit one for appeal ;"
On the plain language of the clause the certificate could have been granted only by Mr. Justice Ortcheson because he was the Judge "who passed the judgment". Therefore, the petitioner lost his right, if any, under the clause on the retirement of Ortcheson, J., nor was this any hardship because be should have known that the learned Judge was due to retire.
3. However, according to Mr. Muhammad Ismail, the interpretation placed on clause 10 by the Chief Justice would cause great hardship, therefore, his submission was that we should construe the clause to mean that in cases of great hardship the certificate could be given by some Judge other than the Judge who had pronounced the judgment against which the certificate was sought. The language of clause 10 may be conferred with rule 5of Order XLVII of the Civil Procedure Code.
Unless that rule, clause 10 is so plain that we cannot read into it any meaning other than that placed on it by the learned Chief Justice.
The petition is without merit and is dismissed.
Cited by 2 cases
- ATTA MUHAMMAD Versus PRESIDENT, ALLIED BANK OF PAKISTAN LTD., KARACHI 1993 PLC 125
- NAJABAT AND Other vs SABAN BIBI AND Other 1982 PLD Supreme Court 187