YOUSUF ALI Versus MUHAMMAD JAVAID IQBAL

ORDER

MUHAMMAD AKRAM J. ‑This purports to be an appeal under section 3(1) of the Law Reforms (Amendment) Act (VIII of 1972) against the judgment dated the 22nd of April 1975, whereby a learned Single Judge of this Court dismissed in limine W. P. No. 554 of 1975 filed by the appellant against the respondents.

2. The facts of this case are set out in detail in the judgment under appeal delivered by the learned Judge in Chambers and need not be recapitulated here in extenso. Suffice it to mention here for the purposes of this appeal that on . the 20th of October 1973, the appellant brought a suit against respondents Nos. 2 to 7 in the civil Court at Lyallpur. The dispute related to the inheritance to the land left by Muhammad Yasin Khan, predecessor of the plaintiff and the defendant. The mutation for the land was eventually sanctioned in favour of the defendants to the exclusion of the plaintiff on the basis of a certain agreement said to have been executed by him in the lifetime of his father. In the suit he prayed for a declaration against the defendants‑respondents Nos. 2 to 7 to the effect that he was seized of the land in dispute which devolved upon him in proportion to his share in the inheritance left by his father. In the suit he also prayed for setting aside of the order dated 20th of September 1968 passed by the Assistant Collector, Jaranwala sanctioning the mutation in favour of the respondents, on a number of grounds taken by him in his plaint. The suit was contested by the defendants and the pleadings of the parties gave rise to as many as ten issues framed by the trial Court. On the 9th of September 1974, the appellant made an application in the trial Court for framing two additional issues in the case. On this on the 21 st of October Court after hearing the parties framed the following addition issues in the case :‑

"7(a) Whether the impugned order of A. C./Collector dated 22‑2‑1966 is illegal, void inoperative and without jurisdiction mala fides."

This was followed by another application made by the appellant on the 14th of November 1974 (copy Annex 'A' to the writ petition) to the effect that this additional Issue No. 1(a) already framed could not serve the purpose and solve the controversy raised between the parties. He, therefore, prayed that in lieu of Issue No. 7(a) re‑produced above the following two additional issues may be framed in the case :‑

"(a) Whether the order dated 20‑9‑1968 passed by the Assistant Collector, Jaranwala, is without jurisdiction, mala fide, illegal void and 'inopera tive' and of no consequence, whatsoever?

(b) Whether the order dated the 22-2‑1966 passed by the Revenue Assistant, Lyallpur with powers of Collector, Lyallpur which forms the basis of the impugned order, passed by the Assistant Collector, Jaranwala on 20‑9‑1968, is mala fide, illegal void, 'inoperative and of no consequence, whatsoever?"

But the trial Court rejected the application on the 18th of December 1974.

3. In the meantime on the 7th of December 1974, respondent No. 1 had gone up in revision against the order dated the 21st of October 1974, passed by the trial Court in framing the additional Issue No. 7 (a). On this on the 17th of December 1974, the Additional District Judge, Lyallpur deleted issue No. 7(a) after recording the statement of the learned counsel for the appellant. Dissatisfied the appellant then made an application under Order XLVII, rule 1, read with section 151 of the Code of Civil Procedure before the Additional District Judge, Lyallpur for review of his order dated 17th of December 1974. In that application he denied the statement attributed to his learned counsel in pursuance to which the Court had delated issue No. 7(a). He also raised an objection to the effect that in the circumstances the revision was not at all competent and the Court had no jurisdiction to accept the same. But the Additional District Judge dismissed the review application on the 27th of January 1975.

4. In these circumstances the appellant filed a petition under Article 200 of the Constitution of the Islamic Republic of Pakistan, 1973, invoking the power of the High Court to exercise its supervision and control over the Court subordinate to it, against the order dated the 17th of December 1974, passed by the Additional District Judge, Lyallpur. Later on this was converted into an application under Article 199 of the Constitution but the learned Judge in Chambers dismissed the same in limine by a detailed judgment delivered on the 22nd of April 1975. Hence this appeal before us.

5. We have heard the appellant who argued his own case before us. In our opinion this appeal against the judgment of our learned brother in Chambers is not competent under section 3 of the Law Reforms Ordinance XII of 1972 (as amended) and deserves to be dismissed on this short ground alone. This section was amended from time to time. The Law Reform Ordinance (XII of 1972) came into force on the 14th of April 1972. Under section 3(a) of the Ordinance it was laid down that as from the commencement of the Ordinance no appeal under the provisions of any Latters Patent. as applicable to a High Court, shall be entertained by such High Court. This had completely done away with the intra Court appeal from the judgment of‑‑a Single Judge of the High Court to a Bench consisting of two or more Judges of the same Court under the Latters Patent of the High Court. But then the law in this respect was amended and this section was substituted under the Law Reforms (Amendment) Ordi nance XXXIV of 1972, which came into force on the 10th of August 1972. Under the newly substituted section 3(1) of the Ordinance it was laid down that 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. But at the same time section 3(2) provided that no appeal shall lie to a Bench of two or more Judges of a High Court from an order _ made by a Single Judge of that High Court under clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan in a matter arising under any law relating to the rehabilitation and settlement of displaced persons. Once again this section was amended and substituted by section 3 of the Law Reforms (Amendment) Act VIII of 1972. Although this section came into force on 12th of September 1972, but it had a retrospective effect. Further amendments were introduced into this section by the Law Reforms (Amendment) Act (VI of 1975) which came into force on the 13th of January 1975.

6. This section is in two parts. In this connection subsection (1) of section 3 of the Ordinance X11 of 1972 lays down that 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." In the case of Ahmad Khan v. Chief Justice and Judges of the High Court of West Pakistan (P L D 1968 S C 171), it was observed that :‑

" . 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 juris diction of Courts subordinate to the High Court. Every other juris diction 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 opinion of their Lordships of the Supreme Court the jurisdiction exercised by the Lahore High Court, while dealing with a petition under Article 98 of the abrogated Constitution could best be described as a constitutional jurisdiction of an original kind. The dictum in that case was followed by a Division Bench of this Court in Begum D. F. Hassan v. Habib Bank Ltd. (P L D 1974 Lah. 117) and the Court held that an order passed by a Single Judge in exercise oil 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 under subsection (1) of section 3 of the Ordinance XII of 1972. Similarly in Asad Ali etc. v. Settlement & Claims Commissioner, Karachi( P L D 1974 Kar. 345 ) a Full Bench of the Sind Baluchistan High Court has held that a judgment deciding a constitu tional petition is not a Judgment passed by the High Court in the exercise of original civil jurisdiction and is not open to appeal before a Bench of two or more Judges under subsection (1) of section 3 of the Ordinance. In fact before us the appellant did not seriously rely on this subsection in support of the appeal.

7. This brings us to subsection (2) of section 3 of the Ordinance XII of 1972 as amended uptodate which is reproduced below :‑

"Section 3 (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 sub‑paragraph (1) 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 of the Constitution of Islamic Republic of Pakistan, arises out of any proceeding 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,."

Under the operative part of this subsection in general an appeal shall lie to a Bench of two or more Judges of the High Court against an order passed by a Single Judge under clause (1) of Article 199 of the Constitution, not being an order made under sub‑paragraph (i) of paragraph (b) of that clause. But , this is subject to and controlled by the proviso reproduced above. As a general rule a proviso to a section operates to cut down its meanings and scope. In this connection according to Craies on Statute Law, Sixth Edition, p. 217 the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein.

8. The true scope of this proviso has come in for serious consideration in this appeal before us. It lays down that no such appeal to a Bench of two or more Judges of the High Court shall be available or competent if the application brought before the High Court under Article 199 of the Constitu tion of Islamic Republic of Pakistan, 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. At this stage a short analysis of this proviso shall be helpful. It takes us back to the "proceedings" out of which the petition under Article 199 (1) of the Constitution has arisen, so as to find out the law applicable to those proceedings, and then to see whether that law provided for at least one appeal, or one revision, or one review to any Court, Tribunal or authority against the "original order." In case this is so, then there shall be no appeal to a Bench of two or more Judges of the High Court from an order made by a Single Judge of the same Court under Article 199(t) of the Constitution. These are the steps that must be taken before invoking the bar contained in the proviso against an intra Court appeal to a larger Bench from the order of a learned Single Judge of the High Court.

9. Now what is exactly meant by the `proceedings' giving rise to their constitution petition under Article 199 of the Constitution in the context of this proviso. This term has been construed in a general sense differently in different contexts. In Deb Narain Dutt v. Narandra Krishna (ILR Cal 267), it was observed that the word "proceedings" was a very general one, that was not limited proceedings connected with civil suits, but included proceedings other than civil proceedings, and civil proceedings other than suits. When applied to suits, that might be used to mean the suit as a whole, or that might be used, and often was used, to express the separate steps taken in the course of a suit the aggregate of which made up the suit. Now how does this ratio apply to the facts of the instant case before us? In its application to the circumstances of this case the term "proceedings" may mean the whole suit filed by the appellant against the respondents or in a narrower sense it may simply connote the application dated 9‑9‑1974 made by the appellant under rule 5 of the Order XIV of the Code of Civil Procedure in the suit for framing the additional issue. It is out of that that the petition under Article 199(1) arose. In case the suit itself is regarded as the "proceedings" for the purposes of the proviso then the law applicable to it is the Code of Civil Procedure, 1908. But if on the other hand the application made by the appellant for framing the additional issues constitutes the `proceedings' for the purposes of the proviso then the law applicable to it may be merely the provisions contained in rule 5 of Order XIV of the Code. Both these interpretations appear to be tenable.

10. The expression "original order" in the context of this proviso has been used to distinguish it from the appellate or revisional order, or an order passed in the exercise of review jurisdiction. In order to attract the applica tion of the proviso one has to see if the law applicable to the proceedings (giving rise to the constitutional application) provided for at least one appeal i or one revision, or one review against the original order. It may be that although an appeal, revision or review against the original order was provided by the law but the right was not actually availed of and no appeal, revision or review was, in fact, filed against it. It is immaterial even if no appeal, revision or review against the original order was actually filed as long as the law itself provided for the one against it.

11. Let us now return to the facts of this case before us for the applica tion of these principles. There can be little doubt that the original order in question in the circumstances of this case was the order dated 21‑10‑1974 passed by the trial Court in framing the additional issue 7(a) on the application of the appellant in the suit. The law applicable to the proceedings in which this order was made in a broader sense would be the Code of Civil Procedure applicable to the suit. But construed narrowly it would mean the provisions contained in rule 5 of Order XIV of the Code under which the application for framing the additional issue was moved by the appellant in his suit. In either case the original order was amenable to the revisional jurisdiction vested in the District Court under subsection (2) of section 115 of the Code. Section 115(1) of the Code lays down that the High Court may call for the record of any case which has been decided by any Court subordinate to it and in which no appeal lies thereto and if such subordinate Court appears‑(a) to have exercised jurisdiction not vested in it by law, or (b) to have failed to exercise jurisdiction so vested, or (c) to have acted illegally or with material irregularity in the exercise of its jurisdiction, the High Court may make such order in the case as it thinks fit. In this connection subsection (2) of section 115 of the Code further lays down that the District Court may exercise the powers conferred on the High Court on subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount of value of the subject‑matter does not exceed the limits of the appellate jurisdic tion of the District Court. On a true construction this section confers jurisdiction on the High Court and the District Court on revise the orders passed by the Courts subordinate to them.

12. Before us at the hearing the appellant strived hard to contend that the order dated 21‑10‑1974 framing the additional issue passed in his favour by the trial Court did not fulfil the requirements of section 115 of the Code and was not at all open to revision before the Additional District Judge, Lyallpur. In this connection in developing his argument he further submitted that it could not be held that in framing the additional issue the trial Court decided a case and acted illegally or with material irregularity in the exercise of its jurisdiction. As such the revision filed by the respondent before the Additional Judge, Lyallpur under section 115(2) of the Code was not at all competent. From this the appellant wishes us to conclude that in the absence of the right of revision against the original order there was no bar to this appeal before us against the order made by the learned Judge in Chambers, under the proviso to section 3(2) of the Ordinance XII of 1972 (amended).

13. There is no force in this argument. It appears to us that in advancing this argument the appellant has failed to bear in mind the very difference between the existence of jurisdiction from the exercise of jurisdiction. The existence of jurisdiction in a Court is made up of the three component parts namely its pecuniary jurisdiction, territorial jurisdiction and jurisdiction with respect to the subject‑matter before it. The authority J to decide a cause makes up the jurisdiction. After the jurisdiction is once attracted, the decision of all other questions in the cause is only an exercise of that jurisdiction. In Amritrav v. Balkrishna ((1887)11 Bom. 489) Wasty, J., remarked that jurisdiction consists in taking cognizance of a case involving the determination of Jural relations, in ascertaining the essential points of it and in pronouncing upon them. After the Court is clothed with the jurisdic tion its next task is to try the cause brought before it. Under section 115(c) of the Code of Civil Procedure the jurisdiction is vested in the District Judge to revise an order passed by the Court subordinate to him. The' proviso to section 3(2) of the Law Reforms Ordinance XII of 1972 as amended bars the intra Court appeal to a Bench of two or more Judges o1 the High Court in case the law applicable to the proceedings (Out of which' the Constitutional petition under Article 199(1) of the Constitution has arisen) provided for at least one appeal, revision or review against they original order. In other words the bar under the proviso is applicable, if the laws applicable to the proceedings provided for a forum for appeal, revision or review against the original order. This bar under the proviso is attracted in case such a forum is provided under the law applicable, even though the aggrieved party did not actually avail of the remedy provided by many of the appeal, revision or review, this is the only rational and harmoneous interpretation that can be, put on this proviso in consonance with the intention of the Legislature. It shall also suppress the mischief. On the other hand the interpretation placed by the appellant is fraught with dangers. In this manner he attempted to indirectly inject into this appeal before us at the hearing an extraneous controversy by contending that the very revision filed by the respondent against the order made by the trial Court in framing the additional issue was not competent, that the trial Court did not act illegally or with material irregularity in framing the issue and that it did not amount to a case decided so as to warrant any interference in revision under section 115 of the Code. As discussed above, all these considerations are wholly irrelevant and not germane to the disposal of the preliminary objection as to the incompetency of this appeal before us.

14. This appellant tried in vain to contend that the real intention of the Legislature behind section 3 of the Law Reforms Ordinance XII of 1972 (as amended from time to time) was to abolish the intra Court appeal in Rehabilitation Settlement matters and to curtail this litigation with a view to finally winding up this work, in this connection he took us through the amendments introduced into the settlement laws from to time. We are fully aware that in this connection subsection (2) of section 3 of the Law Reforms (Amendment) Ordinance XXXIV of 1972 was introduced oxproealy providing that no appeal shall lie to a Bench of two or more Judges of the High Court from an order made by a Single Judge under clause (2) of Article 201 of the Interim Constitution in a matter arising under any laws relating to Rehabilitation and Settlement of Displaced Persons. But eventually with the promulgation of the Law Reforms (Amendment) Act VIII of 1972 this section was later on substituted by the provisions reproduced above. In these circumstances on a rational interpretation of the existing section 3(2) of the Law Reforms Ordinance X11 of 1972 (as amended up‑to‑date) It cannot be seriously contended that the bar against the intra Court appeal to a Bench of two or more Judges of the High Court was merely confined to the disputes arising out of the Rehabilitation and Settlement matters. Such as interpretation is not at all warranted on a plain reading of these provisions. In this connection the appellant relied on the rule in the Haydon's case discussed on page 96 by Crates on Statute Laws (7th Edition). But this passage does not in the least advance the case of the appellant as argued before us. In conclusion we find that this appeal is not competent.

15. Last of all the appellant submitted before us that his right to prefer or prosecute this appeal was not affected by any subsequent change in the law abolishing the appeal or modifying its form unless it was so provided expressly in the amending Statute. In this connection reliance was placed on the ratio in (Bhai) Kirpa Singh v. Rasalldar Ajaipal Singh and others ( A I R 1928 Lah. 627 ) to the effect that the right of appeal is not a mere matter of procedure, but is a vested right which inheres in a party from the commencement of the action in the Court of first instance. If according to the law in force at the time when the action was started in the Court of the first instance the ultimate decision of such Court was appealable, the right to prefer or prosecute an appeal therefrom is not affected by subsequent change of the law abolishing the appeal or modifying its forum unless it is so provide expressly in the amending statute or follows by necessary implication from its terms. There is no quarrel with this dictum. In the instant case the appellant filed his suit against respondents Nos. 2 to 7 on the 20th of October 1973, which is still pending in the trial Court. The constitutional petition before the High Court under Article 199 of the Constitution against the appellate order of the Additional District Judge was filed in the Lahore High Court only on the 11th of March 1975. As already discussed above this jurisdiction exercised by the High Court is constitutional jurisdiction of an original kind. The petition made before the High Court cannot be consi dered to be in continuation of the suit pending in the trial Court. In these circumstances for the purposes of this appeal the appellant is not justified in falling back on the state of section 3 of the Law Reforms Ordinance XII of 1972, prevailing on the date of his suit on 20th of October 1973, in total disregarding of the amendments that were subsequently introduced into it. This contention has no force and is repelled.

16. Before concluding we would like to mention here that the learned Judge in Chambers in para. 13 of his judgment before us observed that some of the allegations made by the appellant in his writ petition prima facie amounted to scandalizing the Court of the Additional District Judge, Lyallpur. He, therefore, issued a notice to the appellant under sections 2 and 3 of the Contempt of Courts Act to show cause as to why he should not be suitably punished for the contempt. In that connection in his appeal before us the appellant has prayed that : "the direction given for the issuance of notice of contempt to the appellant be withdrawn, and proceedings thereon be stayed meanwhile". We are afraid that under section 3 of the Law Reforms Ordinance X11 of 1972 (as amended from time to time) no appeal lies before us against this part of the order made by our learned brother in issuing the show‑cause notice to the appellant under sections 2 and 3 of the Contempt of Courts Act. Indeed the appellant did not even address any arguments on this part of his case at the hearing before us. We are, therefore, unable to interfere.

17. For the foregoing reasons we find that this appeal before us against the judgment delivered by a learned Single Judge of this Court is not competent and is dismissed in limine.

K. B. A. Appeal dismissed.