MUHAMMAD ISMAIL Versus SECRETARY TO GOVERNMENT OF N.-W.F.P. SETTLEMENT/REHABILITATION DEPARTMENT, PESHAWAR

ORDER

NAZIR AHMAD BHATTI, J. --Appellant Muhammad Ismail has filed Writ Petition No.338 of 1974 under Article 199 of the Constitution in this Court against Secretary to Government of N.-W.F.P. Settlement and Rehabilitation Department and other respondents which came up for hearing before our learned brother Abdul Karim Khan Kundi, J. on 10-10-1987 and our learned brother by an order of the said date directed the appellant herein to implead one Abdul Majid as a party therein. Feeling aggrieved by the said order of our learned brother Mr. Abdul Karim Khan Kundi, J. Muhammad Ismail has come up with the present Intra-Court Appeal under section 3 of the Law Reforms Ordinance, 1972, read with section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 (Ordinance X of 1980).

2. One Syed Zawar Hussain has also filed Writ Petition No.602 of 1980 under Article 199 of the Constitution read with Article 9 of the Provisional Constitution Order with regard to the same evacuee property, which is in dispute in the present Writ Petition No.338 of 1974. That writ petition also came up for hearing before our learned brother Mr. Abdul Karim Khan Kundi, J. on 10-10-1987 and therein also our learned brother directed Syed Zawar Hussain to implead the said Abdul Majid and other parties of the present writ petition as parties in his writ petition. Syed Zawar Hussain has also filed Intra-Court Appeal No.3 of 1987 in this Court. Since both the Intra-Court Appeals i.e. No.2 of 1987 and No.3 of 1987 impugn the same order and since common point of law is involved in both these appeals, as such the present judgment will also dispose of Intra-Court Appeal No.3 of 1987.

3. The learned counsel for both the appellants have addressed arguments in support of the maintainability of these Intra-Court Appeals. Their contention is that the Code of Civil Procedure is applicable to proceedings in writ petitions and so the writ petition are civil proceedings and hence these Intra-Court Appeals are competent under section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980, read with section 3 of the Law Reforms Ordinance, 1972.

4. We have very anxiously considered this argument of both the learned counsel but we find ourselves unable to agree with them.

5. In order to bring home our point of view we intend to go into the legal aspect of these appeals in some detail.

6. The Law Reforms Ordinance, 1972 (hereinafter referred to as the original Ordinance) promulgated on 14 th April, 1972 had by the provisions of section 3, abolished Letters Patent Appeals and second appeal in certain cases. Subsequently an amendment was made in this Ordinance by Law Reforms (Amendment) Ordinance 1972 (Ordinance XXXIV of 1972) (hereinafter referred to as the amending Ordinance) promulgated on 10th August, 1972, whereby section 3 of the original Ordinance was amended to provide for an appeal to a Bench of two or more Judges of the High Court from a decree passed or final order made by a Single. Judge of that High Court in the exercise of not its original civil jurisdiction, provided that an order which did not dispose of the whole matter before the Court was not appealable, but; still appeal to a Bench of two or more Judges of the High Court was barred from an order made by a Single Judge under clause (2) of Article 201 of the Interim Constitution in a matter arising under any law relating to the rehabilitation and settlement of displaced persons or from an order so made under sub-paragraph (i) to paragraph (b) of that clause. Pending Letter Patent Appeals and appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of the High Court made to the Supreme Court were also protected.

7. In the year 1980 section 3 of the original Ordinance, as amended by the amending Ordinance, was further amended by section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 (Ordinance X of 1980) (hereinafter referred to as the amending Ordinance of 1980) whereby appeal was made competent 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. For the sake of convenience and better understanding, the provisions of section 15 are reproduced below:-

"15. Appeal to High Court in certain cases:-

Notwithstanding anything contained in section 3 of the Law Reforms Ordinance, 1972 (XII of 1972), an appeal shall lie to a Bench of two or more Judges of a High Court from are interlocutory order made by Single Judge of that Court in the exercise of its original civil jurisdiction."

8. From the above it shall be seen that originally Letters Patent Appeals were abolished, then a right of appeal to a Bench of two or more Judges of the High Court was given to challenge the order finally disposing of the matter by a Single Judge in exercise of the original civil jurisdiction of the High Court and then in the year 1980 an appeal was also allowed to a Bench of two or more Judges of the High Court from an interlocutory order passed by a Single Judge of the Court in the exercise of its original civil jurisdiction. It should be clearly understood that the appeal which was allowed to be made by the amending Ordinance of 1980 was with regard to an interlocutory order made by a Single Judge in the exercise of the original civil jurisdiction of the High Court. It should thus, be clear that this appeal was allowed only with regard to the assumption of jurisdiction by a Single Judge of the High Court exclusively in original civil matters pending before him. In both the amending Ordinance and the amending Ordinance of 1980, the emphasis was on the proceedings pending in the exercise of original civil jurisdiction by the High Court and decidedly the exercise of original civil jurisdiction by the High Court is under the provisions of the Code of Civil Procedure (see section 117 thereof).

9. There is no cavil with the point that the principles of Code of Civil Procedure are applicable to writ petitions but the question requiring determination now is whether the exercise of jurisdiction in respect of writ petitions is commensurate with the exercise of original civil jurisdiction by the High Court. The High Court has got original, civil jurisdiction under the Code of Civil Procedure and it has also got jurisdiction under Article 199 of the 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. 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 and writ jurisdiction is exercisable under the provisions of Article 199 of the Constitution. The mere fact that the principles of Code of Civil Procedure are applicable to the proceedings commenced under writ jurisdiction, would not mean that the latter proceedings were commenced under the Code of Civil Procedure and pertain to the original civil jurisdiction of the High Court. Although writ jurisdiction is original jurisdiction but it is 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 the Registrar, High Court of West Pakistan; Lahore P L D 1968 S C 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 emphasise 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 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 Commissioner P L D 1970 S C 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".

10. We are, therefore, of the confirmed opinion that under the provisions of section 15 of the amending Ordinance of 1980 an appeal to a Bench :)f two or more Judges of the High Court against an interlocutory order made by a Single Judge of the Court would be competent only when the Judge is exercising original civil jurisdiction and it would not be competent when interlocutory order has been made by a Single Judge in the exercise of writ jurisdiction. Since the interlocutory order impugned in this Intra-Court Appeal pertains to the exercise of writ jurisdiction by our learned brother Mr. Abdul Karim Khan Kundi, J. and not in the exercise of original civil jurisdiction we are, of the confirmed opinion that this Intra-Court Appeal is not competent. Having arrived at this conclusion we would dismiss both the Intra-Court Appeals Nos.2 and 3 of 1987 in limine.

A.A./580/P

Appeals dismissed.