HINA HOUSING PROJECT (P) LTD. Versus GOVERNMENT OF SINDH
ORDER
1. Petition No.3083 was filed in 1993 under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The petition was dismissed for non‑prosecution on 2‑12‑1999. On 10‑12‑1999 the learned advocate for the petitioner filed Miscellaneous Application No.5713 of 1999, under Order IX, rule 9, Civil Procedure Code, for recalling the order passed on 2‑12‑1999.
2. At the hearing of the said application, a question arose whether rule 9 of Order IX, C.P.C., or the Civil Procedure Code itself for that matter, has applicability in the Constitutional, petition. Following questions were, therefore, framed:
3. "(1) Whether the Constitutional jurisdiction being exercised by High Court under Article 199 of the Constitution, is regulated by C.P.C., as a whole?
(2) What is the procedure to be adopted for disposal of Constitutional petitions?
4. Substantially, the question is whether the Civil Procedure Code is applicability in the Constitutional petitions, and if so, its, extent. M/s. Muhammad Iqbal Kazi and Abdul Qadir Siddiqi, Advocates were requested to assist as amicus curiae. Mr. Muhammad Iqbal Kazi has graciously devoted his valuable time to assist the Court on the point.
5. Mr. Abrar Hassan, learned counsel for the petitioner, submitted that Jurisdiction under Article 199 of the Constitution tray be both, civil as well as criminal, according to the nature of the relief claimed, and in the case of petitions of civil nature, Civil Procedure Code is applicable. He mainly relied upon the case of Husn Bakhsh v. Settlement Commissioner Rawalpindi and others, reported as "PLD 1970 SC 1". He also cited Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner and another (PLD 1966 SC. 276), wherein it was observed that writ jurisdiction is extraordinary original jurisdiction of High Court. Another case, cited by him; was Ahmed Khan v. The Chief Justice and Judges of the High Court, West Pakistan and others (PLD 1968 SC 171). In that case, it was observed that this jurisdiction must obviously be described as a Constitutional jurisdiction of an original kind. The last case referred to by Mr. Abrar Hassan was Sardar Noor Hussain v. Chief Settlement Commissioner and others (PLD 1983 SC 62), but this case was relating to Letter Patent Appeal. He submitted that rules should have been framed to prescribe the extent of applicability of C.P.C. to the Constitutional petitions.
6. The answer of the learned amicus curaie, Mr. Iqbal Kazi, to the questions was that the Civil Procedure Code is not applicable to the Constitutional petitions as a whole, but its provisions are applicable to the extent of necessity in the case. According to him, the extent of applicability has been laid down in the C.P.C. itself: In this respect he referred to various provisions like sections 4, 9, 117, 120, 141 and rule 3 of Order XLIX in C.P.C. He submitted that according to the preamble of C.P.C. itself, it is applicable to Court of civil jurisdiction.
7. Mr. Kazi contended that Article 98 of the Constitution of 1962 and Article 199 of the Constitution, 1973 do not specify procedure but simce limited questions are to be decided under this jurisdiction, provisions of Civil Procedure Code apply to such original special proceedings of civil nature according to the necessity. Mr. Kazi also relied upon the case of Hussain Bukhsh (PLD 1970 SC 1) to the extent of applicability of some provisions of C.P.C. in Constitution petitions. The case of M/s Dawood Yamaha Limited v. Government of Baluchistan and others (PLD 1986 Quetta 148), has also been referred to to support of the proposition. It was held, in that case that provisions of Civil Procedure Code would not be strictly applicable to Constitutional petitions, but some provisions thereof could be pressed into service to regulate conduct of petitions in absence of any rule on a particular topic framed by High Court for regulating Constitutional petitions. Similar view was taken, in this regard, in the case of 'Shabbir Ahmed and another v. Akhtar Alam and others' (PLD 1994 SC 598), which was also referred to by Mr. Kazi. The view of the Lahore High Court, expressed in the case of 'Major (Retd.) S.A. Qayyim v. Rana Muhammad Arshad' (1986 TOLD 1539) was that principles of C.P.C. are applicable to writ proceedings, and broad rules of C.P.C. have to be followed in writ jurisdiction.
8. Mr Suleman Habibullah, learned Additional Advocate‑General, submitted that Civil Procedure Code is binding in Constitutional petitions because no other procedure has been provided for these proceedings.
9. Mr. Raja Qureshi, learned Advocate‑General, Sindh, was of the view that provisions of Civil Procedure Code are applicable to these Constitutional proceedings according to the need in a particular case. He informed that in a Constitutional petition, a Division Bench of this Court had recorded evidence also.
10. With all these arguments, we reach the place from where we had started, because the extent of applicability remains undetermined.
11. It may be observed that following a pattern of procedure for convenience in conduct of proceedings is different from applicability of a legal provisions, because in the latter case, the parties have to accept the adverse consequences as a legal binding. Applicability of a law practically means its binding effect.
12. Old case-law 'particularly, the case of Hussain Bakhsh v. Settlement Commissioner Rawalpindi and others (PLD 1970 SC 1) is relied upon in support of the proposition that Civil Procedure Code is applicable to Constitutional petitions filed under Article 199 of the Constitution, 1973. The question has not, perhaps, been thoroughly examined after promulgation of the Constitution in 1973. Article 98 of the Constitution of 1962 and Article 199 of the Constitution of 1973 are similar provisions on the same subject, but with two material significant distinctive features. First distinction is that the clause that "a High Court shall have such jurisdiction as is conferred on it by this Constitution or by law", forming part of Article 98 of the Constitution of 1962, has been omitted from Article 199 of the Constitution of 1973. The second change is replacement of remedy relating to terms and conditions of service by a remedy relating to Fundamental Rights in Article 199 of Constitution of 1973. For the present purpose, omission of the provisions from Article 199 of the Constitution, 1973, that 'a High Court shall have such jurisdiction as is conferred on it by this Constitution or by Law' is material, This existed in Article 98 of the Constitution of 1962 acid, therefore, the Civil Procedure Code, which is undisputedly a ‑law, was applicable to the proceedings under that Article, as
13. Inclusion or exclusion of words or provisions in, or from, a piece of legislation or enactment is never inconsequential. The logical consequence of the omission of the provision, for applicability of law, from Article 199 of the Constitution of 1973, is that jurisdiction conferred by a law shall not be applicable to the proceedings under this Article, and such proceedings are to be dealt with the under the jurisdiction given by the said Article itself.
14. This view was given in C.P. No.D‑1615 of 1998, but the other learned Judge in that Bench could not share the view. It was observed that there was no nexus or linkage between clauses (1) and (2) of Article 98 of Constitution, 1962. With profound respects, it is submitted that according to the principles of legislation, only those clauses are placed in one section or Article, which have nexus with each other. The provisions independent of each other are placed in different sections or Articles. This alone is the purpose of making Article or sections in a law. Had clause (1) of Article 98 of the Constitution, 1962, no nexus with its clause (2), it would have formed an independent and separate Article. As a separate and independent Article, this clause would have been superfluous and redundant in view of Article 130 of that Constitution. Clause (1) of Article 98 was:‑‑
15. "98(1) A High Court shall have such jurisdiction as is conferred on it by this Constitution or bylaw."
16. Article 130 of Constitution of 1962 reads as under:‑‑----
17. "(130) No Court shall have any jurisdiction that is not conferred on it by this Constitution or by or under the law. "
18. There can be dispute that "Court" includes High Court. Effect and substance of these two provisions is same. As independent articles, they could not have existed in the same Constitution. Jurisdiction and reason of existence of the former provision was only that it was merely about the matter in clause (2) of the same Article.
19. The ocher observation was that this provision was not consciously deleted from Article 199 of the present Constitution through a clear intendments and that the previous Constitution was abrogated and a new Constitution was drafted. It is pointed out that the mode of amendment or drafting of the Constitution is not relevant for the purpose. The two provisions are on the same subject and this is the reason why the case law on the previous provisions is being considered applicable to the new provision, despite abrogation of the earlier one. If similarities are relevant, distinctions in the two provisions are also relevant. The distinction is that in the Constitution, 1962, it was expressly provided in Article 98, that law shall be applicable, whereas there is no such expression in Article 199 of the Constitution of 1973. It is not conceivable that the distinction is inconsequential. The consequence can, easily, be inferred.
20. Through Article 199, the Constitution makers had no intention to provide for a comprehensive proceeding and remedy parallel to civil suit, but through the concept of applicability of Civil Procedure Code, Constitutional petitions under this Article have, practically, been made civil suits. Since the extent of applicability of C.P.C. to Constitutional petitions has not been defined precisely, everything that can be done with the civil suits is being done with the Constitutional petitions. Declarations about rights and entitlement are sought; permanent injunctions are prayed for; petitions are amended like pleadings in suits; legal heirs are joined; in a petition filed by a person, co‑petitioners are joined and even the proceedings in such petitions are some time compromised and disposed of like a compromise decree. If all these provisions of C.P.C., meant for civil suit, have an applicability to Constitutional petitions, there can be no reason why provisions of C.P.C. relating to framing of issues and recording of evidence should not be applicable to such petitions.
21. The question is 'how without such a procedure, a. Constitutional petition can be dealt with'. It can be understood by following how the Constitution itself envisages it. We call it a writ petition, as is the practice at Lahore High Court, or a Constitutional Petition, as we do here, but the Constitution itself terms it as an "application" of any aggrieved party or any person.
22. What was intended, was that such an "application" would be decided and disposed of after hearing the applicant and the respondent called through a notice issued under the rules: There was no concept of interlocutory stages and applications like civil suits or appeals. If an interim order was necessary that could be passed in exercise of the same Constitutional jurisdiction. The Article itself provides for a power to grant an interim order. The practice, however, is that interim stay is prayed for through an application under Order XXXIX rules.1 and 2, C.P.C., which neither is required, nor can be legally entertained in a Constitutional petition, because such an interim stay is to be granted in exercise of Constitutional jurisdiction and not under Order XXXIX, C.P.C. This can be understood from the provision of clause (4‑A) of Article 199 and rule 4-A of Order XXXIX, C.P.C. If an interim stay is ordered under Order XXXIX, rules 1 and 2, C.P.C., rule 4‑A of the said Order shall apply, and not clause (4‑A) of Article 199 of the Constitution. In case such interim orders were to be made in the Constitutional petitions under Order XXXIX, rules 1 and 2, C.P.C. there was no necessity to insert clause (4‑A) in Article 199 as rule 4‑A, Order XXXIX, C.P.C. was there for the purpose. Existence of clause (4‑A) in Article 199 establishes that interim stay in Constitutional petitions are to be ordered under the same Article, and not under Order XXXIX, C.P.C.
23. Moreover, since suits, appeals and trials are comprehensive proceedings, there is a concept of interlocutory applications in all such proceedings. An interlocutory application can be filed in a suit, it can be filed in an appeal or trial, but filing an application in an application is a queer concept, and Constitutional petition under Article 199 is an application, as the Article itself puts it. This is an application and it is to be proceeded with and decided as an application. .
24. Since Article 199 of the Constitution, 1973, does not provide for applicability of law, as was done in Article 98 of the Constitution of 1962, there is no bar of limitation and, till an illegal order or action continues, a petition can be filed, or repeated in case of dismissal of earlier one for non -prosecution. Dismissal of a Constitutional petition for non‑prosecution is a refusal to exercise that jurisdiction. Thus, such a dismissal, as well as restoration of the petition, would be an exercise of the jurisdiction of the same Constitutional provision and not under any provision of Civil, Procedure Code.
25. This petition was dismissed on 2‑12‑1999 and on 10‑12‑1999 Mr. Abrar Hassan filed the application for restoration alongwith his own affidavit. He submitted, in the affidavit, that he was busy in another Court, i.e. another Bench of this. Court, and his absence was not deliberate. The respondents have not controverted, the plea. Restoration would be in the interest of justice. Petition is accordingly restored to the stage where it was dismissed.
26. H.B.T./H‑17/K Order accordingly.