Begum D. F. HASSAN vs HABIB BANK LTD., LAHORE

ORDER

NASIM HASSAN I SHAH, J.-This is an appeal under section 3 of the Law Reforms (Amendment)

Ordinance, 1972 directed against the order dated 9-3-72 passed by a learned Single Judge whereby the appellant's petition under Article 102 of the abrogated Constitution of 1962 was dismissed.

2. The first question which arises for determination is about the maintainability of this appeal. It will, therefore, be convenient to reproduce herein the relevant part of section 3 of the Ordinance which deals with the question of appeals : "Section 3. Appeal to High Court in certain cases.-(I) 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 High Court in the exercise of its original civil jurisdiction : Provided that no such appeal shall lie from an order which does not dispose of the whole matter before the Court.

(2) 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 or from an order so made under sub-paragraph (i) of paragraph

(b) of that clause."

2. This appeal purports to have been filed under the provisions of subsection (1) of section 3 of the Ordinance, so far as the proceedings, out of which this appeal has arisen, were not taken under Art. 201 of the Interim Constitution of 1972 or its predecessor Art. 98 of 1962-Con--stitution. The appeal, as already stated, is directed against the order passed by a Single Judge in exercise of this Court's jurisdiction under Article 102 of the 1962 Constitution and it is urged that the said order has been passed by the High Court in exercise of "its original civil jurisdiction." The question, therefore, is whether the order made by the learned Single Judge of this Court was indeed made in exercise of this Court's "original civil jurisdiction".

3. In the case of Ahmad Khan v. Chief Justice and Judges of High Court, West Pakistan (PLD 1968 SC 171) the Supreme Court, while discussing the nature of the jurisdiction exercised by the High Court when it dealt with the petition under Art. 98 of the Constitution of 1962, explained this aspect of the matter and also made observations regarding the import of the phrase 619original civil jurisdiction" of the High Court. The following observations appear to be particularly relevant and may, therefore, be cited with advantage hereunder: . . . . 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 failing within the jurisdiction of Court subordinate to the High Court. Every other jurisdiction 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 jurisdictions, since some of those jurisdictions were to be exercised under existing statutes."

So far as the jurisdiction exercised by the Lahore High Court, while dealing with the petitions under Art. 98 of the abrogated Constitution was con--cerned, it was observed that the same could best be described as a "Constitutional jurisdiction of an original kind". Reading the observations quoted above and the observation made just referred to, it can be inferred that the exercise of, what is commonly termed as the writ jurisdic--petition, was considered to be a special original jurisdiction of the High Court and not ordinary original civil jurisdiction. The same view was also .Expressed in Hussain Bakhsh v. Settlement Commissioner (PLD 1970 SC 1).

4. Coming now to the question of the nature of the jurisdiction conferred on High Court under Art. 102 of the abrogated Constitution .Of 1962 it will be observed that Art. 102 states; " Each High Court shall supervise and control other Courts that are subordinate to it."

While its marginal note reads as follows:-- "High Court to superintend the subordinate Courts."

Thus the jurisdiction exercisable by the High Courts under the provisions of Article 102 is that of "Supervision" and "Superinten--dence". In fact a Division Bench of West Pakistan High Court, to which one of us was party, in the case of Karim Bakhsh v. Mubarik .Jai (PLD 1970 Pesh. 169) has held to the same effect, as is evident from the following quotation from the said judgment: "Article 102 of the Constitution on the contrary merely empowers the High Court to supervise and control all Courts subordinate to it. The power is meant to enable the High Court to discharge its duties as a superior Court towards fair and proper administration of justice."

5. It seems thus to be clear that the jurisdiction exercised by the High Court, under Art.,102 of 1962 Constitution was of a supervisory .Nature. It was not `original' jurisdiction because it did not envisage the trial of suits by the High Court in exercise of that jurisdiction. Exercise of an original jurisdiction appears to connote that proceedings should start before that forum and are finally disposed of, by it. In the present case, the suits are pending before the civil Court at Lahore which is exercising original civil jurisdiction in the matter. In the petition made under Art. 102 the prayer is that certain alleged illegalities that have been committed during the course of the suit proceedings be scrutinised by this Court. This would obviously be in exercise of its supervisory jurisdiction. It has further been prayed that this Court may either itself or it may direct a District Judge to hold an enquiry and declare that there had been a mistrial of this case. Apart from the fact is doubtful whether such a relief can at all be granted in exercise of jurisdiction under Art. 102 it is quite clear that the suits were pending before the Court of first instance and the appellant being dissatisfied with the conduct of the trial Court ap--proaching this Court as a "revisory authority" to declare the actions taken "by the original Court to be bad in law and to pass such orders as were .Deemed necessary to restore legality in the trial of the suits. Consequently, what the High Court was being moved to do, was not to exercise its '"original" jurisdiction, namely, to itself dispose of the suits but to exercise its "supervisory" or "revisory" jurisdiction. The mere fact that the High Court can simply exercise "supervisory" jurisdiction under Art. 102 of the 1962 Constitution is a refutation of the plea and negatives the contention of the appellant that this Court exercises original jurisdiction when it is moved under the provisions of Art. 102. Undoubtedly the jurisdiction exercised is a civil jurisdiction, when the original cause in respect of which scrutiny is required of a civil nature. But in order to determine whether it is "original civil jurisdiction" it is the nature of the function exercised by it while dealing with the case that is more pertinent. Since the original proceedings are pending in a Court other than the High Court, it is manifest that the High Court in exercise of its jurisdiction under Art. 102 of 1962 Constitution cannot be said to be exercising its "original civil jurisdiction.

6. Furthermore, under the provisions of subsection (1) of section 3 an appeal is competent against an order passed by a Single Judge in exercise of this Court's original civil jurisdiction. Even if the appellant's argument was to be accepted that the jurisdiction exercised by the High Court while dealing with Constitutional petitions is an original jurisdiction, the jurisdiction exercised shall at best be its "special original jurisdiction"' and not its "original civil jurisdiction" as observed by the Supreme Court while considering the nature of this Court's jurisdiction qua writ petitions dealt with in this Court. As appeals under the Ordinance and the Law Reforms (Amendment) Act, 1972 are competent only if they fall within the terms of the provisions of section 3. The present appeal must be held to be incompetent as it is not covered in terms, either by the provisions of subsection (1) or by subsection (2) of the above enactments.

7. The upshot is that we find that the order passed by the learned Single Judge is not an order passed in exercise of this Court's original civil jurisdiction, and accordingly this appeal is not competent. It is, therefore, dismissed in limine.