CODE OF CIVIL PROCEDURE (AMENDMENT) ORDINANCE, 1980

CODE OF CIVIL PROCEDURE (AMENDMENT) ORDINANCE, 1980 (X OF 1980), WHETHER SAVED UNDER ART <!--[if gte mso 10]> CODE OF CIVIL PROCEDURE (AMENDMENT) ORDINANCE, 1980 (X OF 1980), WHETHER SAVED UNDER ART.270-A OF THE CONSTITUTION? By Mr. Justice S.A. Rabbani, Formerly Judge, Sindh High Court & Federal Shariat Court of Pakistan Though we inherited the present judicial system from British rulers which had its origin in their traditions, the origin of our system shifted to the wisdom of our Constitution when it was made. Our Constitutions, especially that in force now, envisaged a vertical appellate structure in the judiciary. All the Constitutions enforced in this country constantly maintained this idea but some deviations were made during the period when the Constitution was laid to rest. One such significant deviation was made for convenience, through Law Reforms Ordinance, 1972. Section 3 of this Ordinance provided for an appeal from decrees and orders of a judge of a High Court to the same High Court by making a Bench of the same Court, comprising more than one judge, the appellate authority. This was perhaps on assumption that more minds working together give better results in doing justice. If this idea is reliable, mob justice should always be better than court justice. Perhaps the most fallacious decision in the history of mankind was that in compliance wherewith Socrates had to swallow poison, and it was a decision of 501 persons sitting to hear the trial. `Too many cooks spoil the broth' does not need any more experiments for its proof. Capabilities and integrity being equal, best judgment; both in form and substance can be one made by one judge as he gives it with full responsibility. Ina judgment by two judges bench this responsibility is shared by 50 per cent and this sharing of responsibility affects the judgment adversely. Number of judges in a bench is inversely proportional to the quality of decision. We talk of `collective wisdom'. When it is collective, it is not wisdom. Any way, Section 3 Law Reforms Ordinance, 1972 allowed appeal against order or decree passed by a single judge before a Division Bench of the same High Court. But it specifically provided in Clause (3) that no appeal shall lie under Sub-Section (1) or Sub-Section (2) from an interlocutory order or an order which does not dispose of the entire case before the court. This bar in Section 3(3) of the Law Reforms Ordinance, 1972 about appeal from an interlocutory order passed by a single judge is available in the law till today and it has not been deleted from the section through any amendment. Notwithstanding existence of this prohibitory provision in the statute appeals from interlocutory orders passed by single judges are being entertained and heard by Division Benches of the same High Court, since 1980. This is being done on the authority of a provision in Ordinance X of 1980, which was only an amendatory Ordinance promulgated to amend the Code of Civil Procedure, 1908 (V of 1908). It was not an Ordinance issued under the authority of Article 89 of the Constitution, but there is an assumption that this Ordinance was saved as law by the Eighth Amendment to the Constitution. The question is whether Ordinance X of 1980 has really been saved under Article 270-A introduced in 1985. The preamble of the Ordinance says that it was promulgated to amend the. Code of Civil Procedure, 1908 (V of 1908). As usual section 1 is about short title and commencement. Sections 2 to 14 amend various provisions in C.P.C. as under: Section 2 amended Section 12 C.P.C. Section 3 inserted Section 34-A in C.P.C. Section 4 amended Section 51 C.P.C. Section 5 amended Section 55 C.P.C. Section 6 amended Section 56 C.P.C. Section 7 omitted Section 57 C.P.C. Section 8 substituted Section 58 C.P.C. Section 9 omitted Section 59 C.P.C. Section 10 substituted Section 74 C.P.C. Section 11 amended Section 100 C.P.C. Section 12 amended Section 102 C.P.C. Section 13 amended Section 115 C.P.C. and Section 14 amended First Schedule to C.P.C. The above sections of the Ordinance served its purpose mentioned in the preamble and amended various provisions of C.P.C. as proposed. But another provision was introduced, as section 15, which was a stranger to this Ordinance. This section 15 neither proposed to amend Civil Procedure Code or any other law, not it was within the scope of the object of the Ordinance mentioned in itself. It was in the shape of a permanent provision of law which could not stay in a temporary statute like an amending legislation. An amending legislation makes a temporary document that expires with its promulgation after amending the statute it proposed to amend. Thus a permanent provision of law cannot be included in an amending legislation according to the principle of legislation and legislative drafting. Since Ordinance X of 1980 was an amending legislation brought to amend Civil Procedure Code, it lapsed on its promulgation after amending the C.P.C. This being the nature of the amending laws, in some legislatures of the world even short title is not assigned to such Bills. Section 15 of Ordinance X of 1980 was ineffective because being a permanent provision it could not be inserted in an amendatory law and it has lost force because it cannot stand alone after expiry of the Ordinance. Article 270A was introduced in 1985 and Clause (3) of this Article protected the Ordinances etc. which were in force immediately before the date on which this Article came into force. The Article came into force in 1985 and the Ordinance X of 1980, which was an amendatory law lapsed in 1980 after amending the C.P.C. on its promulgation. So, the Ordinance was not in force immediately before introduction of Article 270-A in 1985 and it could not be, and was not protected by this Article. Section 15 of the Ordinance X of 1980 is a dead law. The drafters were expected to know that the correct procedure for legislation was amendment of Section 3 of the Law Reforms Ordinance, 1972, to provide for appeal from interlocutory orders passed by a single judge.