P L D 1966 Supreme Court 276 (PLP)

Mahmood Ahmad Qureshi Advocate Supreme Court instructed by Ziauddin Ahmad Qureshi Attorney for Respondent No.

2. Ataullah Sajjad Addl. Advocate-General West Pakistan (baud Ilyas Advocate Supreme Court with him) instructed by Ijaz Ali Attorney under Order XLV, S. C. R. 1956. Date of hearing: 29th October 1965. S. A. RAHMAN, J.-The question raised on this appeal, by special leave, is whether an appeal lies, under clause 10 of the Letters Patent of the High Court of West Pakistan, from an order passed by a Single Judge, in writ jurisdiction, to a Division Bench of that Court. The question has arisen in the following circumstances. The appellant, Mumtaz Khan, was in occupation of a part of an evacuee house, situate in the town of Gujranwala. The remaining portion of the house, was in the possession of Abbas Ali, a local, with whom his wife, Mst. Khurshid Begum, the 2nd respondent, a displaced person from the former State of Jammu and Kashmir, also resided. The appellant as well as Mst. Khurshid Begum, applied for transfer of the house, to the Settle ment authorities. The whole house was transferred by order of the Deputy Settlement Commissioner, to the 2nd respondent, presumably on the ground that her husband was an allottee. Having failed before the higher Settlement authorities, the appellant sought redress from the High Court of West Pakistan, in writ jurisdiction: A learned Single Judge declared that the order of the Deputy Settlement Commissioner, transferring the property in dispute to the 2nd respondent, was without legal authority and did not affect the rights of the appellant who was entitled to its transfer. A direction was also issued to the Chief Settlement Commissioner to transfer the property to him. From this order, an appeal was taken under clause 10 of the Letters Patent, on behalf of Mst. Khurshid Begum, to a Division Bench of the High Court, which reversed the decision of the learned Single Judge and restored the order transferring the house to the 2nd respondent. The Letters Patent constituting the High Court of Judicature at Lahore for the Provinces of the Punjab and Delhi, dated the 21st of March 1919, has been continued in force by subseq uent, enactments and applies mutatis mutandis to the West Pakistan High Court. Clause 10 of this Letters Patent reads as follows:- "

10. And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore from the judg ment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, made on or after the first day of February one thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction, in respect of a decree or order made in the exercise of appellate jurisdiction, by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council as hereinafter provided." The judgment passed by the learned Single Judge of the High Court in the instant case was clearly not one of the judgments or orders excluded from the purview of the first part of clause 10, reproduced above. It was not a judgment passed on further appeal from a judgment or order of a Court of first appeal or one passed in revisional jurisdiction. Nor did it amount to a sentence or order passed or made in the exercise of the power of superintendence ' under the provisions of section 107 of the Government of India Act or one passed in the exercise of criminal jurisdiction. The words of the first part of the clause (apart from the exceptions) are general and would B prima facie support the contention that an appeal would be competent, within the High Court itself, from an order passed by a learned Single Judge of that Court, in writ jurisdiction. . Section 108 of the Government of India Act, 1915, which is referred to, in clause 10 of the Letters Patent of the High Court, enacted that each High Court "may by its own rules, provide, as it thinks fit, for its exercise by one or more Judges or by Division Courts, constituted by two or more Judges of the High Court, of the original and appellate jurisdiction vested in the Court." The Government of India Act, 1915, was repealed by the Government of India Act, 1935, but the jurisdiction of and the law administered in any existing High Court and the respec tive powers of the Judges thereof, in relation to the administra tion of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof, sitting alone or in Division Courts, was preserved in the same form as it existed immediately before the establishment of the Federation, by sections 223 and 292 of the latter Act, subject to certain contingencies which are not relevant for our purpose. Subsequent legislation has confirmed the relevant jurisdictions of High Courts by virtue of Articles 224 and 227 of the 1956 Constitution, Articles 2 and 4 of the Laws (Continu ance in Force) Order, 1958 and Articles 225 and 234(5) of the 1962 Constitution. The effect of section 38 of the Interpretation Act, 1889, and of section 8 of the General Clauses Act is that references in the Letters Patent to section 108 of the Government C of India Act must be construed as references to the provisions that have replaced that provision in the later enactments, with the necessary adaptations. Rules were framed by the High Court, regulating the issue of writs in 1956 and they are to be found in Part J of Chapter IV of High Court Rules and Orders, Vol. V. They are still effective, having been continued by subsequent legislation, though they were framed under the 1956 Constitution read with clause 27 of the Letters Patent. Rule 3 of those rules provides that unless otherwise ordered by the Chief Justice, the application shall be laid before a Division Bench which may summarily dismiss it or, pass such order as it may deem necessary. Apparently, in cases D of the kind that we are considering here, the Chief Justice had directed that a Single Judge may dispose of writ petitions dealing with Settlement cases. It was contended by Mr. A. R. Shaukat on behalf of the appellant that the first part of clause 10 of the Letters Patent, is not attracted to the case, as an order passed in writ jurisdiction by the High Court, cannot be described as a "judgment" within the meaning of that term, as it occurs in that clause. Learned counsel invited our attention, in this connection, to two cases from the Indian jurisdiction, published as Collector of Monghyr v. Pratap Singh(1) A I R 1957 Pat. 102 and State of Uttar Pradesh v. Vijay Anand(2) A I R 1963 S C 946 . In both these cases, the question was whether an appeal from an order passed by the High Court in writ jurisdiction, under Article 226 of the Indian Constitution, could be brought to the Supreme Court, on the ground that the proceedings in question were "civil proceedings" within the meaning of Article 133 of that Constitution. The decisions are not, therefore, of much assistance in the resolution of the question before us. Learned counsel then brought to our notice the discussion as to the meaning of the term "judgment" with reference to clause 10 of the Letters Patent, in two cases decided by the High Court of West Pakistan and reported as Governor-General of Pakistan v. Asafia Construction Ltd. (3) P L D 1964 Kar. 614 and Mian Nazar Farid Ahmad Khan Maneka v. The Controller of Estate Duty, Government of Pakistan and another(4) P L D 1965 Lah.

391. In both these judgments, reference was made to a decision of the Calcutta High Court published as Justices of the Peace for Calcutta v. The Oriental Gas Company (5) (1872) Suth. W R 374 and a decision of the Madras High Court in T. V. Tuljaram Row v. M.K.R.V. Alagappa Chettiar(6) 1 L R (1912) 35 Mad.

1. In the Calcutta case, Couch, C. J., had defined "judgment" in the context of clause 15 of the Letters Patent of that High Court (which corresponds to clause 10 of the West Pakistan High Court) as meaning "a decision which affected the merits of the question between the parties, by determining some right or liability, which may be either preli minary or interlocutory, the difference between them being that a final judgment determines the whole cause or suit and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined". In the Madras case, apparently, the definition given by Couch, C. J., was considered to be too narrow and Sir Arnold White, the learned Chief Justice, thought that the test should be "not the form of the adjudica tion but its affect in the suit or proceeding in which it is made". If, according to him, its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding, so far as the Court before which the suit or proceeding is pending, is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding the adjudication would be a "judgment", within the meaning of the clause. In the particular case under consideration before the Karachi Bench of the High Court, it was held that the order of the High Court was passed, giving an advisory opinion in an arbitration matter and did not amount to a "judgment" within clause 10 of the Letters Patent. In the case before the Lahore Bench, the impugned order passed by the learned Single Judge was one which permitted the respondents in the case, to take a step for deposit of the security and costs, for the prosecution of their appeal in the Supreme Court, which they had failed to take within the prescribed time. This, it was held, was just an ancil lary order which did not have the effect of terminating any proceedings pending for adjudication before the Court, in relation to the appeal in the Supreme Court, for which a certificate had been granted by the High Court. In both cases, however, it was made clear the it would depend upon the circumstances of each case whether' the order in question amounts to a "Judgment" There is a Full Bench judgment of the Lahore High Court reported as Firm Shaw Hari Dial & Sons v. Messrs Sohna Mal Beli Ram (1) A I R 1942 Lah. 95 in which the case law on the subject was exhaustively reviewed and the definition attempted by the Madras High Court in Tuljaram Row's case cited above was accepted as a good working guide though it could not be regarded as an exhaustive definition. It was pointed out therein that the word "judgment" in clause 10 of the Letters Patent of the High Court, is not synonymous with "decree", and that the clause in question contemplates orders other than judgments in a decree. In that particular case, an order determining the forum in which the suit is to be tried, was held to amount to a "judgment" within the clause. The learned Judges observed that in clause 29 of the Letters Patent, the expression "final judgment" occurred, whereas in clause 10, the word "judgment" remained unqualified by any adjective. It was found that an order refusing to transfer a suit, would be a "judgment", within the meaning of clause 10 and therefore appealable. Their Lordships of the Privy Council in Hurrish Chunder Chowdhury v. Kali Sundari Debia (2) 10 1 A 4 characterised a decision in a miscellaneous proceeding, which if it remained, would conclude entirely any right of a party thereto, as a "judgment" within clause 15 of the Letters Patent of the High Court of Calcutta. The same view was apparently taken in Sital Din v. Anant Ram (3) A I R 1933 All. 262 and Murlidas v. Baijnath(4) A I R 1930 Cal. 623 . It was held that a judgment need not be a decree and that the word " judgment" in clause 10 of the Letters Patent of the Allahabad High Court and clause 15 of the Calcutta High Court, should not be read in a restricted sense. In Raghunath Keshav Khadilkar v. Poona Municipality(5) A I R 1945 Bom. 7 a Division Bench of the Bombay High Court also held that an order in the nature of certiorari, issued by a Single Judge, would be appealable under clause 15 of the Letters Patent of that High Court, which corresponds to clause 10 of Letters Patent of the West Pakistan High Court. In another case from India published as Barham Dutt v. Peoples' Co-operative Transport Society Ltd. (1) A I R 1961 Pb. 24 an order passed by a Single Judge of the High Court quashing that of ' a Transport Authority, under Article 226 of the Indian Constitution, was found to be amenable to appeal, under clause. 10 of the Letters Patent. The Letters Patent of the Punjab High Court in India are identical with those of the old Lahore High Court. The contrary view seems to have been taken by the Rangoon High Court in M. Nagoor Gani v. A. K. A. C. T. A. L. C. Chettiar (2) A I R 1941 Rang. 227, a Full Bench judgment. In that case the learned Judges thought that "judgment" within, the meaning of the Letters Patent, should be equated with a "decree". It was therefore held that an order passed in certiorari by a Single Judge, would not be appealable. This decision was considered in the Full Bench judgment of the Lahore High Court, referred to above and dissented from, for what appear to be good reasons. The Rangoon High Court had followed a previous Full Bench judgment of their own Court, which professed to follow the authority of the Privy Council in cases published as Sevak deranchod Bhogival v. Dakore Temple Committee (3) AIR 1925 P C 155, Tata Iron and Steel Company v. Chief Revenue Authority (4) 47 Born. 724 and Mst. Sabitri Thakurain v. Savi(5) 48 Cal. 481 . It appears that their Lordships of the Privy Council were dealing in those cases, with clause 39 of the Letters Patent of the High Court concerned (corresponding to clause 29 of the Lahore High Court Letters Patent) which refers to a "final judgment" rather than to a judgment", as in clause

10. The Privy Council judgments therefore had no bearing on the true construction of the word "judgment" occurring in clause 10 of the Letters Patent and it, seems fairly clear that this term should not be confined to decrees but is of wider import. In the general connotation of the term, a "judgment" would merely mean a "judicial determination or a decision of a Court" F and it could be interlocutory or final. Reference in this connection may be made to the explanations given in Warton's Law Lexicon, under the heading "judgment". In the present case, the learned Single Judge had actually passed an order which finally decided the rights of the parties in respect of an evacuee house. We have no hesitation in G affirming therefore that it was a "judgment" in every sense of the term. It was clearly rendered in a proceeding of a civil nature as rights to property were adjudicated upon. The question may be raised whether an order passed in writ jurisdiction by the High Court (in the instant case a writ of certiorari had been prayed for under the Laws (Continuance in Force) Order, 1958), can be said to be a judgment in pursuance of section 108 of the Government of India Act, 1915, as required by clause 10 of the Letters Patent. A similar question was considered by this Court in Mrs. Parin Bamboat v. The Collector of Karachi (1) P L D 1965 S C 300 . In that particular case, a reference had been made to the High Court, under section 84 (2) of the Cantonments Act, for decision on a point of law concerning the assessment of certain premises to a tax. A learned Single Judge returned an answer to the reference in a considered judgment which was held to be not subject to appeal by a Division Bench of the High Court of West Pakistan, on the ground that the relevant jurisdiction was consultative in character and therefore the decision did not amount to a "judgment", within the meaning of clause 10 of the Letters Patent. This Court upheld the decision of the Division Bench. It was observed that the jurisdiction founded on section 84 of the Cantonments Act being of a special nature, could not' be described either as "original" or "appellate" jurisdiction, which were the two types of jurisdiction referred to in section 108 of the Government of India Act. It was expressly related to a resolution of a question of doubt arising in an appeal in a departmental proceeding. That case is, therefore, distinguishable from the present one, owing to its own peculiar features. The order passed by the learned Single Judge in the instant case was clearly not one in the exercise of appellate jurisdiction in relation to an order of a Subordinate Court. It could not also be related to the exercise of revisional jurisdiction within section 115 of the Code of Civil Procedure or of the exercise of powers of superintendence given by section 107 of the Government of India Act. The point, however, remains whether writ jurisdiction in civil matters could be described as "original jurisdiction" in the context of section 108 of the Government of India Act, read with clause 10 of the Letters Patent. The writ jurisdiction of the High Court of West Pakistan exercisable under the Laws (Continuance in Force) Order, 1958, is certainly not synonymous with the technically described "ordinary original civil jurisdiction" to try suits arising within certain territorial limits, such as is enjoyed by the Karachi Bench of the High Court. But it can be described as "original jurisdiction" as contrasted with "appellate jurisdiction" generally, and these are the two categories of jurisdictions mentioned in section 108 of the Government of India Act. It would be taking a too narrow view of this constitutional enactment if it is to be held that the section was confined to the jurisdictions that vested in the High Court at the date of the Government of India Act, 1915, or that of the Government of India Act, 1935. The words of a Constitution must receive a progressive and liberal interpretation to make it a working instrument in future contingencies and any new jurisdiction conferred on the High Court, at any subsequent time, provided it falls, in the general sense, within the ambit of original or appellate jurisdiction, should be held to be within clause 10 of the Letters Patent, read with section 108 of the Government of India Act. The writ jurisdiction of the High Court was first created by the insertion H of section 223-A in the Government of India Act, 1935, and its successor provisions are contained in Article 170 of the 1956 Constitution and Article 2 of the, Laws (Continuance in Force) Order, 1958. The provisions of Article 98 of the Constitution of 1962, though they refer to directions and orders rather than writs, are in the direct line of descent from the same jurisdiction and partake of its character. Provided it falls within the purview of "original jurisdiction", this new power should not be considered to be outside the contemplation of section 108 of the Government of India Act, 1915. This question appears to have received consideration in some cases arising in the Indian jurisdiction, e.g, in Budge Budge Municipality v. Mongra Mia(1) A I R 1953 Cal. 433 . A majority of the learned Judges in that case which was heard by a Full Bench of the High Court, held that section 108 of the Government of India Act, which had been continued in force by section 223 of the Government of India Act, 1935, and by subsequent enactments, ought to include within its scope, jurisdictions subsequently conferred on the High Court, if they could be legitimately described as falling within the descriptions "appellate jurisdiction" or "original jurisdiction". The opinion was expressed therein that civil writ jurisdiction amounted to original jurisdiction. In Hamid Hasan v. Banwari Lal (2) A I R 1947 P C 90, their Lordship of the Privy Council expressed the view that the issue of high prerogative writs is exercise of original jurisdiction. Their Lordships observed "it cannot be disputed that the issue of such writs is a matter of original jurisdiction." The writ jurisdiction we are considering here, is akin to the power to issue High prerogative writs and may fairly be described as original jurisdiction. The proceedings originate in the High, Court itself and may be directed against t orders of subordinate judicial or semi judicial tribunals or even to certain cases, of Administrative tribunals or authorities and may be described as pertaining to the extra ordinary original jurisdiction of the High Court. It may be recalled that the high prerogative writs have also been replaced in England by "order", without changing the character of the jurisdiction, by the Administration of Justice (Miscellaneous Provisions) Act, 1938. Ferris in his book on Extraordinary legal remedies describes the writ of mandamus as equivalent to an action at law or a civil action (Page 220), the writ of prohibition as an "original remedial writ, as old as the common law itself (Page 414) and the writ of certiorari at common law as "an original writ issued out of Chancery or the King's Bench" (Page 178). Even a writ of habeas corpus is characterized by the learned author as "to all intents and purposes the commencement of a civil action a suit" though technically not a suit. Orders in civil matters passed by a Single Judge of the High Court under the corresponding provisions of Article 226 of- the Indian Constitution have been held in several cases arising in the Indian jurisdiction, to be appealable under the Letters Patent. Ramayya .v. State of Madras (3) A I R 1952 Mad. 300, Budge Budge Municipality v. Mongra Mia; Nanak Chand v. State of Uttar Pradesh (4) A I R 1955 All. 165 Mohammad Felumeah v. S. Mondal(1) A I R 1960 Cal. 582 and Barham Dutt v. Peoples' Co-operative Transport Society Ltd. are cases of this type. In view of the above discussion we have reached the conclusion that an order passed by a Single Judge in writ jurisdiction, pertaining to a civil matter, amounts to exercise of original jurisdiction within the contemplation of section 108 of the Government of India Act and would therefore be appealable as a judgment under clause 10 of the Letters Patent of the High Court. This concludes the appeal. However, Mr. A. R. Shaukat for the appellant wanted his client's case to be considered on the merits as well. It appears that Mumtaz Khan had gone up in appeal from the order of the Deputy Settlement Commissioner which awarded the house to the respondent but that his appeal was held to be- barred by time. The Additional Settlement Commissioner who heard the appeal, refused to condone the delay and dismissed it. This, he was entitled to do, and we do not i therefore consider that on the merits, Mumtaz Khan could have challenged the order of the Settlement authorities, successfully, in writ jurisdiction. The appeal fails and is hereby dismissed, but in view of the nature of the questions involved in the this case, we make no order A.H. Appeal dismissed.