2021 PLP 743 (CLC)

This Intra Court Appeal has been directed against order dated 31.12.2020 passed by learned Single Bench of this Court whereby application for clarification (C.M.No.4/2020) filed by respondents No.2 to 6 was disposed of.

2. Relevant facts are that appellant filed Writ Petition No.66332/2020, in which interim stay was granted on 16.12.2020. However, on application (C.M No.4/2020), for clarification of order dated 16.12.2020 filed by respondents Nos.2 to 6, the stay order was modified to the effect that respondents were allowed to complete the tender process, however, subject to final outcome of writ petition. The appellant being aggrieved has filed this appeal.

3. Learned counsel for the appellant at the very outset confronted that how this appeal is maintainable against impugned interlocutory order, in view of bar contained in section 3(3) of the Law Reforms Ordinance, 1972 (Ordinance). Learned counsel for the appellant in response submits that as C.M.No.4/2020 for clarification of stay order has finally been decided, therefore, impugned order is not an interlocutory order but a final order, hence this appeal is maintainable.

4. Heard. Before touching merits of the case, we would like to decide the threshold question of maintainability of this appeal under Section 3 of the Ordinance. Undoubtedly under section 3(3) of the Ordinance, no appeal shall lie under subsection (1) or (2) of section 3 of the Ordinance against interlocutory order or order does not dispose of entire case before the Court. The word "interlocutory order" has not been defined in the Ordinance or Civil Procedure Code of 1908 (C.P.C.). However, Hon'ble Supreme Court in Noor Muhammad Lambardar v. Member (Revenue) and others (2003 SCMR 708) while explaining the word "interlocutory" held that interlocutory order is an order, in which, no final verdict is pronounced but an ancillary order with the intention to keep it operative till final decision, passed.

5. Similarly learned Division Bench of this Court in case National University of Sciences and others v. Dayyan Atta Tareen (2011 YLR 1070) defined the word "interlocutory order" as under:- "

8. The term "Interlocutory order" does not find any specific definition in Civil Procedure Code of 1908 or the Law Reforms Ordinance, 1972. In Black's Law Dictionary, Fifth Edition the term "interlocutory" has been defined as "provisional" interim, temporary; not final. Something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy.

9. The ordinary meaning of an interlocutory order or judgment is given in the Concise Oxford English Dictionary to be "(of a decree or judgment) given provisionally during the course of a legal action".

10. Similarly, the terns "interim" has been defined in Black's Law Dictionary Fifth Edition as "in the meantime, Meanwhile; temporary between".

11. The term has also been interpreted by Supreme Court of Pakistan in a judgment reported as Messrs National Security Insurance Co. Ltd. v. Messrs Hoechst Pakistan Ltd. and others (PLD 1990 Supreme Court 709). After discussing various judgments it has been laid down that "an order, which does not decide the matter finally and the proceedings still remain to be tried and the rights in dispute between the parties have yet to be determined is not a final order and that it is an interlocutory order in nature against which an appeal before the Court is not competent". Same view was also expressed by this Court in Messrs Qadoos Brothers v. Judge Banking Court and others (2018 CLD 88) where it is held that if the order simply decides ancillary and incidental matter leaving substantial proceedings yet to be decided for decision of the case on merits, the order shall be "interlocutory" in character.

6. From the above case law it can be deduced that where order does not decide the matter finally and the proceedings still remain to be tried and the rights of the parties in disputes are yet to be determined finally, the order cannot be termed as final order but the same will be "interlocutory order" in nature against which appeal under Section 3(3) of the Ordinance will not be competent.

7. The above definition of word "interlocutory order" when apply to the impugned order, it shows that only application for clarification of order dated 16.12.2020 was disposed of, whereby respondents were allowed to complete tender process but said tender process shall remain subject to final outcome of writ petition. The impugned order itself clarifies that main lis is yet to be decided. This demonstrates that the substantial proceedings and rights of the parties in main writ petition are yet to be decided on merits. Therefore, it can safely be concluded that impugned order is merely an "interlocutory order" and not final order disposing of entire case in term of Section 3(3) of the Ordinance.

8. In view of above discussion, the impugned order being interlocutory order, this appeal is not maintainable, which is accordingly dismissed. KMZ/N-4/L Appeal dismissed.