P L D 1957 (W (PLP)

WAHIDUDDIN, J.

This revision application is against the order of Mr. S. M. Abdul Aziz Jaffary, Sub-Judge First Class, Karachi, dated 25th October 1956, whereby the plaint was returned to the applicant/ plaintiff for presentation to the proper Court. The applicant/plaintiff filed a suit for the recovery of Rs. 2,236 on a cheque drawn on the Mercantile Co-operative Bank Ltd., Karachi by the opponents in his favour. The suit was titled as one under Order XXXVII, Civil P. C. It was admitted and numbered as Suit No. 719 of 1956 on 4th September 1956 and on 6th September 1956, an interim attachment order was issued in respect of truck KAP 3007 belonging to the opponents. During the pendency of the suit the applicant realised that the subordinate judge at Karachi had no power to issue summons under Order XXXVII rules 1 and 2, Civil P. C., and filed an application for amend ment of the plaint. This application was rejected on the ground that Subordinate judge concerned had no jurisdiction to hear the suit under Order XXXVII, Civil P. C. and the suit was not properly filed. When the matter came up for hearing on 14th February 1957, the learned counsel for the parties represented that it raises an important question of law and is likely to affect large number of other summary chapter suits transferred to the subordinate Courts at Karachi, and requested that some particular date may be fixed for the hearing of arguments at length. Considering the importance of the matter, notices were also issued to Mr. Castellino, Mr. Dingo mal and Mr. Sharifuddin as amicus curiae. They have also appeared and given valuable assistance in this case. Before dealing with the merits of the case it is to be noted that in the City of Karachi there was no District Court and the Court of the Judicial Commissioner of Sind was the Principal Court of Civil Jurisdiction. On 15th April 1940 the Sind Courts Act, 1926, was brought into operation and the Court of the Judicial Commissioner of Sind from that day became the Chief Court of Sind and under it also became the principal Civil Court of original jurisdiction for the Civil District of Karachi. On 14th October 1955, the Governor-General promulgated an order known as "The High Court of West Pakistan, Establishment Order, 1955" to establish the West Pakistan High Court for the Province of West Pakistan to replace the High Court in Lahore, the Chief Court of Sind and the Judicial Commissioner's Courts in N.-W. F. P. and Baluchistan etc. A Bench of the High Court of West Pakistan was also established at Karachi and under this Order this Bench was to exercise the same original civil jurisdiction for the Civil District of Karachi as was exercisable by the Chief Court of Sind under section 8 of the Sind Courts Act, 1926. Consequently all civil suits over the valuation of Rs. 2,000 pending in the Chief Court of Sind automatically stood transferred to the Karachi Bench of the West Pakistan High Court, and suits of the aforesaid valuation continued to be filed on the Original Side of the Karachi Bench of West Pakistan High Court. On 20th April 1956, the Sind Courts Act of 1926 in its application to the Federal Capital and the Karachi Small Causes Court Act, 1929, were amended under President's Order No. II of 1956. In the Federal Capital the Court of the District Judge and the Courts of Subordinate judges were established from the appointed date. Article 7 of this Order says :- "

7. Limits of jurisdiction of Subordinate Judges.-(1) The ordinary jurisdiction of a Subordinate Judge of the First Class shall extend to all original suits and proceedings of a civil nature wherein the subject matter in amount or value does not exceed twenty-five thousand rupees, or such sum as the Central Government may by order under the proviso to subsection (2) of section 22 of the Sind Courts Act, 1926 (Bombay Act VII of 1926), prescribe. (2) The ordinary original jurisdiction of a Subordinate judge of the second class shall extend to all such suits and proceedings wherein the subject matter does not exceed five thousand rupees in amount or value". Article 28 of the said Order provides: "

28. Provision regarding suits and other proceedings.-All suits, executions and other proceedings wherein the subject matter in amount or value does not exceed twenty-five thousand rupees, or such sum as the Central Government may by order under the proviso to subsection (2) of section 22 of the Sind Courts Act, 1926 (Bombay Act VII of 1926) prescribe other than appeals, revisions and reviews pending before the Bench of the High Court of West Pakistan at Karachi immediately before the appointed day in which no evidence has been recorded shall be transferred to the Court of the District judge, who shall dispose of such suits, executions and other proceedings in the manner as if they had been instituted in his Court ; and all such suits, executions and other proceedings in which evidence has been commenced to be recorded shall, notwithstanding anything in this order, be disposed of in the manner prescribed by law in force on the subject immediately before-the appointed day as if this order had not been made". Section 22 of the Sind Courts Act, 1926 was also amended and the following proviso was added to it. "Provided that, unless the Central Government by order otherwise directs, the District Court of Karachi shall not have jurisdiction in original civil suits and proceedings wherein the subject matter exceeds twenty five thousand rupees in amount or value". In section 8 of the Sind Courts Act, 1926 the following most important amendment was made :- "For the words 'and shall be the Court of Session and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi', the words 'in respect of suits and proceedings wherein the subject-matter in amount or value exceeds twenty five thousand rupees or such as the Central Government may, by order under the proviso to subsection (2) of section 22 prescribe shall be substituted". It will thus be noticed that the jurisdiction of the Karachi Bench of the West Pakistan High Court was only confined in respect of suits and proceedings wherein the subject matter in amount or value exceeds Rs. 25,

000. All suits from the, appointed date below the value of Rs. 25,000 were to be filed in the District Courts at Karachi. The matter in dispute being below the value of Rs. 25,000 was accordingly filed in the Court of the First Class Sub-Judge at Karachi. It will be further observed that under Article 28 of the President's Order, all suits below the value of Rs, 25,000 pending in the Karachi Bench of West Pakistan High Court were to be transferred to the Court of the District Judge at Karachi for disposal in the manner as if they had been instituted in his Court. Amongst the suits transferred to the Court of the District judge are also suits filed under Order XXXVII rules 1 and 2 Civil P. C. Order XXXVII rules 1 and 2, Civil P. C. Order XXXVII rule 1 reads as under :- "This order shall apply to- (a) ... (b) ... (c) The Chief Court in Sind". Order XXXVII rule 2, Civil P. C. is as follows :- "2. (1) All suits uppn bills of exchange, hundies or promissory notes may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed ; but the summons shall be in Form No. 4 in Appendix B or in such other form as may be from time to time prescribed. (2) In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defend the suit unless he obtains leave from a judge as hereinafter provided so to appear and defend ; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree- (a) for the principal sum due on the instrument and for interest calculated in accordance with the provisions of section 79 or section 80, as the case may be, of the Negotiable Instruments Act, 1881, up to the date of the institution of the suit or for the sum mentioned in the summons, whichever is less, and for interest up to the date of the decree at the same rate or at such other rate as the Court thinks fit ; and (b) for such subsequent interest, if any, as the Court may order under section 34 of this Code ; and (c) for such sum for costs as may be prescribed: Provided that, if the plaintiff claims more than such fixed sum for costs, the costs shall be ascertained in the ordinary way. (2) A decree passed under this rule may be executed forthwith". At this stage it will also be observed that the provisions of Order XXXVII, Civil P. C. are only applicable to those Courts that are mentioned in Order XXXVII, rule 1, Civil P. C. The Chief Court of Sind is one of those Courts. The newly-created District Courts at Karachi have not been included or designated as one of the Courts either speci fically or to which sections 532-37 of the Civil P. C. (1882) have been applied. The learned counsel Mr. Motiur Rehman, Mr. Castellino and Mr. Dingomal have with much force contended that the order of the learned Subordinate Judge is erroneous as he had jurisdiction to entertain the suit in the ordinary way. They further urge that the suit in the first instance is commenced in the ordinary way but if the plaintiff requests the Court to adopt the procedure laid down under Order XXXVII rule 2, Civil P. C. and to issue summons in Form 4 in Appendix B, then the Court will issue such summons if it is invested with power to adopt that procedure. If, however, it does not possess such power, then it would try the suit in the ordinary way. It was contended that the applicant by abundant caution applied for the amendment of the plaint. There was no need to do so. They also urged that in the City of Karachi there is too Civil Court at present to try suits under Order XXXVIL rules 1 and 2, Civil P. C. upto the value of Rs. 25,000 and the learned Subordinate judge committed an error in refusing to exercise the jurisdiction vested in him and in returning the plaint for presentation to the proper Court, which in fact does not exist. Mr. Muzaffar Hassan on behalf of the opponents and Mr. Sharifuddin strongly supported the view of the learned Subordinate Judge. They contended that the Courts desig nated under Order XXXVII rule 1 are special Courts with exclusive jurisdiction with regard to a particular subject matter and their jurisdiction arises not by reason of pecuniary or territorial considerations but it arises by reason of the subject-matter being of the nature mentioned in Order XXXVII, Civil P. C. It was urged that in order to determine the jurisdiction of the Special Court the only thing that has to be looked at is the subject-matter of the suit, and if the subject-matter of the suit is that which is prescribed in Order XXXVII, then the Special Court has jurisdiction and no further question as to its pecuniary and territorial jurisdiction can arise. It was strenuously argued that under Order XXXVII rule 1 the Chief Court of Sind was designated as a Special Court with exclusive jurisdiction, that the Karachi Bench of the West Pakistan High Court being the successor Court still possesses the jurisdiction to entertain suits below the value of Rs.25,000 under Order XXXVII, Civil P. C., and this jurisdiction has not been taken away under the President's Order II of 1956. The substance of their arguments is that the provisions of Order XXXVII, Civil P. C. are provisions of a special kind and that this jurisdiction still vests in the Karachi Bench of the West Pakistan High Court and has not been taken away by the President's Order II of 1956. The arguments in support of the contention raised on behalf of the opponents are without any force. The relevant provisions of Article 28 of the President's Order and the amendment of section 8 of the Sind Courts Act, 1926 leaves no doubt in my mind that all suits without any reservation, whether under the ordinary law or under the summary chapter or under any other special provision of law wherein the subject-matter in the amount or value does not exceed Rs. 25,000 have to be transferred to the District Judge for disposal in the manner as if they have been instituted in his Court. Similarly, the Karachi Bench of the West Pakistan High Court for future is the only principal Court of Original Civil Jurisdiction in respect of suits and proceedings wherein the subject-matter in amount of value exceeds Rs. 25,

000. The aforesaid provisions of the President's Order II of 1956 are very emphatic on this point. They not only confer jurisdiction on the Karachi District Courts with respect to suits below the value of Rs. 25,000 but also oust the jurisdiction of every Civil Court including the jurisdiction of the Karachi Bench of the West Pakistan High Court to try suits below the said value. Mr. Sharifuddin invited my attention to two decisions of the Indian Courts in Goverdhanlal Bansilal,v. Ramrichpal Dalsukhrai (A I R 1952 Bom. 75) and V. Ramamirtham, Sole Proprietor, Glorious Pictures v. Rama Film Service (A I R 1951 Mad. 93). But these decisions are clearly distinguishable as they are based on entirely different considerations and provisions of Law. In the Bombay case the relevant provisions under consideration were sections 12 and 18 of the City of Bombay Civil Court Act of 1948. Section 12 of the said Act reads as under :- "Notwithstanding anything contained in any law the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Court. Provided that the High Court may for any special reason and at any stage remove for trial by itself any suit or proceeding from the City Court". Section 18 reads as under :- "18. (1) All suits and proceedings cognizable by the City Court and pending in the High Court, in which issues have not been settled or evidence has not been recorded on or before the date of the coming into force of this Act, shall be transferred to the City Court and shall be heard and disposed of by the City Court and the City Court shall have all the powers and jurisdiction thereof as if they had been originally instituted in that Court. (2) In any suit or proceeding so transferred institution fee shall be paid, credit being given to any Court-fee levied in the High Court, and costs incurred in the High Court till the date of the transfer shall be assessed by the City Court in such manner as the Provincial Govern ment may, after consultation with the High Court deter mine by rules". The question under consideration in that case was whether a suit based on a mortgage by reason of deposit of title deeds in respect of property not situated in the City of Bombay could be entertained in the High Court of Bombay on its original side. The learned judge on the Original Side returned the plaint for presentation to the proper Court holding that such suit cannot be heard by the High Court as its jurisdiction up to Rs. 25,000 has been taken away. The Division Bench of the Bombay High Court held that the jurisdiction of the High Court has been taken away only in respect of those suits which are cognizable by City Courts. They came to the conclusion that the suit under consideration was not cagnizable by the City Court and therefore they had jurisdiction to hear the matter. The learned judge in that connection observed: "The jurisdiction of the Bombay City Civil Court is governed by the Civil P. C. Under section 16 of the Code no Court can entertain a suit with regard to a mortgage if the property, tire subject-matter of the mortgage, is situated outside its jurisdiction. Therefore, although the amount involved in a mortgage suit is less than Rs. 25,000 yet where the plaintiff wants to enforce the mortgage and the property in respect of which the mortgage is created is in Ajmer the City Civil Court cannot entertain the suit. It is only with regard to those suits which have been made cognizable by the City Court by reason of the Bombay City Civil Court Act that the jurisdiction of the High Court has been taken away ; but with regard to all those suits which are cognizable by the High Court and which have not been made cognizable by the City Court, the jurisdiction of the High Court continues. A suit on a mortgage is not a suit for land ; it is a suit to enforce a debt, and although the property mortgaged is outside the jurisdiction, yet if the deposit of rule-deeds is made in Bombay, the High Court has jurisdiction to entertain and try the suit." The scheme of the Bombay City Civil Court Act of 1948 is entirely different from one governing the City Civil Courts at Karachi. The jurisdiction of the high Court of Bombay was taken away in respect of those suits only that were cognizable by the City Civil Court. On the other hand, under the President's Order, the jurisdiction of the Karachi Bench of the West Pakistan High Court upto Rs. 25,000 has been taken away in respect of all suits: The view taken by me with respect to the Bombay case is expressed by Chagla. C. J. in the case of Mehersingh Sethi v. Khurshed Nadirshaw Satarau;alla (L V I Born. L R 540). The learned Judge observed while considering the aforesaid Bombay case, as follows:- "Mr. Desai relied upon two decisions of this Court one is the decision of Mr. Justice Tendolkar in Urmilabai v. Jehangir Pastakia ((1951) 54 Bom L R 763) and the other is the decision of the appellate Court in Goverdhanlal v. Ramrichpal ((1951) 53 Bom. L R 825) where we were considering the effect upon the juris diction of this Court of section 12 of the City Civil Court Act; and what was held iii those two cases was that suits on mortgages in respect of land situated out side the ordinary jurisdiction which were cognizable by this Court, before the City Civil Court Act was enacted con tinued to be cognizable by this Court, because under the Bombay City Civil Court Act jurisdiction has not been conferred upon the City Civil Court to try suits of that nature. Now, when one looks at the Bombay City Civil Court Act and the scheme of the Bombay Rents, Hotel and Lodging House Rates Control Act the position becomes amply clear. Under section 3 of the City Civil Court Act power is given to the State Government to issue a notifica tion conferring jurisdiction upon the Court to try, receive and dispose of all suits and other proceedings of a civil nature the value of, the subject-matter of which does not exceed the amount mentioned therein, and this notification may be issued notwithstanding anything contained in any law ; and under section 12 of the Act, notwithstanding anything contained in any law, the High Court shall not lave jurisdiction to try suits and proceedings cognizable by the City Civil Court. The first distinction which is obvious is that section 3 does not set up a special Court with exclusive jurisdiction ; it sets up a Civil Court with a particular pecuniary jurisdic tion ; and the position of the City Civil Court is like that of the other Civil Courts in the State and all rules as to jurisdiction contained in the Civil P. C. apply to the City Civil Court. Therefore, in both these decisions what we held was that section 16 of the Civil P. C. applied to the City Civil Court ; and if the property was not situate within the jurisdiction of the City Civil Court, the City Civil Court could not entertain a suit to enforce a mortgage merely because the pecuniary limit was not exceeded in the mortgage suit. Further, section 12 provides that the High Court has no jurisdiction to try only those suits which are cognizable by the City Civil Court. Therefore, the Bombay City Civil Court Act takes away a part of the jurisdiction which the High Court had and confers it upon this new Court ; but to the extent that the jurisdiction is not con ferred upon the City Civil Court, the jurisdiction of the High Court continues unimpaired. Section 12 does not contain any prohibition against the High Court trying any particular or specific kind of suit of deciding or determining any particular question As far as the test to be applied in order to determine the jurisdiction of the High Court when one considers the Bombay City Civil Court Act is, is a particular suit cognizable by the City Civil Court ; if it is not, then the jurisdiction of the High Court continues. But the test to be applied when considering the Bombay Rents, Hotel and Lodging House Rates Control Act is entirely different. The question there is : what is the nature of the suit ; what are the questions to be determined ; and if the nature of the suit is that of a suit relating to the recovery of rent or possession by landlord and tenant, or it relates to any question that arises under the Act, then under section 28 there is an express prohibition against Courts other than the named Court trying the suit or determining that question. Therefore, applying that test to the matter before us what we have to ask ourselves is, does this suit involve any question which can solely be determined by the Special Court ? In our opinion the only answer to that question can be, that it undoubtedly does. As already pointed out, the principal question is the question of determination of rent ; that question arises between a landlord and tenant, and the suit is expressly filed to recover rent after it is determined by the Court. This Court has no jurisdiction either to determine the rent or to give relief to the landlord in respect of the rent ; and the relief which the landlord seeks is not the wider relief relating to the recovery of rent but the recovery of rent itself due from the tenant who has failed to pay rent. Therefore, in our opinion, with respect to the learned judge who tried the suit, the Court has no jurisdiction to try the suit." I am, therefore, clearly of the opinion that the view taken in the Bombay case has no application to the facts of the present case. In fact, it supports the view taken by me. The position in A I R (1951) Mad. 93 was absolutely different. The decision in that case was based on section 3-A and section 16 of the Madras City Civil Court Act of 1892. Section 3-A reads "Subject to the exceptions specified in section 3, if the Provincial Government may, by notification in the Official Gazette, invest the City Court with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature arising within the City of Madras and of such value not exceeding the thousand rupees as may be specified in the notification." Section 16 reads "

16. Nothing in this Act contained shall affect the original civil jurisdiction of the High Court: Provided that (1) if any suit or other proceeding is instituted in the High Court which, in the opinion of the judge who tries the same (whose opinion shall be final, ought to have been instituted in the City Court, no costs shall be allowed to successful plaintiff and a successful defendant shall be allowed his costs as between attorney and client ; (2) in any suit or other proceeding pending at any time in the High Court any judge of such Court may at any stage thereof make an order transferring the same to the City Court if in his opinion such suit or proceeding is within the jurisdiction of that Court and should be tried therein ; (3) in any suit or other proceeding so transferred, the Court Fees Act, 1870, shall apply, credit being given for any fees levied in the High Court." Satyanarayana Rao, J. observed: "It was then pointed out if such a power of transfer is recognised the litigant in the suit would be deprived of the valuable right of instituting suits contemplated by Order VII of the Original Side Rules, what are usually described as under Chapter suits. There is no doubt a difference between suits under the summary procedure under Order XXXVII, Civil. P. C., and Order VII, Original Side Rules, both regarding the period of limitation and also the nature and the class of suits that could be instituted. If a suit under Order VII, Original Side Rules of the value below Rs. 10,000 was instituted on the original side of the H. C. taking advantage of the favourable provisions under Order VII, it would not be competent for the H. C. to transfer it to the City Civil Court as tire second proviso to section 16 empowers the Court to transfer the suit or proceeding only if the suit or proceeding is within the jurisdiction of that Court. A suit which is triable as an under Chapter suit under Order VII, Original Side Rules, cannot be tried by the City Civil Court as an under Chapter suit under a summary procedure under Order XXXVII, having regard to the difference in the subject matter of the two suits. I do not think, therefore, that a judge in making an order of transfer under the second proviso to section 16 would overlook these con siderations and transfer the suit automatically to the City Civil Court. The Judge has to be satisfied before making an order of transfer, that in his opinion the suit or proceed ing is within the jurisdiction of the City Civil Court and that it could be tried by that Court. I do not think, therefore, that this difficulty pointed out in the course of the arguments really affects the power of transfer recognised under the second proviso." The observations in the Madras case also are based on entirely different provisions of law. In both the cases cited by Mr. Sharifuddin the jurisdiction of the High Court to entertain the suit was not found to have been taken away. In the Bombay case the suit under consideration was not cognizable by the City Civil Court and it was therefore held that such a case was cognizable by the High Court. In the Madras case there was con current jurisdiction namely with the High Court as well as with, the Madras City Civil Court and the only question under consideration was whether a suit which has been properly instituted in the High Court under Order VII of the Original Side Rules of the High Court should be transferr ed to the Madras City Civil Court. The learned judge dealing with the case came to the conclusion that the High Court would not be justified to transfer such a suit to the City Civil Court as the advantages under Order VII were much more beneficial than those under Order XXXVII, Civil P. C. and as that would also deprive the party of his tight that has been acquired by him in choosing the forum of the suit in the High Court. The present case is not of that nature and these observations are not of any assistance to the contentions raised by the counsel on behalf of the opponents. There is also no substance in the contention raised on behalf of the opponents that the powers conferred under Order XXXVII, Civil P. C. on a Court are in the nature of special jurisdiction and the Courts designated under, Order XXXVII are special Courts upon which exclusive jurisdiction has been conferred to try the suit under Order XXXVII. The further contention that such special jurisdiction can only be taken away either by amendment of Order XXXVII Rule 1 or by direct legislation is also without any foundation. I have already observed that Article 28 and the amendment of section 8 of the Sind Courts Act, 1926 are direct legislation and contain a specific direction on the question under con sideration. I have discovered no reservation in respect of any suit including the one under the Summary Chapter. It is too late in the day to argue that the Courts designated under Order XXXVII, Civil P. C. are conferred jurisdiction to try suits of a special class. This order only lays down certain rules of procedure and the Courts designated therein after the admission of the plaint are authorised to exercise and apply this procedure. There is not the slightest doubt in my mind that the Courts designated under Order XXXVII are not Courts of special or exclusive jurisdiction- Similar arguments were advanced in the case of Doulatyam Valabdas v. Halo Kanya and another (5 S L R 155) and in the case of Wor Lee Lone v. A. Rahman (A I R (1918) Lower Burma 135 (1)). The leading case on this question is 5 S L R

155. In the Court of the Judicial Commissioner of Sind the practice was to entertain suits even of the Small Causes Court nature under Order XXXVII, Civil P. C. This practice was found defective by Fawcett. A. J. C. He himself raised this question and referred the matter for the decision of a Division Bench of the Judicial Commissioner's Court. Pratt, J. C. while con sidering this question, observed: "Order XXXVII is applied by rule 2 to certain specified Courts ; and rule 2 enacts that all suits on negotiable instruments may, in case the plaintiff desires to proceed summarily, be instituted by presenting a plaint in the usual form and by taking out a summons in a special form adapted to the summary procedure which is described in clause 2 of the rule. This rule gives jurisdiction to the Courts to which the order applies to try the specified class of suits by a summary procedure. The jurisdiction refers to the mode of trial and no jurisdiction is conferred to try suits that the specified Courts are not otherwise competent to try. In this interpretation of the rule I concur with that put by Birdwood, J. on the corresponding Provisions of the Code of 1882 in the case of Ramsing v. Kirk Bride ((1882) 1 Sadar Court Selected Decisions p. 83). The learned Judge said 'it was not apparently the intention of the Legislature to extend the jurisdiction of any Courts or to place any limitation on the exercise of any existing jurisdiction. The special procedure seems to be provided only for cases which would ordinarily be instituted in any of the selected Courts if there were no such procedure.' Order XXXVII rule 2 does not in any way determine in what Court the suit should be instituted and in no way controls the provisions of section 15 of the Provincial Small Cause Courts Act, 1887." Crouch, A. J. C. also discussed this question at length and observed :- "It is beyond dispute that such suits of which the value does not exceed one thousand rupees are cognizable by the Court of Small Causes, Karachi. Unless, therefore, there be some express provision in the Civil P. C., or some other enactment, no such suit of which the value does not exceed one thousand rupees can be tried by this Court in its original jurisdiction (Sections 15 and 16 Provincial Small Cause Courts Act, 1887). Order XXXVII rule 2 states that all suits upon negotiable instruments may, in case the plaintiff desires to proceed thereunder, be instituted by presenting a plaint in the form prescribed ; but the summons shall be in the Form No. 4 in Appendix B. Now "prescribed" means "prescribed by Rules and Forms contained in the First Schedule, or made under section 122, or section 125, Civil P. C.," (Sections 2 (16) and 18 Civil P. C.). There is no special form of plaint prescribed for suits filed under this Orders and the "form prescribed" must mean, therefore, the ordinary form. In Act V of 1866 section 2. also, the plaint had to be "in the form prescribed by the Code of Civil Procedure". The summary procedure commences with a special form of summons. The disjunctive "but", following "in the form prescribed," in rule 2, marks the commencement of the explanation how the summary procedure under this Order differs from the ordinary procedure. The suit commences in the ordinary way by a plaint in the prescribed form being filed, but, if the plaintiff so desire and request, the Court will proceed with that suit in a particular way. The operation of the rule does not commence until after the institution of the suit ; all questions affecting the actual institution of the suit are left unaffected by it. Taking rule 2 by itself, it has absolutely general appli cation. The order is silent as to where a suit should be instituted : it does not purport to deal with the question ; it, in no way, modifies or purports to modifiy the ordinary law. We must assume, therefore, that all suits on negoti able instruments in which plaintiff desires to proceed summarily must be filed in Courts having appropriate local and financial jurisdiction. If then, a suit on a hundi for Rs. 500 be filed in the Court of Small Causes, Karachi, with a request that the summons be issued in form 4, why should not that Court comply ? The answer is, of course, to be found in rule

1. So far as that Court is concerned, Order XXXVII does not exist ; for rule 1 limits its application, in Sind, to the Court of the Judicial Commissioner. If such a suit be presented to this Court, on what grounds can a plaintiff demand its admission ? Under Order VII, rule 1, the plaint must contain a statement of the facts showing that the Court has jurisdiction. What facts can be alleged ? Prima facie the Court has no power to try the suit. Rule 2 of Order XXXVII confers none; rule 1 merely limits the application of rule

2. The bare assertion that the suit is filed under Order XXXVII cannot possibly create a right. All that plaintiff can do under the order is to file a suit in the prescribed form and request the Court to issue a particular kind of summons. The extensive privileges given to a plaintiff by the Order have as their foundation the issue of a summons in Form

4. But the right to issue such summons is conferred on the Court ; hence it is that in rule 1, which defines the scope of the order, its application is limited to certain specified Courts. The order does nothing more than confer on certain Courts the power to proceed in a certain class of suits, after they have been filed in the ordinary way. There seem to be no facts which a plaintiff can allege as showing that this Court has jurisdiction. It has been urged by Mr. Rupchand that the history of summary procedure on negotiable instruments supports his contention that this Court was intended to have jurisdiction over all suits on negotiable instruments irrespective of their value. - If however, we refer to Act V of 1866, the first Legislative enactment on the subject, we find nothing which serves to establish big theory. Section 2 runs as follows :- 'From and after the first May 1866, all suits upon Bills of Exchange, hundies, or promissory notes commenced in any High Court within six calendar months after the same shall have become due and payable, may, in case the plaintiff shall desire to proceed under -this Act be commenced as hereinafter is mentioned ; (that is to say) the plaint shall be in the form prescribed by the Code of Civil Procedure but the summons shall be in the form contained in the Schedule to this Act etc.' It is clear that this Act had a very limited application ; it applied only to suits of a special kind 'commenced in a High Court ;' it did not purport to modify the ordinary law determining in what Court a suit should be commenced. It merely conferred on,High Courts the power to proceed in a summary way with a certain class of suits after they had been instituted." In A I R (1918) L Bur. 135 (1) it was held: "A Chief Court has no jurisdiction to entertain a suit of small cause jurisdiction. Order XXXVII, Civil P. C, lays down certain rules of procedure applicable only after the plaint has been admitted by the Chief Court." A Division Bench of the Lahore High Court in the case of Bhondu Mal v. Muhammad Ahmad Mushtaq Ahmad (A I R 1927 Lah. 174), also considered this question and Broadway, J. observed "As I understand the situation this empowers the Courts named in the new rule to try cases which are within their pecuniary and territorial jurisdiction in accordance with the procedure prescribed in Order XXXVII, rules 2 to

7. The making of this rule does not confer on any of the Courts any pecuniary or territorial jurisdiction but merely recognizes the jurisdiction that they already possess and empowers them to follow a certain definite procedure provided for the expeditious disposal of suits coming within their purview." The view taken in the aforesaid authorities is applicable to the facts of the present case. There is much force in the arguments of Mr. Castellino that under section 15 of the Civil P. C. every suit shall be instituted in the Court 'of the lowest grade competant to try it. If the nature of the suit is such that it cannot be entertained in the High Court then it should be filed in the Court of the lowest grade competent to try it. In the present case also the suit was rightly instituted in the Court of the Subordinate Judge and if he did not possess the power to exercise the procedure laid down in Order XXXVII rule 2 to issue summons under Form. 4 in Appendix B on the request of the plaintiff, then the only alternative open to him was to pass an order to this effect and not to return the plaint for presentation to the proper Court. The view taken by the Judicial Commissioner's Court of Sind, Lahore Court, and by the Lower Burma Court is a correct enunication of law, and in view of the provisions of the President's Order there is little doubt that the High Court has no jurisdiction to entertain suits below the value of Rs. 25,

000. All suits below Rs. 25,000 are to be filed in the District Courts at Karachi and if no power has been conferred on those Courts under Order XXXVIL Civil P. C. that would not deprive them to try such suits in the ordinary way. F This principle should also be followed in those cases where the Karachi Bench of the West Pakistan High Court issued summons under XXXVII rule 2, Civil P. C., but being below the value of Rs. 25,000, have now been transferred to the District Court at Karachi for disposal. The contention of the learned counsel for the applicant that the learned Subordinate judge ought to have allowed him to amend the plaint and should have tried the suit in the ordinary way is of great force. In support of his con tention he has relied on an unreported decision of the Mysore High Court. The learned judges in that case observed as under :- "No special form is prescribed in .the Code for a suit for adopting the summary procedure under Order XXXVII. The suit is therefore commenced in the ordinary way by the institution of a plaint as prescribed by rule 1 of Order IV of the suit. The suit is one for the respecified (sic) in the rules under Order VII. If the suit is filed within prescribed period of limitation for adopting the procedure prescribed in Order XXXVII and the plaintiff requests the Court to adopt the summary procedure by directing the summons to be issued in Form 4 in Appendix B, the Court can issue the summons if it is invested with jurisdiction to adopt that procedure. If it has no power to do so, it can try the suit in the ordinary way. Rules 1 and 2 of Order XXXVII do not alter the character of the suit. The suit is one for the recovery of money due upon a promissory note : the character of the suit remains the same whichever procedure is adopted. When a Court is perfectly compe tent to try a suit, the fact that it cannot try that suit under the summary procedure cannot deprive it of the juris diction to try the suit in the ordinary way. In such a case, no question of amendment of the plaint arises. There is nothing to amend in the plaint. If in fact, any amendment is necessary, it will only be this. In the plaint where it is stated that the suit is 'under Order XXXVII rule 2, Code of Civil Procedure' it can be ordered to be struck off and instead, the plaintiff can be allowed to substitute under Order IV and Order VII rule 1, Code of Civil Procedure. S. P. Basalingappa v. Ninjunda Setty ((1948) 53 My s. H C R 1)." I am in respectful agreement with the view taken in this case and in my judgment the learned Subordinate Judge committed a grave error in refusing, to exercise his jurisdiction to try the suit in the ordinary way. Before I part with this case it must be observed that the provisions of Order XXXVII are of very great importance to the commercial community in all important towns. Powers under Order XXXVII, rule 2, Civil P. C. have been conferred on the District Judge and First Class Sub-Judges. The Lahore High Court has added clause- (e) to Order XXXVII, rule 1 and had included the Court of the District Judge and Sub-Judges of First Class of the Delhi Province and the District Court and the Courts of the Sub- Judges of the First Class in the Civil Districts of Lahore and Amritsar in the Province of the Punjab. The District Judges and the Subordinate Judges of First Class in the Civil Districts of Lahore are exercising the powers conferred under Order XXXVII, rule

2. I do not see any reason why such powers should not be conferred in an important commercial city like Karachi. I would, therefore, direct the office to place this judgment before the Senior Judge of the Karachi Bench of the West Pakistan High Court for considering whether the District Judge and Subordinate Judges of First Class in Karachi should be included as one of the Courts under Order XXXVII, rule 1, Civil P. C. I may add that the West Pakistan High Court has got ample power to amend the provisions of Order XXXVII, rule 1 under sections 122 and 128, Civil P. C. This position was considered in A I R (1927) Lah. 174 and that will indicate the manner in which the proposed suggestion can be considered. I would, therefore, accept this application, set aside the order of the learned Subordinate Judge and direct that he will entertain the suit and try it in the ordinary way no matter even if he does not possess the power under section XXXV II, Civil P. C. to issue summons in Form

4. The application is allowed with costs. A. H. Application accepted