P L D 1962 (W (PLP)

S. A. Nusrat and Iqbal Ahmad for Respondents. Dates of hearing : 16th and 21st February 1962. WAHIDUDDIN AHMAD, J.‑This is a Letters Patent Appeal against the decision of Constantine, J., in Reference No. 30 of 1957, dated the 11th of January 1960. Respondent No. 1, the Collector of Karachi, being doubtful whether the bungalow known as "Somerset House" should be treated as a hotel or as an ordinary residential house, referred this question to the High Court under section 84 (2) of the Cantonments Act. 1924. The contention of the appellant before the learned Collector in the appeal pending before him, was that the "Somerset House" was a hotel and should have been assessed as such. On the question being referred to this Court, Constantine, J., by judgment dated the 11th of January 1960, came to the conclusion teat the premises in question were rightly treated as residential premises and should not be treated as a hotel. The appellant who is the owner of the property has challenged the decision of the learned Single Judge on the question in dispute in this Letters Patent Appeal. Mr. Nusrat, the learned counsel for the contesting respon dent, has raised a preliminary objection that no appeal lies from the impugned order under clause 10 of the Letters Patent applicable to the West Pakistan High Court. The learned counsel drew our attention to a decision in the case of Bulaqi Shah v. Collector of Lahore (A I R 1925 Lah. 336) in support of his contention that on a case stated and referred to it by the Chief Revenue Authority under the Income‑tax Act, the decision of a High Court is not a final judgment within the meaning of clause 10 of the Letters Patent to the Lahore High Court, but is merely advisory. The learned counsel urged that the principles on which the above‑mentioned Lahore case was decided are also applicable to the present case. He referred us to section 84 (2) of the Cantonments Act, 1924, to show that just as the Income Tax Tribunal is entitled to refer a question of law to the High Court for opinion, the appellate authority in assessment cases is also entitled to refer certain questions to the High Court for decision under the above mentioned provision of law. He also referred us to Order XLVI of the Civil Procedure Code to show that exactly in the same manner in which the opinion of the High Court is transmitted to the Income‑tax Authority, references under the Cantonments Act also are transmitted. Mr. Nusrat strongly pressed before us that a reference under section 84 (2) of the Cantonments Act stands on the same footing as a reference under section 66 of the Income‑tax Act and any judgment given in such cases cannot be treated as a final judgment within the meaning of clause 10 of the Letters Patent but merely advisory, Although the learned counsel for the contesting respondent has not referred us to other decisions on this question, but we have noticed two other decisions on the point under consideration. In Probhat Chandra Barma v. The King‑Emperor (A I R 1925 Cal. 598) a Full Bench of the Calcutta High Court also came to the conclusion that the judgment given upon a case stated by the Commissioner of Income‑tax, under section 66 (2) of the Income‑tax Act, 1922, is merely advisory, made by the Court in exercise of its consulta tive jurisdictions and is not a judgment within the meaning of clause 15 of the Letters Patent which corresponds to clause 10 of our Letters Patent. In another case Seth Jagannath Narayan v. Municipal Committee, Khandwa (A I R 1945 Nag. 75) a Division Bench of the Nagpur High Court held that the decision of a Single Judge of a High Court on a reference under section 83 (2), C. P. Muni cipalities Act, is merely the expression of opinion on a case stated. It is merely advisory and does not determine the rights of the parties finally and therefore does not amount to a judgment within the meaning of clause 10 of the Letters Patent. The learned Judges in arriving at this conclusion based their decision on the case of Tata Iron and Steel Company Ltd. v. The Chief Revenue Authority of Bombay (A I R 1923 P C 148) and A I R 1925 Lah. 336 referred to above. Syed Sharifuddin, the learned counsel for the appellant, has, however, urged before us that the view taken in A I R 1923 P C 148 no longer holds good. He referred us to the case of Malik Feroz Khan Noon v. The State (P L D 1958 S C (Pak.) 333) to snow that the word "Judgment" as used in Article 160 of the defunct Constitution of Pakistan was interpreted in its ordinary signification, namely, where a written judgment is required by law, the document which for the reason stated therein concludes the trial and disposes of the proceedings. The learned counsel further argued that even on the view taken by the Privy Council in A I R 1923 P C 148, as the Collector of Karachi referred the questions involved in this matter to the High Court for its decision under section 84 (2) of the Cantonments Act, it cannot be held that the order embodying their determination or decision is advisory. The preliminary objection raised before us has received our anxious consideration. The above mentioned decision of the Supreme Court of Pakistan is clearly distinguishable because the language in Article 160 is very wide and includes any judgment, decree or order etc. It seems to us that the crux of the matter lies in finding out whether the judgment referred to in Order XIVI of the Civil Procedure Code is used in its strict legal and proper sense. If that is so, then it cannot tie doubted that an appeal is competent under clause 10 of the Letters Patent to a Division Bench of this High Court against a single Judge's decision. If it is not so used but for all intent and purposes is merely advisory, the view taken by the Privy Council in the above‑mentioned case clearly is that such a decision is not a judgment in its strict legal and proper sense and Po appeal would lie under clause 10 of the Letters Patent. It will be use full to reproduce the following observations of Lord Esher in the case of In re Knight and Tabernacle Permanent Building Society ((1892) 2 Q B 613) while dealing with the case of Ex parte County Council of Kent ((1892) 2 Q B 613A I R 1945 Nag. 75A I R 1923 P C 148P L D 1958 S C (Pak.) 333(1892) 2 Q B 613) for deciding the preliminary objection raised before us: "Where a statute provided that a case might be stated for the decision of the Court it was held that though the language might prima facie Import that there has to be the equivalent of a judgment or order, yet when the context was looked at it appeared that the jurisdiction of the Court appealed to was only consultative, and that there was nothing which amounted to a judgment or order." If the reference under consideration and the decision thereon is considered In the light of the above‑mentioned observations, it is perfectly clear to us that a reference under section 84 (2), merely because Order XLVI, C. P. C. is applied to it, will not make it as a reference made by a Civil Court. As pointed out in the Nagpur case, the reference to Order XLVI, C. P. C. in section 94 (2) of the Cantonments Act is inserted solely for the purposes of indicating the manner in which references are to be dealt with in the High Court. It does not convert a reference made by the Municipal Authorities to a High Court in a Civil case. Besides, it is further clear to us that a decision given by the High Court in such cases is only of an advisory character. After a decision is given, no decree is so prepared and the order passed is not executable. The executing authorities, if at all, are the Municipal Authorities and once the case has been disposed of by the High Court, it had no further say in the matter. In these circumstances, undoubtedly the jurisdiction of this Court, on a reference made under section 84 (2) of the Cantonments Act is only consultative and the order of the Court 9n such cases is not a judgment in its strict legal and proper sense. It is perfectly correct that under Order XLVI, C. P. C., the decision of the High Court is described as a judgment and is to be transmitted under the signatures of the Registrar of the High Court, but this will not make any difference. In the Income‑tax case before the Privy Council also exactly the same position arose. Under the Income‑tax Act also, the opinion of the High Court is described as a judgment and must be transmitted under the signature of the Registrar to the Income‑tax Authorities. It therefore appears to us that the view expressed by the Judicial Committee in A I R 1923 P C 148 is applicable with full force to the case before us and it, must be held that no appeal lies under clause 10 of the Letters' Patent against the decision of Constantine, J. Accordingly the preliminary objection is allowed and the appeal is dismissed on account of incompetency. The learned counsel for the appellant has made an oral request to us that the appellant should be granted special leave to file an appeal in the Supreme Court on the question of law involved in this matter. The request is not opposed by the contesting respondent. In our opinion also the point of law involved in this appeal is a substantial question of law which is likely to affect a number of cases referred to this Court under the various Municipal Acts and other statutes. It is therefore certified that this case is a fit one for appeal to the Supreme Court under section 109 (c) of the C. P. C. In the circumstances of this case the parties are left to bear their own costs. A. H. Appeal dismissed.