P L D 1967 Lahore 171 (PLP)

Date of hearing: 17th May 1966. SARDAR MUHAMMAD IQBAL, J.‑The petitioners were in the service of Pakistan acting in connection with the affairs of the Province of West Pakistan. They were ordered to retire under the West Pakistan Government Servants (Further Usefulness in Public Service) Rules, 1963. The petitioners filed separate writ petitions in this Court challenging the orders of their retirement and prayed that they be declared under Article 98 of the Constitution of the Islamic Republic of Pakistan, 1962, as without lawful authority and of no legal effect. The petitions were accepted and it was held that proviso to rule 4 of the said Rules was unconstitutional.

2. This is an application tiled by the Province of West Pakistan under section 151 of the Code of Civil Procedure, stating that that the Government intends to file appeal to the Supreme Court against the judgment of this Court and prayed that the implementation of the order of this Court may be suspended for at least one month to enable the Government to file appeal and obtain stay order from the Supreme Court. It was also stated that unless the operation of the order of this Court is suspended it was bound to create legal and other complica tions if the Government was forced to take them into service again.

3. The question is whether the High Court has any jurisdiction to stay the operation of the order under section 151, C. P. C. It may be noted that there is no order, which is capable of being executed. The request of the Government, however, is that the operation of the order be stayed in the exercise of inherent powers of this Court under section 151, C. P. C. There is abundant authority for the proposition that section 151 does not apply where there is an express provision in the Code dealing with the particular matter. The power of the High Court to grant the interim relief is exhaustively dealt with in Order XLV, rule 13, C. P. C. If something has been withheld and is not provided for in that provision, section 151 cannot be used to provide for it. The Government has not applied under rule 13 of Order XLV and it may be ‑for the reason that it has not made any application under sub‑clause (a) of clause (2) of Article 58 of the Constitution for the certificate "that the case involves a substantial question of law as to the interpretation of this Constitution". Under clause (d) of rule 13 the High Court is competent to give such direction respecting the subject‑matter of the appeal as it thinks fit. This provision, in our opinion, cannot be pressed into service when neither there is an applica tion to the Court for a certificate to appeal to the Supreme Court nor the leave to appeal has been granted by the Supreme Court. The provision, contained in rule 13 of Order XLV, however, is exhaustive for granting the interim relief and thus by implication excludes the passing of any orders by the High Court in the exercise of its inherent jurisdiction. It was, how ever, strenuously contended that it is of great importance that the subject‑matter of appeal should be preserved during the litigation so that if the petitioner‑Government ultimately succeeds in, the Supreme Court, it may not stand to lose certain benefits because the High Court has not passed orders preserv ing the subject‑matter of appeal. The question that arises is as to what is the subject‑matter of appeal in the present case. Doubtless, if there had been a claim with regard to a house or a piece of land or sums of money, the subject‑matter of appeal would have been the house or the piece of land or the sums of money. In the present case the subject‑matter of appeal can only be the right, which the petitioners were claiming against the respondents and in respect of which they claimed for a judgment of this Court. There can, however, be no denying the fact that a cause of action in a suit can also be treated as a subject matter within the meaning of clause (d) of rule 13 of Order XLV. B This was the view taken in Shadi Ram v. Amin Chand (A I R 1930 Lab. 937). The cause of action in these proceedings was the right claimed by the petitioners and the wrong alleged to have been suffered by them. A direction, under the circumstances, under rule 13 may have been competent but, as already observed, no application has been made under this provision and since the same deals exhaustively with the powers of the Court relating to the preservation of the subject‑matter of the appeal and the suspension of the orders appealed against, there is no scope for inherent power.

4. Moreover, it is now well known as to the cases in which the Court can exercise the inherent power under section 151, C. P. C., and new categories cannot be invented. The Code of Civil Procedure has made ample provision for stay of operation of orders in the appropriate case and it is not open to the Court in the exercise of its supposed inherent powers to stay the operation of cases other than those provided for merely on the ground that an unsuccessful party intends to apply to the Supreme Court for Special leave to appeal. It may also be noted that the inherent power under section 151, C. P. C., cannot be exercised in a case where no matter is pending before the Court. The Court after having accepted the writ petitions became functus officio and unless there is some special provision like the one contained in rule 13 of Order XLV to pass any interim order, the Court has no jurisdic tion to pass any order in the exercise of its inherent powers.

5. The petition has no merit and is accordingly dismissed in limine. K. B. A. Petition dismissed.