2006 PLP 1684 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Messrs Shaheen Air International Limited (SAI) seek leave to appeal against the judgment, dated 3-4-2006 whereby, exercising powers under Article 203 of the Constitution, the High Court had directed the lower Courts to implement certain orders against the petitioner-company:

2. Messrs Shaheen Air International is engaged in the business of Airlines operating on local as well as International routes, having its registered Office at Karachi and regional offices at other places. On 10-12-2001, the previous management entered into an agreement with Messrs Voyage De Air as General Sales Agent of the company for designated area of Islamabad as well as adjoining areas with the sole purpose of selling airline tickets. In order to have supervision of the aforesaid business, Babar Hussain Shah (R.2) was appointed as Manager by SAI. The new management took over in June, 2004.

3. Soon after taking over it came to the knowledge of SAI that the general sales agent and the Managing Director, both aforesaid had been involved in gross violation of the terms and conditions of agreement. The repeated persuasions of the SAI to the respondent aforesaid to make the payment of outstanding amount, to furnish adequate bank guarantees, to emit money due in full on fortnightly basis and to comply with the lawful directions/instructions of the Principal, failed to receive any positive response. The petitioner-company was hence constrained to terminate the contract. An inter-office memo. dated 25-2-2004 was issued to such effect.

4. The respondent, challenging the sale memo., filed a suit against the Airlines on 7-12-2004 wherein a temporary injunction was issued against the Airlines on the same date. It is, claimed by the Airlines that the said order was kept away from the Airlines, having come to its knowledge for the first time on 1-4-2005. That prior thereto the company had issued a notification dated 30-3-2005 for employment. The respondents filed a contempt application for violation of stay order, dated 7-12-2004, which later on was modified on 11-6-2005.

5. An appeal before the District Judge was returned on 16-8-2005 for lack of jurisdiction but the High Court vide order dated 7-11-2005 held that the District Judge had the jurisdiction to adjudicate upon the matter. Eventually, the District Judge vide order, dated 22-12-2005 set aside the order, dated 11-6-2005.

6. In the aforesaid background the respondent filed a petition under Article 203 of the Constitution on which, without hearing the present petitioner, the High Court passed an order which, for facility of reference, is better to be reproduced:-- "3-4-2006 Malik Rab Nawaz Noon, Advocate Learned counsel for the petitioner at the very outset submits that he will be satisfied if a direction is issued to respondent No.1 Senior Civil Judge, Islamabad to implement his own orders dated 7-12-2004, 1-4-2005, 24-5-2005 and the order issued by his superior District and Sessions Judge on 22-12-2005 in a .contempt petition, strictly in accordance with law. (2) Order accordingly. Petition stands disposed of. "

7. After hearing the learned counsel on either side, the point that requires to be determined is, as to whether, the High Court while exercising jurisdiction under Article 203 of the Constitution, is competent to pass such order and to direct the lower Courts to implement their own orders passed on different occasions. Article 203 of the Constitution in its brief terminology, provides as under:--

203. Each High Court shall supervise and control all Courts subordinate to it.

8. While supporting the impugned order to be validly passed under Article 203 of the Constitution, reliance was placed on Government of Balochistan v. Azizullah Memon PLD 1993 SC

341. A perusal of judgment would indicate that vires of the Criminal Law (Special Provisions) Ordinance, 1968 (Ordinance II of 1968) were challenged and ultimately it was declared to be void being in conflict with Articles 9, 25, 175 and 203 of the Constitution. It seems to be most obvious that the provisions of the challenged Ordinance appended to curtail the supervisory and controlling powers of the High Court over the Courts subordinate to it. It was not a case where the very exercise of powers under Article 203 of the Constitution was either disputed or challenged. The citation is distinguishable.

9. For the purpose in question, it appears that the learned counsel could lay hands upon a ruling from West Pakistan Jurisdiction in case Karim Bukhsh v. Mst. Mubarik Jan PLD 1970 Pesh. 169 and Abdur Rehman v. Mst. Chaman Ara PLD 1972 Kar. 164 where the Courts were headed by the same Honourable Mr. Justice Qadeer-ud-Din Ahmad, C.J.

10. Various Articles of the Constitution and various provisions of other laws provide that High Court exercises Revisional, Appellate and Constitutional jurisdiction. Any remedy to an aggrieved person in judicial matters can be granted by High Court while exercising aforesaid powers, in addition to the one contemplated by section 151, C.P.C. and section 561-A, Cr.P.C. From the very language of Article 199 and Article 203 of the Constitution it becomes abundantly clear that Article 203 is not meant to be invoked by a party nor is the Court required by Article 203 of the Constitution to provide any relief to any party to a cause.

11. We have carefully gone through the judgments cited at the bar. The conclusion drawn therein is motivated mostly by:

(i) Rajkumar v. Ramsundar AIR 1932 PC 69; (ii) Jalaluddin v. Jalaluddin 1962 SC (C.A. No.602 of 1961) and (iii) Rajkamal v. Indian Motion Picture Union 1962 SC (C.A. No.622 of 1961). According to their Lordships of the Privy Council, the superintendence of the High Court analogous to Article 203 of our Constitution includes the authority to direct inquiry with a view to take disciplinary action in cases of flagrant maladministration of justice. Cases came up before the Supreme Court of India where scope of section 107 of the Government of India Act, 1915 and Article 227 of the Indian Constitution came under discussion. Article 227 of the Indian Constitution substantially carries the same effect as the provisions of Article 203 of the present Constitution and Article 102 of the Constitution of 1962. The view taken was that the powers in question of the High Court are to supervise and control all Courts subordinate to it. It is meant to enable High Court to discharge its duties as a superior Court towards fair and proper administration of justice. It has the authority to check and prevent dereliction of duty and to stop as well as correct violations of law. Such supervisory jurisdiction is for making and keeping the administration of justice pure and not to help any particular party.

12. Borrowing words therefrom, we would say that a duty under Article 203 of the Constitution can be performed irrespective of whether anybody will be harmed or not and irrespective of whether anybody will be benefited by it or not. The object of this provision is to enable the High Court to establish orderly, honourable, upright and impartial and legally correct administration of justice. See The King v. Richmond Confirming Authority (1921) 1 KB

248. Terminology used in Article 203 of the Constitution does not contemplate that High Court should issue an order against a party to a cause as such. It is concerned only with the Courts subordinate to it rather than with the parties to a cause.

13. In the instant case the respondent through a petition under Article 203 of the Constitution has clearly attempted to get a judicial order set aside, passed by a subordinate Court of competent jurisdiction in judicial proceedings pending before it. Such remedy analogous to revisional, appellate or Constitutional powers within the contemplation of Article 199 of the Constitution, cannot be substituted by invoking jurisdiction under Article 203 of the Constitution. No doubt, through the impugned order, the learned counsel for the respondents seems to have abandoned his material claims formulated in petition before the High Court and confined himself to obtain the directions regarding implementation of the orders, but still, has obtained a verdict having the effect of a verdict of the High Court and not that of the subordinate Courts which, even otherwise, had all the powers under the law to implement their own orders regardless of any superintendence by the High Court. Indirectly, the judicial orders of the subordinate Courts referred to in the impugned order seem to have merged into the impugned order of the High Court. This by no means is the intention of Article 203 of the Constitution.

14. In this view of the matter, the instant petition after conversion into appeal is allowed, the impugned judgment dated 3-4-2006 of the learned High Court is set aside and the trial Court/Senior Civil Judge, Islamabad is directed to decide the application for temporary injunction on 22-4-2006, for which learned counsel for the parties have made solemn commitment to argue. S.A.K./S-47/SC Appeal accepted.