2017 PLP 427 (YLRN)

MUHAMMAD HUMAYON KHAN, J.

This is an Application under Rule 2(I)(B), Volume-V, Chapter-II, Part-B of High Court Rules and Orders filed on behalf of the appellants for enlisting the instant appeal as DB matter and for placing it before the Division Bench of this Court for hearing and disposal in accordance with law on merits on the following facts and grounds:-- i) Award in question has been passed for sum of Rs.37,50,000/- and so also the appellants claim further amount in shape of enhancement; ii) Since amount of compensation in the instant appeal is involved more than Rs. 10,00,000/-, therefore, the instant appeal according to its pecuniary value is to be heard by the Division Bench of this Court as required under Rule 2(I)(B) Volume-V, Chapter III, Part-B of High Court Rules and Orders, which is very much applicable to the High Court of Sindh and its benches for regulating the proceedings for hearing and decision of appeals.

2. I have heard the learned counsel for the parties and perused the material available on record.

3. The learned counsel for the appellants contended that since amount of compensation in the instant appeal is involved more than Rs.10,00,000/-, therefore, the instant appeal according to its pecuniary value, is to be heard by the Division Bench of this Court as required under Rule 2(I) (B), Volume-V, Chapter-III, Part-B of High Court (Lahore) Rules and Orders, which is applicable to the High Court of Sindh and its benches for regulating the proceedings for hearing and decision of appeals. The learned counsel further contended that there are so many appeals pending not only at Sukkur Bench but also at Principal Seat and Circuit Courts at Hyderabad and Larkana and so far as appeals at Sukkur Bench are concerned, similar applications in all the appeals have been filed and pending since long. The learned counsel further contended that even in the Provinces of Punjab, KPK and Balochistan, the similar appeals are being heard by the Division Bench. In support of his arguments, the learned counsel for the appellants relied upon the following case-laws:- i) Shabbir Ahmed and another v. Akhtar Alam and others (PLD 1994 Supreme Court 598); ii) Sindh High Court Bar Association through Honorary Secretary v. Federation of Pakistan through Ministry of law and Justice, Islamabad and 4 others (PLD 2009 Karachi 408); iii) Roshni Television, Messrs Direct Media Corporation (Private) Ltd. through Chief Executive Officer v. Pakistan Electronic Media Regulatory Authority through Chairman and 16 others (PLD 2011 Karachi 1).

4. On the other hand, the learned counsel for the respondents contended that it is the practice since long in the Province of Sindh that all land acquisition appeals have been heard by the Single Bench of this Court. The learned counsel further contended that Rule 2(I)(B), Volume-V, Chapter-III, Part-B of High Court (Lahore) Rules and Orders is applicable only to the Province of Punjab and not at all applicable to the Province of Sindh. However, the learned counsel for the respondent has not cited any case-law in support of his arguments.

5. In view of the contentions raised by both the learned counsel for the parties, it is necessary to reproduce Rule 2(I)(B), Volume-V, Chapter-III, Part-B of High Court (Lahore) Rules and Orders, which provides that:-- "

2. Cases to be heard by a Division Bench and in certain cases by a Single Judge.

(i) Save as provided by these rules, the following cases shall be heard and disposed of by a Division Bench:- (i) (a) A regular first appeal from the decree of a Subordinate Courts jurisdiction value of which exceed Rs.1,00,000 and any cross-objections to the decree. (b) An appeal under the Land Acquisition Act if the amount involved in the appeal exceed Rs.1,00,0000."

6. In the case of Shabbir Ahmed and another v. Akhtar Alam and others (PLD 1994 Supreme Court 598), it has been held that:- "Whereas a plain reading of the above-quoted Rule 5 of the Rules and Orders shows that it is appli-cable if the case is not covered by Order XLVII, Rule 5, C.P.C. In this view of the matter, if none of two learned Judges who decided the above Constitution petition would have been available, in that case, Rule 5 of the Rules and Orders would have been attracted to. The language of above Rule 5 as pointed out hereinabove seems to be unambiguous and clear on the question that it is applicable only when Order XLVII, Rule 5, C.P.C. is not applicable to a review petition."

7. In the case of Sindh High Court Bar Association through Honorary Secretary v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and 4 others (PLD 2009 Karachi 408), the Full Bench of five Hon'ble Judges has held that:-- "

10. The precise objection of the learned Advocate General was that Sub-rule (2) of Rule 12 of the Sindh Chief Court Rules (AS) requires one or both referring Judges to sit as Member of the full bench and it being not so, the full bench was not properly constituted. Mr. Rasheed A. Rizvi; has, however, contended that the order dated 1-4-2009, by which the full bench was constituted by the Chief Justice, was not a judicial order but was an administrative order and in any case the Rules referred to by learned Advocate General has no application to this Court, rather High Court Rules and Orders as applicable to the Lahore High Court apply to the Sindh High Court. Mr. Yawar Farooqui, learned counsel for respondent No.4 has made an express statement that he has no objection to the constitution of the full bench. The question as to whether the Sindh Chief Court Rules (AS) are applicable or not to this Court was addressed by a simple statement by a Division Bench of this Court in the case of Messrs Muqtada Khan Iqtada Khan v. Mst. Allah Rakhi Begum (PLD 1972 Karachi 471), that Sindh Chief Court Rules (AS) do not apply to this court. Besides Sub-rule (2) of Rule 12 make reference to section 12 of the Sindh Court Act, 1926. Inci-dentally, the Sindh Court Act, 1926 was repealed by the section 28 of Punjab/Sindh/ NWFP/ Balochistan Civil Courts Ordinance, 1962 except section 8 of it in respect of district of Karachi. Section 8 of the said Act provides that the Chief Court shall be the highest civil court of appeal and revision and the highest Court of criminal appeal and revision for Sindh and the principal Civil Court of original jurisdiction for the civil district of Karachi 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. This provision has nothing to do with the constitution of the bench by Chief Justice. To the extent the objection raised by learned Advocate-General on the basis of Sub-rule (2) of Rule 12 of Sindh Chief Court Rules (AS) the same being not applicable to this Court and Sindh Court Act, 1926 except its Section 8 having been repealed, the objection of learned Advocate General has no force and the same is rejected.

11. It may, however, be noted that High Court Rules and Orders are being applied in exercise of appellate jurisdiction of this Court as is reflected from the judgments of this Court in the cases of The State v. Muhammad Ashraf (PLD 1961 (WP) Karachi 452) and Abdul Aziz v. Abdul Wahab (PLD 1964 (WP) Karachi 630) (Full Bench). This Court has also made-certain amendments in the High Court Rules and Orders and one of such amendments was made by Sindh Amendment vide Correction Slip 188, published in Gazette of Sindh Part-IV-A dated 23.10.1975. The origin of application of the High Court Rules and Orders to this Court seems to have its source upon constitution of the High Court of West Pakistan through High Court of West Pakistan (Establishment) Order 1955 with its principal seat at Lahore and benches at Karachi and Peshawar and circuit courts in other places of Province of West Pakistan. High Court Rules and Orders which were applicable to High Court of Judicature at Lahore apparently came to be applied to the West Pakistan High Court bench at Karachi more so for the reason that through Order of 1955, the Chief Court of Sindh ceased to exist. This was further fortified by repealing of the Sindh Court Act, 1926 (except its section 8) by the Civil Courts Ordinance, 1962. Though through subsequent High Courts (Establishment) Order, 1970 the High Court of West Pakistan ceased to exist and in its place three High Courts were established namely High Court for the Province of NWFP to be called the Peshawar High Court with its principal seat at Peshawar, High Court for the Province of Punjab and Islamabad territory to be called Lahore High Court with its principal seat at Lahore and High Court for the Provinces of Balochistan and Sindh to be called Sindh and Balochistan High Court with its principal seat at Karachi and by the Balochistan and Sindh (High Courts) Order, 1976 the High Courts of Sindh and Balochistan were separated and High Court for the Province of Balochistan to be called High Court of Balochistan with its principal seat at Quetta and High Court for the Province of Sindh to be called High Court of Sindh with its principal seat at Karachi were established but no change as to the application of High Court Rules and Orders to this Court was brought nor any other rules seem to have been made by the Sindh High Court in the terms provided in Article 202 of the Constitution for regulating the practice and procedure of the Court for dealing with its appellate side work.

12. Rule 6 of Chapter 3, Part-A High Court Rules and Orders Volume-V provides that a full bench shall ordinarily be constituted of three judges, but may be constituted of more than three judges in pursuance of an order in writing by the Chief Justice. Rule 1 of Chapter 10, part - A of High Court Rules and Orders deals with administrative business and its second proviso lays down that those matters which are the executive concern of the Chief Justice, namely the constitution of benches and the appointment of control of High Court establishment shall be dealt with in accordance with such instructions as may from time to time be issued by the Chief Justice. The above mentioned two rules give ample power to the Chief Justice to constitute bench including the full bench without any condition and that it is not necessary for the Chief Justice to sit as a member of the full bench constituted by him." 8 In the case of Roshni Television, Messrs Direct Media Corporation (Private) Ltd. through Chief Executive Officer v. Pakistan Electronic Media Regulatory Authority through Chairman and 16 others (PLD 2011 Karachi 1), the Division Bench comprising of Mr. Justice Muhammad Athar Saeed (as he then was) and Mr. Justice Munib Akhtar, has held that:-- "The "High Court Rules and Order" referred to by the learned Full Bench are the rules of the Lahore High Court (hereinafter referred to as the "LHC Rules"), and as explained, these apply by reason of the fact that the Chief Court of Sindh (which was the High Court for the province up to 1955) stood merged in the High Court of West Pakistan when the latter court was created in that year along with the creation of the new province of West Pakistan. All the existing High Courts in the western wing (as it then was) ceased to exist on the creation of the new High Court, and it was provided that the LHC Rules would apply to it. This High Court ceased to exist along with the province of West Pakistan in 1970 and was succeeded by three High Courts, of which one was the High Court of Sindh and Balochistan, which was itself replaced in 1975 by two High Courts, one for the Province of Sindh (i.e., this Court) and the second for the Province of Balochistan.

4. The important point for present purposes is that at each stage, i.e. in 1970 and then in 1975, the relevant Order specifically provided that the rules applicable to the High Court that was ceasing to exist would apply to the succeeding High Courts. It is for this reason therefore, that as noted by the learned Full Bench, the LHC Rules (atleast on the appellate side) were applicable to this Court, and since this Court has not yet exercised the powers vested in it under Article 202 of the Constitution to frame new rules, the said Rules continue to be applicable. The only gloss that we would add to the observations of the learned Full Bench is that it is important to keep in mind that the LHC Rules apply to this Court as they stood on 1-7-1970, which was the day on which the erstwhile High Court of West Pakistan ceased to exist, and any changes subsequently made in or to the said Rules by the Lahore High Court apply only to the latter Court. This is especially important in the present case since, as will shortly be seen, the relevant provision of the LHC Rules is to be found in Chapter 3B of Volume V, and this has been extensively amended and substituted subsequently by the Lahore High Court. Those changes have no application to this Court. On the other hand, any changes made to the LHC Rules by the erstwhile High Courts of Sindh and Balochistan do apply to this Court since that Court (which ceased to exist on 1- 12-1976) was the direct predecessor of this Court. One such change, made on 23-10- 1975 and noted by the-learned Full Bench, is directly relevant for present purposes since this change also amended Chapter 3B of Volume-V."

9. As per Rule 2 (1) (B), Volume-V, Chapter-III, Part-B of High Court (Lahore) Rules and Orders and the Judgments referred to above, my tentative view is that the appeals under the Land Acquisition Act, if the amount/involved in the appeals, exceed Rs.10,00,000/- shall be heard and disposed off by Division Bench. On the other hand, I have also noticed that in the Province of Sindh all land acquisition appeals are being heard by the Single Bench. In these circumstances, I would submit the matter to My Lord the Chief Justice with the humble request to constitute larger bench to decide the following questions:-- i) Whether Rule 2(I)(B), Vol.-V, Chap.-III, Part-B of High Court (Lahore) Rules and Orders is applicable to the High Court of Sindh? ii) Whether Rule 2(I)(B), Vol.-V, Chap.-III, Part-B of High Court (Lahore) Rules and Orders is amended by any Rule made by the High Court of Sindh? iii) Whether the appeals under the Land Acquisition Act, 1894 if the amount involved in the appeals, exceeded Rs. 10,00,000/- shall be heard and disposed of by Division Bench of High Court of Sindh? iv) What should the order be?

10. Accordingly, the office is directed to place this matter along with this Order of Reference before My Lord the Chief Justice for further orders. MQ/L-2/Sindh Order accordingly