P L D 1988 Supreme Court 124 (PLP)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to the. plaintiff in a civil suit filed under Order XXXVII, C.P.C. to examine the following questions of law arising out of the judgment of the Lahore High Court dated the 2nd of August, 1986:‑‑ (1)??? Whether rule 1, clause (e) of Order XXXVII, C.P.C. as introduced by the Lahore High Court in exercise of its power under section 122 of the C . P. C . stood deleted on account of l the various subsequent amendments and adaptations. (2)??? Whether even if the suit was not triable under Order XXXVII. ??????????? rule 1, C.P. C. on the strength of the aforesaid clause (e) of ??????????? rule 1, the proper course was not to have it .tried as an ??????????? ordinary suit instead of directing the return of the plaint for ??????????? presentation elsewhere. ??????????? The appellant instituted a civil Suit (No.1002/1 of 1983) on the basis of a Demand Promissory Note dated 18‑12‑1980 claiming from the respondent a sum of Rs.13,61,060 with costs as the principal and profits on the money advanced. The suit was filed under Order XXXVII, C.P. C. The respodnent presented an application under Order XXXVII, rule 2(2) and (3), C.P.C. for the grant of leave unconditionally to appear and defend the suit. By an order dated 30‑1‑1984 the trial Court allowed the application in the following terms:‑ "The applicant has set up vague and unsatisfactory defence, which is also self‑contradictory. However, the applicant/ defendant is granted leave to appear and defend the suit in order to promote the ends of justice provided he furnishes bank guarantee of one‑half of the disputed amount and security of the balance amount on or before 1‑3‑1984, otherwise, the application shall be deemed to have been rejected with costs." A civil Revision was then filed by the respondent in the High Court. It was argued primarily on the question of jurisdiction of a Senior Civil Judge in Lahore to avail of the procedure prescribed under Order XXXVII, C.P.C. The learned Judge in the High Court came to the conclusion that due to the provisions of Central Laws (Statute Reforms) (Ordinance XXI of 1960), such a power was not available to the Senior Civil Judge as amendments introduced by the Lahore High Court stood revoked. As regards the other question,. namely, whether the Court seized of the matter should be asked to proceed with the trial of the suit as an ordinary one or return the plaint, the learned Judge in the High Court. observed as follows: "while considering the decision,‑ of this Court in Messrs Siraj and Company v. Habib Bank Ltd., Lahore 1969 S C M R 784 held as follows: ‑ "As submitted earlier the precise point whether Order XXXVII, of the Code did not apply to the Civil Courts was not put to issue nor arguments were addressed thereon. The effect of elimination of clause (e) introduced by this Court in rule 1 extending application of Order XXXVII, to the Courts of the subordinate Judges of First Class of Lahore District by the Central Laws (Statute Reforms) Ordinance, (XXXI of 1960), was not brought to the notice of this Court or the Supreme Court. Therefore, the observation that the Senior Civil Judge had jurisdiction to entertain suits under Order XXXVII, of the Code may with respect be considered as obiter." ' The conclusion drawn by the learned Judge and the order finally passed in the revision petition was to the following effect:‑ "From what has been said above it follows that Order XXXVII, of the Code did not apply to the learned trial Court of the Civil Judge, Lahore and consequently it had no jurisdiction to try the suit. The impugned order granting leave to the respondent falls and being without jurisdiction cannot be upheld. The petition is accepted. The plaint of the suit shall, therefore, be returned to the plaintiff‑respondent to be presented to the Court in which the suit should have been instituted. The parties are left to bear their own costs." Malik Muhammad Qajryum, Advocate, the learned counsel for the plaintiff‑appellant has contended that the departmental construction with regard to the preservation of the amendments in rule 1, Order XXXVII, C.P.C. introduced by the High Court should have prevailed as it was also consistent with the law. In this context, he has referred to a letter dated 21‑10‑1974 which issued from the Member, Inspection Team, addressed to the District and Sessions Judge, Lahore, and contained the following facts:‑ "I am directed to refer to your letter No.2284‑G, dated 14‑9‑1974, on the above subject and to inform you that through an amendment of this Court made through Notification No.225‑G,dated 5th July, 1923 and No. 456‑Gazette/X1‑Y‑15, dated 29th July, 1932, published in Chapter 21 (formerly Chapter 22) High Court Rules and Orders, Volume I, Order XXXVII, C.P. C. has already been made applicable to the District Judge and all subordinate Judges of the 1st Class in the Civil District of Lahore." Besides, the learned counsel for the appellant, has also contended that section 121, of the C . P. C . read with section 3 of Ordinance XXI, of 1960 fully protected the amendment. Finally, it has been contended by the learned counsel for the appellant, that the decision of this Court in the case of Siraj and Company was attracted and even if the procedure under Order XXXVII was not available the direction should not have been to return the plaint but to get it tried as an ordinary suit. Mr. Shehzad Jehangir, Advocate, the learned counsel for the respondent, on the other hand, contended that the view taken by the learned Judge in the High Court was correct and supported by the various statutory amendments that had taken place from time to time and referred to in the judgment. Besides, according to the learned counsel, section 122 of the C.P.C. empowered the High Court to regulate their own procedure and the procedure of the Civil Courts subject to their superintendence. The amendment which is sought to be invoked by the plaintiff /appellant, according to the learned counsel for the respondent, touches the jurisdiction and is not confined to procedure. Even if such a rule existed, it could riot confer jurisdiction on the strength of empowering section 122 of the Civil Procedure Code. The learned Judge in the High Court has taken the view that Ordinance No.XXI of 1960 (section 3) read with the entries concerning Civil Procedure Code had the effect of "vanishing" the jurisdiction of the Courts conferred by the High Court's amendment. The reasoning which prevailed in the matter appears from the following observations made by the learned Judge:‑‑ "The learned counsel for the respondent banked upon clause (e) added by the High Court to, rule 1 by virtue of its rule‑making power adverted to above to canvass in favour of the jurisdiction of the learned trial Court. But this clause alongwith other portion of rule 1 was substituted by the Central Laws (Statute Reforms) Ordinance (XXI of 1960), as noted above, with the following:. '

1. This Order shall apply only to the Bench of the High Court of West Pakistan at Karachi.' It means that the addition made by this Court to rule 1, vanished leaving no powers with the Courts enumerated therein to entertain and try the suits under Order XXXVIL The proposition that the authority of the legislature to amend the Code of Civil Procedure includes the power to amend even the rules made by the High Court is well‑recognised and finds enforsement, among others, by the decision of this Court reported as Sardar Muhammad v. Barkat Ali P L D 1979 Lah.

314. Consequently Order XXXVII, ceased to apply to the Courts of the District Judge and the Civil Judges in the civil District of Lahore. The application of the order to the District Court was revived with the enforcement of the Civil Procedure and Limitation (Amendment) Ordinance (IX of 1961) and extended to the Civil Court specially notified in this behalf by the High Court when the Law Reforms Ordinance (XII of 19722), came into force. It is true that the learned trial Court, which is a Civil Court, has not been notified by the High Court for the purpose of application thereto of the provisions of Order XXXVII, of the Code. Hence it lacked jurisdiction to try the suit in hand." After hearing the learned counsel for the parties at length, we find that certain features of the amending Act (Ordinance XXI of 1960) and the effect of section 121 to section 128 of the Civil Procedure Code were not fully brought out before the learned Judge. Ordinance XXI of 1960 states the need and purpose of that law in the following words: ‑ "Whereas the incorporation of certain former Provinces, Acceding States and Tribal Areas into the Province of West Pakistan by the Establishment of West Pakistan Act, 1955,‑has rendered it expedient that certain changes should be made in the laws and that certain laws should be extended to parts of the new Province to which they had not extended before; And whereas such extension has been agreed upon in consultation with the Provincial Government of West Pakistan and the other authorities concerned; And whereas it is expedient to remove from the Statute‑book certain Acts and Ordinances which have become obsolete or have discharged their function." The enacting provision (section 3) commencing with the word 'Amendments to effect adaptation of Central Acts and Ordinances necessitated by the establishment of West Pakistan' proceeds to provide as follows:‑ "(1)????? Save as otherwise expressly provided in any Central Act or ??? Ordinance, the Central Acts and Ordinances specified in the Second Schedule shall extend to the whole of Pakistan, and shall be amended in the manner indicated in the fourth column thereof, and shall be deemed to have been so extended and amended on the fourteenth day of October, 1955. (2)?????? Nothing in subsection (I) shall be deemed to extend, or ever to have had the effect of extending the operation of, any Central Act or Ordinance so extended or amended, to‑‑ (a)??? any Scheduled District to which, immediately before the fourteenth day of October, 1955, such Act or Ordinance did not extend, or is not otherwise extended or applied thereafter; or (b)???????? any of the Special Areas to which, immediately before the fourteenth day of October, 1955, such Act or Ordinance did not extend, or is not otherwise extended or applied thereafter; or (c)??? any Acceding State, not being an Acceding State incorporated, on and from the fourteenth day of October, 1955, into the Province of West Pakistan; whose Instrument of Accession does not authorise, nor is deemed to authorise, the Federal Legislature to make for that State such law as is contained in any such Act or Ordinance; nor shall the extension of any Central Act or Ordinance by this Ordinance be deemed to have or ever to have had the effect of retrospectively creating any offence, or of retrospectively enhancing the punishment for any offence provided in any law for the time being in force." There is an express saving in the enacting words to the effect "save as otherwise expressly provided in any Central Act or Ordinance" and the amendments, therefore, have to be studied and applied subject to these reservations and saving. It. is clear that where the amendment directly touches an enacted provision, the saving would not be attracted because that would negate the very purpose of effecting the amendment. However, where indirectly or consequently certain express provisions are affected by such amendments then these will be saved on the language of the saving clause Section 121, C . P. C . provides that "the rules in the first schedule shall have the effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this part" Section 127 of the Civil Procedure Code provided as follows:‑ 11127.‑‑Rules so made and approved shall be published in the official Gazette and shall from the date of publication or from such other date as may be specified have the same force and effect, within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the First Schedule. " From these provisions, two types of rules appear in the First Schedule. The first would be the one incorporated and deriving its legal validity and existence from section 121, C . P. C . which will extend to the whole of Pakistan and will be treated as contained in the Code. The second, a different category of rules which will drive their strength and legal validity from section 127, of the C.P.C. and these will have their application not over the whole of Pakistan but confined to the local limits of the jurisdiction .of the High Court which made them. The adaptations and the amendments envisaged were directed at taking care of those rules of the First Schedule as were enacted under section 121, C . P. C . while the saving clause was directed to preserve all such rules and orders as had the same force and effect as if they had been contained in it. Such was the effect of section 127, C.P. C. So reading the object and the purpose of the law as well as its saving clause the conclusion is inescapable that the local amendments made by the High Court were taken care of, preserved and continued unaffected by this amending law. Section 2, subsection (2) , of the Law 'Reforms Ordinance, If 1972 accomplishes a similar saving by enacting as follows:‑ 11(2).‑‑Where this Ordinance requires that in any specified law, or in any section or other portion thereof, certain words shall be substituted .for certain other words, or that certain words shall be omitted, the substitution or omission, as the case may be shall, except where it is otherwise expressly provided, be made wherever the words referred to occur in that law, or as the case may be in that section or portion." The relevant entry reads "in Order XXXVII, rule 1 for the words "and to District Court" the commas and words, to the District Court and to any other Civil Court notified in this behalf by the E High Court" shall be substituted. The specific place having been indicated and the amendment introduced by clause (e) of the High Court of Lahore remains intact and has been intentionally kept intact. The decision of this Court in Siraj and Company clearly indicated that where the procedure under order XXXVII was being claimed by a plaintiff and was not available the trial Court could proceed with the case as an ordinary suit. The High Court has not indicated any jurisdictional or procedural bar to it while determining that the decision of this Court in Siraj Din's case was obiter. In Muhammad Abdullah Sufi v. Messrs Muhammad Bux and Son and others P L D 1957 (W.P.) Karachi 445 the view taken was that where a suit was not, triable by resort to the procedure prescribed in Order XXXVII, its trial could proceed as an ordinary suit. The law laid down by this Court was clearly attracted. As regards the contention of the learned counsel for the respondent that the rule introduced by the amendment by the Lahore High Court touched the jurisdiction and was in excess of its powers G possessed under section 128 read with section 122, C . P. C . is clearly untenable. Order XXXVII relates to the procedure and not the jurisdiction. The amendments introduced by the High Court only identified the Courts where resort can be had to Order XXXVII for the purpose of trial of a suit of a particular category. In the circumstances and for the reasons already given, we allow the appeal , set aside the judgment of the High Court restore that of the Senior Civil Judge and remand the case for trial in accordance with the law. No order as to costs. M.B.A./A‑148/S????????????????????? ??????????????????????? Appeal allowed.