2021 PLP 310 (CLC)

This Intra Court Appeal under Section 3 of The Law Reforms Ordinance, 1972 (hereinafter referred as "The Ordinance, 1972") arises out of an order dated 14th July, 2020, whereby the learned Single Judge in Chamber, while issuing a notice to the appellants, who were respondents in the writ petition, proceeded to pass the following order on C.M.No.l of 2020 accompanying the main petition: - "Subject to notice for an early date, the operation of impugned letter dared 03.07.2020 shall remain suspended and the respondents are directed to return possession of the petitioner forthwith, meanwhile."

2. Precisely, the facts necessary out of which present appeal arises are that the respondent filed W.P. No.8481 of 2020 canvassing therein that he is dealing with the business of catering in the name of "Amir Rajput Catering Service Multan". In order to establish a housing society, Defence Housing Authority, Multan acquired certain land and for the said purpose; an area was reserved for commercial/amenity services to construct guest rooms, banquet halls, marquees and restaurants etc. The appellants, who were respondents in the constitutional petition, had approached the respondent keeping in view his good reputation for the purpose of setting up the abovementioned facilities within the society premises. After detailed negotiations, the parties have entered into two agreements for the operation and management of the aforesaid facilities under construction at the relevant time. A dispute inter se parties arose with regard to the terms and conditions of the agreement, which resulted into issuance of the termination letter. The respondent, feeling aggrieved, questioned the act of the termination of contracts through the constitutional petition. The constitutional petition, when was placed before the learned Single Judge in Chamber, he was pleased to issue notice to the appellants calling report and parawise comments within two weeks. However, on C.M.No.1 of 2020, the order referred hereinabove was passed, which is now under assailance before us.

3. At the very outset, we have confronted the learned counsel for the appellants with a question relating to maintainability of this appeal in terms of Section 3(3) of "The Ordinance, 1972" as the order under appeal is an interlocutory order. While answering our query, learned counsel for the appellant emphasized that the impugned order, for all intents and purposes, is final. While going through the said order, it is submitted before us that final relief cannot be granted in the shape of an interim order. Learned counsel contended that through writ petition, factual controversies cannot be resolved. In order to supplement his contentions, learned counsel has placed reliance upon "Islamic Republic of Pakistan through Secretor Establishment Islamabad others v. Muhammad Zaman Khan and others" (1997 SCMR 1508) and Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others" (2011 SCMR 279).

4. After having heard learned counsel for the appellants at some length, we have perused the record as well as judgments cited at the bar.

5. The matter in issue hinges upon the scope of Section 3 of "The Ordinance, 1972", which provides a remedy of appeal (I.C.A) to High Court in certain cases. It is well settled principle of law that right of appeal, review or revision is always creation of the statute dealing with the matter and it can only be availed of where it is expressly granted by the law. There is no concept of an inherent right of appeal exercisable by a party pursuant to the judgment or order or decree.

6. The term "appeal" is though nowhere defined either in the Code of Civil Procedure (V of 1908) or "The Ordinance, 1972" but it can generally be assumed as a complaint made to a Superior Court/forum against the decision of a Sub-ordinate Court/forum with the object of getting such decision set aside or revised. An appeal provided under Section 3 of "The Ordinance, 1972" is not synonymous to right of appeal provided under other statutes. Section 3 places certain restrictions on such right, which is reproduced below for ready reference and convenience:-

3. Appeal to High Court in certain cases.

(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a single Judge of that Court in the exercise of its original civil jurisdiction. (2) An appeal shall also lie so a Bench of two or more Judges of a High Court from an order made by a single Judge of that Court under Clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan] not being an order made under sub-paragraph (1) of paragraph (b) of that clause:- Provided that the appeal referred to in (hut subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any court, tribunal or authority against the original order. (3) No appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court. (4) Nothing contained in this Ordinance shall be construed as affecting- (a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908), which was pending immediately before the commencement of this Ordinance; or (b) any appeal or petition for leave to appeal from a decree, judgment or order of a single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972]. (Underlining supplied for emphasis) From the bare perusal of the above referred provision of law, it is crystal clear that an appeal in terms thereof shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in exercise of its original civil jurisdiction. Similarly, an appeal is also provided from an order made by a Single Judge of a High Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 not being an order made under subparagraph (i) of paragraph (b) of that clause. At the same time, it is abundantly clear that by virtue of Subsection (3), no appeal lies under Subsection (1) or Subsection (2) of Section 3 of "The Ordinance, 1972" from an interlocutory order or an order, which does not dispose of the entire case before the Court.

7. The term "Interlocutory order" has also not been defined either in the Code of Civil Procedure (V of 1908) or in "The Ordinance, 1972". In order to properly comprehend the meaning of the term "Interlocutory order" we would thus have to advert to the ordinary meaning given in the law dictionaries for the said purpose: - a. Oxford English Urdu Dictionary: b. Random House Webster's Unabridged Dictionary (second edition):

1. Of the nature of, pertaining to, or occurring in a conversation; interlocutory instruction

2. Interjected into the main course of speech.

3. Law, A. pronounced during the course of an action, as a decision; not finally decisive of a case b, pertaining to an intermediate decision. c. Black's Law Dictionary (tenth edition): (of an order) judgment, appeal, etc.) interim or temporary; not constituting a final resolution of the whole controversy - Also termed medial. (An interlocutory order that relates to some intermediate matter in the case; any order other than a final order. Most interlocutory orders are not appealable until the case is fully resolved. But by rule or stature, most jurisdictions allow some types of interlocutory orders (such as preliminary injunctions and class-certification orders) to be immediately appealed.

Also termed interlocutory decisions: interim order; intermediate order. d. Concise Oxford English Dictionary: (of a decree of judgment) given provisionally during the course of a legal action. e. Chambers English Dictionary: An intermediate decree before final decision. f. K J Aiyar Judicial Dictionary (16th Edition). Is an order entered pending a cause deciding some point or matter essential to the progress of the suit. After going through the dictionary meaning of the term "Interlocutory order", we can assess with convenience that an interlocutory order by its nature is an order made during the pendency of the lis and it has no intention or affect to finally determine the matter in issue. This view also finds support from the plenary language of Subsection (3) of Section 3 of "The Ordinance, 1972".

8. The term "interlocutory order" has also been interpreted time and again by the Superior Courts of the country in various cases, one of which is "Messrs National Security Insurance Co. Ltd. v. Messrs Hoechst Pakistan Ltd. and others" (PLD 1990 Supreme Court 709) wherein it is held as under: - "The order of the learned trial Court granting or not granting leave appeal with or without conditions cannot, in our opinion, be deemed to be a judgment, decree, final order or sentence of a High Court. Article 185(2) of the Constitution lays down: "An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court- (a) . (b) . (c) . (d) . (e) If the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below." Whereas under sub-Article (3) of Article 185, it is provided:- "(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal.' Now the question is as to whether the impugned order of the High Court qualifies to be a final order, as visualized in Article 185(2) of the Constitution. A Full Bench of the Lahore High Court in Sultan Singh v. Murli Dhar and others (AIR 1924 Lah. 571) observed:- "An order is a 'final order' within the meaning of section 109(a) only if it decides, or has the effect of deciding the cardinal issue in the suit, (that is an issue going to the foundation of the suit and thus disposes of the rights of the parties in the litigation it being permissible to examine not only the order, but, the circumstances of the case with a view to ascertaining the effect of the order on the suit. It is the nature of the order sought to be appealed against that determines the right to appeal and an order is a 'final order' within the meaning of section 109(a) only if it puts an end to the litigation between the parties or disposes so substantially of the matters in issue between them as to leave merely subordinate or ancillary matters for decision.' In V.M. Abdul Rahman and others v. D.K. Cassim & Sons and another (AIR 1933 Privy Council 58), it was observed:- "The test of finality is whether the order 'finally disposes of the rights of the parties'. Where order does not finally dispose of those rights but leaves them to be determined by the Courts in the ordinary way, the order is not final. That the order 'Went to the root of the suit, namely the jurisdiction of the Court to entertain it', is not sufficient. The finality must be a finality in relation to the suit. If after the order, the suit is still a live suit in which the rights of the parties have still to be determined, no appeal lies against it under S.109(a)". Indian Supreme Court too has taken the same view. For instance in M/s. Tractors & Co., Madras v. M/s. V/O Tractors Export, Moscow and another AIR 1970 SC 1168, it was observed:- "The expression 'final order' occurring in Art. 133(1) means a final decision on the rights of the parties in dispute in a suit or proceeding if the rights of the parties in dispute in the suit or proceeding, remain to be tried, after the order, the order is not final." In the present case too the impugned order of the High Court does not decide the matter finally and the proceedings still remain to be tried and the rights in dispute between the parties have yet to be determined. Accordingly the impugned order cannot be deemed to be a final order within the meaning of Article 185(2)(e) of the Constitution, but only an order within the meaning of clause (3) of Article

185. Hence a petition for leave to appeal is competent against such an order. Order accordingly."

9. This Court, while pondering upon the history and background of law relating to intra court appeals in the ease of "Messrs Sunrise Textiles Limited and others v. Mashreq Bank PSC and others" (PLD 1996 Lahore 1) observed as under:--

5. The preliminary issue, noted above, is a vexed question of law/pertaining to construction of section 10(2) of the Ordinance. Before proceeding further, we find it necessary to have brief chronological account of laws relating to Company matters. No doubt, the Company Laws, in the Sub Continent were patterned on the lines of their counter-part in England. British Parliament enacted English Companies Act in 1844. Pursuant to it, an Act for registration of Joint Stock Companies (Act XLIII of 1855) was promulgated in Sub-Continent. This was followed by Indian Companies Consolidation Act, 1913 (hereinafter shortly stated Act of 1913). With the dawn of independence, this Statute was continued with necessary amendments and adoptation till 1984 when it was repealed by Companies Ordinance, 1984 (XLVII of 1984). This is, in all, the short history of Ordinance. A few words about Letters Patent and its successor Legislation that is the Law Reforms Ordinance, 1972. The various High Courts, in the Sub-Continent were constituted by British Government under the instrument known as Letters Patent issued in exercise of its power under section 108 of the Government of India Act, 1935. This instrument was continued thereafter and was continued by the Government of Pakistan with necessary amendments and by means of various adoption orders till 1972. In that year the Law Reforms Ordinance, 1972 was enacted on 14th April, 1972. By means of section 3 of this Ordinance, the Letters Patent appeals and second appeals in certain cases were abolished. Subsequently an amendment was made in this Law Reforms Ordinance, 1972 by unending Ordinance (No. XXXIV of 1972) whereby section 3 was amended to provide for an appeal to the Bench of two or more judges of the High Court from decree passed or final order made by a Single Judge of that High Court in exercise of its original civil Jurisdiction. So appeal against interlocutory orders was not still provided. In year 1980, section 3 of the Ordinance was further amended by section 15 of the C.P.C. (Amendment Act X of 1980) whereby the appeals against the interlocutory order passed by a Single Judge of the High Court in exercise of its original civil jurisdiction made appealable before a Division Bench.

6. Having briefly, recounted the history of Act, 1913, the Ordinance of 1984, the Letters Patent and Law Reforms Ordinances 1972, we turn to the relevant provisions of aforenoted law and applicable case-law cited by the parties. The Act of 1913 contained two provisions relating to appeals i.e. section 153(7) and section

202. None of the aforestated provisions specified the forum for appeal. As the language of section 202 was unclear, it generated heated controversy before the superior judiciary. We would not like to encumber this judgment with all those judgments, except the case reported in the matter of East India Cotton Mills Ltd. (AIR 1949 Cal. 69). This judgment has been treated as classic one on the subject. After comprehensively dealing with the arguments advanced by the learned counsel for the parties the Division Bench held that the expression in the same manner, and subject to same condition" did not relate to forum of appeal but it referred to procedure for presentation of limitation for, court-fee and all other like matters of appeals. Dealing with the words "ordinary civil jurisdiction" it was held that the jurisdiction of the High Court under section 202 ibid was original as well as appellate. It would be instructive to quote para. 29 of this Report which is as follows: "The section prescribes for hearings of and appeals from orders made in the matter of the winding up of a company by the Court in the same "manner" and "conditions" as are to be followed and observed in an appeal from an order of that Court in a case within its ordinary jurisdiction. It appears to me that the expression "manner" indicates the procedure and the expression "conditions" connotes the essential requirements for maintaining the appeal. Confining myself to proceedings on the original side of the High Court, it is quite clear that an order of the High Court in a case within its ordinary jurisdiction is appealable if it is a "judgment" within the meaning of Cl.15 of the Letters Patent unless such appeal is bared by any special law and the appeal from such an order has to be initiated on a memorandum of appeal filed according to prescribed rules and has to be brought before the Division Bench appointed for hearing such appeals. An appeal from an order made by a Judge of the High Court in the matter of the winding up of a company can, therefore, according to this section, be applicable if it is "judgment" and such appeal must be initiated on a memorandum or appeal and brought before the Division Court appointed to hear appeals from the Original Side. There can be no doubt that an order for winding up is a "judgment" within Cl. 15 of the Letters Patent and, therefore, satisfies one of the conditions of appealability laid down by the section but this application cannot possibly be regarded as an appeal, for, omitting for the moment the capacity of the petitioners to maintain an appeal which question will be discussed later on, it is quite clear that this application has not been initiated or brought before an appropriate Court in the manner prescribed for an appeal. The question, then, is: Can this application be, supported as a rehearing of the order of 'Edgley, J.'?

7. The rule laid down in East India Cotton Mills Ltd. supra, was followed by the Division Bench of this Court in Mulk Raj v. Official Liquidator Peoples Bank (AIR 1938 Lah. 658), and Division Bench of the Karachi High Court in Abdul Ghafoor v. Registrar, Joint Stock Co., Karachi (PLD 1976 Kar. 85). We, now, reach the case reported as Eastern Co., (Pvt.) Ltd. v. Gul Begum (PLD 1980 Lah. 69). In this case Mst. Gul Begum and 7 others moved a petition under section 162 of the Act for winding up Eastern Company (Pvt.) Ltd. and 2 others appellants !herein along with the petition, an application was filed for the appointment of provisional liquidator. The petition as well as the application were resisted. The appellants also submitted a petition under section 151, C.P.C. (C.M. 66 L-78) calling in question the maintainability of petition for winding up. The learned Company Judge disposed of C.M. 66/L-78 and held that petition for winding up was competent. Against this order, the appellants had filed a petition for special leave to appeal before Supreme Court. The learned Company Judge, while dealing with application for appointment of Provisional Liquidator, appointed Mr. Muhammad Idrees, Advocate as Receiver with the power to conduct business and complete on going contracts. Against this order, the Eastern Company (Pvt.) Ltd. and 2 others, preferred I.C.A. No.3/Commeree

78. During the hearing of this appeal, a preliminary objection was raised that this I.C.A. was filed against an interlocutory order and so was incompetent under section 3 of the Law Reforms Ordinance 1971 'This objection was examined with thoroughness and was not sustained, Speaking for the Bench his Lordship Mr. Justice Mehboob Ahmad (as he then was) said:-- "

27. It would not be out of place to mention here that the High Court in the present context of legislation has been invested with various types of jurisdiction. The jurisdiction conferred upon it under the Constitution is called "Constitutional jurisdiction", The High Court has the "extraordinary civil jurisdiction" under which it transfers to itself for trial any case of civil nature pending before a subordinate Court. Then there is the jurisdiction of the High Court conferred under various statutes, for example the jurisdiction under the Companies Act, under the Insurance Act and jurisdiction as was vested in it under section 21 of the Displaced Persons (Land Settlement) Act, 1958. Such type of jurisdiction are termed as "statutory jurisdiction".

28. With the above background, of the various provisions of the Companies Act it will be seen that the powers of the High Court under the Companies Act are not that of a Court of "original civil jurisdiction", but are, in fact, powers of a statutory nature conferred on the High Court as such by a special statute. 29. .

30. Inasmuch as the orders passed in winding up proceedings under the Companies Act cannot be described as having been passed in exercise of original civil jurisdiction within the meaning of subsection (1) of section 3 of the Law Reforms Ordinance, the inhibition against maintainability of appeals from certain orders, passed under the Companies Act.

31. Before parting with the discussion on this aspect of the matter, it seems appropriate to refer once again to the provisions contained in section 202 to the effect that the appeal thereunder may be had in the same manner and subject to the same conditions in and subject to which appeals may be had from any order or decision of the same Court within its ordinary jurisdiction. It would be seen that section 202 does not limit the right of appeal merely against an order but also confers the right of appeal against a decision. In our opinion the right conferred is not only a substantial right but a very valuable right and the Court must be anxious not in any way to cut down or impair that right. The order or decision given by the Court in a winding up proceeding to be appealable must be such as would in any way deprive or affect the right of a party and which would impel him to come to a higher Court for getting the order passed rectified.

32. The proper construction to put upon section 202 is that the first part of this section confers a substantive right on a party aggrieved by an order made or a decision given by a Company Judge in winding up and the second part which deals with the manner and the conditions in which an appeal may be preferred only refers to the procedural aspect of an appeal and the forum to which an appeal would lie. The second part of this section does not in any way cut down or impair the substantive right already conferred by the first part of section 202 ibid for to suggest that the right of appeal conferred under the first part of section 202 must be construed and interpreted as subject to the second part which deals with merely the procedural implications of the appeal would, in any cases, practically and substantially deny the right of appeal to a party affected by an order made in the winding up proceedings. As to the scope of appeal under section 202, reference can usefully be made to Seth Harbibans Prasad Ajodhia Prasad v. The National Sugar Mills Ltd. Delhi AIR 1931 Lah. 8 and Sansar Chand and others v. Punjab Industrial Bank Ltd., Lahore ILR 10 Rom 806.

33. Besides, it was not the case of any of the parties that the present appeal does not lie under section 202 of the Companies Act but the contention was that appeal is barred by the provisions of section 3(3) of the Law Reforms Act which, as discussed above, does not operate in bar of the present appeal.

34. In the light of the above discussion, we are of the view that the preliminary objection taken by the learned counsel for the respondents as to the maintainability of the appeal cannot be sustained and the same is overruled."

10. In the case of "National University of Sciences and Technology (NUST) Islamabad through Registrar and 2 others v. Dayyan Atta Tareen" (2011 YLR 1070), while dealing with a similar proposition, this Court held as under: -

7. Perusal of the above order passed by the learned single Judge in chamber reveals that the impugned C.M. No.1 of 2010 as well as main Writ Petition No.1695 of 2010 are still pending adjudication before him in which notice to the respondents/National University of Sciences and Technology (NUST) have been issued.

8. The term "Interlocutory order" does not find any specific definition in Civil Procedure Code of 1908 a the Law Reforms Ordinance 1972. In Black's Law Dictionary, Fifth Edition the term "interlocutory" has been defined as "provisional" interim temporary; not final. Something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy.

9. The ordinary meaning of an interlocutory order or judgment is given in the Concise Oxford English Dictionary to be "(of a decree or judgment) given provisionally during the course of a legal action".

10. Similarly, the terms "interim" has been defined in Black's Law Dictionary Fifth Edition as "in the meantime, Meanwhile; temporary between".

11. The term has also been interpreted by Supreme Court of Pakistan in a judgment reported as Messrs National Security Insurance Co. Ltd. v. Messrs Hoechst Pakistan Ltd. and others (PLD 1990 Supreme Court 709), After discussing various judgments it has been laid down that "an order, which does not decide the matter finally and the proceedings still, remain to be tried and the rights in dispute between the parties have yet to be determined is not a final order and that it is an interlocutory order in nature against which an appeal before the Court is not competent.

12. A bare reading of section 3 of subsection (3) of the Law Reforms Ordinance, 1972 clearly provides that no appeal is competent against an interim order. This legal position has further been confirmed, by the Supreme Court of Pakistan in the judgments reported as Messrs National Security Insurance Co, Ltd. v. Messrs Hoechst Pakistan Ltd., and others (PLD 1990 Supreme Court 709) and Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salm Afroze and 2 others (PLD 1992 Supreme Court 263).

13. Looking from any angle, the order passed in CM. No.1 of 2010 in Writ Petition No.1695 of 2010 by learned single Judge in chamber suspending the operation of the impugned order passed by the appellants can only be termed as an interim or interlocutory order which does not have the effect of disposing of the entire case put up before the court and the right in dispute is yet to be determined between the parties. Thus, the present Intra Court Appeal against the said order is not maintainable as it is strictly barred by subsection (3) of section 3 of the Law Reforms Ordinance, 1972. The same is therefore dismissed." The above view finds due support from the pronouncements of the Hon'ble apex Court in the cases "Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others" (PLD 1992 Supreme Court 263) and "Ghaffar Hussain v. The District Magistrate, Sahiwal and 2 others" (1996 SCMR 1209).

11. Addressing the contention of learned counsel for the appellant on the basis of judgments cited at bar, it is observed that there can be no second opinion with regard to the proposition relating to object and scope of an interlocutory order as is laid down in "ISLAMIC REPUBLIC OF PAKISTAN through Secretary etc." we have no hesitation to conclude that final relief cannot be granted in the garb of an interim order but at present we are faced with the question of maintainability of this appeal on the touchstone of Subsection (3) of Section 3 of "The Ordinance, 1972". We have noticed that judgments in the case of "Islamic Republic of Pakistan through Secretary" supra cited by the learned counsel for the appellants run altogether on different facts. The question, which we have posed to the learned counsel for the appellants, was not involved in any of the cited cases. We are thus constrained to observe that learned counsel has failed to satisfy us on the question of maintainability of this appeal in the light of embargo placed under subsection (3) of Section 3 of "The Ordinance, 1972".

12. In the wake of above discussion, we have no cavil in our mind that order passed by the learned Single Judge in Chamber for all intents and purposes is an interlocutory order, which does not dispose of the entire case. Resultantly, this appeal fails and is dismissed in limine being not maintainable. MH/D-8/L Intra Court Appeal dismissed