P L D 1978 Lahore 62 (PLP)

The point was raised in some of the cases regarding the decrees passed by the Privy Council against dead persons. In Kalyani Pillay and others v. Thiruvenkatask-ami Aipengar and another. It has beep held? ?"Section 23 of William I`, Chapter 4,bliowever, cures the defect in the judgment ; for, it enacts that the order shall have full force and effect, notwithstanding the death of any of the parties interested therein." A similar view was taken in Deonandan Prasad Singh v. Janki Singh and others at page 91, it has been observed thus : "I am unable to accede to the proposition that any Court in India can regard the order of the sovereign as a nullity. It has been held in Flood v. Egan (1893) 20 N S W R 337 that where, pending the hearing of the appeal, the respondent died and the Judicial Committee heard the appeal in ignorance of the death, and the appellant was recorded to pay costs, the Court below should refuse to ignore a decree of the sovereign in Council. The provisions of Will. 4, C. 41, S. 23, seem to furnish express statutory authority for this view." This view, if accepted, even in regard to the decree by our Supreme Court, there remains no difficulty in upholding the judgments of the Courts below ; but, before forming any definite view, the arguments of the learned counsel that the decree of the Privy Council based on the prerogative of the Crown and being an act of the sovereign stands on different footing than the decree of the Supreme Court, shall have to be considered. According to him, cur Supreme Court exercises juri4diction as is conferred on it by or under the Constitution. He referred to Ex-Major-General Akbar Khan and another v. The Crown (PLD1954BC8). Their Lordships of the Federal court dealing with the question to grant leave to appeal in the exercise of prerogative right of the Crown notwithstanding the bar contained in section 10 of Rawalpindi Conspiracy (Special Tribunal) Act, 1951 have held thus : "However, this question is not o? real importance in this case, for, the Privy Council (Abolition of Jurisdiction) Act, 1950, under which this Court has the power to grant special leave excluded in express words the prerogative of the Crown to grant special leave to appeal as far as Pakistan was concerned. Section 2 of that Act is as follows ; 'As from the appointed day, the jurisdiction of His Majesty-in-Council to entertain, and save as hereafter provided to hear and determine, appeals and petitions (hereinafter referred to as Pakistan appeals and Pakistan petitions) from, or in respect of, any judgment, decree or order of any Court or Tribunal (other than the Federal Court) In Pakistan, including appeals and petitions in respect of criminal matters,? whether such jurisdiction is exerciseable by virtue of His Majesty's prerogative or otherwise, shall cease." ;,.The exception made in this section was in respect of cases that had already been entered in the list of business of the Judicial Committee for the Eatser sittings of 1950, cases In which judgment had been delivered but the order in Council of His Majesty bad not been passed and oases which had been heard but the judgment or order in which was pending on the appointed day. Section 3 conferred on this Court the same jurisdiction which was being exercised by the King-in-Council in the prerogative right or otherwise in respect of cases of Pakistan. Therefore when the Act in question was passed the prerogative of the Crown was not in existence as far as Pakistan was concerned ; and the powers conferred on this Court constitute its ,, jurisdiction and cannot be termed the prerogative right, The royal , prerogative is defined in Keth's Constitutional Law thus s The Crown's prerogative may be defined, in Blackstone's words, with a slight modification as being that 'special pre-eminence which the King hath over and above all other persons, by virtue of the common law, but out of its ordinary course, in right of his royal dignity. The Privy Council is often stated to exercise the residual prerogative of the Kiag-in-Council, but in form the appeal is to the King-in-1 Council, and the Privy Council does not itself grant or refuse leave but humbly advises the sovereign to exercise that power I whereas this Court exercises that power itself." The decrees by the Supreme Court, therefore, cannot be said to be the act of the sovereign or based or' the prerogative of the Crown. This may be so. The closer scrutiny of the cases cited. however, would show that sanctity to such a decree of tae Privy Council is not merely because the same is passed in the exercise of the prerogative right of the Crown or being an Act of the Sovereign. but on account of the provisions embodied in section 23 of the William IV, Chapter 41, which, as noticed above, is in , part materia with provisions contained in sub rule (4) of rule 15 of Order XLV of the Code of Civil Procedure. On the same reasoning decree by the Supreme Court, shall have full force and effect, notwithstanding the death of any party interested therein.

7. This brings us to the arguments of t1re learned counsel that the provisions contained in Order X1 V, rule 15 (4) of the Code of Civil Procedure do not apply to the facts of the case and that, in any case, the same stands repealed impliedly. Serb-rule (4) of rule 15 is to the following effect 1 , "(4) Unless the Supreme Court is pleased otherwise to direct, no order of the Supreme Court shall be inoperative on the ground that no notice has been served on or given to the legal representative of any deceased lit?????? opposite-party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree w-as complained of or at any proceedings subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been mach before the death took place." It will be seen that no order of the Supreme Court shall be inoperative or the ground that no notice has been served on or given to the legal representative of any deceased opposite-party or deceased respondent in a case, where such an opposite-party or respondent did not appear/or at an proceedings subsequent to the decree of that Court but such order shall have the same force and effect as if it had been made before the death took place. Proceedings subsequent to the decree will necessarily 0clade the proceedings initiated by an aggrieved party in the Supreme Court presenting a petition for leave to appeal and after the leave is granted all steps taken toward the completion of tile case for final disposal by the Court. An opposite- party, having notice of these proceedings, if sloes not choose to appear and a final order is passed by the Court, after his death, the same shall have the force and effect as if it had been passed before the death took place. Under rule 4 (!v) of Order XIII of the Rules, unless a caveat as prescribed by Order XVIII, rule 2, has been lodged, an affidavit of service of notice of the intended petition upon the opposite-party is required to be filed with the petition for leave to appeal. Rule 2 of Order XVIII is to ire following effect ; "Where a petition is expected to be lodged, or has been lodged, which does not relate to any pending appeal of which the record has been registered in the Registry of this Court, any person claiming a right to appear before this Court on the hearing of such petition may lodge a caveat in the matter thereof, and shall thereupon be entitled to receive from the Registrar notice of the lodging of the petition, if at the time of the lodging of the caveat such petition has. not yet been lodged, and, if and siren the petition has been lodged, to require the petitioner to serve hire with a copy of the petition and to furnish him, at his own expense, with copies if any papers lodged by the petitioner in support of his, petition. The caveator shall forthwith, after lodging hip caveat, give notice thereof to the petitioner, if the petition has been lodged." Now under rule 5 of Order X1II, a party, who has lodged a caveat, has a right EX the notice of hearing of the petition for special leave to appeal. After leave is granted under rule 2 of Order XIY, order granting special leave to appeal, is no?i6ed to the respondent and certified copy is -also, transmitted to Registrar c,f the 1-sigh Court concerned who i9 required to send the original record to the Registrar of the Supreme Court. After the receipt of the record, the fact is notified to all the parties who are required to file their lists of documents to be included in the paper, books. Lender rule 1 of Order XVII, the respondent shall enter his appearance within thirty days of the receipt of notice of the despatch of the record under Order XIV; and, as embodied in rule 5 of this Order, a respondent who has not entered appearance shall not he entitled to receive any notice relating to the appeal from the Registrar of the Supreme Court. If a party, therefore, does not a; pear in these proceedings and a final order is passed against him by 1c, the Supreme Court, after his death, the provisions embodied is Order XLV, rule 15 (4) of the Code shall apply and his legal representatives will not by heard to say that the order of the Court is nullity. In the instant case leave was granted on 7-3-1962. 1 seat for the file of this case frost the office of this Court. A copy of the order of the Supreme Court granting leave to appeal vas sent by the Regi0tar of the Supreme Court to the Registrar of this Court vide letter dated 2&3-1962, Receipt of this letter was acknowledged by the office vide letter No. 10345 dated 16-3-1962. Office of this Court sent copies of the order for service on the respondents. Suba Khan predecessor of the appellants was delivered the copy of the order of the Supreme Court on 21-5-1962. It is alleged that he died on 29-5-1$

63. It will be presumed that notice of the filing of the petition had been served on him and notwithstanding this he did not choose to appear in the Supreme Court or lodge a caveat. Death of Suba Khan, therefore, in case I do not agree with the argument of the learned counsel that Order XLV, rule 15 of the Code stands repealed, shall not effect the final order of the Supreme Court dated 15-2-1967.

9. The argument of the learned counsel for the appellant that Order XLV, rule 15 of the Code stands impliedly repealed i9 based on the maximum Expressio Unius est cxclusio alterius. He referred to the works on interpretation of statute. Maxwell at page 293 observed: "By the rules usually known in the form of this Latin maxim, mention o1 one or more things of a particular class may be regarded as silently excluding all other members of the class : exprassum facit cessare tacttum:' Crawford on Interpretation of Statutes dealing with this position states at page 334 t "As a general rule, in the interpretation of statutes, the mention of one thing implies the exclusion of another thing. It therefore logically follows that if a statute enumerates the things upon which it is to operate, everything else must necessarily. and by implication, be excluded from its operation and effect. For instance, if the statute in question enumerates tics matter over which a Court his jurisdiction, no other matters may be included. Similarly, where a statute forbids the performance of certain things, only those things expressly mentioned are forbidden. So also, if the statute directs that certain acts shall be done in a specified manner, or by certain person, their performance in any other manner than that specified, or by any other person than one of those named, is impliedly prohibited." It was argued that the Supreme Court Rules were amended after the enforcement of :he 1912 Constitution and rule 1 of Order XII was re-cast and rules 2 to 6 were omitted. The provisions of Order XLV of the Code were applicable under rule 1 arid rule I as re-east did not make any mention as to the applicability of Order XLV.

10. Order XII of the Rules falls in Part II of the Rules headed as appellate jurisdiction. Order XII applies to civil appeals. Rule 1 !s to the following effect: ?

1. The provisions of Order XLV of tile Code and of any Rules made for the purpose by the High Court concerned so far as may be applicable, shall apply in relation to appeals preferred to the Court under Articles 157 and 158 of the Constitution t Provided that the Court may from time to time issue to High Courts any special directions for the purpose of presentation of appeals to the Supreme Court.? Rule 2 deals with. the consolidation of appeals by the High Court. Rule 3 concerns the furnishing of security as provided under rule 7 (1) (a) of Order XLV of the Code. Rule 4 provides the penalty for non-furnishing the security. An appellant after obtaining the certificate from the High Court could withdraw appeal under rule

5. Similarly the appeal could be withdrawn even after it has been admitted under rule

4. Reference to 1956 Constitution would show the! Articles 157 and 158 of the same deal with the appellate jurisdiction of the Supreme Court involving interpretation of the Constitution and jurisdiction in civil matters. However Order XII as amended pertains to civil appeals under Article 58 (2) (a) of the 1962 Constitution. Article 58 (2) (a) of the 1962 Constitution provides that an appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court shall lie as of right, where the High Court certifies that the case involves substantial question of law as to the interpretation of the Constitution. D It is thus clew that Order XII as amended was restricted to apply only to appeal under Article 58 (2) (a) of the Constitution whereas Order XII of the Old Rules applies to all civil appeals. The argument, tberefore, that on account of the amendment in Order XII of the Rules the provision in Order XLV of the Coda stands repealed cannot be accepted. Moreover even rule 1 of the Old Rules provided that Order XLV of the Coda and any rule made for the purpose by the High Court concerned so far as may be applicable shall apply in relation to appeals preferred to the Court under Articles 157 and 158 of the Constitution. Order XLV of the Code as such was not embodied in the Supreme Court Rules. A perusal of Order XLV would show that it deals with the procedure to be followed by the High Court in regard to appeals to the Supreme Court. Rule 15 of this Order provides a procedure to enforce orders of the Supreme Court. It is in relation to this procedure that sub-rule (4) of this Rule provides that no order of the Supreme Court shall be inoperative on the ground and under the contingencies provided in this sub-rule even if passed against a dead person. There is yet another aspect of this case. The Rules in the First Schedule to the Code have, under section 121, the effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of Part 10 of the Code. A detailed procedure as to the amendment in or annulment of the rules contained in the First Schedule is provided in Part 10 of the Code. These rules, under section 126, are subject to the previous approval of the Government of Province in which the Court, whose procedure the Rules regulate, is situate or if that Court is not situate In that Province. the previous approval of the President. While amending Order XII of the Rules, it was. therefore, never intended to effect implied repeal of Order XLV of the Code or alter the procedure, as provided in rule 15 of this Order. to enforce orders of the Supreme Court. The maxim Expressio Unius Est Exclusio Alterius is based on the probable intention of the Legislature. Where the intention clearly B reveals that the law-makers did not mean that the express mention of one thing should operate to exclude all others, the principle is not applicable. Consequently, where the statutory language is plain and the meaning clear, there can be no implied exclusion. The principle is to be used only as a means of ascertaining the Legislative intent where it is doubtful and not as a meats of defeating the apparent intent of the Legislature. The argument of the learned counsel for the appellant, therefore, that Order XLV of the Code stands impliedly repealed or that the provisions embodied in sub-rule (4) of rule 15 were not applicable to the facts of the instant case, cannot be accepted. For all the reasons, I do not find any merit in this appeal and the same is, therefore, dismissed. The patties, however, are left to bear their own costs. Q. E. g.??????????? Appeal dismissed.