P L D 1956 Federal Court 157 (PLP)

AKRAM, J.‑

This appeal by the plaintiff (Punjab Province) with the special leave of the Privy Council, dated the 2nd August 1946, has come to us on transfer under section 4 of the Privy Council (Abolition of Jurisdiction) Act, 1950. In its broad outlines the appellant's cash may be stated as follows :‑ On 19th June 1905 the appellate sold to respondent No. 1, Lala Sita Ram, a garden site at Sargodha bearing Khasra No. 2/75 measuring about 58 Kanals subject to certain restric tive covenants (Exh. Y, Vol. II, p. 161 and Exh. C, 6, Vol. II, p. 166). On the same date the appellant sold to Sardar Sujan Singh 563 Kanals of land bearing Khasra No. 4; which was recorded after remeasurement in 1911‑12 as 551 Kanals constituting plot Nos. 37, 38 and 39 subject to the same restrictive covenants. On 2nd April 1912, the appellant further sold to Lala Sita Ram the plot bearing Khasra No. 61/1 measur ing 2 Kanals and 12 Marlas. Again on 13th May 1912 the appel lant sold one other plot to Lala Sita Ram bearing Khasra No. 85 measuring 7 Marlas. These 2 plots also were sold subject to the same restrictive covenants. The total area sold by the ap pellant to respondent No. 1, Lala Sita Ram, in Khasra No. 2/75 thus came to about 61 Kanals of land. On the 2nd April 1912, the appellant had also sold to Sardar Sujan Singh a plot of 3 Kanals 1 Maria bearing Khasra No. 215 min on the usual restrictive covenants. (Exh. P. 4, Vol. II, p. 167). On the 22nd of June 1912 the share of Sardar Sujan Singh in Khasra plots No. 37, 38 and 39 already mentioned came to be recorded as 6/16. This 6/16 share and the entire area of 3 Kanais 1 Maria in Khasra No. 215 min was sold by Sardar Sujan Singh to Lala Sita Ram, respondent No. 1, on the 24th of June 1919. Lala Sita Ram, respondent No. 1, thus became the owner of 23 Kanals of land out of the total area Belonging to Sardar Sujan Singh. Lala Sita Ram, respondent No. 1 and his brothers, res pondents Nos. 2 to 4 (who were apparently associated with respondent No. 1) and some of the other respondents purchasers from them of certain plots having constructed buildings on a portion of the lands contained in Khasra No. 2/75 in contravention of the' restrictive covenants, the appellant as plaintiff instituted Civil Suit No. 11/168 of 1938‑39 in the Court of the Subordinate Judge, Sargodha, on 3rd March 1938; praying for the following amongst other reliefs :‑ (a) A permanent injunction restraining the respondents from constructing any fresh house or Ahata in the suit lands or using the said lands for any other purpose than as garden or selling or alienating any part thereof ; (b) For a mandatory injunction to demolish the buildings already constructed ; (c) For a declaration that the alienations by respondents Nos. 1 to 4 in favour of the other respondents were void and inoperative as against the appellants ; and (d) In the alternative' for a decree for the possession of the lands in dispute. The main pleas in defence, on behalf of the respondents, were that the sale to respondent No. 1, Lala Sita Ram, was not subject to any restrictive covenant that if there was any restrictive covenant, it was null and void ; that the plaintiff appellant was estopped from raising any kind of objection to the construction of buildings or to the sale of the lands, as sanction of‑'the Deputy Commissioner had been obtained for those purposes that the issue of any injunction after such a long time would be improper and unjustified. The Subordinate Judge granted the following reliefs :‑ (a) Permanent injunction against the respondents restrain ing them from constructing any fresh house or Ahata over the site and from selling or otherwise alienating any part thereof, and, except for the portion over which the building had already been constructed from using the land for any purpose than as garden land ; (b) Compensation of Rs. 316 in lieu of the mandatory injunction for the demolition of the buildings at the rate of Rs. 800 per acre ; and (c) Declaration that the alienations effected in favour of the other respondents by the respondents Nos, 1 to 4 were ineffec tive against the rights of the appellant. Against this decision the appellant preferred to the High court of Judicature at Lahore Appeals Nos. 209/40 and 363/40, while the respondents Nos. 1 to 4 preferred Appeal No. 210/40. The three appeals were heard together and disposed of by a single judgment, whereby the two appeals of the appellant were dismissed and the appeal of the defendants‑respondents Nos. 1 to 4 was allowed in part by setting aside the decree of the Subordinate Judge with regard to injunction and declara tion and giving in lieu thereof damages and compensation for the entire land at the rate of Its. 500 per acre amounting to Rs. 2,812‑8‑0 in addition to the amount of Rs. 110 per acre, which was received for the grant by the Punjab Province, Plaintiff‑appellant thereupon obtained from the Privy. Council special leave to appeal and preferred the present appeal. It is admitted before us on either side that the properties in suit are evacuee properties which have vested in, and have been taken possession of, by the Custodian. Counsel for the Custodian raised a preliminary objection to the hearing of this appeal in view of the provisions of sections 12 and 34 of Ordinance XV of 1949 promulgated on the 15th October 1949 by the Governor‑General, but to come into force retrospectively from the 15th March 1947 (section 42 of the Government of India Act, 1935). He contended that the Judicial Committee of the Privy Council was in essence a Court of Justice in relation to Pakistan and the expression "save as expressly provided in this Ordinance no Civil or Revenue Court or any other authority shall have jurisdiction etc.", in section 34 (1) of the Ordinance was wide enough to include within its ambit the `Judicial Committee of the Privy Council' that section 34 was merely procedural law as was apparent from the heading "Supplementary and Procedural" in Chapter VII of the Ordinance that accord ingly the Ordinance was applicable to the present appeal even though it was filed in August 1946 ; that in any event sections 2 (2), 4, 6, 12 and 34 of the Ordinance clearly indicated that the intention of the Legislature was to give the Ordinance a retrospective effect even assuming that the Ordinance was substantive law ; that suppose the Privy Council had pronounced its decision some time after the 1st March 1947 in favour of the respondents, could it be fairly argued then that the property being the subject matter of a pending appeal prior to 1st March 1947 was not to be treated as evacuee property even if the respondents had left the Dominion of .Pakistan subsequent to the Privy Council decision in 1947 ; that Ordinance XV of 1949 was a special measure meant to protect the interests of a specified class of persons, namely, the evacuees and could not be considered as repealed by the general provisions contained in section 4 of the Privy Council (Abolition of Jurisdiction) Act, 1950 ; that the Ordinance and the Act were to be read together in a manner as not to be in conflict with each other in accordance with the maxim "generalia specialibus non derogant." On the other hand the Advocate‑General of Pakistan, who appeared before us upon notice served on him under O. XLIX, rule 1, of the Federal Court Rules, argued that the expression "save as expressly provided etc.", in section 34 (1) of Ordinance XV of 1949 did not comprehend within its meaning the `Privy Council', which was only an advisory body to His Majesty the King of England and not a Court or any other authority that consequently the successor of that advisory body, viz., the Federal Court (section 4 of the Privy Council (Abolition of Jurisdiction) Act, 1950); was not included within the connotation of the said expression ; that at any rate an encroachment by the Federal Legislature on the Jurisdiction of the Federal Court was prohibited by Item 53 of List I of Schedule VII of the Government of India Act, 1935, prior to the amendment of section 102 of the said Act .,in January 1950, (to take effect retrospectively from July 1948) that sections 12 and 34 of the Ordinance XV of 1949 of the 15th of October 1949, were therefore, ultra vires the powers of the Governor‑General under section 42, as the Federal Legislature itself had no such power prior to the amendment of section 102 aforesaid ; that even after the amendment the words "this Act" in section 102 obviously implied the Govern ment of India Act of 1935 and not the Privy Council (Abolition of Jurisdiction) Act 1950 ; that sections 12 and 34 of Ordinance XV of 1949 aimed at an indirect curtailment of the prerogative powers of the Crown in the administration of justice now vested in the 'Federal Court under the Privy Council (Abolition of Jurisdiction) Act, 1950 and as such were ineffective and unenforceable ; that in any case as the Privy Council appeal file in August 1946 was pending at the time of the promulgation of the Ordinance and the right of appeal is a substantive right, the pending appeal could not be affected by any subsequent change in the law by Ordinance XV of 1949 unless by express words or by necessary implication, which were wanting‑The Colonial Sugar Refining Company, Limited v. Irving (1905 A C 369 at 372). Counsel for the appellant adopted the arguments of the Advocate‑General. The real question here seems to me to be whether section 34 of Ordinance XV of 1949 would be applicable to the present appeal which was pending before the Privy Council at the time of the promulgation of Ordinance XV of 1949 passed on the l 5th of October 1949. One cannot fail to notice that the Privy Council (Abolition of Jurisdiction) Act, 1950, came into operation from the 1st May 1950. No question, therefore, of its amendment by Ordinance XV of 1949 can arise and all that perhaps can be urged is that the Ordinance and the Act are not consistent with each other, but "it is a fundamental rule in the construc tion of statutes that a subsequent statute in general terms is not to be construed to repeal a previous particular statute unless there are express words to indicate that such was the intention or unless such an intention appears by necessary implication." Queen v. Champneys ((1870‑71) C P L R 384 at 394). I do not think it necessary to cite many authorities in support of the above proposition. It is well recognized that general words in a later PU enactment do not indirectly repeal particular provisions in an earlier enactment made for quite a different purpose. A general rule should be understood in its general sense. Section 34 of the Ordinance is, therefore, to be read along with section of the Privy Council (Abolition of Jurisdiction) Act, 1950, in a way as not to conflict with each other or to result in the abrogation of the one or the other. I am, therefore, of the view that section 4 of the Privy Council (Abolition of Jurisdiction) Act, 1950, is to be read subject to the provisions of Ordinance XV, of 1949 so that no incon sistency or repugnancy between the Ordinance and the Act may arise. The decision in the case of the Colonial Sugar Refining Company, Limited v. Irving (1905 A C 369 at 372), is clearly distinguish able. There the question was as to the right of appeal, namely, whether the right of appeal to His Majesty given by the order in Council in June 1860 was taken away by section 39 (2) of the Australian Commonwealth Judiciary Act, 1903. 1t was held that as the Act was not retrospective, the right of appeal in a suit pending, when the Act was passed, was not taken away. As regards the objection on the ground that section 102 of the Government of India Act, 1935, was amended in January 1950, but the Ordinance was passed on the 15th of October 1949, it will be sufficient to draw attention to the fact that the amendment was to come into operation retrospectively from July 1948. "This Act" no doubt occurs in the amendment of section 102 and no reference has been made to the Privy Council (Abolition of Jurisdiction) Act, 1950, but that is because the Privy Council (Abolition of Jurisdiction) Act, 1950, is a later enactment which came into operation from the 1st of May 1950. The words inserted in section 102 of the Government of India Act, 1935, in 1946, also require consideration in this connection. The relevant portion of section 102 as at present it stands is as follows :‑ Inserted in 1946. "Notwithstanding anything in the preceding section of this chapter, the Federal Legislature shall, if the Governor General has declared by proclamation that a grave emergency exists . . . . . . . . have power to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial, List, or to make laws . . . . . . . . . . . . . . . . with respect to any 'matter not enumerated in any of the Lists in the Seventh Schedule to this Act. Inserted in January 1950: or to make laws notwithstanding anything in any other provision of this Act, relating to the custody, management and disposal of the property of any person concerned in any mass movement as aforesaid." One has to look to the purpose, the purview, the scheme and the subject‑matter of a legislation in order to decide whether it is procedural or substantive law. Assuming that section 34 is substantive law, if the intention of the Governor General was to protect, preserve and administer evacuee properties in the general interests of the evacuees, how was that intention to be carried into effect if the owners became evacuees on or after the 1st day of March 1947, while their properties were involved in litigation from before that date, Evacuee defined in section 2 (2) (a) of the Ordinance means,‑-- "any person who, on account of the setting up of the Dominions of Pakistan and India, or on account of Civil disturbances, or the fear of such disturbances, on or after the first day of March 1947, leaves or has left any place in the territories now comprising Pakistan for any place outside those territories." The preamble to the Ordinance is worded as follows :‑

"Whereas an emergency has arisen which renders it necessary to provide for the administration of evacuee property in Pakistan and for certain matters incidental thereto ; Now, therefore, in the exercise of the powers conferred by section 42 of the Government of India Act 1935 the Governor‑General, etc." It would be clear from the above that the Ordinance applies to a particular claw of property which came to acquire a special character on account of political, social and economic upheavel which took place in the wake of the partition of the sub‑continent of India in 1947. In my opinion, it matters little whether the said property was or was not the subject‑matter of a pending appeal or a pending .suit at the time of the passing of the Ordinance. The Ordinance is really a piece of legislation which concerns itself with administration rather than with adjudication, "adroit administratif" concerning what is conducive to the welfare of the evacuees under the changed'" situation, rather than what is required by law under the strict principles of legal Jurisprudence. Section 34 expressly and, explicitly bars the "jurisdiction of Civil or Revenue Court or any other authority" in such matters save as expressly provided in the Ordinance. The relevant portion of section 34 is as hereunder:‑

"Section 34 Jurisdiction of Courts barred

(1) Save as expressly provided in this Ordinance, no Civil or Revenue Court or any other authority shall have juris diction. (a) to entertain or adjudicate upon any question arising in any suit, appeal, application, or other proceedings as to whether any person is or is not intending evacuee or whether any property is or is not evacuee property, or what right or interest, if any, an evacuee has in any such property. (2) Whenever any, question. such, as is referred , to in clause (a) of subsection (1) arises in any Civil or Revenue Court or before any other authority, the Court or authority shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arises until the decision of the Custodian is given, and the decision of the Custodian on the question stated shall be conclusive. (3) No decision of any Court or other authority any question such as is referred to in clause (a) of subs a (1) given between the fourteenth day of August 1947, and the commencement of this Ordinance, shall be binding on the Custodian, or affect any right or interest of any evacuee in any property affected by such decision." With regard to the question whether the words "Civil or Revenue Court or any other. authority" in section 34 (1) above can be aptly applied to the Judicial Committee of the Privy Council, attention may be drawn to the following observation of Viscount Haldane in Hull v. M.Kenna and others (1926 I R 402) :‑ "We are a Committee of Privy Councillors who are acting in the capacity of Judges, but the peculiarity of the situation is this: It is a long‑standing constitutional anomaly that we are really a Committee of the Privy Council giving advice to His Majesty, but in a judicial spirit. We have nothing to do with policies, or party considerations; we are really Judges, but in form and in name we are the Committee of the Privy Council. The Sovereign gives the judgment himself, and always acts upon the report which we make. Our report is made public before it is sent up to the Sovereign in Council. It is delivered here in a printed form. It is a report as to what is proper to be done on the principles of justice ; and it is acted on by the Sovereign in full Privy Council so that you see, in substance, what takes place is a strictly judicial proceeding." In this connection it must also be borne in mind that not only the decisions but even the obiter dicta of the Privy Council used to have a binding force on all the Courts in India prior to the setting up of the two new Dominions, namely, Pakistan and India. Such being the position, it seems to me that the Judicial Committee of the Privy Council, in spite of its form and its name which are due purely to a historical basis, is in essence a Court of Justice. But even if one were inclined to attach greater importance to form rather than to substance, I am of opinion that the words "or any other authority" in section 34. (1) are in themselves of such wide import as to comprehend within their meaning the `Judicial Committee of the Privy Council. That the word "authority" may be used with reference to a judicial body is apparent from section 210 (1) of the Government of India Act, which is as follows:‑-- "All authorities, Civil sand Judicial, throughout the Federation, shall act in aid of the Federal Court." It may also be noted that as a general rule, where by a new legislation certain rights and liabilities are created and at the same time a special remedy for enforcing them is prescribed, that particular form of remedy alone is to be availed of Neville v. London "Express" Newspaper Limited (1919 A C 368 at 391). It is, however, not necessary for me to resort to this general rule, as in my opinion, section 34 (1) (a) of the Ordinance bars the jurisdiction even of the Judicial Committee of the Privy Council by the words "No Civil or Revenue Court or any other authority," and prescribes a special procedure which is to be followed in matters of the present nature. I can see no reason whatsoever why the incidence of evacuee property under Ordinance XV of 1949 cannot attach to the property in question. I therefore, adjourn the present proceeding and remit it to the Custodian under section 34 (2) of Ordinance XV of 1949 in order to determine the nature and extent of the right and interest of the appellant (Punjab Province) in the lands in dispute with reference to the claim set up by the respondents‑evacuees. SHAHABUDDIN, J.‑

I agree with the order proposed by Akram, J., but I should like to state my own reasons as they are not the same as those given by my learned brother. This appeal related to mere ordinary civil rights at the time it was filed with special leave obtained from the Privy Council, and had it been heard by their Lordships before 1948 it would have been undoubtedly disposed of on merits. But just a year after special leave was granted. Partition took place resulting in mass movement from and into Pakistan which gave rise to a grave emergency as it threatened the economic life of the country. To meet this extraordinary situation legislation by Ordinance had to be undertaken in respect of the rehabilitation of refugees as well as the custody management and disposal of the properties of those who, left Pakistan. One of these Ordinances was Pakistan Protection of Evacuee Property Ordinance, 1948 which was replaced by Ordinance XV of 1949 with which we are concerned in this case, and which effected a change in the character of the property in the appeal. The underlying principle of this Ordinance is that all the evacuee property as defined in section 2 (3) of the Ordinance should vest in the Custodian and he should have exclusive jurisdiction to deal with all matters relating to such property. Under section 6 of the Ordinance all evacuee property shall vest and shall be deemed to have vested in the Custodian from the 1st of March 1947. Under section 7 those who are holding evacuee property at the time of Ordinance or from 28th day of February 1947 are deemed to have held the same on behalf of the Custodian, and it is also provided by this section that every person who is in possession, supervision or management of evacuee property should intimate to the Custodian in writing his willingness to surrender his possession to him or any person authorised by him to take possession. Section 9 gives the Custodian power to take possession of the property by force, while under section 10 the Custodian is empowered to manage even the property, where only a part happens to be evacuee property. Exemption from all legal processes is given to the Custodian under section 12 of the Ordinance. Subsection (1) of this provision is to the effect‑ that the property which has vested in, or of which possession has been taken by, the Custodian shall be exempt from all legal process, including seizure, distress, ejectment, attachment or sale by any officer of a Court or any other authority and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court or any other authority. Under subsection (2) legal processes that were subsisting immediately before the commencement of the Ordinance shall cease to have effect, and all evacuee property in custody of any Court, or Receiver, guardian or other officer or person appointed by it, shall upon delivery of the same being called for by the Cust6dian, be delivered to him. Claims on the ground that the property is not evacuee property or the claimant's interest has not been affected by this Ordinance are under section 18 to be decided by the Custodian; and under section 20 powers are given to the Custodian for the management of the evacuee property. Section 34 bars the jurisdiction of all Civil and Revenue Courts and other authorities to entertain or adjudicate upon any question arising in any quit, appeal, application, or other proceedings as to whether any person is or is not an intending evacuee or whether any property is or is not evacuee property or what right or interest if any an evacuee has in evacuee property. Under, the same provision the legality of anything done under this Ordinance by or at the instance of the Custodian could not be adjudicated upon by a Civil or Revenue Court or any other authority. If any of the questions referred to above arise in any of those Courts or before any authority in an appeal or other proceeding the Court or authority should under section 34 (2) state the question with relevant particulars and remit it to the Custodian for decision adjourn ing the proceedings and the decision of the Custodian on the question stated shall be conclusive. It is also provided by this section that decisions of any Court or other authority on any question referred to above given between the 14th August 1947 and the commencement of the Ordinance shall not bind the Custodian or affect any right or interest of any: evacuee of any property affected by such decision. The section further provides that no Court or authority shall be competent to grant any injunction or any order in respect of any proceedings before the Custodian or give relief against extinguishments, forfeiture or penalty to any person whose right in any immovable property is or extinguished in accordance with the terms and conditions of any agreement or grant relating to such property and who at the time of the extingushment or forfeiture of such right is or was an evacuee. Orders made by the Custodian, Additional Deputy Custodian or the Assistant Custodian either in appeals or by way of review shall not be called in question in any Court. Rule 11 of the rules framed by the Central Government under section 44 of the Ordinance is to the effect that in relation to proceedings involving the holding of an inquiry the procedure laid down in the Code of Civil Procedure shall as far as possible and subject to such modification as the Custodian may direct be followed. It is thus clear that the Ordinance in question is a legislation of extremely special nature providing a special machinery for dealing with an extraordinary situation. As stated already in view of its provisions the character of the property in the appeal has changed. It is common gro and that the property in question is evacuee property vested in the Custodian. Any order that may be passed in favour of the appellant in this appeal in respect of this property cannot be executed' having regard to the terms of section 12 of the Ordinance. The necessity for the special machinery provided for by the Ordinance is not and cannot be disputed, as in the nature of things, decisions in cases relating to evacuee property have to depend on grounds of policy and not only on considerations that weigh with Courts of law. That being so, exercise of the jurisdiction of this Court will in effect defeat the object of the special legislation, the necessity for which is recognised on all hands. In these circumstances I have no doubt in my mind that their Lordships of the Privy Council, had they been dealing with this case at present, would have declined to exercise the prerogative jurisdiction on the principle of the decision in Strickland v. Grima (1930 A C 285). In Sirickland v. Grima special leave road been given to appeal from the judgment of the Court of Appeal in Malta by which the election of the appellants to be members of the Senate of Malta had been declared null and void. When the appeal came on for hearing a preliminary question arose namely whether His Majesty could be advised further to entertain the appeal. In dealing with this question their Lordships considered in detail the circumstances that led up to the appeal. They then cited clause 33 of the Letters Patent of the Court of Appeal which provided that all questions which might arise as to the right of any person to be or remain a member of the Senate or the Legislative Assembly should be referred to and decided by that Court. In view of this clause in the Letters Patent of that Court their Lordshihps held that even if they had in this matter been without authority to guide the they would have declined to exercise the prerogative jurisdiction. But in fact they found an authority in Theberge v. Laudry (2 A C 102) in respect of which they observed as follows:‑

"In that case, which dealt, as this does, with questions relating to the membership of legislative bodies, it is pointed out that decisions upon such matters are not decisions of mere ordinary civil rights that such an enactment as this Art. 33 creates an entirely novel jurisdic tion, the history of which, in. cases where the legislative assembly is not itself then created for the first time, has been that the assembly has, by its own consent, concurred in vesting in the Court the jurisdiction hitherto inherent in itself of determining the status of those who claim to be its members. The jurisdiction is extremely special: it is of a character that ought, as soon as possible, to become conclusive in order that the constitution of the assembly may be distinctly and speedily known. There is another reason for finality in such a jurisdiction. It concerns what, according to British ideas, are normally the rights and privileges of the Assembly itself, always jealously main tained and guarded in complete independence of the Crown so far as they properly exist, and, as Lord Cairns adds in delivering the judgment of the Board in Theherge v. Laudry (2 A C 102 at p. 108) `it would be a result somewhat surprising and hardly in consonance with the general scheme of the legislation, if, with regard to rights and privileges of this kind, it were to be found that in the last resort the determination of them no longer belonged to the Legislative Assembly, no longer belonged to the Superior Court which the Legislative Assembly had put in its place, but belonged to the Crown in Council, with advice of the advisers of the Crown at home, to be determined without reference either to the judgment of the Legislative Assembly, or of that Court which the Legislative Assembly had substi tuted in its place . . . . . . . their Lordships have to consider, not whether there are express words here taking away prerogative, but whether there ever was the intention of creating this tribunal with the ordinary incident of an appeal to the Crown". Their Lordships held that the appeal should not be further entertained and it was dismissed. It is true that in both these cases the ordinary civil rights were not involved but as pointed out already, though this appeal at the outset was concerned with ordinary civil Fight its character with regard to the property involved, Changed in view of the Ordinance in question. The analogy between the above cases and the present one lies in this that as in those cases so also here the question arises whether the King's prerogative should be exercised when it is clear that its exercise would run counter to the special legislation which creates a novel jurisdiction to, meet an unusual situation, and the answer to this question should, I think, be the same as, was in those cases. The special legisla tion here as stated already was enacted under section 42 of the Government of India Act to meet a grave emergency and its enforcement is essential in the interest of proper administra tion of the evacuee property. There is a further difficulty is this case and that is that as has beers already indicated exercise of the prerogative will lead to no effective result in view of section 12 of the Ordinance. I therefore consider that on the principle of Strickland's case this Court should not proceed to determine this appeal on merits. In Strickland's case the appeal was dismissed because under the Colonial Law the decision appealed from was final, but in the present case the Ordinance does not extinguish the right of appeal, but lays down that the matter arising in the appeal should be decided by the Custodian. As what was vested in the Custodian in this case was what the High Court had determined in 1943 as the interest of Sita Ram and his brothers, the Custodian cannot go beyond that decision if the appeal dismissed as was done in Strickland's case, because the decision of the High Court would then be final and binding both on the Custodian as well as the appellant, and the very object of the special legislation, to preserve which I consider that this Court should not exercise its jurisdiction, will be defeated. It is therefore necessary to remit the case to the Custodian for a final decision. The applicability of section 34 of the Ordinance to this Court was strongly canvassed before us by both parties. This section as already indicated provides the machinery which enables the Custodian to exercise exclusive jurisdiction in relation to matters arising in causes which are properly pending before the Courts and other authorities. It appears to me that for the purpose of utilising this facility provided by the Ordinance it is not necessary to decide in what precise capacity qua the provisions of the section this Court shall act. I am not aware that it has yet been held that this Court is a Civil Court in relation to municipal law. It is the successor of the Privy Council and as to the Privy Council it was sufficiently clear that it could not be regarded as such a Court. But since it is of paramount importance that the exclusive jurisdiction of the Custodian should be preserved and the requirement for this purpose is that this Court should act as a conduit between the High Court and the Custodian‑a function which bears no resemblance to the process of justice as administered in this Court‑I feel no hesitation in thinking that that is a course which this Court may avail itself of for furthering the purposes of the Ordinance. Moreover it is provided by section 209 of the Government of India Act that this, Court may make any order such as is necessary for doing complete justice in any case. The expression 'complete justice' is obviously not to be interpreted in any narrow sense i.e., as being confined to the strict resolution of rights inter partes which is the ordinary function, of the Courts. Where the law of the land requires that an issue should be decided exclusively by a persona designata in accordance with such considerations of policy and practice as may be prescribed, it is in my opinion an act of `complete justice' to implement such a law and I feel no doubt that section 209 gives to this Court all the powers necessary for this purpose. JUDGMENT MUHAMMAD SHARIF, J.‑

The intention of the Ordinance being quite clear and unambiguous, I agree that this Court should not exercise jurisdiction in a matter relating to evacuee property. The order of the Court is that the case be remitted to the Custodian under section 34 (2) of Ordinance XV of 1949. A. H. Case remitted to Custodian.