1987 PLP 1259 (CLC)

KHIZAR HAYAT, J.‑‑This I.C.A. is directed against the order, dated 2‑2‑1987 passed by learned Single Judge in Chamber while disposing of prayer of the appellants for granting interim injunction in Writ Petition No. 582 of 1986 which is still pending.

2. The relevant facts briefly are that Municipal Committee, Arifwala, respondent No. 1, auctioned the leasehold rights of Municipal Bus Stand to Muhammad Aslam, respondent No. 2, for the year 1985‑86 and also permitted him to recover the rent from the appellants who were occupying the shops constructed on that premises by respondent No.l. A dispute arose between the lessee/respondent No.l and the occupants /appellants about the rate of rent whereupon the appellants filed Writ Petition No. 582 of 1986 challenging authority of the municipal committee (respondent No. 1) allowing the lessee/ respondent No. 2 to recover rent of the shops from them and also prayed for injunction restraining the municipal committee, respondent No. 1 and the lessee/ respondent No. 2 to evict them from those shops. Learned Single Judge, therefore, granted temporary injunction on 29‑6‑1986 in the following words:‑‑

"Notice. In the meanwhile the petitioners may not be evicted if they keep on paying the rent." Meanwhile the term of lease of respondent No. 2 expired and the appellants with permission of the Court deleted his name from the writ petition. The appellants, however, neither paid the rent in compliance with the above‑mentioned order nor challenged it before any higher forum, therefore, learned Single Judge on 2‑2‑1987 after hearing the parties passed the impugned order directing the appellants to deposit the arrears of rent within three days in Court and pay future rent at the rate of Rs.400 per month till final settlement of the dispute failing which they shall be liable to eviction. Feeling aggrieved thereby this appeal has been filed.

3. We confronted the learned counsel with section 3 (3) of the Law Reforms Ordinance (XII of 1972) and asked him to show as to how this appeal against the impugned order passed by learned Single Judge which is in the nature of "interlocutory order", was competent. Learned counsel replied that no doubt subsection (3) of section 3 of Ordinance XII of 1972 bars filing of appeal against an "interlocutory order" but this provision of law stands amended by section 15 of the Code of Civil Procedure (Amendment) Ordinance X of 1980 which provides that an appeal "from an interlocutory order" made by a Single Judge of the High Court in the exercise of its "original civil jurisdiction" shall lie before a bench of two or more judges of that Court. He further maintained that because the writ petition wherein impugned interlocutory order has been passed, concerns civil matter, therefore, the impugned order would be treated to have been passed in exercise of "original civil jurisdiction" hence, this appeal is competent.

4. Both the provisions of law which have been referred above are reproduced hereunder for convenience of reference. Section 3 of Law Reforms Ordinance, 1972.

3. Appeal to High Courts 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 to 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 (i) of paragraph (b) of that clause: Provided that the appeal referred to in this 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. Section 15 of the Code of Civil Procedure (Amendment) Ordinance (X of 1980).

15. Notwithstanding anything contained in section 3 of the Law Reforms Ordinance, 1972 (XII of 1972) an appeal shall lie to a Bench of two or more Judges of a High Court from an interlocutory order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.

5. Having carefully perused the above provisions of law we are unable to agree with the learned counsel that the impugned order has been passed in exercise of the original civil jurisdiction, therefore, this appeal ‑is competent. Plain reading of the aforementioned provisions of law makes us clear that 'original civil jurisdiction' of the High Court is quite distinct from the jurisdiction exercised under clause (1) of Article 199 of the Constitution of Islamic Republic of Pakistan which is commonly known as "Constitutional jurisdiction". The Legislature in their wisdom have also separately provided right of appeal to the aggrieved party from the order passed in the exercise of 'original civil jurisdiction' under subsection (1) and from the order passed in the exercise of "Constitutional jurisdiction" under subsection (2) of section 3 of the Law Reforms Ordinance, 1972. Section 15 of Ordinance X of 1980 creates exception to subsection (3) of section 3 of Ordinance XII of 197 2 as it specifically provided right of appeal from the 'interlocutory order' passed by Single Judge exercising 'original civil jurisdiction', therefore, the instant appeal directed against the 'interlocutory order' passed in the exercise of 'Constitutional jurisdiction' is not covered by section 15 of Ordinance X of 1980 and is clearly hit by section 3(3) of Ordinance XII of 1972, hence the same is incompetent. In the result this appeal being not maintainable is hereby dismissed in limine. M.Y.H./M‑73/L Appeal dismissed.