1990 PLP 331 (PLC)

AJMAL MIAN, CJ.‑‑This petition is directed against an order dated 19th August, 1989, passed by the learned Sessions Judge (Central) at Karachi, in Criminal Revision No. 2 of 1988, declining the petitioner's revision against an order dated 24th April, 1987, passed by the learned Assistant Commissioner and S.D.M., Nazimabad, Karachi, ordering of the ejectment of the petitioner under section 16(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Standing Orders).

2. The brief facts leading to the filing of the above petition are that the petitioner was an employee working in respondent No. 2's Ice Factory, While working, he was allotted a residential flat (hereinafter referred to as the Flat). His services were terminated on 30th October, 1979. After that, he was called upon to vacate the flat which he failed to do so and, therefore, an application under section 16(3) of the Standing Orders was filed before the learned Assistant Commissioner and S.D.M., Nazimabad, Karachi, who by the aforesaid order dated 24th April, 1987, allowed the above application. The petitioner, being aggrieved by the above order, filed the aforesaid criminal revision application, which was dismissed by the learned Sessions Judge, by his aforesaid impugned order dated 19th August, 1989, on the ground that the revision was not competent. The petitioner, being aggrieved by the above order has filed the present petition.

3. In support of the above petition, Mr. Haji Ameer Ahmed Khan, learned counsel for the petitioner, has contended that since the learned S.D.M. passed the order as a Criminal Court under section 16(3) of the Standing Orders, a criminal revision application under section 439‑A was competent.

4. On the other hand, Mr. Abdul Waheed Siddiqui, Advocate, appearing for respondent No. 2, has made the following submissions:‑‑ (i) That the petitioner has not approached this Court with clean hands and, therefore, the petition is liable to be dismissed. (ii) That the petitioner has already availed of alternate remedy by way of filing a suit and an application under Order 39 Rules 1 and 2, C.P.C. (iii) That the Magistrate in fact exercises power under section 16(3) of the Standing Orders Ordinance as a Civil Court and, therefore, revision, if any, would lie under section 115, C.P.C., before a Civil Court and not before a Sessions Judge. (iv) That even otherwise, the Magistrate acts as a persona designata under section 16(3) of the Standing Orders Ordinance and, therefore, no revision would be competent under section 439‑A, Cr.P.C. before the learned Sessions Judge.

5. It may be appropriate to take up the first three submissions of Mr. Abdul Waheed Siddiqui before touching upon the main controversy which is in issue.

6. As regards the first submission of Mr. Abdul Waheed Siddiqui that the petitioner has not approached this Court with clean hands, it may be observed that he has referred to the averments contained in paragraphs 4, 5 and 6 of the petition in which it has been inter alia alleged that Haji Noor Muhammad Butt father of Mr. Manzoor Iqbal Butt, the respondent No. 2, had gifted the flat in question to the petitioner for his good services. He has also invited our attention to paragraph 2 of the petitioner's application dated 18‑5‑1987, under the Payment of Wages Act filed by him before the Authority under the aforesaid Act for the recovery of Rs.89,000 as his dues and in which the petitioner has averred that, "the applicant has also been provided accommodation and the applicant is residing with his family members in the said accommodation since 1952. The above fact has been reiterated by the petitioner per A‑10 of his above application. Mr. Abdul Waheed Siddiqui's above submission seems to have some force, as the petitioner has attempted to make out a new case in the present petition by alleging gift from the father of the present proprietor of respondent No. 2 firm. We would have dismissed the above petition on the ground of above apparent inconsistency in the petitioner's stand. However, since the petition involves a question of jurisdiction, we have not dismissed the same on the above ground.

7. Adverting to Mr. Abdul Waheed Siddiqui's second submission that the petitioner has already availed of alternate remedy by way of filing a suit and an application under Order 39 Rules 1 and 2, C.P.C., it may be observed that he has invited our attention to the plaint of Suit No. 1055 of 1988, dated 11‑8‑1988 filed by the present petitioner in the Court of Senior Civil Judge No. 1 Karachi (Central) for declaration that he is the owner of the undivided property comprising of two rooms, bath room, kitchen and open space admeasuring 1,997 square feet on the terrace of the ground floor on Plot No. 1‑A/4, Block‑1, Nazimabad Karachi, for cancellation of documents and mandatory injunction. The above suit is based on the above alleged gift. We would not comment upon the question of maintainability of the above suit but would observe that in the present petition the sole question which is required to be adjudicated upon is, whether a criminal revision under section 439‑A, Cr.P.C. is competent before a learned Sessions Judge against an order passed by a Magistrate under section 16(3) of the Standing Orders Ordinance and not the question, whether the petitioner is the owner of the flat, though he has made such an averment in the body of the petition which is inconsistent with his plea in his application under the Payment of Wages Act already referred to hereinabove. The above point of law is not involved in the suit and hence the suit is not the alternate adequate remedy available.

8. Reverting to Mr. Abdul Waheed Siddiqui's third submission that the Magistrate in fact exercises power under section 16(3) of the Standing Orders Ordinance as a Civil Court and, therefore, revision, if any, would lie under section 115, C.P.C., before a Civil Court and not before a Sessions Judge, it may be observed that ‑the above contention seems to be devoid of any force, as in subsection (2) of section 16 of the Standing Orders, the employer is to lodge a complaint with a Magistrate of a First Class having jurisdiction in the area. In other words the proceedings before the Magistrate of First Class are in the nature of the complaint which is a terminology under section 16, Cr.P.C. and not a plaint or an application under C.P.C. In our view, since the Magistrate First Class is to dispose of a complaint made under section 16 of the Standing Orders Ordinance in summary manner like any other summary proceedings under Cr.P.C., the complaint under the above provisions of the Standing Orders is more in the nature of criminal proceedings than civil proceedings, therefore, the provisions of C.P.C. cannot be pressed into service for filing a civil revision. Mr. Abdul Waheed Siddiqui has referred to the case of A.M. Baig v. Assistant Commissioner and First Class Magistrate, Court No. VI (East), Karachi and another reported in PLD 1979 Karachi 462, in which it was contended by the petitioner that for filing of a complaint under section 16 of the Standing Orders for ejectment, the permission of the Inspector to prosecute the complaint was required under subsection (5) of section 7 of the Standing Orders which provides that no prosecution for an offence punishable in this Ordinance shall be instituted except by or with the previous permission in writing of the Inspector, but the above contention was repelled by a learned Single Judge of this Court and it was observed that, "the provision for forcible eviction cannot be misconstrued as a provision for punishment for an offence. Reading of Order 16 leaves no room for any doubt but the provision is not meant to punish an employee but to ensure that residential premises provided by an employer are not misused or occupied after termination of the service, by the employee. Any contravention of the provisions of the Standing Orders Ordinance is generally made punishable under Order VII, subsection (3). This was not however a complaint under that order but it was specifically filed under Order XVI for summary eviction only. It was not, therefore, necessary that such complaint should have been presented with the previous permission in writing of the Inspector as provided under Order VII. No sanction or permission of the Inspector was necessary for summary eviction of the employee who had been dismissed from service." The above case is entirely on a different point, namely, whether permission of Inspector is required for lodging of a complaint under section 16 of the Standing Orders and, therefore, is not relevant.

9. This leads us to the last submission, whether a criminal revision under section 439‑A, Cr.P.C. is competent against an order passed by a First Class Magistrate under section 16 of the Standing Orders Ordinance. In this regard, it may be observed that there are two reported cases on the point directly in issue, namely the case of Ali Imam v. Sh. Ghulam Hussain reported in 1970 P Cr. L J (Kar.) 980 in the case of Asad Hussain v. A.H: Malik and another reported in 1973 P Cr. L J 84 (Lahore). In the former, a learned Single Judge of the erstwhile High Court of Sindh and Balochistan held that a criminal revision is not competent under section 439 as a Magistrate acts as a persona designata, whereas, in the latter case, a Division Bench of the Lahore High Court took a contrary view and has held that a criminal revision is competent against an order passed by a Magistrate under section 16(3) of the Standing Orders. In the above Karachi case, reliance was placed on the two cases, namely, Mst. Alam Bibi v. District Magistrate of Tharparkar P L D 1961 Karachi 29 and Sakhi Muhammad v. Wajid Ali and others P L D 1964 Lahore

426. In the former case, it was held that a District Magistrate while passing an order under section 13 of the Sindh Prevention of Prostitution Act, acts in administrative capacity and not as a Criminal Court, whereas, in the latter case, it was held by a learned Single Judge of the erstwhile High Court of West Pakistan at Lahore that the Labour Court exercising criminal jurisdiction under the Industrial Disputes Ordinance, 1959, as amended by Ordinance (XVI of 1961) is not an inferior Criminal Court as to attract the application of sections 435, and 439 of the Cr. P.C. The above two cases have been distinguished in the above Lahore D.B. case. We are also inclined to hold that the same are distinguishable inasmuch as under the Sindh Prevention of Prostitution Act, a District Magistrate was to pass In administrative order as a District Magistrate and not as a Criminal Court, whereas, in the latter case, apart from the fact that subsection (4) of section 12 of the Industrial Disputes Ordinance attached the finality to any decision or award passed by the Labour Court which was not open to question in any manner by or before any judicial or other authority including the High Court and the Supreme Court, the Labour Courts were not Court of criminal jurisdiction but were assigned certain criminal jurisdiction under the aforesaid Industrial Disputes Ordinance. Whereas, in the instant case, subsection (2) of section 16 as observed hereinabove provides lodging of a complaint with a Magistrate of the First Class having jurisdiction in the area where such residential accommodation is located. In other words, the jurisdiction of an established normal criminal Court has been extended by a special Statute and it is not the case where a Special Court like a Labour Court has been assigned certain criminal jurisdiction. 1t is a well‑settled principle of law that when jurisdiction is conferred on an established Court without providing any condition or qualification the decision given by such a Court is subject to all the incidence of appeal and revision. Reference may be made in this regard to the following cases:‑‑ (i) Abdul Salam v. Hafeez Sons Limited reported in P L D 1974 Kar. 118, (ii) Motabar v. S.M. Rehman and Co. reported in P L D 1971 Quetta 47 and (iii) National Cement Industries Ltd. v. Sindh Labour Appellate Tribunal and 3 others reported in 1981 P L C

561. However, where a Magistrate is notified to act under special Statutes for performing executive function or other function but not as a normal Court of criminal jurisdiction he acts as persona designata. In this regard, reference to be made to the cases referred to in the above Lahore D.B. case, namely:‑‑ (i) Nizam v. State reported in A I R 1955 Hyd. 241; (ii) Usman Haji Mohammad reported in A I R 1930 Bom. 468. (iii) Secretary of State v. Govendram reported in A I R 1930 Sindh 162. (iv) Manghamal Gianchand v. Emperor reported in A I R 1939 Sindh 340. (v) Usainshi v. Emperor reported in A I R 1946 Bom. 533. (vi) Laspkan Municipality v. Shababud Din reported in A I R 1952 Madh. Bha. 48. (vii) Wali Muhammad v. Manik Chand Rasil reported in A I R 1957 Cal. 221. (viii) Municipal Board Benares v. Ram Sahai reported in A I R 1933 All. 281. (ix) Karachi Municipality v. Jaferji Tayabji reported in A I R 1927 Sindh 23. (x) Madho Das v. Rex reported in A I R 1949 All. 738. (xi) D'Monte v. Bandra Borough Municipality reported in A I R 1950 Bom.

397. In the above Lahore case, reliance has also been placed on a Division Bench case of Andhra Pradesh, namely, Bathula Krishna Brahman and others v. Daram Chenchi Reddy and others reported in A I R 1959 Andhra Pradesh 129, which has direct bearing. We may also refer the same. In the above case the facts were that under section 87 of the Madras Hindu Religious and Charitable Endowments Act (19 of 1951), a Magistrate was empowered to direct the delivery of property from a dismissed or suspended trustee or office‑holder or servant or from persons otherwise not entitled to be in possession, the question arose, whether a revision was competent under sections 435 and 439, Cr.P.C., it was held that the test in deciding whether revisions are entertainable under section 439 read with section 435 of the Cr.P.C. is not whether the proceedings are of a criminal or civil nature but it depends upon the nature of the Court as section 435 emphasise lays on proceedings before the inferior Criminal Court. It was also held that where the Presiding Officer of the Court is selected to act in a particular matter in his private or individual capacity he acts as a persona designata and not in his capacity as a judge, but if additional duties are entrusted to him the Presiding Officer of that Court he discharges them as a Court attracting all the incidence of such jurisdiction such as appeal, revision, etc. attached to it. We are in respectable agreement with the above Lahore view of the Division Bench and of the above Division Bench case of Andhra Pradesh. We are, therefore, inclined to hold that since under section 16, the jurisdiction to entertain a complaint for ejectment has been conferred on an established Criminal Court of the area concerned and not to a Magistrate as a persona designata all the incidence attached to the exercise of such jurisdiction, namely, the right of anneal or revision will be available.

10. We would, therefore, allow the above petition and declare the impugned order as being without lawful authority and would remand the case to the learned Sessions Judge (Central) with the direction to decide the petitioner's revision on merits in accordance with law.

11. The petition stands disposed of with no order as to costs. N.H.Q./M‑965/K Case remanded.