P L D 1968 Karachi 797 (PLP)

(i) The draft constitution prepared by the Federation, for Arbitration Tribunal visualised under section 12 of the Trade Organisations Ordinance is still under consideration by the Ministry of Commerce, Government of Pakistan, pending which no Arbitration Tribunal can be set up. (ii) Regarding Rules visualised under section 23 of the Ordinance you are advised to approach the Director of Trade Organisations, Ministry of Commerce, Government of Pakistan, for any information. With regards, Yours faithfully, (Sd.) (TUFAIL AHMED KHAN), Secretary."

6. Counsel for the appellant further pointed out that although nearly four years had passed since their letter was written by the Federation of Chambers of Commerce and Industry, no tribunal had yet been set up. Counsel for the respondent disputed this contention, therefore as the case was adjourned, I asked counsel for the respondent to verify the position and inform the Court whether any tribunal had been set up so far by the said Federation of Chambers of Commerce and Industry. Although in consequence of the adjournments the respondents have had more than sufficient time to ascertain the facts, counsel for the respondent told me that he was not aware whether any tribunal had been set up under section 12 of the said Ordinance. Accordingly, I have to presume that no tribunal had been constituted, although seven years have passed since the enactment of the said ordinance. In these circumstances, the question for determination is whether the jurisdiction of the Courts is barred even though no tribunal has been set up? If the contention of the respondent is correct, it would mean that a member who seek to enforce his rights under the Common law against a trade organisation is totally deprived of his rights as no tribunal has been set up. If the Legislature had intended to bar the jurisdiction of the Courts even when no tribunal was set up, as contended by the respondent, it could have made express provision in that respect. A statute which takes away the jurisdic tion of the Courts has to be construed strictly, therefore prima facie that construction of section 12 of the Ordinance has to be preferred which does not oust the jurisdiction of the Courts when no tribunal has been set up.

7. I shall now consider the judgment of the Lahore High Court, on which both counsel relied, counsel for the respondent argued that his case was supported by those observations of Mr. Justice Munir in Sultan Ali v. Nur Hussain (A I R 1949 Lah. 131) in which the Chief Justice criticised the earlier view taken by the Lahore High Court in Satnarain v. Hanuman Pershad (A I R 1946 Lah. 85). In order to under stand the observations of the Chief Justice, it is necessary to give a brief reference to the earlier Lahore case. The facts of that case were that a suit had been filed by a plaintiff in respect of the rejection of his nominations papers for election to a Municipal Committee, plea of the defendant was that the election rights in dispute were the creation of a statute, which could only be enforced though the tribunal that had been set up under that statute for hearing such disputes, therefore the jurisdiction of the civil Courts was barred. The Court of the first instance and the first appellate Court accepted this contention and dismissed the suit. The plaintiff filed an appeal, which was allowed by the High Court with the following observations: "It is however contended that the jurisdiction of the Civil Courts is barred by the necessary implication that arises by the creation of a special jurisdiction under the rules framed under section 240, Punjab Municipal Act. In my view, if the special tribunal constituted by these rules come into existence and they function, in the event, there can be no manner of doubt that the civil Courts would have no jurisdiction. Their jurisdic tion to try any matter of a civil nature would be barred. On the other hand, if the tribunal, though contemplated by the rules and by the Legislature, do not come into existence or having come into existence they refuse to deal with the matter with which they are entrusted, in that event the jurisdiction of a civil Court which it has under section 9, Civil P. C. is not ousted." In Sultan Ali v. Nur Hussain, Mr. Justice Munir, the Chief justice, criticised the observations made in 1946 Lah. 85.wbich I have quoted above. At 158 of the judgment in Sultan Alt's case, the Chief Justice observed as follows:‑

"The ouster of civil Courts jurisdiction in such cases rests on the construction of the statute creating the right and a special tribunal for its enforcement, and if as a matter of construction of the relevant statute the Court arrives at the conclusion that rile Legislature intended that the right created by the statute should only be exercised or enforced in the manner provided by that statute, then it is somewhat difficult to accept the Madras and Patna view which found favour with the Division Beach in 1amarain Gurwala v. Hunuman Parshad A 1 R 1946 Lah. 85= 224 I C 322 that if the special tribunal is not constituted or having been constituted it does not function, the civil Court's jurisdiction to adjudicate on that right is not affected. The stew right depending for its creation on the will of the Legislature the Legislature could well have refused to create it or, having created it could have subjected it to qualifications and restric tions or defined the conditions under which it could be exercised. The argument for ouster is based in such cases can the presumed intention of the Legislature that the right was intended to be exercised only in the manner prescribed by the Act that created it." These observations of the Chief Justice have to be understood to reference to the fact that both the Lahore cases namely, A I R 1946 Lah. 85 and A I R 1949 Lah. 131 related to election disputes. The right which the plaintiffs sought to enforce in both the Lahore cases was not a right existing under the Common Law, but a right created under the election laws, which had set up tribunals for the adjudication of election rights so conferred. In the appeal before me the rights of the plaintiff‑appellant, which are affected by section 12 of the said ordinance, are not rights conferred on him by this Ordinance, but are rights vested in him under the Common laws. Tee distinction between such Common Law rights and rights created by statute is fundamental to the construction of statute which take away the jurisdiction of the Courts. This is made very clear by the following observations of the Chief Justice in Sultan All's case. In reference to election laws, the Chief Justice observed at page 158: "When a plea of ouster of the Civil Courts' jurisdiction is taken, the essential question to determine is whether such jurisdiction is barred expressly or by necessary implication. It is not contended here that there is any express ouster of the civil Court's jurisdiction, because neither in the Constitution Act nor in the Orders in Council of the Electoral Rules is there any provision that civil Courts will have no jurisdiction to entertain suits relating to an electoral right. The question falling for decision is whether on a true construction of the various provisions contained in the Orders in Council and the Electoral Rules, it can be held that the jurisdiction of civil Courts is impliedly barred. It is while determining this question that the distinction between a right which is purely the creation of a statute and a right at common law becomes important because where a civil right did not exist before a statute was passed and was entirely created by that statute, it is reasonable to infer that the Legislature intended that right to be enforced only in the manner that the statute prescribed. In the present case, the right was created by the Constitution Act and the Orders in Council issued thereunder, which, together with the Electoral Rules promulgated by the Governor in exercise of the authority conferred op him by the Act and the Orders, also contain a complete Code in regard to the manner in which a person may acquire and exercise that right and the remedies available to him in case of infringement of that right. The right, therefore, falls within that class or rights which being a creation of the statute can only be enforced in the manner prescribed by the statute creating them and are excluded from the cognizance of the Civil Courts." After thus commenting on the construction of election laws the Chief Justice criticised the view taken in A I R 1946 Lah. 85 and observed that the theory of the conditional ouster of Courts was not applicable to election rights, thereafter Chief Justice went on to discuss the construction of statutes which ousted the jurisdic tion of the Courts in respect of Common Law rights. I shall quote the whole of this passage also at page 158 of the judgment because the rights in dispute in this appeal are also common law rights. "The theory of conditional ouster is not at all applicable to such rights (rights created under a statute). It is, however, otherwise where a right is not created by a statute but existed before disputes relating to it or to some aspect of it were entrusted by statute to a special tribunal. Such pre‑existing rights having originally been within the cognizance of the civil Courts, the ouster is dependent on the functioning of the special tribunal." Thereafter the Chief Justice approved of the observations of the Privy Council in Secretary of State v. Mask & Co., (A I R 1940 P C 105). where their Lordships of the Judicial Committee stated that it was well settled that even if the jurisdiction of the civil Courts is expressly barred "Civil Court have jurisdiction to examine into cases where the provisions of the act excluding the jurisdiction of the Courts have not been complied with or where the statutory tribunal has not acted in all conformity with the fundamental principles of judicial procedure." These observations are binding on me. If‑Courts have jurisdiction to examine whether a tribunal has exceeded the jurisdiction, then at least in respect of common law rights, the jurisdiction of Courts cannot be barred when no tribunal has been set up under an act which purports to exclude the jurisdiction of the Courts. In my opinion, the ratio decidendi of the judgment of Mr. Justice Munir is that when rights created by a statute are required by that statute to be adjudicated only by a tribunal to be set up under that statute, then the Civil Courts have no jurisdiction to grant relief. But where, as in the case under appeal, a statute confers exclusive jurisdiction on a tribunal for determining claims in respect of common law rights, then the jurisdiction of the Courts will not be excluded until the tribunal required by the statute is set up.

7. This question has been further considered by a Full Bench of this Court reported in Dost Mohd. Malik v. The Returning officer and others. That case related to a writ petition filed in respect of the alleged violation of Election rights. As I have pointed out, the jurisdiction of the Courts is excluded under the Election Laws. In discussing the extent of that exclusion, Yaqub Ali, J, who delivered the judgment of the Court, stated as follows:‑ "But there is another enunciation by Willes, J., frequently invoked in this field for the opposite view in Wolver‑Hampton New Water Works Co. v. Hawkesford, (1889) 6 C B (NS) 336 in discussing‑the establishment of liabilities founded on statute, the learned Judge observed as follows:‑

'There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law, there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by the statute, which at the same time gives a special and particular remedy for enforcing it. The present case falls within this latter class, if any liability at all exists. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.' In Nevile v. London Express Newspaper Ltd. (1919) A C 368 the above enunciation was approved by the House of Lords and it was re‑affirmed by the Privy Council in Attorney‑General v. Garden Grant 8c Co. 1935 A C

532. This, however, is not the last word on the subject. On the basis of these pronouncements of high authority, it was urged that the jurisdiction of superior Courts to issue prerogative writs was completely ousted. An exception has been made that until remedy provided for in the statute for establishment of a right founded on it is made available a plaintiff would have a right of recourse to civil Courts with corresponding rights of appeal. The bar, thus, is not absolute and even in cases where the machinery for enforcement of such rights is provided, but it refuses or neglects to exercise jurisdiction, or acts in excess of its jurisdiction, an aggrieved person will have the right of recourse to civil Courts." Counsel for the respondent sought to distinguish these observations on the ground that they were contained in a judgment on a petition filed under Article 98 of the Constitution. There is a distinction between the extraordinary powers of this Court under Article 98 of the Constitution and the jurisdiction of the civil Courts, but that distinction is not relevant to the argument of counsel, because the observations quoted have laid down the principles to be followed by the Courts in construing statutes which take away the jurisdiction of the Courts. I am in respectful agreement with these observations, which are binding on me. Accordingly I hold that, in the events that had happened, section 12 of the said Ordinance does not bar the suit filed by,' the appellant.

8. The only other argument advanced by counsel for the respondent was that section 12 envisaged an ad hoc tribunal for hearing disputes between a trade organisation and its members, and that such a tribunal could be set up only on the application of a member who had a claim against a trade organisation. In the instant case, as no application was filed by the appellant, counsel argued that the suit was barred under section

12. Accord ing to section 12, which I have quoted in para. 5, a member who has a dispute with a trade organisation has to make an application "`referring the matter to the arbitration tribunal constituted for the purpose of deciding such references by the Federation of Chambers of Commerce and Industry. . ." The language of the statute does not support the interpretation of counsel for the respondent. Additionally sub‑rule (2) of section 12 states that the tribunal "shall conduct its proceedings and give its decision or award in accordance with the rules made in this behalf." Under section 23 of the said Ordinance, the Central Government is empowered to frame rules for this purpose. Here it is relevant to point that the letter of the Secretary of the Federation of Chambers of Commerce and industry, dated 6th August 1964, clearly states that the setting up of a tribunal under section 12 of the said Ordinance was still under consideration with the Government and that the rules under the said section 23 could only be obtained from the Government. In these circumstances it would have been futile for the appellant to make an application to the said Federation of Chambers of Commerce and Industry in respect of his claim against the respondent, so that the only remedy available to him was to file a suit as he did.

9. In the result I hold that the judgments of the Civil Judge and the learned Additional District Judge dismissing the suit of the appellant are erroneous and are set aside. The appeal is there fore allowed, but in the circumstances of the case I do not make any order as to costs. The case will go back to the trial Court and will be heard and decided on merits in due course. A. E. Appeal allowed.