P L D 1970 Quetta 85 (PLP)

10. The decision in the sixth case is, however, not relevant, for in that case the question for consideration inter alia was whether an appeal lay from the report of the Election Tribunal to the Supreme Court under Article 160 of the late Constitution (1956). The question of subordination did not arise for decision and this contention was decided on the language of Article 160 of the late Constitution.

11. Mr. Basharatullah, the learned counsel for the respon dents in support of his preliminary objection that the revision was incompetent, cited the cases of The Corporation of the City of Lahore v. Mst. Fahmida Begum (P L D 1952 Lah. 258), Mian Sultan Ali Nanghlana v. Mian Nur Hussain (P L D 1949 Lah. 301), The Manager. The Spring Mills Limited v. G. D. Ambakar and another (A I R 1949 Bom. 188), H. C. D. Mathur, Secretary of the National Federation of Railways v. E. I. Railway Administration through its General Manager (A I R 1950 All. 80), Khadim Mohiuddin and another v. Ch. Rahmat Elahf Nagra and another (P L D 1965 S C 459), Sahibzada Masud Ahmad v. Mian Muhammad Saeed Saigol (P L D 1958 Lah. 153) and Haji Hayat Gul v. Azizul Haq and another (P L D 1966 Pesh. 118).

12. In the first case, which is a Full Bench decision of the Lahore High Court, the view expressed in the case of the Works Manager, Carriage and Wagon Shops was not approved and the decision in the case of Kishanchand & Co. was reversed. In the above Full Bench case, the question as to whether the Rent Controller under the Punjab Urban Rent Restriction Act was a Court and as such whether its decision was revisable by the High Court, came up for consideration. S. A. Rahman, J. as he then was, in delivering the judgment of the Full Bench observed "The cases discussed above reveal a preponderating balance of authority in favour of the proposition that special tribunals created under circumstances analogous to those obtaining under the Act of 1947, would not be Courts and in any case, would not be Courts subordinate to the High Court. I have, therefore reached the conclusion that the order passed by the Additional District Judge in the present case cannot be revised by this Court." It is apparent from the above decision that even doubt was expressed as to whether the Controller could be regarded as a Court and at any rate even if he was so, his decision was not revisable by the High Court on the reasoning that he was not subordinate to the High Court.

13. In the second case, the question was whether the Election Petitions Commission could be regarded as a Court and as such subordinate to the High Court within the meaning of section 115, C. P. C. There was a difference of opinion; Muhammad Munir, A. C. J. as he then was, delivered the majority judgment. The question as to whether the Election Petitions Commission could be regarded as a Court was doubted and in any case it was held that the question of subordination was a consideration which clinched the issue and since the Election Petitions Commission could not be regarded as a Court subordinate to the High Court within the meaning of section 3, C. P. C. and its decision was not revisable under section 115, C. P. C. The relevant observation is as under: --‑ "The next question is whether the Election Commissioners are a Court subordinate to the Court within the meaning of section 115, C. P. C. and section 44 of the Punjab Courts Act. It is necessary to mention here that when my brother made the stay order of 2nd October 1948, he was not exercising and did not profess to exercise revisional powers in respect of any proceedings before the Commissioners. At that stage he was merely dealing with the application for revision of the order of the learned Subordinate Judge who had discharged the temporary injunction which he had previously granted. This, however, does not matter because if I find that an order of the nature issued on 2nd October could be passed in exercise of this Court's revisional powers the respondents would be guilty of contempt in disobeying the order of a superior Court. Under section 115, of the Code of Civil Procedure and section 44 of the Punjab Courts Act the High Court can call for the record of a case decided by a subordinate Court and make such orders as it thinks fit. Granting that the Election Commissioners constitute a Court, proposition which itself is not free from doubt, revisional powers can be exercised by this Court only in respect of cases decided by Courts that are subordinate of it. If I am right in the view that the Election Petitions Commissioners are a special tribunal with exclusive juris diction, it would follow that they are not subordinate to the High Court. It is not contended that the Commissioners are subject to the appellate or administrative jurisdiction of this Court. On what ground then can they be held to be subordinate to this Court? Section 3 of the Code of Civil Procedure says that for the purpose of that Code the District Court is subordinate to the High Court and every civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court. This is the only definition of subordinate given in the Code and the presumption is that the word subordinate in section 115 of the Code is used in the sense in which it is defined in section

3. Section 44 of the Punjab Courts Act also uses the word `subordinate' and the only section of that Act that defines and enumerates Subordinate Civil Courts is section 18 which says that besides the Courts of Small Causes established under the Provincial Small Causes Courts Act, 1887, and the Courts established under any other enactment for the time being in force, there shall be the following classes of civil Courts namely :‑‑ (1) The Court of the District Judge; (2) The Court of the Additional Judge; and (3) The Court of the Subordinate Judge. This section cannot be taken to mean that the Courts established under any other enactment for the time being in force are all subordinate to the High Court. It is, however, true that in several decisions some Courts which are not specifically mentioned either in the Code of Civil Procedure or section 18 of the Punjab Courts Act have been held to be a Subordinate Court for the purposes of section 115 of the Code of Civil Procedure, I cannot accept the broad and unqualified proposition that once it is held that an officer, authority or functionary is exercising the functions of a Court in relation to rights that may be called `civil' that officer, authority or functionary must be held to be subordinate to the High Court. The result of any such finding would be that all Courts which adjudicate upon the Civil rights of subjects whether in cases between the subjects themselves or between the State and the subject will be subordinate to the High Court and this will bring within the sphere of subordination not only the Revenue Courts which admittedly decide civil dispute between the parties but also the income‑tax authorities which determine the subject's liability to the State. One clear indication of subordination has always been held to be that the Court whose subordination is in question is subject to the appellate jurisdiction of the High Court. A Court may also be subordinate to the High Court even qua matters which are not subject to the High Court's appellate power if these matters have been entrusted for adjudication to an admittedly Subordinate Court as a Court and not to the Presiding Officer of such Court as a persona designata." (The underlining* is by me.) Cornelius, J. as he then was, delivered the minority judgment. In conclusion the learned Judge held: --‑ "On the point of subordination, I may note that the expression subordinate occurring in section 115, Civil Procedure Code is not limited in its meaning by the provision in section 3 of the same Code, which renders the District Court, the Court of Small Causes and all Courts subordinate to the District Court, subordinate to the High Court, vide Purshottam Janardan v. Mahadu Pandu I L R 37 Born. 114 cited with approval by that eminent Judge Sir George Rankin in Allen Bros. & Co. v. Bando & Co. I L R 1949 Cal.

931. I feel no hesitation in holding that for the purpose of section 115, Civil Procedure Code direct subjection to the authority of this Court in any or all respects is not necessary in relation to the Court whose orders are to be revised but it is sufficient that it is a Court of a Civil nature, and inferior in rank." The decision in the case of Kishanchand & Co. was not approved in the majority judgment. In the Full Bench case of The Corporation of the City of Lahore the above majority judgment was followed.

14. In the third case, which is of Indian jurisdiction, the point involved was the same as in the present case Rajadhyaksha, J. who delivered the judgment of the Division Bench, disapproved the law laid down in the case of The Works Manager, Carriage and Wagon Shops and observed as under :‑ "Section 115, Civil P. C., refers to a Court, and from the preamble of the Code it would appear that the Court there contemplated is a Court of Civil judicature. Sir Jamshedji Kanga referred to the fact that court‑fees were levied in the application made before the authority and that .in the forms prescribed under the rules the expression. In the Court of the authority appears. In our opinion, these two tests are not necessarily conclusive. There are many authorities for the filing of applications before whom court‑fees are required to be paid under the Court Fees Act. The mere use of the word "Court" would not make that tribunal a Court of the Civil Judicature. For example, there are Courts of University, there are Labour Courts and there is an Industrial Court. They are undoubtedly Courts in so far as they exercise some kind of judicial function, but it has nowhere been held that merely because they are styled as Courts, they are Courts of civil judicature so as to attract the appli cation of section 115, Civil P. C. So far, the decisions of the Industrial Court have been sought to be challenged not by way of revision application but only by writs of certiorari on the original side of this Court." In conclusion, the learned Judge expressed the view that the Authority under the Payment of Wages Act must be regarded as something different from ordinary Courts of Civil Judicature. This finding was based upon an examination of sections 18 and 22 of the Payment of Wages Act which gave to the Authority the powers of a civil Court under the Code of Civil Procedure for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of docu ments. This, according to the learned Judge, would not have been necessary if the Authority was a civil Court.

15. The fourth case is also of Indian jurisdiction. In this case as well, the same question had arisen for decision. The decision in the case of Works Manager, Carriage and Wagon Shops was also disapproved and it was held on an examination of the provisions of the Payment of Wages Act and the review of case‑law that the Authority under the Act was not a Court. The case of Mst. Dirji which was relied on in the case of Works Manager, Carriage and Wagon Shops was also distinguished. From the above discussion it is apparent that there is a conflict of decisions between the Patna High Court on the one hand and the Bombay and the Allahabad High Courts on the other. The latter view is supported by the majority judgment in the case of Mian Sultan Ali Nanghiana. On the question as to the meaning of the word `subordinate' I would follow this view in preference to that of the Patna case.

16. In the fifth case, it was held by the Supreme Court that the Controller under the West Pakistan Urban Rent Restriction Ordinance cannot be described as a Court; at the most it may be said that he acts in a quasi‑judicial capacity. In effect, the decision in this case has approved the majority view expressed in the cases of Mian Sultan Ali Nanghiana and the Corporation of the City of Lahore. Even if the Authority satisfied the tests laid down in the case of Works Manager, Carriage and Wagon Shops for determining as to whether it could be described as a Court then it could only be said that it acts in a quasi judicial capacity and not as a Court upon the reasoning expressed in the above Supreme Court's decision.

17. In the sixth case, the view expressed in the case of Mian Sultan Ali Nanghiana has been followed. Though the learned Single Judge, who decided this case, also decided the case of Abdur Rashid and another yet in the latter case he merely followed the decision in the case of The Works Manager, Carriage and Wagon Shops as the earlier view expressed in the case of Sahibzada Masud Ahmad apparently was not placed before the learned Judge and there is no reference to it in this decision. That view is in line with the view expressed in the Full Bench cases of Mian Sultan Ali Nanghiana and The Corporation of the City of Lahore. In the case of Abdur Rashid and another, no reason has been given; merely the above case has been relied on. Under the circum stances it is not possible to follow this judgment.

18. In the seventh case, the question for consideration was whether the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance was a Court and as such whether its decision was revisable by the High Court. This contention was repelled on the authority of the decision of the, Supreme Court in the case of Khadim Mohiuddin.

19. In conclusion from the above discussion it is abundantly clear that the reasoning in the case of Works Manager, Carriage and Wagon Shops, upon which an Authority was held to be a Court is not sustainable in view of the Full Bench cases of Mian Sultan Nanghiana and The Corporation of the City of Lahore. Additionally, the inference deducible from the decision of the Supreme Court in the case of Khadirn Mohiuddin is that at best the Authority would be acting in a quasi‑judicial capacity and not as a Court. On this view of the matter the Authority cannot be described as a Court. In this context, the question whether it, was subordinate to the High Court does not arise but even if it be assumed to be a Court then it cannot be described as a Court subordinate to the High Court as it is not a Court of Civil Judicature and does not satisfy the requirement of Subordination within the meaning of section 3, C. P. C. so as to be equated with the word `subordinate' occurring in section 115, C. P. C. Accordingly no revision will lie to the High Court under section 115, C. P. C. Under the circumstance, it is not necessary now to go into the merits of the application. The revision is accordingly dismissed as having been incompetently filed with no order as to costs. A. E. Petition dismissed.