P L D 1970 Supreme Court 1 (PLP)

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 9th March 1967, in Writ Petition No. 202-R of 1967). (a) Constitution of Pakistan (1962), Art. 98 read with Civil Procedure Code (V of IS08), S. 114 & O. XLVII, r. 1

High Court apart from its power to correct errors apparent on face of record in exercise of its inherent jurisdiction, has power under C. P. C. to review its order made in exercise of its writ jurisdiction. Where the question was whether the High Court had power to review an order made by it in exercise of its power under Article 98 of the Constitution of Pakistan (1962), the Supreme Court held that apart from the High Court's power to correct errors apparent on the face of the record in exercise of its inherent jurisdiction, the High Court has power under the Code of Civil procedure, t908 to review its own order made in writ jurisdiction in a civil matter. A proceeding under Article 93 of the Consti tution concerning a civil matter being a civil proceeding relating to the High Court's original civil jurisdiction and section 114 of the Code conferring power of review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under the said section

114. Clause (c) of section 114, C. P. C. is not relevant hero a s it refers to the decision on a reference from a Court of Small Causes and may, therefore, be overlooked. Clause (a) applies in a case where the decree or order sought to be reviewed is one from which an appeal is allowed by the Code itself. Since the commencement of the 1962

Constitution, an appeal from the judgment, decree or order of a High Court in a civil matter is competent only in the circumstances mentioned in Article 58 thereof, and not otherwise. Hence clause (a) is no more appli cable to a decree or order made by a High Court. It then remains to be seen if an order of a High Court made in its writ jurisdic tion in a civil matter is liable to be reviewed under clause (b) of section 114 of the Code. The power to issue certain prerogative writs was conferred on the High Courts first by section 223-A of the Government of India Act, 1935. Later on, the same power was successively available to the High Courts under Article 170 of the 1956-Constitution and the Laws (Continuance in Force) Order, 1958. For so long as the Government of India Act, 1935 was in operation, appeals from the High Courts' decisions in civil matters including orders made in writ jurisdiction were governed by the provisions of sections 109 and 110 of the Code of Civil Procedure. After the coming into force of the 1956 Constitution, such appeals came to be governed both by Article 158 of that Constitution and the provisions of sections 109 and 110 of the Code. Although the said Article 158 substantially adopted the provisions of sections 109 and 110 of the Code, those sections were not rendered inoperative inasmuch as appeals from the High Courts' decisions in civil matters including orders made in writ jurisdiction were competent on the grant of certi ficates of fitness by the High Courts tinder clause (c) of section 109 of the Code. Thus, the Code allowed such appeals until the commencement of the 1962-Constitution. With the coming into force of the said Constitution, sections 109 and 110 of the Code became completely inoperative because of the provisions of Article 58 of that Constitution according to which civil appeals including appeals from orders made in writ jurisdiction in civil matters are competent only in the circumstances mentioned in that Article. The result, therefore, is that such appeals which were hitherto competent under sections 109 and 110 of the Code of Civil Procedure are no more allowed by the Code. That being so, the requirement of clause (b) of section 114 of the Code is satisfied in the case of an order made by a High Court in its writ jurisdiction in a civil matter. A review of such an order is, therefore, competent under clause (b) of section 114 of the Code of Civil Procedure. If this view be not correct, then, the High Court will be completely bereft of the power of review even in respect of a decree or order made under the provisions of the Code for the simple reason that, for the purpose of appeal, such a decree or order and an order made by a High Court in its writ jurisdiction in a civil matter, in view of Article 58 of the Constitution, stand exactly on the same footing. Thus, any view contrary to the view held as above will give rise to an absurd situation. Jalal Din v. Muhammad Akram Khan P L D 1963 Lah. 596; Muhammad Ishaq v. Abdul Aziz P L D 1965 Lah. 590 and National Telephone Company Ltd. v. Postmaster-General 1913 A C 546 ref. (b) Civil Procedure Code (V of 1908), S. 114 & O. XLVII, r. 1-Review, right to claim-Substantive right and not mere matter of procedure-Not available unless specifically provided by statute. The right to claim review of any decision of a Court of law, like the right of appeal is a substantive right and not a mere matter of procedure. A review is not available unless it has been S, conferred by law. Sandback Charity Trustees v. North Staffordshire Railway Co. h (1877) 3 Q B D 1 ref. High Court-Civil pro ceeding-High Court though it exercises civil jurisdiction is not a "Civil Court"-Nevertheless provisions of C. P. C. apply to High Court. Narsingdas Tansukdas v. Choge Mull I L R 2 Cal. 93 ref. (d) Constitution of Pakistan (1962), Art. 98- Writ--Jurisdic tion of High Court under Art. 98-Original jurisdiction. Mumtaz Khan v. Chief Settlement and Rehabilitation Commis sioner P L D 1966 S C 276 and 4hmad Khan v. Chief Justice and Judges of the High Court of West Pakistan P L D 1968 S C 171. ref. Regulates civil proceedings-Nature of such proceedings does not necessarily depend on nature of jurisdiction of Court invoked. The Civil Procedure Code regulates civil proceedings. The nature of the proceeding does not necessarily depend on the nature of the jurisdiction of the Court invoked. In order to determine whether a proceeding is a civil proceeding or not, it is necessary to see what are the questions raised and decided in the proceed ing. If the proceeding involves the assertion or enforcement of a civil right, it is a civil proceeding. The provisions of the Code, other than the specially excepted ones, shall apply in the exercise of the High Court's jurisdiction in a civil matter, whatever may be the nature of that jurisdiction. Sabitri Thakurani v. Savi A I R 1921 P C 80 ref. (f) Constitution of Pakistan (1962), Art. 98 and Civil Procedure Code (V of 1908)- Words "civil proceeding"

Meaning

Proceed ing under Art. 98, Constitution of Pakistan (1962) relating to civil matter "civil proceeding" and as such governed by provisions of C. P. C. other than provisions specially excepted. Civil proceeding is a process for recovery of individual right or redress of individual wrong, inclusive, in its proper legal sense, of suits by the Crown. Whether a proceeding is civil or not depends on the nature of subject-matter of the proceeding and its object, and not on the mode adopted or the forum provided for the enforcement of the right. A proceeding which deals with a right of a civil nature does not cease to be so merely because the right is sought to be enforced by having recourse to the writ jurisdiction. Judged from these aspects, a proceeding under Article 98 of the Constitution relating to a civil matter is a civil proceeding, although the High Court's jurisdiction in such a proceeding is constitutional jurisdiction of an original kind. A civil proceeding in a Court of civil jurisdiction is governed by the Code of Civil Procedure (see its preamble). By virtue of section 117 of the Code, a civil proceeding in a High Court is also governed by the provisions of the Code other than the provisions which are specially excepted. Stroud's Judicial Dictionary and Bradlough v. Clarks 8 A C 354 ref. Ghulam Mujaddid Mirza, Senior Advocate Supreme Court for the Bar Association, High Court, Lahore. Order XLV, rule 2, Supreme Court Rules, 1956 Raja Said Akbar, Advocate-General West Pakistan (R. S. Sidhh,a, Advocate Supreme Court with hint) instructed by Ijaz Ali, Attorney: Amicus curiae.