P L D 1993, Lahore 545 (PLP)

M. MEHBOOB AHMAD, Cl.--This appeal under section 3 of the Law Reforms Ordinance, 1972 calls in question an interim order passed by a learned Single Judge of this Court on 24th of April, 1993 in Civil Miscellaneous No.2 of 1993 in Writ Petition No.3983 of 1993.

2. In the impugned order the learned Judge observed that notice in the interim relief had already been ordered by him on 20th April, 1993 and he saw no reason for modifying that order. It was further directed that the petition be listed for hearing as soon as the report was received.

3. As the main petition is still pending for adjudication in this court the first question which arises is as to, the maintainability of this Intra-Court Appeal on view of section 3(2) of the Law Reforms Ordinance, 1972 which ordains that no appeal shall lie from any interlocutory order or an order which does not dispose of the entire case before the Court. 4.?????? In reply the learned counsel firstly attempted to argue that the order impugned through this appeal is in fact the final order inasmuch as refusal to grant interim relief would practically render the Constitutional petition infructuous. This argument on the face of it hardly merits any consideration as by no stretch of imagination refusal to? grant ad interim relief can be equated. with a final order. Be that as it may, subsection (2) of section 3 of the Law Reforms Ordinance, 1972 not only bars an appeal against interlocutory order but also against an order which does not dispose of the entire case before the? Court. Admittedly, the main . Constitutional petition as also the civil miscellaneous application filed by the applicant are still pending before the? learned Single Judge and as such this appeal is squarely hit by mischief of subsection (2) of section 3 ibid.

5. It was next argued by the learned counsel for the appellant that this appeal is? maintainable in view of Code of Civil Procedure (Amendment) Ordinance, 1980 section 15 of which provides -for appeal against the interlocutory order passed by the learned? single Judge exercise of its original civil jurisdiction of this Court in the exercise of its original civil jurisdiction. 6.? In support of his contention that the Constitutional jurisdiction exercised by this court is its original civil jurisdiction, reliance was placed by the learned counsel on Subedar Muhammad Hussain v. Mst. Shah Begum and others reported as 1990 MLD 2100.

7. We are afraid this contention of the learned counsel has no force. Section 15 of the code of civil procedure (Amendment) Ordinance, 1980 on which reliance has been made by the learned counsel to support the maintainability of his appeal reads as under:-- "15.Appeal to High Court in certain cases.

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."

8. Although it is correct that by virtue of section 15 aforesaid an appeal has been provided against as interlocutory order made by a learned Single Judge of the High Court but it is subject to the condition that the interlocutory order should have been made in the exercise of the original civil jurisdiction of the High Court.

9. We find ourselves unable to agree with the learned counsel that the Constitutional jurisdiction exercised by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan is its "original civil jurisdiction". No detailed discussion on the subject is called for in view of the pronouncement of the Supreme Court of Pakistan in Ahmad Khan v. Chief Justice and Judges of the High Court of West Pakistan through the Registrar, High Court of West Pakistan, Lahore reported as PLD 1968 SC 171 wherein it was held that:-- "Speaking with great respect, the mere fact of a matter coming directly before the High Court under a law would not suffice to bring it within the ordinary original civil jurisdiction, however, frequent such occasions may be, if the words, in clauses 12 and 13 of the relevant Letters Patent be given their full effect. The ordinary original civil jurisdiction was confined to the trial of suits arising within the local limits of that jurisdiction. The extraordinary original civil jurisdiction was given for the removal and trial of suits pending or falling with the jurisdiction of Courts subordinate to the High Court. Every other jurisdiction of a civil nature conferred by the Letters Patent would, as contended by the learned Attorney-General, be best described as special jurisdiction or as statutory jurisdictions, since some of those jurisdictions were to be exercised under existing statutes. In the case of the Lahore High Court, there was no power to receive suits in the ordinary original civil jurisdiction, there being no provision in the relevant Letters Patent in that behalf. The Lahore High Court had testamentary and intestate jurisdiction to be exercised in accordance with law, and matrimonial jurisdiction exercisable under its own law. The jurisdiction of a general nature that it possessed was that conferred by clause 9 and described as extraordinary original ?jurisdiction, which was confined to power to remove and try suits pending before its subordinate Courts."

10. We may also refer to a judgment of the Division Bench of this Court in Eastern Company (Private) Ltd., Lahore and 2 others v. Mst. Gul Begum and 7 others reported as PLD 1980 Lah. 69, comprising one of us (Mehboob Ahmad, J.) and Shafiur Rahman, J. (as his Lordship then was). After noticing[ various kinds of jurisdictions being exercised by the High Court and following Ahmad Khan's case (supra), it was held that:-? "It would not be out of place to mention here that the High Court in the present context of legislation has been invested with various types of jurisdictions. The jurisdiction conferred upon it under the Constitution is called the 'Constitutional jurisdiction'. The High Court has the 'extraordinary civil jurisdiction' under which it transfers to itself for trial any case of civil nature pending before a subordinate Court. Then there is the jurisdiction of the High Court conferred under various statutes, for example, the jurisdiction under the Companies Act, under the Insurance Act and jurisdiction as was vested in it under section 21 of the Displaced Persons (Land Settlement) Act, 1958. Such type of jurisdictions are termed as 'statutory jurisdiction'."

11. From the above it is obvious that the jurisdiction which is exercised by this Court under Article 199 of the Constitution cannot be termed as its ?original civil jurisdiction but can more appropriately be called as its Constitutional jurisdiction.

12. As regards the -case of Subedar Muhammad Hussain v. Mst. Shah Begum and others reported as 1990 MLD 2100, it is to be noticed that the observations relied upon by the learned counsel for the petitioner are in the nature of obiter dicta. The dispute in that case was as to whether or not the revisional jurisdiction exercised by the High Court can be termed as its original civil jurisdiction so as to the attract the application of section 12(2) of the Code of Civil Procedure. The question as to whether or not Constitutional jurisdiction exercised by this Court is its original civil jurisdiction was not in issue in that case nor is there any detailed discussion on the subject. Be that as it may, it is evident that the attention of the learned Judges in that case was not drawn to the pronouncement of the Supreme Court of Pakistan in Ahmed Khan's case reported as PLD 1968 SC 171, and the judgment of this Court in Eastern Company's case (supra). In view of the foregoing discussion we hold that the appeal is not maintainable and dismiss the same in limine. M.BA./D-21/L Appeal dismissed.