P L D 1975 Lahore 379 (PLP)

SARDAR MUHAMMAD IQBAL, C. J.-The appellants and M. Sharif Chaudhary, deceased, jointly hold shares of the value of Rs. 5,68,470 in the Pakistan Engineering Company Limited, Lahore, respondent No. 5 herein. Mr. Sharif Chaudhry died and the question arose about his succession on the claim of the appellants that the shareholding being joint in their name and that of the deceased they were entitled to the entire holding. The Register of shareholders was rectified and the entire shareholding of the aforesaid value was shown in the name of the appellants. Respondent No. 1 is the son and respondents 2 and 3 are the daughters of the deceased. They claim to be the legal representatives, and on that basis asserted their right to succeed to the shareholding of the deceased to the extent of half, i. e., at the value of Rs. 2,84,

235. They, therefore, applied to the Court for rectification of Register of Shareholders and on their application an interim stay order was granted by the learned Single Judge to the effect that an entitlement certificate would not be received or issued to any of the parties in respect of the shareholding. The appellants applied to the Court for clarification of the order praying that the stay order should apply to the shares in dispute, i. e., the alleged shares of M. Sharif Chaudhry, deceased, and that they should be held to be free to deal with the other half of the shareholding to which they were admittedly entitled and there was absolutely no dispute about that. The learned Judge by his order dated the 11th of January 1974, dismissed the application by observing that it was in the interest of everybody that status quo should be maintained to obviate any complications in the matter. This is an appeal under the Letters Patent.

2. The first question which falls for determination is whether the appeal is competent. Previously an appeal against an order of a Single Judge of a High Court was competent before a Division Bench of the same Court under Clause 10 of the Letters Patent, which was in the following terms:- "

10. And we do further ordain that an appeal shall lie to the said High Court of judicature at Lahore from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect ref a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section 10.7 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court pursuant to section 108 of the Government of Indian Act, made on or after the first day of February one thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a ft one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us, Our Heirs or Successors in Our or Their Privy Council, as hereinafter provided." By section 2 of the Law Reforms Ordinance, 1972 (Ordinance XII of 1972), which came into force on the 13th of April 1972, certain Acts and Ordinances which were specified in the fourth column of the Schedule to the Ordinance stood amended to the extent and in the manner specified therein. It is stated in the Schedule that Clause 10 of the Letters Patent applicable to the Lahore High Court, the Sind & Baluchistan High Court and the Peshawar High Court stood omitted. A provision for Inter-Court Appeals against some specified orders of a Single Judge of the High Court, was however made in section 3 of the Ordinance which, as it exists now after having .undergone amendments from time to time, reads as follows:- "

3. Appeal to High Court in certain cases.-(1) An appeal shall lie to a Bench of two or more Judges, of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction. (2) An appeal shall also lie to a Bench of two or more Judges of High Court from an order made by a Single Judge of that Court under clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan, not being an order made under sub. paragraph (I) of paragraph (h) of that clause Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 201 arises out of any proceedings in which the law applicable provided for at least one appeal to any Court, tribunal or authority against the original order. (3) No appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court. (4) Nothing contained in this Ordinance shall be construed as affecting - (a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1'%08 (V of 1908), which was pending immediately before the com mencement of this Ordinance ; or (b) any appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972." A perusal of this provision manifests that an appeal from an interlocutory order or an order which does not dispose of the entire case before the Court is not competent. This position has been conceded by the learned counsel for the appellant also. He, however, contends that the appeal in hand has not been filed under section 3 of the Ordinance, but under Clause 10 of the Letters Patent and is, therefore, competent. According to him though it is specified in the Schedule to the Law Reforms Ordinance that Clause 10 was omitted, yet it would not make any difference to its operation for the reason that it was not the Letters Patent itself which was applicable now in the different High Courts but its provision which were made applicable to different High Courts in Pakistan by different Statutes and that if the Legislature intended that the Letters Patent or any of its provisions should not apply, the only way it could do so was to amend those Statutes.

3. In order to deal with the contention, it is necessary to refer to the history of the Letters Patent. Before 13th October 1955, there were in Pakistan the High Court of Lahore, of Dacca, the Chief Court of Sind. Judicial Commissioners' Court of Peshawar and Baluchistan. The High Court of Judicature at Lahore was the only Court which had been constituted fn 1919 by the Letters Patent. By the Establishment of West Pakistan-Act of 1955 the territories which, before the appointed day, were the territories of the Governors' Province of the Punjab, the North-West Frontier and Sind, the Chief Commissioner's Province of Baluchistan and the Capital of the Federation, States of Bahawalpur and Khanpur, the Baluchistan States Union, the tribal Areas of Baluchistan, the Punjab and the North-West Frontier and the States of Amt), Chitral, Dir and Swat, were incorporated into the Province of West Pakistan. It was provided in section 7 of the Act that the Governor-General could by order "establish a High Court for the Province of West Pakistan to replace the High Court in Lahore, the Chief Court of Sind and the Judicial Commissioner's Courts in North West Frontier Province and Baluchistan and any other Court functioning as High Court for any other specified territories, and the High Court so established and the Judges thereof shall exercise jurisdiction in relation to the whole of the Province of West Pakistan, and the powers and authority exerciseable by the High Court in Lahore and the Judges thereof, immediately before the date on which the order under this subsection comes into force, shall be exerciseable by the High Court of West Pakistan and the Judge thereof in the whole of West Pakistan". The Governor-General in exercise of his powers under section 7 promulgated the High Court of West Pakistan (Establishment) Order, 1955 whereby the High Court of West Pakistan was established. It was provided in subsection (2) of section 3: "The High Court shall have such original, appellate and other jurisdiction and such powers and authority in respect of the territories included in the Province of West Pakistan as the High Court of Judicature at Lahore had, immediately before the commencement of this Order, in respect of the territories in relation to which it exercised appellate jurisdiction." A specific provision was made in section 9 for the application of the Letters Patent. It was in the following terms :- "The Letters Patent constituting the High Court of Judicature at Lahore for the Provinces of the Punjab and Delhi dated the 21st March 1919, shall apply to the High Court and the jurisdiction, powers and authority conferred by the said Letters Patent on the High Court of Judicature at Lahore shall be deemed to have been conferred on the High Court of West Pakistan, and the said Letters Patent shall in their application to the High Court of West Pakistan be read subject to such modifications and alterations as the provisions of the Establish ment of West Pakistan Act, 1955, or any Order made thereunder, or, any other law for the time being in force may warrant." Thus, the Letters Patent constituting the High Court of Lahore were made to apply to the High Court of West Pakistan. This was a legislation by reference. The Province of West Pakistan was dissolved by Province of West Pakistan (Dissolution) Order, 1970. The new Provinces, Baluchistan, the North-West Frontier, the Punjab and Sind were constituted under section

4. It was provided in section 14 : "There shall be established a High Court for each of the new Provinces consisting of the Chief Justice and such other Judges as the President may appoint." The President, in exercise of his powers under Article 20 of the West Pakistan (Dissolution) Order, 1970, promulgated Order 8 of 1970. Under Article 3 of the said Order Peshawar High Court, the Lahore High Court and the High Court of Sind & Baluchistan were established from the 1st of July 1970. It was further provided in Clause (2) of the same that each new High Court shall be a Court of record and shall have such original, appellate and other jurist diction and such powers and authority in respect of the territories for which it is established as the High Court of West Pakistan, immediately before the appointed day, bad in respect of the territories in relation to which it exercised appellate jurisdiction. Each High Court, therefore, could exercise jurisdiction, powers and authority conferred by the Letters Patent. The position of law, therefore, when the Law Reforms Ordinance, 1972 came into force, was that the provisions of the Letters Patent were applic able to the Lahore High Court. By the Ordinance an amendment was made in the Letters Patent and Clause 10, which provided for an appeal against the judgment of a Single Judge was omitted. I am unable to accept he contention that the Legislature should have amended either the West Pakistan (Establishment) Order, 1955, or the High Court of West Pakistan (Establishment) Order, 1955, or the Province of West Pakistan (Dissolution Order of 1970 or the High Court Establishment Order, 1970 to omit this provision. After a law is enacted by reference. it does not remain dependent .on the Act by which it was incorporated. Even if that Act is repealed the law so incorporated remains on the Statute Book till such time as that law itself is amended or altered. The legislation by incorporation is of common occurrence and has a useful purpose to serve. It is for avoiding the necessity of repeating such provisions in subsequent Acts dealing with the same matter. By the High Court of West Pakistan (Establishment) Order, 1955, the High Court of Judicature at Lahore ceased to exist. Therefore, all the laws by which any .original, appellate and other jurisdiction, power or authority in respect of the areas for which it was established was conferred, lost their efficacy and ,could not operate. They were for the High Court of Judicature at Lahore and there being no such Court those laws could not remain operative. Since, however, it was intended that the provisions of the Letters Patent which were applicable should, in future, apply to the High Court of West Pakistan, the Legislature should have either enacted a law containing all those provisions to apply to such newly constituted High Courts, or it could, by a reference incorporate the same provisions. The Legislature adopted the latter course, because it was convenient to do so. It is well established by authority that if an Act incorporates by reference provisions of a former Act the legal effect of that is as if the new Act has come into force containing all those provisions. In re : Wood (1886) 31 Ch. D 607 Lord Esher observed: "If a subsequent Act brings into itself by .,reference some of the clauses of a former B Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen or pencil printed in it and the moment you have those clauses in the later Act you have no occasion to refer to the former Act at all". The same view was taken in State v. Muhammad Riazul Haq P L D 1964 S C

434. I will like to make it clear that the clauses of Letters Patent were not incorporated in the Vies Pakistan High Court (Establishment) Order, 1955, but it was by virtue o this Order that the Law contained in the Letters Patent became a law operative. The term "Letters Patent" had a special significance but for convenience of reference the same term was used for exercise of powers by the High Court of West Pakistan. They could use any other term for it. By the dissolution of the High Court of West Pakistan, the laws which C were applicable to such a High Court naturally lost all efficacy and could not remain operative. There being no High Court of West Pakistan, the power and jurisdiction conferred on such High Court also ceased to exist. By virtue of clause (2) of Article 3 of Order 8 of 1970 the new High Courts .were declared to be the High Courts of Record and it was provided that these High Courts shall have the same "original, appellate and other jurisdiction and such powers and authorities which the High Court of West Pakistan had. The Letters Patent for West Pakistan High Court had come to an end. but the newly constituted High Court could exercise the same powers and jurisdiction. This would again not mean that the pro visions of the `Letters Patent' were incorporated in the West Pakistan High Court (Dissolution) Order (No. 8) of 1970, but the Legislature conferred on the new High Courts the same powers and jurisdiction as were enjoyed by the High Court of West Pakistan. Therefore, if at any time the jurisdic tion, power or authority which was conferred by the Letters Patent is intended to be taken away or curtailed the only way to do so will be by amending the Letters Patent. This is what has been done by the Law Reforms Ordinance, 1972, and by virtue of the provisions contained in the Schedule read with section 2 of the Ordinance "Clause 10 of the Letters Patent applicable to the Lahore High Court, the Sind & Baluchistan ,High Court and the Peshawar High Court stood omitted". The intention :of the Legislature was to take away the right of appeal under Clause 10 of the Letters Patent and it has done so by the amendment of the "Letters .Patent".

4. As observed already, the present appeal is directed against an interlocutory order and as, therefore, not competent under section 3 of the Law Reforms Ordinance. It is dismissed accordingly. I, however, make no order as to costs. Appeal dismissed.