1. ' The question which requires determination is whether the suit pending in this Court, value of which does not exceed Rs,30 lacs stands transferred to the respective District Courts. The above question has been raised in the following circumstances.
2. The Governor of Sindh promulgated Sindh Civil Courts (Amendment) Ordinance, 2002, amending various provisions of Sindh Civil Courts Ordinance No,II of 1962. The relevant amendments for the present issue are substitution of section 7 thereof and section 5 of the amending Ordinance. Above provisions read as follows:-- Substitution of section 7 Sindh Civil Courts Ordinance, 1962 ' "Subject to this Ordinance or any law for the time being in force, the original jurisdiction of the Court of the District Judge in civil suits and proceedings shall be without limit of the value thereof except in the Karachi Districts where the original jurisdiction in civil suits and proceedings of the value exceeding thirty lacs of rupees shall be exercised by the High Court."
3. Section 5 of amending Ordinance, 2002 "5. Transfer of matters.--- All suits appeals or proceedings of the value not exceeding the original or appellate pecuniary jurisdiction of the District Judge at the outside Karachi respectively pending in the High Court immediately before the commencement of this Ordinance shall stand transferred to the concerned District Judge for disposal."
4. ' The effect of the above provisions are that the pecuniary jurisdiction of the District Courts of Karachi has been enhanced from five lacs to thirty lacs and the suits pending in this Court of value not exceeding thirty lacs have been transferred to the District Courts Karachi.
5. ' It may not be out of place to state that by Sindh Civil Courts (Amendment) Ordinance (Ordinance XIII of 1970), the pecuniary jurisdiction of the District Court, Karachi was enhanced from Rs,25,000 to Rs,50,000. Second time the pecuniary jurisdiction was enhanced by Sindh Civil Courts (Amendment) Ordinance, 1981, whereby the pecuniary jurisdiction of Karachi District was enhanced upto one lac of rupees. Third time the pecuniary jurisdiction was enhanced upto five lacs of rupees by Sindh Civil Courts (Amendment) Act, 1991 (Act III of 1992). The last enhancement in pecuniary jurisdiction of the District Court, Karachi is by the Sindh Civil Courts (Amendment) Ordinance, 2002 already referred hereinabove..
6. ' The noticeable difference between the amending Ordinance (XIII of 1970) and subsequent amending Ordinance is that there was no provision for transfer of pending cases from this Court in the first amending Ordinance, whereas, in subsequent amending Ordinances, the cases were transferred to the District Courts of Karachi of value not exceeding enhanced pecuniary jurisdiction of Karachi District either by a proviso or by enacting a specific section, and the repeal of section 8 and provisions of President's Order 2 of 1956, by amending Ordinance, 1981.
7. ' Mr. Iqbal Kazi, representing the plaintiff pleaded that the provisions of section 5 will not effect the Extraordinary Civil Jurisdiction conferred to this Court under the provisions of High Court of West Pakistan (Establishment) Order, 1955 retained by subsequent Presidential ' Orders: (1) High Courts Establishment Order, 1970 and (2) Sindh and Balochistan High Courts Order, 1976. It was also pleaded that Provincial Statute cannot supersede the provisions of Central Statute i.e, Constitutional Order conferring the Extraordinary Civil Jurisdiction to this Court.
8. ' Since the question of law i.e, interpretation of Presidential Orders was involved notices to Attorney- General and Advocate-General, Sindh under the provisions of Rule 1 of Order XXVII-A, C.P.C. Were issued.
9. ' Syed Zaki Mohammad, learned Dy. Attorney-General and Mr. Ahmed Pirzada learned Additional Advocate-General, Sindh appeared pursuant to the notice.
10. ' Mr. Rasheed A. Razvi, Advocate was also appointed Amicus Curiae to assist the Court.
11. ' I have heard Mr. Iqbal Kazi on behalf of the plaintiff, Syed Zaki Mohammad, learned Deputy Attorney-General Mr. Ahmed Pirzada, Additional Advocate-General, Sindh and Mr. Rasheed A. Razvi, as Amicus Curiae.
12. ' Mr. Iqbal Kazi maintained that Sindh Courts Act No,VII of 1926 was enacted whereby Civil Courts in Districts of Sindh were established by designating the District Courts as the principal Court of original civil jurisdiction except Karachi District. He pointed out that so far as the Civil District of.
13. Karachi was concerned under section 8 of the Act, the Judicial Commissioner Court Sindh and later on Sindh Chief Court was made principal Court of original civil jurisdiction. In the year 1948, the area constituting Karachi District ceased to form part of the Province of Sindh and began to be centrally administered under the West Pakistan (Establishment of the Federal Capital) Order (15 of 1948). Article 9 of the said Order provided that the Chief Court of Sindh shall continue to be the District Court for Karachi and shall retain such jurisdiction as it had immediately before the coming into force of the said Order. In other words, the Chief Court of Sindh continued to be the principal Civil Court of original jurisdiction in relation to Civil District of Karachi. He also pointed out that in the year 1955, the Province of West Pakistan was established by merging the existing Provinces. Article 7 of the Establishment of West Pakistan Act, 1955 empowered the Governor-General to establish by an order a single High Court for the Province of West Pakistan. Pursuant to the aforesaid provision, the Governor-General promulgated the High Court of West Pakistan (Establishment) Order, 1955.
14. Under the provisions of Article 5 of the said Order, the original civil jurisdiction formerly exercised by the Karachi Bench under section 8 of the Sindh Court Act, 1926 was preserved and continued with the result that the Karachi Bench of the West Pakistan High Court continued to be the principal Civil Court of original jurisdiction for Karachi District. Article 5 thereof reads as under:-- "Original civil and criminal jurisdiction of the Bench at Karachi.-Notwithstanding anything in this Order or in any other law for the time being in force, the Bench of the High Court at Karachi shall have the same original civil jurisdiction for the Civil District of Karachi and the same criminal jurisdiction and powers of the Court of Session, for the Sessions Division Karachi, as were exercisable, immediately before the commencement of this Order, by the Chief Court of Sindh under section 8 of the Sindh Courts Act, 1926 (Sindh Act (VII of 1926). (emphasis under lined)
15. ' Provided that the Governor-General may by Notification in the Official Gazette direct that as from a specified date such jurisdiction and powers as are mentioned therein shall cease to be exercisable by that Bench and as from that date that Bench shall cease to exercise that jurisdiction and powers."
16. ' It was also pointed out that on 20th of April, 1956, the President of Pakistan promulgated the Karachi Courts Order, 1956 (Order No,2 of 1956), by this Order the Court of the District Judge and subordinate Courts were established in Karachi. Section 8 of the Sindh Court Act, 1926 was amended and for the words "and shall be a Court of Session and shall exercise the power and perform duties of Sessions Judge in Sessions District of Karachi", the words "in respect of suit and proceedings wherein the subject-matter in amount or value exceeds twenty-five thousand rupees or such sum as the Central Government may by Order under the proviso to subsection (2) of section 22 prescribed" were substituted. As a result of this Order, the original jurisdiction exercised by Karachi Bench upto the limit of Rs,25,000 was entrusted to the newly created District Court and Karachi Bench to exercise original jurisdiction only in civil suit over value of Rs,25,000.
17. ' By President's Order No,1 of 1970, the Province of West Pakistan was dissolved and new Provinces came into being by virtue of Article 14 thereof High Courts for new Provinces were established.
18. Under Article 3 of President's Order No,8 of 1970, three High Courts were established namely, Peshawar High Court, Lahore High Court, Sindh and Balochistan High Courts for the Provinces of Balochistan and Sindh with its principal seat at Karachi. Under sub-Article (2) thereof, each new High Court were to be a Court of record and shall have such original appellate and other jurisdiction and such powers and authority in respect of the territories for which it was established as the High Court of West Pakistan, immediately before the appointed day, had in respect of the territories in relation to which it exercised Appellate jurisdiction.
19. ' The original civil jurisdiction of this Court in matters exceeding Rs,25,000 in value enjoyed by it under section 8 of the Sindh Chief Court Act was maintained. This jurisdiction was also preserved by the Balochistan and Sindh (High Courts) Order, 1976 (President's Order 6 of 1976), whereby two new High Courts called the High Court of Balochistan and High Court of Sindh were established in place of a common High Court for the Provinces of Balochistan and Sindh. This order in its Article 4 provides that each new High Court shall have such original, Appellate and other jurisdiction and such powers and authority in respect of territories of the Province for which it is established as the High Court of Sindh and Balochistan, immediately before the appointed dated had in respect of the territories in relation to which it exercised Appellate jurisdiction.
20. ' Mr. Iqbal Kazi also pointed out that the nature of civil original jurisdiction exercised by the Karachi Bench of the West Pakistan High Court in civil suit in Civil District Karachi was examined by Wahiduddin Ahmed, J. In Firdous Trading Corporation and others v. Japan Cotton and. General Trading Co. Ltd. PLD 1961 Kar.
565. The original civil jurisdiction has been described as follows:-- "that this jurisdiction is of a special nature and is not the ordinary civil jurisdiction of the West Pakistan High Court otherwise there was no necessity of saying, that the Karachi Bench of the High Court of West Pakistan shall have the same original civil jurisdiction for the Civil District of Karachi as was exercisable by the Chief Court of Sindh under section 8 of the Sindh Courts Act, 1926. It will be further observed that original civil jurisdiction in respect of civil suit in Karachi was not conferred on the High Court as a whole as in the case of Calcutta, Madras and Bombay under their letters patent, but only to the Bench at Karachi. The nature of this jurisdiction is further clarified under para.7 of the amendments in para. (a) of the Schedule of President's Order No,2 of 1956. In subclause (4) of para.7, which replaces the original section 45 of the Sindh Courts Act, 1926, it is provided that all decrees and orders in suits and proceedings wherein the subject-matter in amount or value does not exceed twenty-five thousand rupees, or such sum as the Central Government may by order under the proviso to subsection (2) of section 22 prescribe, passed before the appointed day, by the Bench of the High Court of West Pakistan at Karachi functioning or exercising the powers and performing the duties as the principal Civil Court of original jurisdiction shall be deemed for the purpose of execution to have been passed by the District Court of Karachi.
21. It is quite plain that the Karachi Bench of West Pakistan High Court is functioning or exercising the powers and performing the duties as the principal Civil Court of original jurisdiction in the Civil District of Karachi and not ordinary civil jurisdiction of the High Court understood under the letters patent of some High Courts in this sub-continent."
22. ' It may also be pointed out that w.e.f, 1st July, 1961, Karachi became merged into the Province of West Pakistan under the West Pakistan Administration (Merger of the Federal Territory of Karachi)
23. Order (President's Order No,9 of 1961). This merger had no effect on the set up and status of the Karachi Courts, except that thereafter the legislative and Executive Authority in respect of Karachi passed on to the Province of West Pakistan.
24. ' On 8th January, 1962, the Governor of West Pakistan promulgated Ordinance No,II of 1962 known as "The West Pakistan Civil Courts Ordinance, 1962". This Ordinance consolidated and unified the law relating to Civil Courts in whole of the Province of West Pakistan. Section 24 of this Ordinance provides;-- ' "Civil Courts having unlimited jurisdiction in original suits without limit as regards value and to Court of the Small Causes shall receive, entertain or register any suit in which Pakistan or any of its Provinces or any Public Officer as defined in clause (17) of section 2 of the Code of Civil Procedure, 1908, in his official capacity is a party.
25. (2)
26. (3)
27. ' The West Pakistan Civil Courts Ordinance of 1962 repealed amongst others, the following laws in some way applicable to Karachi:--
(i) The Sindh Courts Act, 1926, applicable to the District of Karachi--- the whole except section 8.
(ii) The Karachi Courts Order of 1956--- the whole except clause 4(2).
28. ' The effect of the above mentioned repeals and the savings is that in suits and other matters in which the value of the subject-matter exceeded rupees twenty-five thousand, the Bench of the High Court of West Pakistan at Karachi continued to exercise jurisdiction.
29. ' Then came the amendments in the Karachi Courts Order, 1956 and the West Pakistan Civil Courts Ordinance, 1962 by Civil Courts (Sindh Amendment Ordinance, 1970) (Ordinance XIII of 1970). By this Ordinance clause (2) of Article 4 of Karachi Courts Order, 1956 was substituted, which reads as follows:-- "4. Appointment of District Judge.--- (1) The Central Government shall appoint a person to be the District Judge for Federal Capital.
(2) The Court of the District Judge, Karachi, shall not have jurisdiction in original civil suits and proceedings wherein the subject-matter exceeds fifty thousand rupees."
30. ' Mr. Lqbal Kazi also pointed out that the provisions of Sindh Civil Courts Amendment Ordinance, 1970 was examined in re: Office Reference in Respect of Civil Courts (Sindh Amendment)
31. Ordinance, 1970 PLD 1981 Kar. 210 by the Full Bench of this Court and after tracing the jurisdictional history of this Court in respect of the civil original jurisdiction conferred by Sindh Courts Act, 1926 on Judicial Commissioner Courts Sindh. Chief Court of Sindh and retained by the various Presidential's Orders referred to above, the Full Bench concluded that so far the District Courts of Karachi are concerned, the suits or other matters exceeding Rs,25,000 in value upto Rs,50,000 can be filed either in this Court or in the District Court, jurisdiction being concurrent.
32. ' Learned counsel for the plaintiffs' contention was that where an Act of a Provincial Assembly is repugnant to any provision of an Act of Parliament which Parliament is competent to enact or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Act of Parliament, whether passed before or after the Act of the Provincial Assembly, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy be void. He contended that the since the jurisdiction of this Court retained by the Presidential Orders No,II of 1956, Order No,16 of 1970 and Order of 1976, therefore, the Provincial Statute cannot override the Central Statute and lastly his contention was that the cases pending in this Court cannot be transferred by Provincial enactment.
33. ' Mr. Rasheed A. Razvi, learned Amicus Curiae supported the contentions of the plaintiffs' counsel and maintained that the provisions of section 5 cannot effect the Extraordinary Civil Jurisdiction of this Court under the provisions of High Court of West Pakistan (Establishment) Order, 1955, subsequently retained by the Presidential Orders namely High Courts Establishment Order, 1970 and Sindh Balochistan High Court Orders, 1976 and he pointed out that the two following legal questions were formulated during the hearing on 3-11-2003:-
(i) Whether a single Judge could entertain and decide a question of jurisdiction which is of far- reaching effects/consequences.
(ii) Whether Legislature is competent to transfer the cases pending before the High Court to the Court of District Judge by a piece of legislation.
34. ' Learned Amicus Curiae was of the view that in terms of Rule 10 of the Sindh Chief Court (O.S.) Rule, this Court suo motu or on application of a party, if is of the view that the matter can more advantageously be heard by a Bench of two or more Judges, the Judge may report to that effect to the Chief Justice who shall make such order thereon as he thinks fit. He canvassed that while hearing the suit, this Court exercised the District Court jurisdiction in contra distinction to the ordinary original civil jurisdiction of the High Court as ruled by apex Court in Mian Akbar Hussain v.
35. Mst. Aishabai and others PLD 1991 SC 985 by reiterating the view taken in Province of Sindh v. Haji Razzak and another 1991 SCM R 920. The following observations in case of Mian Akbar Hussain (supra) is instructive, which is reproduced as follows:- ' ... In the light of the historical background of the original civil jurisdiction vested in the High Court of Sindh, my opinion is identical to the one expressed by Wahiduddin Ahmed, J. In these words`:- ' I have not the slightest doubt on the language of section 8 of Sindh Act, 1926 and the definition of 'District' in section 2(4) of the Civil Procedure Code that it was exercising District Court jurisdiction in contradiction to the ordinary original civil jurisdiction of the High Court. In my opinion, the mere fact that the Sindh Chief Court later on was included within the definition of High Court under section 219 of the Government of India Act, did not change the nature of this jurisdiction..."
36. ' The nature of original civil jurisdiction of High Court of Sindh was again considered in Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd. PLD 1993 SC 109 and the view taken by the Wahiduddin Ahmed, J. In Firdous Trading Corporation v. Japan Cotton and General Trading Co. Ltd.
37. PLD 1961 Kar. 565 was again approved.
38. ' He also pointed out that further distinction was drawn with reference to the terms 'original civil jurisdiction' of the High Court and ordinary civil jurisdiction' conferred by C.P.C. In Brothers Steel Mills Ltd. And others v. Mian Ilyas Miraj and 14 others PLD 1996 SC 543. He also pointed out that rule laid down in cases of Razzak and Akbar Hussain (supra) was followed in case of Messrs Muslim Commercial Bank Ltd. v. Messrs Nisar Rice Mills Lahore and another 1993 CLC 1627 by Wajihuddin Ahmed, J., it was, inter alia, held as follows:-- ' "... Reverting to the Original Civil Jurisdiction which is specified to the Karachi Bench of the High Court of Sindh, it may be mentioned here that such is a peculiar jurisdiction and has been termed variously as ordinary, Statutory, Special or even District Court jurisdiction. It dates back to the times of Sindh.Courts Act, 1926 (amended by the Karachi Courts Order, 1956), which declares the then Chief Court of Sindh, in relation to the District of Karachi, in specified matters, to be the Provincial Court of Original Civil Jurisdiction in the area. This jurisdiction has continued to be exercised in the context of Karachi under successive dispensations. The character and connotations of this jurisdiction came up for consideration before Wahiduddin Ahmad, J. In the leaded case of Firdous Corporation .v. Japan Cotton and General Trading Co. Ltd. PLD 1961 Kar. 565 and was declared not to be the Ordinary Original Civil Jurisdiction of the Court but jurisdiction of a 'special nature'."
39. ' He was of the view that amendment made in Sindh Civil Courts (Amendments) Ordinance, 2002 has not effected the Extraordinary Civil Jurisdiction of this Court.
40. ' Learned Amicus Curiae referred the Entry Nos.14, 55 of Federal Legislative List and Entry Nos.3 and 46 of Concurrent Legislative list and maintained that the authority to legislate laws in respect of all Courts except Supreme Court falls within the scope of Federal Legislative List as well as within the Concurrent Legislative List and maintained that both, the Parliament. (Majlis-e-Shoora) and the Provincial Legislature are competent to legislate in respect of subjects mentioned in the Concurrent List and maintained that if no such legislative authority is extended to the Provincial Legislature, then it may invade the Provincial autonomy. He pointed out that the doctrine of occupied field was considered in Shamas Textile Mills Ltd. v. Province of Punjab 1999 SCM R 1477 with reference to Articles 141, 142 and 143 of the Constitution. In para. 14 of the report, the following observations were made:-- ' "... It may be reiterated that under Article 144 (ibid) [Majlis-e-Shoora (Parliament)] may make laws for the whole or any part of Pakistan and a Provincial Assembly may make laws for the Province or any part thereof. Under Article 142 (ibid) Majlis-e-Shoora (Parliament has exclusive powers to make laws with respect of any matter in the Federal Legislative List and [Majlise-Shoora (Parliament)] and a Provincial Assembly also have powers to make laws with respect to any matter in the Concurrent List. Under clause (c) of Article 142 (ibid) a Provincial Assembly shall and [Majlis-e- Shoora (Parliament)], shall not, have power to make laws with respect to any matters ... not enumerated in either the Federal Legislative List or in the Concurrent Legislative List. Further, in the event of any inconsistency between the Fedtral Law and the Provincial Law, the mandate of the Constitution, as contained in Article 143 (ibid) is that then the Act of [Majlis-e-Shoora (Parliament)] whether passed before or after the Act of the Provincial Assembly, or, as .The case may be, the existing law, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void."
41. ' While concluding the arguments, learned Amicus Curiae again emphasized that it will be just and most appropriate that the above questions of law may be referred to the Chief Justice for constitution of larger Bench in terms of Rule 10 of the 'Sindh Chief Court (O.S.) Rule, pertaining to the reference to two or more Judges, 'If it shall appear to any Judge either on the application of the party or otherwise, that a suit or matter can be more advantageously heard by a Bench of two or more Judges, he may report to that effect to the Chief Justice who shall make such order thereon as he thinks fit.
42. ' Syed Zaki Mohammad, learned Deputy Attorney-General has supported the submissions of the learned Arnicus Curiae by stating that in view of the important questions of law being involved and the decision thereof would be of far-reaching consequences, therefore, the matter may be referred to the Chief Justice for constitution of larger Bench.
43. ' Mr. Ahmed Pirzada, learned Additional Advocate-General traced the jurisdictional history of this Court by referring various statutes right from Sindh Courts Act, 1926 to Sindh Civil Courts (Amendment) Ordinance, 2002 and supported the amending Ordinance by contending that the original civil jurisdiction was conferred to this Court by section 8 of the Sindh Courts Act, 1926 a Provincial Statute and retained and maintained by Presidential Orders i.e, legislation by reference. He further pointed out that till the promulgation of Sindh Civil Courts (Amendment) Ordinance, 1970, the position was different. Section 8 and clauses 4(2) of Karachi Courts Order, 1956 (Presidential Order No,II of 1956) were on the statute books. He pointed out that on 1st July, 1961, the Karachi District became part of the Province of West Pakistan and the legislative and executive authority in respect of Karachi passed on to the Province of West Pakistan.
44. On 8th January, 1962, the Governor of West Pakistan promulgated the West Pakistan Civil Courts Ordinance, 1962. This Ordinance consolidated and unified the Law relating to Civil Courts in the whole of the West Pakistan which also repealed the Sindh Courts Act, 1926 and Karachi Courts Ordinance, 1956 applicable to the Karachi District except section 8 of the former enactment and clause 4(2) of the later. As a consequence thereof any suits and other matters in which the value of the subject-matter exceeded Rs,25,000 the Karachi Bench of the High Court of West Pakistan at Karachi continued to exercise the jurisdiction by virtue of clause (5) of Presidential Order No,XIX of 1955. He also pointed out that by the Ordinance VI of 1981 known as `Sindh Civil Courts Amendments Ordinance, 1981', whereby not only section 7 was substituted, increasing the pecuniary jurisdiction of District Court Karachi was from Rs,50,000 upto one lac of rupees and the original civil jurisdiction in respect of suits and other proceedings of value exceeding one lac of rupee was conferred to this Court. Sindh Courts Act, 1926 as applicable to Karachi and Karachi Courts Order, 1956 were repealed viz. Section 8 of the Sindh Courts Act, 1926 and clause (4) of the Karachi Courts Order, 1956. He maintained that as consequence of the repeals and substitution of section 7 of the Ordinance, 1962, the pecuniary jurisdiction of District Court Karachi was enhanced upto one lac of rupee and pecuniary jurisdiction exceeding one lac of rupee was conferred to this Court and all original suits and proceedings of value not exceeding one lac of rupee were transferred to the Court of District Judge, Karachi in terms of section 4 thereof and he maintained that once the original provisions have been repealed, the enactment by reference also stands repealed. His contention was that. . After the repeal of the section 8 of the 'Sindh Courts Act, 1926 and clause (4) of Karachi Courts Order, 1956, this Court is exercising the original civil jurisdiction under the provisions of section 7 of the Sindh Civil Courts Ordinance, 1962, therefore, by Provincial Legislature, the jurisdiction can be curtailed. His further contention was that it is well-settled where' jurisdiction is conferred by a Provincial statute, the same can be curtailed by the Provincial enactment.
45. Therefore, this Court ceased to have concurrent jurisdiction in suits and other proceedings upto the value of Rs,30,00,000. Therefore, section 5 of the repealing Act was validly enacted for transfer of the pending suits. He emphasized that it is not a case of concurrent jurisdiction. Therefore, section 5 of the repealing Act containing the provisions of transfer of cases upto the thirty lacs of rupee is valid piece of legislation. He also pointed out that the enactment is not hit by the provisions of Article 143 of the Constitution as maintained by the learned plaintiffs counsel Article 5 of High Court of West Pakistan (Establishment) Order, 1955, whereby the original civil jurisdiction of the Karachi Bench of West Pakistan High Court was retained which was exercised of Chief Court of Sindh under section 8 of the Sindh Courts Act, 1926. Such legislation is known as legislation by incorporation' which is of common occurrence and is a known mode of legislation in which it is not necessary to set out the whole provision intended to be re-enacted. It some time happens that one Act instead of expressly repeating the word of a section contained in an earlier enactment merely refers to it and by relation applies its provision to some new state of thing created by subsequent enactment.
46. In the instant case, instead of reproducing the entire language of section 8 which was given in Sindh Courts Act, 1926. A mere reference is made for the sake of economy of words; but the true effect of the provision in the Presidential Order, 1955 is as if it is cut-out and pasted here. Such an incorporation makes the section so incorporated as a part of new statute and even the repeal of statute containing the incorporated section does not have the effect of repealing that provision in the statute in which it is incorporated. If any reference is required, the case of Ram Sarup v. Munshi and others AIR 1963 SC 553 may be referred. The view taken by the Supreme Court is as follows:-- ' "Where the provisions of an Act are incorporated by reference in a later Act the repeal of the earlier Act has, in general, no effect upon the construction or effect of the Act in which its provisions have been incorporated. The effect of incorporation is stated by Brett, L.J. In Clarke v. Bradulugh, (1881) 8Q8D 63: ' Where a statute is incorporated, by reference, into a second statute the repeal of the first statute by a third does not affect the second."
47. ' Therefore, the clause (5) of the Presidential Order of the Establishment of West Pakistan Act, 1955 retained by subsequent Presidential Order will not be repealed by the subsequent repeal of section 8 and clause 4(2) of the Karachi Courts Order, 1956 by the Sindh Civil Courts (Amendment)
48. Ordinance, 1981 as contended by the learned Additional Advocate-General. The subsequent amending Ordinance including the Ordinance of 2002 will not curtail the jurisdiction of the District Courts Karachi. Therefore, I am of the view that the pecuniary jurisdiction of the Karachi Courts enhanced upto thirty lacs of rupee. Therefore, the suits and other proceedings upto the value of thirty lacs rupee can be filed in this Court or in the District Courts of Karachi. Both Courts having concurrent jurisdiction. It may also be stated that section 15 of Code of Civil Procedure could not be applied to the High Court in the exercise of its original jurisdiction which is rule of procedure and not of jurisdiction, it only lays down that suit shall be instituted in the Court of lowest grade, it does not oust the jurisdiction of any Court of higher grade as .Was observed by Mahmood, J. In Full Bench case of Allahabad High Court in Nithi Lai v. Mazhar Hussain and others ILR 7 Allahabad 230.
49. This view also gets support from the Full Bench decision of this Court in office reference referred to above.
50. ' Reverting to the repugnancy between the Provincial and Central Legislature over the same subject-matter, the tests of inconsistency or repugnancy between the State and Central Legislature over the same subject-matter highlighted by Nicholas in his Australian Constitution, 2nd Edition, page 303 are as follows:--
(1) There may be inconsistency in the actual terms of the competing statutes:
(2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended, to be a complete exhaustive code; and
(3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject-matter.
51. ' The above test has been applied with approval by the superior Courts of sub-continent including the Indian Supreme Court and Supreme Court of Pakistan. In Tika Ramji v. State of Uttar Pradesh, AIR 1956 SC 676 accepted the above three rules and reiterated in cases of (1) Deep Chand v. State of Uttar Pradesh AIR 1959 SC 648, (2) Tansukh Rai Jain v. Nilratan Prasad Shaw and others AIR 1966 SC 1780 that repugnancy between the two statutes may be ascertained on the basis of the following three principles:--
(1) Whether there is direct conflict between the two provisions.
(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature; and
(3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field.
52. ' The same principle was also applied with approval by the apex Court in Shamas Textile Mills Ltd.
53. And others v. The Province of Punjab and 2 others 1999 SCM R 1477, referred by learned Amicus Curiae and it was held that Article 143 does not apply to the resolution of inconsistency between two 'existing laws', in that it applies only when there is a conflict between a Federal Law passed under the Constitution and an existing law, whether Provincial or Federal. In such a case, if the Federal law is passed with respect to a matter in the Federal List or Concurrent List, it would be inter vires the Federal Legislature and as regards the question of its repugnancy to an "existing law", the Federal law would prevail.
54. ' The question raised against the transfer of the pending suits and other proceedings upto the value of the thirty lacs of rupee and vires of section 5 of the amending Ordinance, 2002 has been challenged raising D important questions of law and decision thereof would be of far-reaching consequences. Therefore, the matter is referred to the Chief Justice for formation of the larger Bench in terms of Rule 10 of the Sindh Chief Court (O.S.) Rules.