In this writ petition, the orders passed by this Court on a regular first appeal and the original decree passed by an Administrative Civil Judge in a suit for restoration of movable property are under challenge-the former indirectly, the latter directly.
2. The facts, as given in the petition, are that Gulrez Khan respondent No. 1 filed the aforementioned suit against Muhammad Hussain petitioner and Muhammad Amin respondent No. 3. The suit was contested. The learned Civil Judge vide judgment dated 18-2-1964 (Annex. `A'), held the petitioner liable for the restoration of the articles valued at Rs. 30,000. As an objection on valuation of the suit for purposes of court-fee and jurisdiction had been raised, the learned Judge decided this question by the finding that the same is Rs. 30,000. As a result of these findings, he held as follows : "As the valuation of the suit is beyond my powers I leave it for the higher Court to pronounce decree in the suit. The deficiency in the court-fee is to be made up by the plaintiff. The file of the case be sent to the District Judge for proper disposal of this case."
By his order dated 12-3-1964, the learned District Judge transferred the case to Administrative Civil Judge, Sheikhupura, who passed the following order on 8-4-1964 (Annex. `B') : "The judgment written by Mr. Muzaffar Hussain, Civil Judge on 18-3-1964 and made over to this Court by the District Judge vide his order dated 12-3-1964, is hereby announced. In the light of the abovesaid judgment a decree has been passed for restoration of the property mentioned in Annexure `A' in favour of the plaintiff against the defendant subject to the payment of court-fee on the suit valued for Rs. 30,000."
A regular first appeal was filed in the High Court against the decree passed by the Administrative Civil Judge against the petitioner. Court-fee on the appeal was deficient. The office took an objection. Long time elapsed in the correspondence between the office and the learned counsel for the petitioner as a result of which he filed an application for permission to file appeal as a pauper on 14-5-1965 which was dismissed on 11-1-1966.
3. The petitioner challenged the order of the learned Single Judge dated 1i-1-1966 in Letters Patent Appeal which was dismissed on 15-7-1966. After having finally failed in his effort to get the permission to file the appeal as a pauper the petitioner made yet another application, now seeking permission to make up the deficiency in the court-fee, but this application was also dismissed on 18-10-1966 by a learned Single Judge. According to the learned counsel, in all probability, a Letters 'Patent Appeal was filed against this order but the same was dismissed in limine. He is, however, unable to give any particulars of this appeal. The petitioner then instead of taking the matter before the Supreme Court, filed this writ petition under Article 98 of the then Constitution (of 1962) and prayed that "a writ of certiorari quashing the proceedings and the orders of the Civil Judge and the Administrative Civil Judge, Sheikhupura be issued".
4. Learned counsel for the respondent has raised a preliminary objection that the petition is not competent as, in effect, final orders passed by the High Court have been challenged. In support of this contention he has argued that the impugned decree has merged in the final orders passed by the High Court on the regular first appeal and the petitioner having failed in Letters Patent Appeal, the writ petition is not maintainable. He has relied on Rahmatullah Khan v. Pir Shahzada (PLD 1961 Pesh. 40) and .Bashir Hussain v. State (PLD 1961 Lah. 164). Mr. Sherwani has, in reply, contended that the application of the petitioner for permission to file the appeal as a pauper was dismissed, therefore it should be deemed that the appeal has never been filed. In the alternative, he has contended that even if it is presumed that (after the dismissal of the first Letters Patent Appeal) the dismissal of the application of the petitioner for permission to make up the deficiency in court-fee is dismissal/rejection of the appeal read with Order VII, rule 11, C. P. C., even then this petition is competent because petitioner's case was not decided by the High Court on merits.
5. In so far as the facts are concerned, the alternative position adopted by the learned counsel appears to be correct. But I do not agree with him that because of the fact that the High Court did not decide the appeal on merits, the orders passed by it will not have any effect on the maintainability of the writ petition. Learned counsel tried to distinguish the two authorities noted above. But in so far as the principle is concerned, they are not at all distinguishable. The relevant part of Article 201 of the Interim Constitution reads as follows : "(1) Subject to this Constitution. a High Court may, if it is satisfied that no other adequate remedy is provided by law
(a) on the application of any aggrieved party, make an order
(i) ---------------------------------..
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority, has been done or taken without lawful authority, and is of no legal effect ;
(5) In this Article, unless the context otherwise requires. -- " person'' includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Defence Services of Pakistan."
The provisions in Article 98 of the 1962 Constitution are not different. Then provisions, when applied to this case, produce the following results :
(a) that the petitioner had an adequate remedy of approaching the Court in first appeal against the decree passed by the Administration Civil Judge. He availed of that remedy but failed. Two consequence ensued from this reality ; one, that he had another remedy of approaching the Supreme Court for special leave to appeal ; and the other, that he having exhausted the remedy by way of the first appeal and the time for approaching the Supreme Court having passed, is left with no other remedy ;
(b) that the final stage of adequate remedy having already been exhausted as explained in (a) above by recourse to the High Court, if an or is passed under Article 201 it will definitely have reference to the adequate remedy already exhausted in the High Court. Therefore in effect, any order under this Article shall hit the orders passed by the High Court.
6. As is clear from the above-quoted definition, High Court is not "person" envisaged in Article 201, to whom a writ of he High Court be directed. The obvious result is that the petition is barred by the provision of the Constitution itself and the petitioner cannot be granted any relief in writ jurisdiction of the High Court. This petition, therefore, fails.
I7. There is another aspect, of some general importance, of this case. Their Lordships of the Supreme Court, in the case of Malik Firoz Khan Noon (PLD 1958 SC (Pak.) 333), held that when Judges of High Court function in different capacities under different jurisdictions, they do not act as different Courts but exercise the powers of . The same Court and the distribution of those powers is no more than an internal arrangement among the Judges of the same Court.
A Division Bench of this Court in the case of Bashir Husrafn already cited made similar observations and held that writ of territorial cannot be issued removing another order of the High Court. In that case, their Lordships also dealt with the contention that if the basic order, which had earlier been impugned before the High Court, was a nullity then a writ of certiorari could be issued, but this contention was repelled. In the Full Bench case of Rahmatullah Khan, it was clearly held that the petitioner therein had, in fact, challenged the order of the Division Bench of the High Court by which the decree of the trial Judge based on the provisions of the Act impugned before the Full Bench was maintained and as in effect, the writ was being sought against the order of the High Court. It was held that in accordance with the settled legal position the High Court could not issue a writ to itself. Though other reasons were mentioned in support of the final order passed by the Full Bench yet the above finding is not at all obiter and has full binding effect. In a recent judgment in the case of Jamal Shah (132 L T R 666) the then learned Chief Justice was pleased to consider the same question in a broader perspective. A Full Bench of the High Court had held that the orders passed by another Judge of the same Court as Member, Election Commission, could be challenged in the writ jurisdiction of the High Court because the Member of the Election Commission was persona designate in the case and did not act as a judge of the High Court. Their Lordships of the Full Bench relied on two cases from English jurisdiction in which it was held that certiorari could be issued in respect of an order of a High Court Judge acting as a tribunal. In the judgment of the Supreme Court the two cases from English Courts were distinguished but it was considered that the Full Bench was "in all probability right in considering the Member to be persona designate, and not the High Court or a Judge of the High Court, when acting" as & Member of the Election Commission in that case. After giving this finding, the then learned Chief Justice proceeded to observe as follows : "but one may be pardoned for referring here to a small observation in one of the judgments cited by the Full Bench with reference to the idea of a superior Court issuing a writ to itself, viz. The process involves the rather ludicrous position that Judges are called upon themselves to show cause to themselves why their orders should not be quashed. In the present case, the order in question is made by a Single Judge of the High Court acting as the relevant authority, but it is conceivable that a statute may appoint a Tribunal of say two or three High Court Judges to adjudicate matters arising thereunder, and then indeed the aspect of `ludicrousness' might arise if a writ were sought from a Single Judge of the High Court to avoid actions by such Tribunals. In a number of statutes in the United Kingdom express provisions are included which avoid the writ jurisdiction in relation to such adjudications, and it is a matter for the consideration whether such provisions should not be made use of in Pakistan as well. Quite apart from the aspect of `ludicrousness' there are other and more weighty considerations involved, such as the necessity of maintaining a high degree of comity among the Judges of the superior Courts, which could be urged in support of such a provision."
As a reference has been made to the position of law in England, therefore it will not be out of place to mention here that the position as a pure question of law is not different from what is in Pakistan and was fund by our own Supreme Court. In Reg v. Boaler (67 L T R (New Series) 354), it was held that there was no authority for saying that a writ of certiorari could go at all to a superior Court.
Similarly, in Rex v. Justices of the Central Criminal Court (132 L T R 666), a rule nisi had been obtained to quash an order of the Central Criminal Court, so far as it directed that the amount of income and super-tax on the honorarium paid to an official of the Court should be paid out of public funds, on the ground that the order was ultra vires. It was held that the Central Criminal Court was a superior Court and certiorari would not lie for the purpose of quashing an order made by that Court and, therefore, the rule must be discharged. The soundness of the above position of law and principle can also be tested on the bar of another sound principle, i.e., of public policy.
Some comment in this behalf was made, though in a different context, in the case of M. H. Khondkar (PLD 1966 SC 140). For the above reasons also, as already observed, the grant of writ in this case would, in effect, set at naught and, in any case, affect the orders passed by the Judges of the High Court in Single and in Letters Patent Benches. Therefore, the petitioner cannot be granted relief in writ jurisdiction.
8. There is yet another aspect of the matter. Grant of writ is in the, discretion of the High Court.
Depending upon the circumstances of each', case, writ can be refused on the ground that it may not be possible for the Court to exercise discretion. In this case, three Judges of this Court (one in Single Bench and the others sitting in Letters Patent Bench) did not consider the case of the petitioner fit to exercise discretion in his favour, either to allow him to file the appeal as a pauper or to extend the time for filing the application in that behalf, or for making up of the deficiency in court-fee. For this additional reason also, this petition must fail.
9. Before closing this order, it needs to be noted that the learned counsel for the petitioner raised the following arguments on merits :
(i) that the impugned order passed by the Administrative Civil Judge is without lawful authority because the .Learned District Judge could not have transferred the case to him under section 24, C.
P. C. In this behalf, he relied on Jaswant Ram and others v. Moti Ram and others AIR 1962 Lab. 376 ; Amir Chand v. Butt Shah and another AIR 1930 Lab. 195 and Faiz Muhammad v. Riaz Hussain PLD 1957 Lab. 689 ;
(ii) that the learned Administrative Civil Judge, who was required to apply his own mind to the issues involved in the suit and was to decide whether the decree for restoration of the articles could be passed against the petitioner, failed to do so. He simply announced the judgment passed by the Civil Judge who had no jurisdiction in the matter. Therefore, the decree of the Administrative Civil Judge is unenforceable. He has, in this behalf, relied on ,'tfoolji Sicka & Co. v. B. N. Ry. Co. Ltd. AIR 1932 Cal. 257 ; R. Muthuswa ml Pillai v, S. Veerswami Pillai AIR 1936 Mad. 486 and Arif Yuzdani v.
Abdus Salam PLD 1957 Lab. 983.
10. Learned counsel for the respondent tried to show that the order passed by the learned District Judge was legal. He sought support from Muhammad Afzal Khan and others v. Nand Lal (16PR1908), Abdur R,Ihman v. Charag Din and others (19 P R 1903), Para. 7 of Chapter 2-A of High Court Rues and Orders, Volume I ; and Fazal Karim Chisti and another v. Municipal Committee, Jullundur (AIR 1929 Lah. 107). On the second point, he agreed that the Administrative Civil Judge did not apply his mind and did not give his own judgment and for this reason, it may not be possible to defend his order ; but at the same time, he did not agree that for this reason the order was coram non judice.
11. Though there appears to be some force in the above arguments o merits yet, because of my decision on the question of maintainability of this writ petition, I do not consider it necessary to deal with them.
12. As a result of the above discussion, this petition fails and the same is dismissed. There shall be no order as to costs.