' SABIHUDDIN AHMED, C.J.---This Full Bench has been constituted on the Reference of Honourable Mr. Justice Shabbir Ahmed (as his Lordship then was) as to whether the provisions of the Sindh Civil Courts (Amendment) Ordinance 2002, transferring suits of the value of Rs,30,00,000 and less were constitutionally valid in terms of Article 143 of the Constitution.
2. Before proceeding to discuss the merits of the contentions raised it may be pertinent to keep in view the relevant statutory dispensation on the subject involved. The first in point of time appears to be the Sindh Courts Act of 1926, whereby courts were created for the Chief Commissioners, Province of Sindh, which was enforced in 1940. While District Court were established in all other Districts, like such courts in all other Districts (except the Presidency Towns of Bombay, Calcutta and Madras) were declared to be the principal civil courts of original jurisdiction. No District Court was set up for the District of Karachi and under section 8 the Chief Court of Sindh was declared to be the principal civil court of original jurisdiction for the District of Karachi. In, other words all suits not falling within the jurisdiction of the courts of Small Causes were triable by the Chief Court. On 30th September 1955, the Constituent Assembly passed an Act merging all the Provinces in West Pakistan and some States and Tribal Areas into the Province of West Pakistan this Act received the assent of the Governor-General on 3rd October and section 7 empowered him to establish by an order a High Court for the Province of West Pakistan to replace, inter alia, the Sindh Chief Courts.
Such order was issued on 9th October and under section 5 thereof the Bench of the High Court at Karachi was required to exercise the same original civil jurisdiction as was being exercised by the Sindh Courts under section 8 under the 1926 Act.
3. On 23rd March, 1956 Pakistan's first Constitution came into effect. Under Article 211(1) Parliament was authorized to make a law provided for determination of the Capital of the Federation and till such time as it was done, the area comprised in the Capital before the Constitution day (District of Karachi) was to continue as the Capital. Under sub-Article (2) the administration of the capital was to vest in the President, who was empowered to make provisions, by order relating to its government and administration and with respect to jurisdiction of any courts 'exercising the jurisdiction of the High Court therein. Under sub-Article (3) the Parliament was empowered to make laws for the Federal Capital with respect to matters enumerated in the Provincial Legislative List.
4. In exercise of the powers under Article 211(2), the President promulgated the Karachi Courts Order, 1956, whereby a District Court was established for the Federal Capital (Karachi) for the first time. Under section 4(2) of the Order the jurisdiction of the court in civil suits and appeals was only confined to the pecuniary value of the subject-matter up to Rs,25,000 and such matters wherein evidence had not yet been recorded were required to be transferred to the District Court, the High Court continued to exercise original jurisdiction over matters exceeding such amount.
5. Through President Order 9 of 1961 dated 1st July, 1961 known as West Pakistan Administration (Merger of Federal Territory of Karachi) Order, Karachi was merged into a Province of West Pakistan.
Such merger had no immediate effect upon the jurisdiction of the courts except to the extent that the powers of the President under Article 211(2) and those of the Parliament under Article 211(3) came to be exercised by the Government and the legislature of the Province of West Pakistan. On 8th January, 1962, the Governor of West Pakistan promulgated the West Pakistan Civil Courts Ordinance, 1962, purporting to consolidate and unify the law relating to civil courts in the province.
The Courts of District Judges were declared to have original jurisdiction without limit as regards value in the rest of the province under section 7 and under section 9, the High Court was authorized to determine the jurisdiction to be exercised in original civil suits by a Civil Judge through a Notification dated 13th September, 1973. The High Court in fact conferred jurisdiction upon Civil Judges of the First Class to entertain suits irrespective of the value of the subject-matter.
Nevertheless for the. District of Karachi, a special dispensation was made so as to confine the jurisdiction of the District Court to the extent of the value of Rs,25,000 and the original jurisdiction of the High Court beyond such limit was preserved. Similarly, while a number of enactments including the Sindh Courts Act and the Karachi Courts Order were repealed, section 8 and section 4(2) respectively of the two statutes conferring jurisdiction upon the High Court were preserved.
6. The West Pakistan Civil Courts Ordinance subsequently (being renamed as Sindh Civil Courts Ordinance) was amended to raise the limits of pecuniary jurisdiction of the District Court of Karachi from time to time. In 1970, it was raised to 50,000, in 1981 up to 100,000, in 1992 upon 500,000 and in 2002 up to 30,00,000. Except for the amending Ordinance of 1970, all the three subsequent statutes postulated transfer of pending cases falling within the pecuniary jurisdiction of the District Court on account of the legislation in question. Therefore, from the stand point of provincial legislation on the subject the District Court had exclusive jurisdiction to entertain original suits falling within its jurisdiction in terms of pecuniary limit.
7. Nevertheless Mr. Iqbal Kazi, learned Counsel for the Plaintiff argued with a great deal of emphasis that the original civil jurisdiction of the High Court in respect of Karachi under the Sindh Courts Act, 1926, was protected and preserved by Federal Legislation, i,e, Karachi Courts Order, the High Court Establishment Order, 1970, and the Sindh and Balochistan High Court Order, 1976. He urged that by virtue of Article 143 of the Constitution when in respect of a matter falling within the concurrent Legislative List legislation had been enacted both by the Provincial legislature and the Parliament, the Federal Law whether made before or after the Provincial law must prevail.
8. Indeed, there could be no cavil with the proposition that under Article 143 of the Constitution whenever an Act of a Provincial legislature relating to a subject falling within the concurrent Legislative List was repugnant to an Act of Parliament, whether enacted before or after the provincial law, the latter would invariably prevail. It is also not disputed that Item 46 of the concurrent Legislative List in the 4th Schedule confers legislative power upon both the Parliament and a Provincial Assembly to make laws with respect to jurisdiction and powers of all courts except the Supreme Court with respect to any of the matters contained in the aforesaid. Nevertheless, the following two questions arise, which need to be answered.
(i) Whether the jurisdiction available with the High Court of Sindh to try civil suits was conferred by Federal Legislation at any point of time and whether its curtailment by Provincial Legislation is of no lawful effect?
(ii) Whether any repugnancy exists between the. Federal and the Provincial law relating to the jurisdiction of the High Court to try suits on the original side?
9. Mr. Rashid. A. Rizvi, learned amicus curiae, on the other hand, argued that the jurisdiction to try suits was never conferred upon the High Court by an Act of Parliament or, any Federal Legislation and, therefore, no question of any kind of conflict or repugnance was involved. Learned Counsel for the parties referred to a number of precedents, wherein the genesis of the original civil jurisdiction presently exercised by the High Court of Sindh has been discussed in great detail, i,e, Firdous Trading Corporation v. Japan Cotton and General Trading Company (PLD 1961 Karachi 565), Asad Ali v. Settlement Commissioner (PLD 1974 Karachi 345). Mr. Razvi also referred to a recent judgment of the Supreme Court of India in Jamshed and Guzdar v. State of Maharashtra (2005 2SCC 591) and placed before us a copy of the pronouncement of a 05 Member Bench of the Honourable Supreme Court in Province of Sindh v. Haji Razak and others, decided on 2nd July, 1975.
10. For the purposes of determining inconsistency, it needs to be considered whether the jurisdiction upon the High Court to try suits beyond certain pecuniary value was conferred by a Provincial or a Federal statutes and in the case of a former whether such jurisdiction was enlarged or curtailed by a Federal law. Admittedly, the Sindh Courts Act, 1926, whereby the Chief Court and District Courts for Sindh were established was a provincial law enacted by the Bombay Legislative Assembly and the Chief Court was declared to be the principal civil court of original jurisdiction for the District of Karachi under section 8 of the Act. The jurisdiction of the Court was substantially affected by the Karachi Courts Order, 1956 and subsequently, by the West Pakistan Civil Courts Ordinance, 1962, the former being a Federal law and the latter a Provincial law.
11. As far as the other Federal Laws operating in the field are concerned, it is important to mention that the High Court of West Pakistan Establishment Order, 1955, the High Court Establishment, 1970, and the Sindh and Balochistan High Courts Order, 1976, merely preserved the original jurisdiction being exercised by the Chief Court or the High Court. None of these legislative instruments enlarged or curtailed such jurisdiction. Such provisions never had the effect of altering the terms or the statutes of the legal provisions under which jurisdiction was conferred.
12. The Karachi Courts Order, 1956, nevertheless was a legal instrument of a special nature in the context of the present controversy. It needs to be kept in view that upon the enforcement of the Constitution of 1956, Karachi happened to be the Federal Capital and was required to remain so until the Parliament by law determine any other area to be the capital under Article 211(1) of the Constitution. By virtue of sub-Articles (2) and (3) of the aforesaid Article, the administration of the capital was to vest in the President and the Parliament was authorized to make laws with respect to mattes falling in the Provincial Legislative List as regards the area of the capital. Under the 5th Schedule to the Constitution Item 16 in the Federal List only related to constitution, organization and jurisdiction of the Supreme Court and Item 29 to powers of other courts only with respect to matters covered by the Federal List and Item 18 of the concurrent list in respect of those falling within that list. Item 92 of the Provincial List, however, spoke of jurisdiction and powers of all Courts except the Supreme Court with respect to any other matters in the Provincial List.
13. As is evident from the preamble to the Karachi Courts Order, the aforesaid Order was made by the President in the exercise of his powers under Article 211(2). In other words, the source of authority was not that of the federation but only the special powers vested in him for government and administration of the federal capital, which would in any other area be exercisable by the provincial government. It must, therefore, be stated that the Karachi Courts Order was neither an Act of Parliament nor a federal law in the strict sense. Therefore, we are not impressed by the contention that the original jurisdiction available to the High Court to entertain suits of the value of Rs,25 000 above could not be curtailed by any subsequent provincial law enacted even after the merger of the erstwhile federal territory of Karachi into the Province of West Pakistan
14. With the object of establishing a uniform pattern of civil courts throughout the Province of West Pakistan, the West Pakistan Civil Courts Ordinance was promulgated on 9th January, 1962. Through section 7 the Courts of District Judges in the province several enactments in a number of statutes relating to establishment and jurisdiction of Courts in different areas was repealed. The Sindh Courts Act, 1926 and the Karachi Court Order, 1956 were also repealed except for section 8 of the former and section 4(2) of the latter, which enabled the Karachi Bench of the High Court to exercise original jurisdiction in suits of the value exceeding Rs,25,000. However, through subsequent amendments in the Ordinance the jurisdiction of District Courts was enhanced to Rs,100,000 in 1981, Rs,500,000 in 1992 and Rs,30,00,000 in 2002. The latter two Ordinances postulated transfer of suits of the enhanced value of the District Courts from the High Court to such Courts. Mr. Iqbal Kazi urged that the amendment in the Ordinances only purported to enhance the jurisdiction of the District Courts and would have no bearing upon that of the High Court. Consequently, at best, it could be stated that where the value of the subject-matter exceeded Rs,25,000 but fell short of Rs,30,00,000 the jurisdiction of the High Court and the District Court was concurrent.
15. The above contention requires us to examine the genesis of the jurisdiction of the Sindh High Court to entertain ordinary suits where the value of the subject-matter exceeds a certain amount.
Fortunately, the issue is covered by variety of precedents arising under different contexts. The first case in point seems to be the pronouncement of Wahiduddin Ahmed, J., in Firdous Trading Corporation v. Japan Cotton and General Trading Company Limited (PLD 1961 Karachi 565), It was urged that no court-fee was payable on an appeal against a decree passed by a learned Single Judge in a civil suit on the ground that the Court Fee Act did not stipulate any fee on an appeal against the judgment of a Single Judge in the exercise of the ordinary original civil jurisdiction of the High Court. It was explicitly held that the jurisdiction conferred upon the Chief Court of Sindh under the Sindh Courts Act, 1926, to act as the principal civil court of original jurisdiction for the District of Karachi, which was being exercised by the Karachi Bench of the West Pakistan High Court was completely different from the ordinary original civil jurisdiction available to certain High Court under their Letters Patent and was in fact only a District Court's jurisdiction.
16. No doubt, the view in Firdous Trading Corporation was not followed by Division Bench in Eaji Razak v. Usman and others (PLD 1975 Karachi 944), where Dorab Patel, J., after tracing the history of judicial fora in the British India came to the conclusion that the jurisdiction to try suit was part of the ordinary original civil jurisdiction of the Court.
17. Mr. Rashid A. Razvi, learned amicus curiae, however, has placed an unreported decision of the Honourable Supreme Court in Province of Sindh v. Haji Razak, whereby a five-Member Bench proceeded to reverse the findings of the Division Bench mentioned above and explicitly held that the jurisdiction to try civil suits was Special District Court's jurisdiction exercisable by the Sindh High Court and could not be treated as the ordinary civil jurisdiction of a High Court. The view taken in Firdous Trading Company was expressly approved.
18. Mr. Iqbal Kazi, however, placed reliance upon the pronouncements of the Hon'ble Supreme Court in Ahmed Khan vs. The Chief Justice and Judges of the High Court, (PLD 1968 SC 171) and a Full Bench of this Court in Asad Ali vs. Settlement Commissioner, (PLD 1974 Karachi 345) in support of his point of view. In both these cases, their lordships have dilated upon the jurisdiction of the Presidency High Courts of Bombay, Calcutta and Madras to entertain suits conferred by the respective letters patent establishing such courts. Indeed, there could be force in learned counsel's contentions if such jurisdictions were conferred upon this court through letters patent, which might have force of an Act of Parliament. Nevertheless, admittedly, Letters Patent of the Bombay High Court were never extended to the Chief Court of Sindh and those of the Lahore High Court whose jurisdiction was extended to the Bench at Karachi under the Establishment of West Pakistan Act, did not confer any jurisdiction to entertain suits. It is, therefore, evident that such jurisdiction being conferred by a provincial law, no question of any repugnancy arises.
19. The upshot of the above discussion, therefore, is that the jurisdiction of this Court to entertain suits is basically neither the ordinary nor the extraordinary original civil jurisdiction of the High Court but simply a District Court jurisdiction, which was conferred and regulated by provincial statutes.
The Karachi Courts Order, 1956, was also not a law made by the Parliament in exercise of powers under the concurrent Legislative list.
20. For the foregoing reasons, we are clearly of the view that there is no conflict between a federal and a provincial law in the above context and, therefore, in accordance with section 7 of the Sindh Civil Courts Ordinance, the jurisdiction of this Court to try civil suits is confined to matter where the pecuniary value of the subject-matter exceeds Rs,30,00,000 all other suits are liable to be tried by the District Court.
(Sd.)
SABIIHUDDIN AHMED, C.J.
(Sd.)
KHILJI ARIF HUSSAIN, J.
' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.-HI agree with the reasons assigned and the conclusion drawn by my lord Hon'ble Chief Justice. However, I would like to record a separate note in support of the opinion recorded by the Hon'ble Chief Justice.
' The main thrust of arguments addressed by Mr. Iqbal Qazi, learned counsel for the plaintiff is, that, section 7 of the Civil Courts Ordinance, 1962, as amended by Sindh Civil Courts (Amendment)
Ordinance 2002, enhancing the pecuniary limits of original civil jurisdiction of the subordinate Courts and the District 'Judges in Karachi Districts to Rs,30,00,000, and restricting the jurisdition of the Sindh High Court, in civil suits and proceedings of the value exceeding Rs,30,000,000 is repugnant to the provision of law enacted by the Federal Legislature, and therefore, by virtue of the provisions contained in Article 143 of the Constitution of Islamic Republic of Pakistan, the provision contained in section 7 of the Sindh Civil Courts Ordinance, 1962 to the extent of repugnancy is void.
Consequently the Federal Law conferring pecuniary jurisdiction on the Sindh High Court in relation to the civil suits and proceedings in excess of Rs,25,000, shall remain intact. The existing law shall prevail and the Sindh 'High Court shall continue to have pecuniary jurisdiction pertaining to the civil suits and proceedings of value exceeding Rs,25,000 in exercise of its original civil jurisdiction. The points for consideration have been very ably formulated by the Hon'ble Chief. Justice which cover the entire gamut of controversy.
It is provided in Article 143 of the Constitution of the Islamic Republic of Pakistan, that if any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majilis-e- Shoora (Parliament) which Majlis-e-Shoora (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 Majilis-eShoora (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 repugnancy, be void.
' Mr. Iqbal Qazi, contended that the Provincial Assembly can confer jurisdiction on the District and Subordinate Courts but cannot take away the jurisdiction of the High Court which is conferred by the Federal Legislature at any time before the commencing day of the Constitution. He maintained that civil original jurisdiction was originally conferred on Chief Court of Sindh, by a provincial statute namely Sindh Courts Act, 1926, but subsequently on establishment of District and Subordinate Courts in Karachi by the Federal Government in the year 1956, the original civil jurisdiction in respect of the civil suits and proceedings in excess of Rs,25,000 was conferred by the Federal Legislature and consequently the pecuniary jurisdiction to this extent can not be taken away by any provision of the Act of Provincial Assembly and any jurisdiction conferred in this behalf on the civil Court would not take away the jurisdiction vested in High Court but shall at the most be treated as concurrent jurisdiction.
' As rightly observed by the Hon'ble Chief Justice, it is imperative to find out the genesis of the original civil jurisdiction of the Sindh High Court and to examine whether this jurisdiction was ever conferred by any Act of the Federal Legislature.
' It is admitted position that Sindh Courts Act, 1926 under which the Chief Court of Sindh was established is a provincial law namely Bombay Act No VII of 1926. It was provided in section 8 of the said Act that the Chief Court of Sindh shall be the principal civil Court of original jurisdiction of the civil District of Karachi This legal dispensation continued till the independence and up to 22nd July, 1948. On this date the Governor General of Pakistan issued G.G.O. 14 of 1948, (The Pakistan Provisional Constitution (Fourth Amendment) Order, 1948) in exercise of the powers conferred by section 9 of the Indian Independence Act, 1947. Through this G.G.O section 290-A was inserted in the Schedule to the Pakistan (Provisional Constitution) Order, 1947, thereby amending the Government of India Act, 1935, section 290-A inserted in the Government of India Act, 1935 read as follows:-- "290-A. Establishment of the Capital of the Federation.-(1) Notwithstanding anything contained in the preceding sections, the Governor-General may by order demarcate, for purposes of the Capital of the Federation, an area forming part of a Province, and thereupon so much of the ar a as may be specified in the said order shall cease to form part of that Province.
(2) The Governor-General may by order make, in respect of the area demarcated for purposes of the capital of the Federation, such provisions:-
(a) for its government and administration;
(b) for varying the composition of the Legislature of the Province affected thereby and the representation in the Federal Legislature of that Province;
(c) with respect to the laws which are to be in force in the area
(d) with respect to the jurisdiction, expenses or revenue of any Court theretofore exercising the jurisdiction of a High Court in the area;
(e) with respect to apportionments and adjustments of and in respect of, assets and liabilities; and
(f) with respect to other supplemental, incidental and consequential matters; ' as he may deem necessary or proper.
(3) Any provision with respect to the jurisdiction of a High Court contained in an order made under this section shall be subject to the provisions of Chapter. II of Part IX of this Act, except to the provisions of subsection (1) of section 230 and of subsection (2) of section 231 thereof shall not apply.
(4) The Governor-General may by an Order alter, amend, modify any order made under this section."
' A perusal of the above provision shows that under subsection (2)(b) the Governor-General was empowered to make provisions with respect to the jurisdiction, expenses or revenues of any Court, thereto, exercising the jurisdiction of a High Court in the area. On 23rd July, 1948 Governor-General issued G.G.O. 15 in pursuance of the resolution passed by the Constituent Assembly of Pakistan, that the Capital of Pakistan shall be located at Karachi, and further that all executive and administrative authority in respect of Karachi and such neighbouring areas which in the opinion of the Central Government may be required for purposes of the capital of Pakistan shall vest in and shall be exercised by or on behalf of the Government of Pakistan and the Legislative power shall vest in the Federal Legislature. In exercise of the powers under subsection (1) of section, 290-A of the Government of India Act, 1935 as well as under subsection (2) of the said section, which contained that the Governor-General may make provisions as deemed necessary with respect to the laws which are to be in force in that area, and with respect to jurisdiction of any Court theretofore exercising the jurisdiction of the High Court, and the other incidental and consequential matters, an order was issued to be cited as Pakistan (Establishment of the Federal Capital), Order, 1948. Under Article 6 of this order it was provided that unless and until other provision is duly made, all enactments of laws, all notifications, orders, schemes, rules, forms or bye-laws issued, made, or prescribed thereunder, which immediately before the date appointed under Article 3 when the Karachi shall cease to form part of the Province of Sindh, as are in force in, or prescribed for, any of the areas comprised in Karachi, shall continue to be in force and shall have effect in Karachi. It was specifically provided in Article 9 that subject to the provisions of subsection (3) of section 290-A of the Government of India Act, 1935, the Chief Court of Sindh shall continue to be the High Court for Karachi and shall retain such jurisdiction as it has immediately before the date appointed under Article 3.
' It is evident from a bare perusal of Article 9 of G.G.O. 15 of 1948 that although under subsection (2) of section 290-A of the Government of India Act, 1935, the Governor-General was empowered to make provision in respect of the jurisdiction of any Court theretofore exercising the jurisdiction of a High Court in the capital of Federation but, no such provision was made through G.G.O. 15 of 1948 and it was merely provided that the Chief Court of Sindh shall continue to be the High Court for Karachi and shall retain such jurisdiction as it has immediately before the date appointed under Article 3. Admittedly the Chief Court of Sindh was exercising original civil jurisdiction under section 8 of the Sindh Courts Act, 1926 (Provincial Law) before the establishment of Federal Capital at Karachi. It was provided in subsection (3) of section 290-A that any provision with respect to the jurisdiction of a High Court contained in an order made under section 290-A shall be subject to the provision of Chapter-II of Part-IX of the Government of India Act, 1935, except to the provisions of subsection (1) of section 230 and of subsection (2) of section 231 thereof shall not apply. Under section 290-A, of the Government of India Act, 1935, the Chief Court of Sindh was deemed to be High Court which was subsequently merged in the High Court of West Pakistan by the establishment of West Pakistan Act, 1955 and on establishment of the High Court of West Pakistan by G.G.O. No,19 of 1955. It was provided in section 223 of the Government of India Act, 1935, that subject to the provisions of Part-IX of the Government of India Act, 1935, any order in council made under this Act or any other Act, t provisions of any order made under the Indian Independence Act 1947 and to the provisions of any Act of competent legislature r any order made thereunder, the jurisdiction of, and the law administered in, any existing High Court and the respective powers of the Judges thereof in relation to the administration of justice in the Court including any powers to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in division Courts shall be same as immediately before the establishment of the. Federation.
Thus, under this provision also the High Courts were to exercise the jurisdiction which they were exercising before the establishment of the federation until and unless any provision was made under the Government of India Act, 1935.
' No new provisions were made by the Federal Legislature in respect of the High Courts until the promulgation of West Pakistan (Establishment Order 1955) by G.G.O. Order No,4 of 1955, dated 27- 3-1955. By this Order the Province of West Pakistan was established. In Article 5 of this order it was provided- that it shall not effect the composition of the jurisdiction of any High Court. Thereafter the Establishment of West Pakistan Act, 1955 was passed on 3rd October, 1955 by the Constituent Assembly of Pakistan. It was provided in section 2(2) that the capital of federation shall be administered in accordance with the provisions of section 290-A of the Government of India Act, 1935. It was provided in section 7 of this Act that notwithstanding anything.To the contrary contained in any law, including the Government of India Act, 1935, the Governor-General may by order establish a High Court for the Province of West Pakistan to replace the High Court in Lahore, the Chief Court of Sindh and the Judicial Commissioners' Courts in North-West Front er Province, and Balochistan. Under section 10 of this Act, the Government of India Act, 1935 was amended and section 290-A was omitted. Karachi was declared to be Chief Commissioner's Province. Section 290-A Government of India Act, 1935, as inserted by G.G.O. No,14 of 1948 was omitted by the Establishment of West Pakistan Act, 1955 with effect from 3rd October, 1955. The Government of India (Second Amendment) Act, 1955 was passed on 8th October, 1955 and received the assent of Governor-General on 13th October, 1955. Under section 9 of this Act, section 290-A was again inserted in Government of India Act, 1935 with certain amendments, which reads as follows:-- "290-A. (1) Except in respect of matters relating to High Court, the Provincial legislature shall have no power to make laws in respect of the Capital of the Federation.
(2) The Governor-General may by order make, in respect of the Capital of the Federation, such provisions---
(a) for its Government and administration;
(b) for varying the composition of the Legislature of the Province affected thereby and the representation in the Federal Legislature of that Province;
(c) with respect to the laws which are to be in force in the area;
(d) with respect to the expenses or revenues of any Court theretofore exercising the jurisdiction of a High Court in the area;
(e) with respect to apportionments and adjustments of, and in respect of assets and liabilities; and
(f) with respect to other supplemental, incidental and consequential matters; as he may deem necessary or proper.
(3) The Governor-General may by order alter, amend or modify any order made under this section.
(4) The executive authority of the Federation extends to the capital of the Federation and any order made under this subsection may be controlled or superseded by an Act of the Federal Legislature, which shall have also power to make laws for the Capital of the Federation with respect to matters enumerated in the Provincial Legislative List, other than matters relating to High Court.
(5) An order made under this section may authorize expenditure from the revenues of the Federation."
A comparison of the original section 290-A inserted in the Government of India Act, 1935, which was omitted by the Establishment of West Pakistan Act, 1955 and the amended section 290-A reinserted in the Government of India Act, by the Government of India (Second Amendment) Act, 1955, with effect from 14th October, 1955 shows that the original subsection merely empowered the Governor-General to demarcate an area forming part of the province for the purpose of capital of the federation and in pursuance thereof the Governor-General issued G.G.O. No,15 of 1948 demarcating the areas forming federal capital. In the amended subsection (1) of section 290-A, it was provided that the Provincial Legislature has no power to make laws in respect of the capital of the federation except in respect of the matters relating to High Court. It means that the federation instead of acquiring jurisdiction for legislation in respect of the matters relating to High Court conferred this jurisdiction on the Provincial Legislature. I further find that under the original section 290-A(2)(d) the Governor-General was empowered to make order in respect of the areas demarcated for the purpose of capital of federation in respect of the jurisdiction, expenses or revenues of any Court theretofore exercising jurisdiction of a High Court in the area. However, under the amended section 290-A(2)(d), the powers of the Governor-General were restricted to making order with respect 'to the expenses or revenues of any Court theretofore exercising jurisdiction of a High Court in the area. The omission of the word 'jurisdiction' from the amended section 290-A(2)
(d) is very significant. As already observed earlier, the Governor-General in spite of holding powers to make orders in respect of the jurisdiction of the High Court at Karachi had not passed any order pertaining to the jurisdiction of the High Court except promulgation of Karachi Courts Ordinance 1955 (Ordinance XXIX of 1955), dated 13-8-1955, which was never brought into force. The Pakistan (Establishment of the Federal Capital) Order, 1948, (G.G.O. No,15 of 1948) had merely provided in section 9 that subject to the provisions of Article 3 of section 290-A of the Government of India Act, the Chief Court of Sindh shall continue to be the High Court of Karachi and shall retain such jurisdiction as it has immediately before the day appointed under Article 3. However, under the amended section 290-A, inserted with effect from 14th October, 1955, the Governor-General was not conferred any power pertaining to the jurisdiction of High Court in the area and his powers were restricted in respect of the expenses and revenues of any such Court only. It is further very significant to note that in original section 290-A, it was provided that any provision with respect to the jurisdiction of High Court contained in any order made under this section shall be subject to the provisions of Chapter-II of Part-IX of the Government of India Act, except the provisions of subsection (1) of section 230 and of subsection (2) of section 231 thereof shall not apply. This provision was altogether omitted in the amended section 290-A of the Government of India Act.
Meaning thereby that the Governor-General was no more empowered to make any provision with respect to the jurisdiction of a High Court. The position is further clarified from the new provision inserted through subsection (4) of section 290-A, to the effect that the executive authority of the federation extends to the capital of the Federation and any order made under this subsection may be controlled or superseded by an Act of the Federal Legislature, which shall have also power to make laws for the Capital of the Federation with respect to the matters enumerated in the Provincial Legislative List, other than matters relating to High Court. (underlining is mine) It has left no ambiguity to the effect that the executive authority of the Federation as well as the Federal Legislature was restricted to the matters pertaining to Government and administration, in respect of laws which are enforced in the area and other allied matters except the matters relating to the High Court which remained within the competence of the Provincial Legislature. It is pertinent to note here that under section 2(2) of the Establishment of West Pakistan Act, 1955, it was provided that, notwithstanding anything contained in the preceding subsections the Capital of the Federation shall be administered in accordance with the provisions of section 290-A of the Government of India Act, 1935. When this provision is read with the amended section 290-A discussed above, I find that the matters relating to High Court i,e, the Chief Court of Sindh were not within the competence of the federation or the Federal Legislature and always remained within the competence of the Provincial Legislature, except for the period between 22nd of July, 1948 and 3rd of October, 1955, when the original section 290-A, of the Government of India Act, 1935 was in force.
During this period Governor-General was competent to make order in respect of jurisdiction of High Court and not the Federal Legislature.
' On 9th October, 1955, the High Court of West Pakistan (Establishment) Order, (G.G.O. XIX of 1955) was promulgated in pursuance of section 7 of the Establishment of West Pakistan Act, 1955. It was provided in Article 5 of this Order that, 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 of Karachi, as were exercisable immediately before the commencement of this Order, by the Chief Court of Sindh under section 8 of the Sindh Court Act, 1926. A proviso was added to the effect 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.
' As already observed earlier, on 13th August, 1955, the Governor-General promulgated Karachi Courts Ordinance (Ordinance XXIX) of 1955. It was provided in section 2 of this Ordinance that, on and from the appointed day, the Sindh Courts Act, 1926 shall in its application to the Capital of Federation, be subject to the amendments set out in the Schedule to the said Ordinance. It was provided in section 3 that on and from the appointed day, there shall be deemed to have been established in the Capital of Federation following classes of Civil Courts namely:
1. Court of District Judge; and
2. Courts of Subordinate Judges.
' It was provided in section 5 that the Court of the District Judge shall be deemed to be the District Court or principal Civil Court of original jurisdiction. It was provided in subsection (2) of section 5 that except as otherwise provided by any enactment for the time being in force, the Court of District Judge shall have jurisdiction in original civil suits without limit as regards the value. It was further provided in section 8 that the ordinary jurisdiction of a Subordinate Judge of a first class shall extend to all original suits and proceedings of civil nature, without limit as regards the value.
' An amendment was made in Sindh Courts Act, 1926 whereby in section 8 words "and the principal Civil Court of original jurisdiction for the civil District of Karachi and shall be the Court of Session and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi" were omitted. It was further provided that the Chief Court may transfer any proceeding pending immediately before the appointed day in the Chief Court functioning as the Court of Session and exercising powers and performing the duties of a Sessions Judge in the Sessions Division of Karachi shall be deemed to be transferred to the. Court of Sessions Karachi and such Court shall proceed to try and determine or otherwise deal with such proceedings as if it had been instituted in such Court.
' The above provisions show that by Karachi Courts Ordinance, 1955, the Governor-General created the Court of District Judge and conferred powers on the District Judge and subordinate Judges but did not confer any power or jurisdiction on the Chief Court of Sindh which was exercising its original jurisdiction under the Provincial Legislation namely Sindh Court Act, 1926. Through this Ordinance, the original jurisdiction of the Chief Court was abolished by an amendment in section 8 of the Sindh Court Act, 1926, as narrated above. At the relevant time capital of the federation was being governed under section 290-A of the Government of India Act, 1935 as inserted by the Provisional Constitution (Fourth Amendment) Order 1948, and under subsection (2) of section 290-A, the Governor-General was empowered to make provision with respect to the jurisdiction of the High Court.
' It appears that this Ordinance never came into force for the reason that the Provincial Government did not issue notification in the Official Gazette bringing it into force as required under section 1(3) of this Ordinance. This Ordinance was published in the gazette on 18th August, 1955 and thereafter the Constituent Assembly passed the Establishment of West Pakistan Act, 1955 on 3rd October, 1955 whereby section 290-A of the Government of India Act was omitted and was again inserted with effect from 14th October, 1955 with the amendments as already discussed. In the amended section 290-A of the Government of India Act, 1935 the Federation was not empowered to make any legislation pertaining to the jurisdiction of the High Court. Thereafter on 29th February, 1956, the Constituent Assembly framed the Constitution of Islamic Republic of Pakistan, which came into force from 23rd of March, 1956 and the Government of India Act, 1935 and the Indian Independence Act, 1947 were repealed. In the Constitution, Article 211 dealt with the matters pertaining to the federal capital which has been referred to in the Judgment of Hon'ble Chief Justice. It was provided in Article 211(2) that the administration of the federal capital shall vest in the President, who may, by order make such provisions as he may deem necessary or proper with respect to the laws which are to be enforced therein, and with respect to the jurisdiction, expenses or revenues of any Court exercising the jurisdiction of High Court therein. These provisions are pari materia to the provisions contained in section 290-A of the Government of India Act, 1935 as inserted by G.G.O.No, 14 of 1948 with the difference that under subsection (3) of section 290-A, as it existed up to the 3rd of October, 1955 any provision with respect to the jurisdiction of High Court contained in an order made thereunder, was subject to the provisions of Chapter-II of Part-IX of the Government of India Act, 1935 which included Article 223. It was provided in Article 223 that subject to the provisions of Part-IX of the Act, the provisions of any order in council made under the said Act or any other Act, the provisions of any order made under the Indian Independence Act, 1947 and to the provisions of any Act of competent legislature or any order made thereunder, the jurisdiction of, and the law administered in, any existing High Court and the respective powers of the Judges thereof in relation to the administration of justice in the Courts, shall be same as immediately before the establishment of Federation and under subsection (3) of Article 211 of 1956 Constitution, it was provided that notwithstanding anything in the Constitution, Parliament shall have powers to make laws for the Federal Capital with respect to matters enumerated in the Provincial Legislative List, and matters not enumerated in any list in the V Schedule other than matters relating to High Court. (The underlining is mine). Thus, there is one pertinent feature, which is common in section 290-A as inserted in the Government of India Act, by G.G.O. No,14 of 1948.
Section 290-A as inserted by Government of India (Second Amendment) Act of 1955 and Article 211 of 1956 Constitution of the Islamic Republic of Pakistan. Under section 290-A as inserted by G.G.O.No,14 of 1948, the Governor-General was empowered to make order in respect of the area demarcated for the purpose of the capital of the federation which inter alia included the matters in respect of the jurisdiction of a High Court in the area. It is silent on the point of competence of Federal Legislature in respect of jurisdiction of High Court. Thus, the Federal Legislature was not conferred powers to legislate in respect of the jurisdiction of a High Court working in the capital of the federation. This exclusion of power was by implication. However, under section 290-A as re- inserted by Government of India (Second Amendment) Act, 1955, the powers of Governor-General were curtailed to the extent of matters with reference to the expenses or revenues of any Court exercising the jurisdiction of High Court in the area and it was specifically provided in subsection
(4) of the said section that the Federal Legislature shall have powers to make laws for the capital of a federation with respect to the matters enumerated in the Provincial Legislative List othei than the matters relating to High Court. It means the legislation in respect of matters relating to High Court were specifically vested in the Provincial Legislature and the Federal Legislature was specifically debarred from making any legislation pertaining to the High Court. Likewise, it was specifically provided in sub-Article (3) of Article 211 of 1956 Constitution, that notwithstanding anything contained in the Constitution, Parliament shall have powers to make laws for the Federal Capital with respect to the matter enumerated in the Provincial List and matters not enumerated in any list in the Vth Schedule other than the matters relating to the High Court. The provisions contained in subsection (4) of section 290-A of the Government of India Act, 1935, as inserted by Government of India (Second Amendment) Act, 1955 and in sub-Article (3) of Article 211 of the 1956 Constitution, are pari materia so far the powers of Federal Legislature/Parliament pertaining to the making of laws relating to High Courts are concerned. As already observed earlier the Governor-General was empowered under section 290-A of the Government of India Act, 1935 as inserted by G.G.O. No,14 of 1948 to make laws with respect to jurisdiction of the High Court working in the capital federation but no orders were passed conferring any jurisdiction on Chief Court of Sindh in respect of original civil jurisdiction being exercised in respect of Karachi which was declared as Federal Capital and consequently by virtue of the provisions contained in section 223 of the Government of India Act, 1935, the Chief Court of Sindh continue to exercise the original civil jurisdiction conferred on it under the Sindh Courts Act, 1926 which is a Provincial Law, except issuance of Karachi Courts Ordinance, fully discussed earlier abolishing the original civil jurisdiction of the Chief Court of Sindh by amending section 8 of the Sindh Courts Act, 1926 but the said Ordinance never became operative.
Under Article 211 of the 1956 Constitution, the Parliament (Federal Legislature) had no power to make legislation pertaining to the matters relating to the High Court exercising jurisdiction in the Federal Capital. Under sub-Article (2) of Article 211, the President was empowered to make the provisions with respect to the laws to be enforced in the Federal Capital and with respect to the jurisdiction of the High Court working therein. In exercise of the powers conferred under Clause (2) of Article 211 of the 1956 Constitution, the President promulgated the President's Order II of 1956 to be called as Karachi Courts Order 1956, thereby making certain amendments in Sindh Courts Act, 1926, under which the Chief Court of Sindh and subsequently, the West Pakistan High Court Karachi Bench was exercising original civil jurisdiction as principal Court of original civil jurisdiction. As already referred to above, it was provided in section 8 of the Sindh Courts Act, 1926, that Chief Court of Sindh shall be the principal civil Court of original jurisdiction for the civil District of Karachi and shall be the Court of Session and shall exercise the powers and perform duties of Sessions Judge in the Sessions Division of Karachi. After establishment of Karachi as Federal Capital by the Pakistan (Establishment of the Federal Capital) Order, 1948 this jurisdiction was retained by Article 9 of G.G.O.
No,15 of 1948, whereby it was held that the Chief Court of Sindh shall continue to be High Court of Karachi and shall retain such jurisdiction as immediately before the day appointed under Article 3 of the said Order and again on establishment of Pakistan by integrating all the Provinces in the West Pakistan and establishment of High Court of West Pakistan under the G.G.O. No, XIX of 1955 the original civil and criminal jurisdiction of the High Court of West Pakistan at Karachi was retained empowering to exercise same original civil jurisdiction of High Court Karachi Bench and same criminal jurisdiction for the Sessions Division Karachi, as were exercisable immediately before the commencement of the G.G.O. No,XIX of 1955 with effect from 14th October, 1955, by Chief Court of Sindh under section 8 of the Sindh Courts Act, 1926. Under the President Order II of 1956 (Karachi Courts Order 1956), the words, "and shall.Be the Court of Session and shall exercise the powers and perform duties of a Sessions Judge in the Sessions Division of Karachi" were substituted with the words, "in respect of suits and proceedings wherein the subject-matter in amount and value exceeds 25,000 rupees or such sums as the Central Government may, by order under the provisions of subsection (2) of section 22 prescribe." With this amendment section 8 of the Sindh Courts Act, 1926 read as follows:-- "8.Civil and Criminal Jurisdiction of Chief Court.
' The Chief Court shall be the highest civil Court of appeal and revision and the highest court of criminal appeal and revision for Sindh and the principal civil Court of original jurisdiction for the civil District of Karachi in respect of suits and proceedings wherein the subject-matter in amount or value exceeds 25,000 rupees or such sums as the Central Government may, by order under the proviso to subsection (1) of section 22 prescribe."
' A proviso was added to subsection (2) of section 22 of the Sindh Courts Act, 1926, which reads as follows: "Provided that, unless Central Government by order otherwise directs the District Court of Karachi shall not have jurisdiction in original civil suits and the proceedings wherein a subject-matter exceeds 25,000 rupees in amount or value."
' Under Article 3 of the Karachi Courts Order 1956, the Court of the District Judge and the Courts of subordinate Judges were established in the Federal Capital. It was provided in Article 4(2) as under:-- "Unless the Central Government by order under the proviso to subsection (2) of section 22 of the Sindh Courts Act, 1926 (BOM. Act VII of 1926) otherwise direct the Court of the District Judge shall not have jurisdiction in original civil suits and proceedings wherein the subject-matter exceeds 25,000 rupees in amount or value,"
' It will be seen that the above order was passed by the President of Pakistan in exercise of the powers conferred by Clause (2) of Article 211 of the Constitution and not by the Parliament (Federal Legislature) for the obvious reason that under Article 211 Clause (2) the President was empowered to pass such order which affected the jurisdiction of High Court, while no law was promulgated by the Parliament (Federal Legislature) as under Clause (3) of Article 211 the Parliament was not empowered to make any laws in the matters relating to the High Court. Secondly, under Karachi Courts Order 1956, no jurisdiction was conferred on the High Court of West Pakistan Karachi Bench rather the jurisdiction was curtailed. Prior to the promulgation of Karachi Courts Order 1956, the Chief Court of Sindh and subsequently after the establishment of West Pakistan High Court, the Karachi Bench of the West Pakistan High Court was exercising the powers of appellate and revisional as well as original jurisdiction in civil matters pertaining to the civil District of Karachi which was subsequently declared as the Federal Capital. With the promulgation of Karachi Courts Order 1956 by the President's Order II of 1956, the original civil jurisdiction of the High Court was restricted to the subject-matters exceeding 25,000 rupees in amount or value and the ordinary jurisdiction of subordinate Court of first class Civil Judge was created in respect of original suits and proceedings of civil nature wherein the subject-matter in amount or value does not exceed 25,000 rupees or such sums as the Central Government may by order under the proviso to subsection (2) of section 22 of the Sindh Civil Court Act, 1922 prescribe. Under section 28 of the Karachi Courts Order, 1956, all suits, executions and other proceedings wherein the subject-matter in amount or value does not exceed 25,000 rupees or such sums as the Central Government may by order under the proviso to subsection (2) of section 22 of the Sindh Courts Act, 1926 prescribe, other than appeals, revisions and reviews pending before the Bench of High Court of. West Pakistan at Karachi in which no evidence was recorded stood transferred to the Court of District Judge who was required to dispose of such suits, executions and other proceedings in the manner as if they have been instituted in his Court. This legal dispensation continued till the promulgation of President Order No,IX of 1961 called as West Pakistan Administration (Merger of the Federal Territory of Karachi) Order 1961. The federal territory of Karachi became part of West Pakistan and ceased to be administered as federal territory and was to be known as the Karachi Division of West Pakistan.
It was provided that the specified territory referred in any Act or Ordinance or any rule, regulation, or bye-law or notification was to be construed as referred to the provisions of West Pakistan or as the context may indicate, to the Karachi Division. However, all the laws were to continue in force with necessary adaptation until altered, repealed or amended by the competent authority. The Governor-General of West Pakistan was empowered to carry out the purposes of this Order, issue orders supplemental and incidental to or consequential upon the enforcement of this order.
' After the merger of Karachi with the West Pakistan and ceasing of the same as federal territory, the Governor of West Pakistan promulgated the Civil Court Ordinance 1962 (II of 1962). Under section 28 of this Ordinance, the Sindh Courts Act, 1926 as applicable to the District of Karachi was repealed except section 8 under which the original civil jurisdiction was exercised earlier by the Chief Court of Sindh and subsequently by the erstwhile West Pakistan High Court Karachi Bench. It was provided in section 7 of the Civil Court Ordinance, 1962 that in the Karachi District, the original jurisdiction in civil suits and proceedings of value exceeding 25,000 of rupees shall be exercised by the High Court. With the promulgation of Civil Courts Ordinance, 1962 there were two laws in the field, one the amended section 8 of the Sindh Courts Act, 1926 which provided that the Chief Court shall be the principal Civil Court of original jurisdiction for the Civil District of Karachi in respect of the suits and proceedings wherein the subject-matter in amount or value exceeds 25,000 rupees or such sum as the Central Government may, by order under the proviso to subsection (2) of section 22 prescribe. By virtue of this provision the Karachi Bench of West Pakistan High Court was Principal Civil Court of original jurisdiction for the District of Karachi in respect of the suits and proceedings in amount or value exceeding 25,000 rupees or such sums as the Central Government may by order under the proviso to subsection (2) of section 22 prescribe. At the same time the District Judge Karachi became the principal Civil Court of original jurisdiction in respect of the cases and suits not exceeding the amount or value of rupees 25,000. By the Civil Courts Ordinance, 1962 the Karachi Courts Order 1956 was also repealed except clause 4(2) which provided that unless the Central Government by order under the proviso to subsection (2) of section 22 of the Sindh Courts Act, 1926 otherwise directs the Courts of the District Judge shall not have jurisdiction in original civil suits and proceedings wherein the subject-matter exceeds 25,000 rupees in amount or value. The result was that the District Judge was the principal Court of original civil jurisdiction in the matters up to 25,000 rupees by virtue of the provisions contained under Article 4(2) of the Karachi Courts Order, 1956 read with amended section 8 of the Sindh Courts Act, 1926 and section 7 of the West Pakistan Civil Courts Ordinance 1962, and by virtue of the same provisions, the Karachi Bench of the West Pakistan High Court was principal Court of civil jurisdiction at Karachi in respect of the matters exceeding 25,000 rupees.
' Although the Karachi Courts Order 1956 was repealed by the West Pakistan Civil Courts Ordinance, 1962 except Clause 4(2) but by President's Order 1 of 1964 in pursuance of Clause (1) of Article 225 of the 1962 Constitution, read with Clause (4) of the said Article, the Karachi Courts Order 1956 was also amended/modified to the effect that throughout the order except in Clause (3) of Article 1(a) for "Federal Capital", Karachi Division, was substituted and for "Central Government", "Provincial Government", was substituted. The effect of this amendment was that Clause 4(2) of the Karachi Courts Order 1956 was to read as follows:-- "Unless the Provincial Government by order under the proviso to subsection (2) of section 22 of the Sindii Courts Act, 1926, otherwise directs the Court of the District Judge shall not have jurisdiction in original suits and proceedings wherein the subject-matter exceeds twenty-five thousand rupees in amount or value."
' As already narrated above section 8 of the Sindh Courts Act, 1926 was the only provision left intact after repeal of the entire Act by the West Pakistan Civil Courts Ordinance, 1962, and it contained similar provision. It appears that while repealing the Sindh Courts Act, 1926 as applicable to District of Karachi and the Karachi Courts Order 1956 and leaving amended section 8 of the former Act and Clause 4(2) of the later order it was not noticed by the draftsman that the Central Government/Provincial Government, could not prescribe any higher amount enhancing pecuniary jurisdiction of the District Judge Karachi under proviso to subsection (2) of section 22 because while repealing entire Sindh Courts Act, 1926, the proviso to subsection (2) of section 22 of the Sindh Courts Act, 1926 which was added by Clause (2) of the Karachi Courts Order 1956 also stood repealed. Without properly attending to this anomaly Civil Courts (Sindh Amendment) Ordinance 1970 (XIII of 1970) was promulgated with the purpose of amending the Karachi Courts Order 1956 and the West Pakistan Civil Courts Ordinance, 1962. It was done in pursuance of Martial Law Proclamation of 25th March, 1969, read with the Provisional Constitution Order, and in exercise of all powers enabling the Governor of Sindh in that behalf. Article 4 Clause (2) of the Karachi Courts Order 1956 was substituted as follows:-- "2. The Court of the District Judge Karachi shall not have jurisdiction on the original civil suits and proceedings wherein the subject matter exceeds fifty thousand rupees."
' In the West Pakistan Civil Court Ordinance, 1962, in section 24 in the proviso to subsection (1) and in subsection (2A) for the words, "twenty-five thousand" the words "fifty thousand" were substituted.
With this amendment the pecuniary jurisdiction of the District Judge, Additional District Judge and Civil Judge of the First Class at Karachi was enhanced to Rs,50,000 without curtailing the jurisdiction of the West Pakistan High Court Karachi Bench. The result was that the West Pakistan High Court Karachi Bench and the District Judge and Civil Judge First Class at Karachi started enjoying concurrent jurisdiction in respect of the matters exceeding rupees twenty-five thousand and not exceeding fifty thousand rupees.
' Ordinance VI of 1981 namely Sindh Courts (Amendment) Ordinance 1981 was promulgated for the purpose of further amending Sindh Civil Courts Ordinance 1962 and repeal of the Sindh Courts Act, 1926 and the Karachi Courts Order 1956. It appears that at this point of time the anomaly was noticed and therefore, the whole of Sindh Courts Act 1926 as applicable to Karachi and the Karachi Courts Order 1956 were repealed. Section 7 of the West Pakistan (re-named, as Sindh) Civil Court Ordinance 1962, was substituted. Substituted section 7 read as follows: "subject to any law for the time being in force, the original jurisdiction of the District Judge in civil suits and proceedings shall be without limit of the value thereof except in Karachi District wherein the original jurisdiction in civil suits or proceedings of the value exceeding one lac of rupees shall be exercised by the High Court."
' In section 24 of the said Ordinance words, "fifty thousand rupees" were substituted by "one lac of rupees". After this amending Ordinance the anomaly was removed and thereafter the original civil jurisdiction at Karachi was governed by the Sindh Civil Courts Ordinance, 1962 whereby the District Judge became the principal Court of original jurisdiction in the matters not exceeding Rs,1,00,000 and the High Court became the principal Court of original jurisdiction at Karachi in respect of the suits and proceedings of the value exceeding one lac rupees. By Sindh Civil Courts (Amendment)
Ordinance, 1991, the pecuniary jurisdiction of the District Judge was enhanced to Rs,5,00,000. It was provided that the civil suits and proceedings of the value not exceeding 5,00,000 rupees in respect of Karachi District pending in High Court shall be disposed of by the High Court. Subsequently, Sindh Civil Courts (Amendment) Act 1991 was enacted by the Provincial Legislature as Act III of 1992.
' Lastly through Sindh Civil Courts (Amendment) Ordinance, 2002, the pecuniary jurisdiction of the District Judge Karachi was enhanced, to Rs,30,00,000 and the jurisdiction of the High Court was restricted to the civil suits and proceedings exceeding 30,00,000 rupees. It was further provided that all suits, appeals and proceedings not exceeding the original or appellate pecuniary jurisdiction of District Judge at and outside Karachi respectfully pending in the High Court immediately before the commencement of the Ordinance shall stand transferred to the concerned District Judge for disposal.
From a survey of the statutes dealing with the original civil jurisdiction of the Chief Court of Sindh/West Pakistan High Court Karachi Bench/Sindh High Court, there is no scintilla of doubt in any mind that at no point of time any original civil jurisdiction was conferred on the Court of record functioning at Karachi by the Federal Legislature. In fact the Federal Legislature has not enacted any law pertaining to the jurisdiction of the High Court functioning at Karachi. The Sindh Courts Act 1926 was admittedly a Provincial Legislation. Thereafter certain orders were passed by the Governor-General and President of Pakistan including Karachi Courts Order 1956 and after integration of Federal Capital of Pakistan comprising Karachi in the West Pakistan as Karachi Division and on dismemberment of the West Pakistan as Karachi Division of the Province of Sind. All the laws which have conferred the jurisdiction on the Chief Court/High Court, or have curtailed the jurisdiction were passed by the Provincial Legislature. At this juncture, I would like to point out that under Article 211 of the 1956 Constitution, the Constituent Assembly had clearly made a distinction in the powers vested in the President under Clause (2) of Article 211 and the powers vested in the Parliament (Federal Legislature) under Clause (3) of the said Article and has specifically provided that the President was empowered to make laws pertaining to the jurisdiction of High Court functioning in the federal capital and that the Parliament had no power to make laws in the matters relating to the High Court. Thus, no question of repugnancy arises between any provision of an Act of Provincial Assembly and the Act of Majlis-e-Shoora (Parliament) as envisaged under Article 143 of the Constitution of Islamic Republic of Pakistan, 1973. Since there is no inconsistency, conflict or repugnancy therefore, the objection to the validity, of various Provincial Laws enhancing pecuniary jurisdiction of the District Judge at Karachi is without substance and consequently, I fully agree with the view expressed by the Hon'ble Chief Justice to the effect that there is no law made by the Parliament in exercise of the powers under the Concurrent Legislative List pertaining to the original civil jurisdiction of the Chief Court of Sindh, erstwhile West Pakistan High Court Karachi Bench and Sindh High Court and consequently, there is no conflict as envisaged under Article 143 of the Constitution of Islamic Republic of Pakistan and thus, in accordance with section 7 of the Sindh Civil Court Ordinance jurisdiction of High Court to try civil suits is confined to matters where the pecuniary jurisdiction exceeds to Rs,30,00,000 and all other suits are liable to be, transferred and disposed of by the District Court. I would like to add only this much that from the year 1981, there is one provincial law only in the field governing the original civil jurisdiction of Sindh High Court and District and Subordinate Court at Karachi. It is Sindh Civil Court Ordinance, 1962. There is no Federal Law at all in the field and never occupied the field, therefore the question of repugnancy; inconsistency or conflict in Federal and Provincial Law does not arise.
(Sd.)
MUHAMMAD MUJEEBULLAH SIDDIQUI, J.