1. ' ZAKAULLAH LODHI, J.-The petitioner who alleges to be owner and landlady of premises bearing Municipal No, 1-16/23 and some other Pontius premises sued the respondent in the year 1967 for the eviction from the said premises on the ground of its construction of the building in the Court of the Rent Controller, Quetta. Since the question of existence of relationship of landlord and tenant between the parties required adjudication first, an issue was limited on this point and the parties were ordered to produce their evidence. It is stated in this petition filed under Article 203 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter called the "Constitution of 1973") that the petitioner closed her evidence on 11th November, 1969 and since then the case is pending for the completion of the respondent's evidence and uptil 5th of February, 1979 when the present petition was filed no appreciable progress was made. By means of this petition the petitioner has sought suitable orders to ensure expeditious disposal of the case.
2. When the matter came up for hearing on 18th March, 1979, Mr. Basharatullah, who appeared for the respondent in the lower Court was present in the Court and was asked to apprise us of the circumstances in which this inordinate delay had beer caused and even the preliminary issue had not been decided in 12 years period passed since the institution of the application. In fact we proposed to dispose of this petition by a short consent order but since Mr. Basharat Ullah insisted that full hearing be given and the record of the case be also perused we adjourned the case and sent for the record of the case.
3. On 26th March, 1979 the case came up before us again and the record of the Court of Rent Controller as well as the comments sent by him were perused. Neither the record nor the comments make out any justification worth the name for the said delay. Undoubtedly, as Mr. Basharatullah pointed out, examination of the record of some Courts of Quetta pertaining to previous litigation in respect of this property was necessary to be produced before the Rent Controller but that could not delay the disposal of the case as so long, as tried to be impressed upon us by Mr. Basharatullah. Summoning of the original record to prove the copies thereof do not take years. At the most it could take a few months, if not days; for all the record was available at Quetta. Then the work load upon Quetta Courts is also not abnormal to justify the speed with which the case has been proceeded with. If this pace of progress was allowed to continue we cannot expect the disposal of this case in forcible future. Despite our bringing all this to the notice of the learned counsel we found him highly reluctant even to accept the word .Delay' to be used for the time consumed by this case; but we are least impressed by such attitude of the learned counsel.
2. However, we appreciate that he at least agreed that early disposal of the case may be ordered. But at the same time he urged with great emphasis that this Court had no jurisdiction under Article 203 of the Constitution of 1973 to entertain this petition as the Rent Controller was not a Court subordinate to this Court so as to be covered by the said Article. This being an important question touching very jurisdiction of this Court required a decision and thus we invited full dress arguments at the bar. Mr. Basharatullah in order to support his contention solely relied upon Sh. Muhammad Nazir Ahmad Piracha v. S. M. Almas Ali, Advocate (1) wherein his Lordships Mr. Justice Karam Ellahee Chauhan (as he then was) while examining the scope of Article 102 of the Constitution of 1974 (1) PLD 1971 Lah, 131 which is a provision parallel to Article 203 of the Constitution of 1973 has held that the Rent Controller's Court created under West Pakistan Rent Restriction Ordinance (VI of 1959)
3. (hereinafter referred to as the "Ordinance") not being a Court stricto senso was not covered by the said Constitutional provision. It would be of advantage to reproduce the operative part of this judgment for convenience of reference :- ' The upshot of the above discussion is that since the Rent Controller is not a Court, a petition under Article 102 of the late Constitution against his order is not maintainable..................................................................
4. ' Before we embark upon the task of appreciating the scope of "supervisory jurisdiction of this Court" as provided by Article 203 of the Constitution of 1973 in the light of the Constitutional history behind it, it would not be inappropriate to deal with the case law that had been placed before his Lordship and following which he was persuaded to exclude the Rent Controller provision. These rulings consist of The Corporation of the City of Lahore v. Fahmida Begum (1), Aurangzeb v. Bakhshl Mahmood All (2), Ibrahim v. Muhammad Rafique (3), Faqir Muhammad v. Dr. Muhammad Yasin and 2 others (4), Jamal Din v. Haji Muhammad Aslam (5) and Khadim Mohy-ud-Din and others v.
5. Ch. Rehmat Ali Nagra and another (6).
4. The first of the cases referred to above was a case emanating from Punjab Urban Rent Restriction Ordinance, 1947. The limited question that required consideration in that case was with regard to the applicability of the powers of revision of this Court under section 115 of the Code of Civil Procedure to said law. The other main question was with regard to the capacity of the appellate authority (District Judge) in which it heard the appeals in rent cases.
6. ' The second case in line dealt with the availability of clause (10) of Letters Patent (Lahore) in respect of orders passed by a Single Judge of that Court under the Ordinance.
7. ' In the third case from the above cited cases the question under consideration with reference to section 2(b) of West Pakistan Urban Rent Restriction Act of 1957, a law predecessor to the Ordinance in the same field, was whether, Courts of Rent Controller were per se Courts in the sense of the term "Court" as used for Courts created by the Code of Civil Procedure and whether the proceedings in progress before them ceased to be valid after the repeal of such Act and the finding was in the negative, viz. Such Courts were not Courts in strict sense of the term and, therefore, the continuity of the proceedings was broken.
8. ' In the fourth case from the above-cited cases, again the question was with regard to scope and applicability of section 115 of the Code of Civil Procedure to the proceedings under the Ordinance and it was held that the Rent Controller being persona designta its orders were not amenable to such jurisdiction.
(1) PLD 1961 Lah. 619 (2) PLD 1961 Lah. 619
(3) PLD 1964 Lah. 644 (4) PLD 1964 Lah. 686
(5) PLD 1965 Lab. 503 (6) PLD 1965 SC 459 ' The next case discussed the point whether framing of issues for which a provision existed in the Code of Civil Procedure was essential with regard to cases tried under the Ordinance. In this context it was held that Rent Controller's Court was not a Court stricto senso hence, failure to abide by such rule of procedure was inconsequential.
9. ' The sixth case dealt with the question whether the Rent Controller was a Court stricto senso or was it persona designata and it was held with reference to sections 4 and 8 of the Oaths Act that the term "Court" used in section 3 of the said Act deserved to be read in its wide and comprehensive sense so as to cover the Rent Controller within the ambit of its jurisdiction.
10. ' The last case in the series dealt with the procedure which a Rent Controller should adopt for trial of purview of the Code of Civil Procedure was not bound by the procedure laid down therein. The capacity of District Judge in relation to appeal filed under the Ordinance was also subject for examination with which we are not presently concerned. With regard to the nature of functions of the Rent Controller it was held that he acted in his judicial capacity and not as a Court as the term was popularly understood in relation to the Courts created by the Code of Civil Procedure.
11. ' From the above discussion it is now clear that the supervisory jurisdiction the High Court under any one of the Constitutional documents in the filed in 1947 was not indirectly a subject-matter of consideration in these cases. The Constitutional history preceding Article 203 of the Constitution of 1973 was not at all placed before his Lordship that he could be benefited by it while construing the scope of this provision of law. Accordingly we would avail of the opportunity of interpreting and constituting in order to ascertain its scope of applicability in the light of its predecessor documents in the field in Pakistan and the Constitution of India.
12. ' The first Constitutional document which we would discuss in this connection is Government of India Act, 1935. The relevant provision thereof reads as under :- "Section 224.-(1) Every High Court shall have superintendence over all Courts in India for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to say,-
(a) call for returns ;
(b) make and issue general rules and prescribe from for regulating the practice and proceedings of such Courts ;
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts ;
(d) settle tables of fees to be allowed to the sheriff, attorneys, and all clerks and officers of Courts : ' Provided that such rules, forms and tables shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(2) Nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision." Underlining is mine.
13. ' It is obvious from the perusal of this provision that the power of superintendence of the High Court is confined to Courts in its direct hierarchy and under its appellate jurisdiction, and though for the words "subordinate Courts" used in Article 201 of 1973 Constitution words "inferior Courts" have been used subsection (2) thereof but it is clear that the qualification of subordinate Courts remains unaltered in both the documents, i. e. Their orders should be subject to its appellate jurisdiction.
14. However, as we shall presently see in some later Constitutions word revisional jurisdiction has also been added but the underlying idea in both cases remains the same. Besides this sub-Article (2) of this provision also does not admit of any interference with the judgments of the inferior Courts which were not otherwise subject to appellate or revisional jurisdiction of the High Court while exercising the powers in question. But this aspect of this provision is inconsequential for our purposes. It is however, undisputed that power of superintendence is meant for Courts inferior (or "subordinate", as the term was used in some of the later Constitutional documents) to the High Court and the criterion for judging as to which were the inferior Courts is that their orders should be appealable or subject to revision by this Court. It is noteworthy that in the marginal note depicting the nature of this provision the words used are "administrative functions of the High Court" which means that the phrase "Administrative powers" and "power of superintendence" have been used in identical meanings. Thus the words "administrative power" when used in this context, would not convey the same meaning as they are normally understood to convey when used in common parlance such as day to day administrative work of the High Court and dealing with its staff etc. Consequently, the only conclusion that can be drawn from it is that these phrases mean judicial superintendence of High Court over subordinate/inferior Courts which have been defined to be the Courts under its appellate jurisdiction. In later Constitutional documents words "revisional jurisdiction" were also combined with the words "appellate jurisdiction" in order to extend the scope of this provision. It was necessary to avoid possibility of any ambiguity likely to arise while interpreting the Constitutional provision in question. But it is clear that the words "appellate and revisional jurisdiction" refer to no other Courts but the Courts subordinate to the High Court and in its direct hierarchy.
15. ' After Government of India Act, the next Constitutional document which came to occupy the field, and of course not without drawing inspiration from its predecessor document was the Constitution of India, promulgated in November, 1949 which by means of Article 227, reproduced below provided a parallel provision :- "Article 227.-(I) Every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
16. ' It is apparent that the scheme of Article 224 of Government of India Act, 1935 has been closely followed here as well, though the words "subordinate" or "inferior" have been omitted, and the jurisdiction of superintendence has been greatly extended to cover all Courts and tribunals within its territorial jurisdiction and that is why words inferior or subordinate Courts were not necessary to be incorporated for pointing out the scope of this provision. The bar contained in sub-Article (2) of Government of India Act was also omitted. Another noteworthy feature is that this provision extended such jurisdiction over tribunals also. But beside clearly seeing the scope of operation of this provision which follows almost the same philosophy which worked behind Art. 224 of Government of India Act we can also not fail to realise that this power is power of judicial control and is in contradiction to other administrative power of superintendence which we have pointed out earlier. In short except for the different terminology used in this provision and the enlarged scope it reveals the same intent and purpose to be existing behind it which is visible in case of Article 224 of Government of India Act, 1935.
17. ' Late Constitution of 1956 was the first in the series of Constitutions promulgated in Pakistan and it contained following provision to this effect though its nomenclature was changed to read "Administrative functions..." instead of "power of superintendence". But as we have noted earlier while discussing Article 224 of Government of India Act, 1935 that both these terms have been used to convey exactly the same meaning and purpose, therefore, this change in phraseology is hardly of any significance :- "Article 177. Administrative function of High Courts.-(1) Each High Court shall have superintendence and control over all Courts subject to its appellate or revisional jurisdiction.
18. ' Provided that........................................................... .. ...................................................
19. ' This provision as we can see from the words used therein very clearly conveys the same purpose which was served by similar provision in earlier mentioned Constitutional documents ; and although the words subordinate or inferior Courts have not been used but they are inferable from the fact that operation of this jurisdiction has been qualified with the words "subject to its appellate or revisional jurisdiction". Hence necessarily the scope of this provision is confined to such Courts which are subordinate to High Court. It would not be futile if it is repeated here for the sake of explaining the fact with greater amount of emphasis as well as accuracy that the word "Subject to its appellate or revisional jurisdiction" has been used for the words subordinate to inferior Courts.
20. ' The above referred Constitution gave way to the Constitution of 1962, in which great deal of authority in the use of words for the similar provision was shown, yet it is fully capable of conveying the meaning that can reasonably and logically be assigned to its keeping in view the consistent trend and policy behind such provisions. The relevant Article runs as under :- "Article 102. High Court to superintend subordinate Courts.-Each High Court shall supervise and control all other Courts that are subordinate to it."
21. ' The words "superintendence" and control over Courts subordinate to High Courts" used in this Article cannot lead us to think of any function of the High Court other than one under discussion i. e.
22. Judicial control, over the Courts subordinate to it and the test of such subordination will again rest on the fact that they should be under appellate or revisional jurisdiction of the Court, for, powers signifying day to day administrative business of the High Court or to be derived from entirely different sources and so these powers cannot be confused together. The purpose behind it is therefore, exactly the same which was behind the earlier mentioned constitutional documents in the field, i,e, the High Court should be in a position to so regulate the functioning of the subordinate Courts in the field of administration of justice as the best interest of law and justice requires. As far as the Courts to which this jurisdiction extends are same as discussed above, i. e. Their orders should be amenable to appellate or revisional jurisdiction of the High Court. Its scope cannot be extended beyond that as the Courts which are not in its hierarchy are governed by different other authorities for instance, Courts of Custodian or Settlement by authorities on that side and Revenue Courts by M. B. R. Etc. In respect of the orders etc. Of such Courts scope of interference by the High Court is limited to the extent of Constitutional jurisdiction under Article 199 in 1973 Constitution, or such other provisions in earlier constitutions.
5. The Constitution of 1962 was followed by the Interim Constitution of 1972 which by means of its Article 205 reproduced below, repeated almost the same language and as such, it goes without saying that in the light of Constitutional history the purpose of this provision is not the least different than those discussed earlier.
23. "Article 205. Each High Court shall supervise and control all other Courts subordinate to it."
24. ' We have seen from the perusal of all the above provisions that they are meant for achieving the purpose of supervising and administering control over subordinate Courts in so far as their judicial functions are concerned. It goes without saying that subordinate Courts are those whose orders are subject to appeal or revision by this Court. Now let us examine Article/03 of the Constitution of 1973 in the light of this background. It runs thus :- "Article 203. High Court to superintend subordinate Courts.-Each High Court shall supervise and control all Courts subordinate to it."
25. This Article is verbatum reproduction of the Article found on the subject in interim Constitution of 1972. Therefore looking to the scheme of the Constitutional documents predecessor to the present Constitution and also the phraseology used in it, it is clear that by superintending or administrative jurisdiction of the High Court, what is meant is judicial superintendence over the subordinate Courts or say administrative control over such Courts in judicial matters. Such control does not travel beyond the scope of passing such orders which are necessary for ensuring that they are functioning in the best interest of law and justice. As far as their judgments or orders are concerned they are otherwise under appellate or revisional jurisdiction of the High Court, so they do not find any coverage from this provision. This is also not meant for day to day administrative functions which are not judicial functions in nature. It is further evident from the history of the legislations on this point that only criterion to judge as to which are these subordinate Courts is whether the appellate or revisional jurisdiction of the High Court extends to such Courts. The other Courts or tribunals not being in the .Direct hierarchy of the High Court are not covered by this phrase. It is a different matter that extraordinary jurisdiction enjoyed by the High Court under Article 199 of the Constitution, interference may be made with certain acts and orders of such tribunal but that does not bring them in the heirarchy of the Courts under the High Courts or make them subordinate to it as mentioned earlier.
26. ' Adverting to the Rent Controller's Court it being a Court under the appellate jurisdiction of this Court cannot be excluded from the operation of this provision by mere fact that it was not a Court stricto senso as held in some of the precedent cases. In fact this question was not even indirectly under consideration in those cases but this discussion is unnecessary at this stage.
6. In fact there is yet another angle with which this question deserves to be gone into. Apparently the word "Court" used in the Constitutional provision has been used in its ordinary dictionary meaning and should be construed in its wide and comprehensive meanings. As we shall presently see Rent Controller has been held to be a Court for some other purposes such as for the purposes of section 8 of the Oaths Act it was held to be a Court in wider connotation of the term "Court".
27. Likewise many a functionaries under special laws like Frontier Crimes Regulation, Rehabilitation and Custodian Laws etc. Have been held to be Courts for certain purposes although they are not the Courts depending upon the Codes of Civil or Criminal Procedure for their existence. (It is, therefore, not necessary that the word .'Court" should always deserve a Limited meaning and that while construing this term the term Courts as used for the Courts established under the Codes of Civil or Criminal E Procedure should be kept in mind and thus its meaning should remain circumvented by such limitation whether it may or may not be in the interest of justice. In our estimation this term is adequately elastic and such elasticity must depend only upon the consideration that it serves the purpose for which it meant to be cited here to bring home the point that the term 'Court' has often been used in its wider sense for achieving the purpose of administration of justice in a comparatively better and more logical and reasonable manner. In Sihibzada Masud Ahmad v.
28. Mian Mohammad Saeed Sehgal (1) with reference to Pakistan Rehabilitation Act, 1956 a Court found under it was held to be a Court in the popular and generally accepted term of the word (imparting justice after receiving evidence etc. Between litigants) but at the same time it was held that it being a Court not subordinate to High Court was for that reason incapable of being called a Court for the purposes of section 2(1) of the Contempt of Courts Act, 1926 and also for Article 177 of 1956 Constitution which was then in operation. It was thus held that it was a Court but for limited purposes. In a ruling from Indian jurisdiction namely Brajnandas Sinha v. Jyoti Narain (2) similar view was .Taken while interpreting the term Court and fixing its scope of activities. It was held so notwithstanding the fact that the Courts under discussion in the case cited were generally performing similar function as the Courts established under the Codes of Civil or Criminal Procedures perform. For the qualifications required by a person/authority/forum to fulfil generally to be termed a Court a reference to Sahibzada Masud Ahmad's case referred to above would be of advantage. It says that in this context following conditions should be satisfied :- "(1) That such persons are entrusted with judicial functions i. e. Of deciding litigated questions according to law ;
(2) That they derive their powers to decide such question from the State ;
(3) That they exercise the judicial powers of the State ;
(4) That there is a plaintiff who complains to such persons of an injury done ;
(5) That there is a defendant who is called upon by such persons t,.) make satisfaction for the injury done ;
(6) That they are empowered to pronounce a definitive judgment which is binding and authoritative ;
(7) That such persons are appointed by the Government and should receive payments for their services exclusively out of Government funds and they should not be liable to removal by any authority other than Government.
29. ' In Mohammad Ali v. The State (3) a Deputy Commissioner functioning under Frontier Crimes Regulation was held to be a Courts for be purposes of pressing into service the provisions of section 514, Cr. P. C. Although it was a Court established under a special law and unlike Rent Controller's orders, his orders were also not amenable to appellate or revisional jurisdiction of the High Court. This position makes it evident that to secure the ends of justice a forum having the semblance of Court (1) PLD 1958 Lab. 153 (2) PLD 1956 SC (Ind.) 65 (3) PLD 1964 Pesh. 270 by virtue of the functions performed by it could be treated to be a Court in the wider connotation of the term and such provisions of law which were otherwise foreign to the law under which such Court was established could be made available to it. It was done only in order to achieve the ends of justice. As pointed out earlier, in Jamal Din v. Haji Mohammad Aslam (1) the Rent Controller himself was held to be a Court for the purpose of section 8 of Oaths Act, 1873, notwithstanding the fact the view that it was not a Court stricto senso was reiterated. The term Court was thus construed liberally in this case in order to provide the benefit of Oaths Act to the parties litigating before the Rent Controller. Accordingly it cannot be insisted upon that the term "Court" used in Article 203 of 1973 Constitution should be construed with unnecessary strictness and be confined to operate only in regard to the Courts functioning under the Codes of Civil and Criminal Procedures.
30. Such conservatism and in elastic approach to the subject could not in the least promote the ends of justice. Rather it would defeat the purpose for which the whole legal system tends. Accordingly it would be in the interest of justice that the term be construed in its wider sense. In case of the Courts of Rent Controller it will be all the more justified as these are subordinate Courts to High Court being under its appellate jurisdiction. The other aspect of the question under examination as to which are the Courts subordinate to High Court hardly needs any emphasis, for we have already seen in above discussion that only those Courts whose orders are amenable to appellate or revisional jurisdiction of the High Court are Courts subordinate to it. Accordingly we are of the view that the Court of Rent Controller, though not stricto senso, a "Court" is a Court for the purposes of the article in question and this petition is, as such, maintainable. The objection raised by Mr. Basharatullah is accordingly repelled being devoid of force. Besides this we regret our inability to contribute to views of his Lordship in Sheikh Muhammad Nasim Ahmad Piracha's case, referred to above.
7. Precisely these are our reasons for the short order passed by us on 26th March, 1979 allowing the petition with no order as to costs and holding that the Rent Controller was a Court subordinate to High Court in terms of Article 203 of the Constitution of 1973 and directions to the Rent Controller to proceed with the case on day to day basis under intimation to this Court twice a month as to the progress made in the case and further requiring the decision of preliminary issue within one month.
(1) PLD 1965 Lah. 503