Khawaja Shahad Ahmed, C.J.--In appeal titled Jan Muhammad vs. Muhammad Afzal & others the arguments were heard by a division bench of this Court on 27.1.2011 and following order was passed: "After hearing Ch. Muhammad Taj, the Senior counsel, at some length, we feel that interpretation of Section 42(11)(d) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, is involved in the case. The proposition whether direct appeal is competent when the value of the suit in the original Court or in appeal is not less than Rs. 50,000/- or direct appeal can be filed when the value of appeal is not below Rs. 50,000/- and the High Court modifies, set asides or rescinds a judgment, is a question of first impression which needs resolution by a larger Bench. The file shall be placed before the Honorable Chief Justice for the Constitution of a larger Bench."
Consequently the full bench was constituted and arguments of the learned counsel for the parties were heard in detail. In both the captioned appeals identical legal question for interpretation of subsection (11) of Section 42 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, particularly sub-clause (d) requires resolution. Admittedly the judgment of the High Court in each appeal has been challenged through direct appeal wherein the judgments/decrees of the Court immediately below have not been varied or set aside. The objection raised is regarding competence of direct appeal filed against the judgment of the High Court which has not varied or modified the judgments and decrees impugned before it.
3. It has been contended by M/s. Ch. Muhammad Taj and Sardar Muhammad Azam, advocates for the appellants, that the only condition to file direct appeal in civil cases is that the value of the subject matter brought before the Supreme Court should not be less than Rs.50,000/- or any other sum provided by the act of the Azad Jammu & Kashmir Council (to be referred as Council hereinafter). It has been contended by Ch. Muhammad Taj, Advocate, that clause (d) of Section 42(11) clearly reveals that where the subject matter is not less than Rs.50,000/- direct appeal is competent irrespective of the fact whether the High Court has upheld, set aside or modified the judgment, decree appealed from because in this case the word "and" has been used as disjunctive, therefore, part of the clause preceding this disjunctive will be independently considered whereas the condition of setting aside or modifying the judgment/decree by the High Court applies only to the part of the sub-clause, which speaks of cases of such other sum as may be specified in this behalf by the act of the Council. Among others they have relied upon the cases reported as 2001 SCR 49 and PLJ 1988 SC (AJ&K) 166.
4. Raja Hassan Akhtar and Mr. Khalid Rasheed Chaudhary, Advocates, controverted the arguments of the learned counsel for the appellants by submitting that phraseology of the constitutional provision is abundantly clear and unambiguous. The word "and" used in clause (d) of Section 42(11) of the Azad Jammu & Kashmir Interim Constitution Act, 1974 are conjunctive and have to be read together. Their precise argument is that in civil cases when the value of the subject matter is admittedly more than. Rs.50,0000/- and the High Court has altered, varied or set aside the judgments and decrees of the lower Court, a direct appeal shall lie. In all other cases no direct appeal is competent. Referring to the value of the subject matter of the appeals in hand, it has been contended that the High Court has affirmed the judgments and decrees passed by the lower Courts, thus direct appeals filed are not competent. Among others they have relied upon the case reported as PLD 1981 SC (AJ&K) 55.
5. We have considered the arguments of the learned counsel for the parties and have considered the scope of civil appeals which can directly be filed in the Supreme Court. It may be mentioned in the very outset that before the direct appeal in civil cases was dealt with under the Constitution itself, Sections 109 and 110 of the Civil Procedure Code were applicable. These two sections of the Civil Procedure Code read as under:-- "[109. When appeals he to the Supreme Court.--An appeal from a judgment, decree or final order of a High Court shall lie to the Supreme Court:-- (a)If the amount or value of the subject-matter of the disputes in the Court of first instance was and also in appeal is (unless varied by an Act of Parliament) 50,000 rupees or upward and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or (b)If the judgment, decree or final order involves, directly or indirectly, some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or (c)If the High Court certified that the case involves a substantial question of law as to the interpretation of the Constitution."
[110. In each of the cases mentioned in clauses (a) and (b) Section 109, the amount or value of the subject-matter of the suit in the Court of first instance must be twenty thousand rupees or upwards and the amount or value of subject-matter in dispute on appeal to Supreme Court must be the same sum or upwards, or the judgment, decree or final order must involve, directly or indirectly, some claim for question to or respecting property of like amount or value, and where the judgment, decree or final order appealed from affirms the decision of the Court immediately below the Court passing such judgment, decree or final order, the appeal involve some substantial question of law."
6. When the Constitution of 1973 was passed by the legislature following provision was introduced in the Constitution of the Islamic Republic of Pakistan:-- "185. Appellate jurisdiction of Supreme Court.--(1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentence of a High Court,
(2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court-- (a)--------------------------- (b)-------------------------- (c)--------------------------- (d)if the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of [Majlis-e-Shoora (Parliament)] and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or (e)if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or (f)--------------------------
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) doesn't apply, shall lie only if the Supreme Court grants leave to appeal."
7. Almost same is the phraseology of Section 42(11) & (d) and (e) of the Azad Jammu & Kashmir Interim Constitution Act, 1974 which reads as under-- "(d) if the amount or value of the subject matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of the Council and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or
(e) if the judgment, decree or final order involves, directly or indirectly some claim or question, respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below;"
Ch. Muhammad Taj, the learned counsel for the appellants, doesn't dispute the phraseology of Section 42(11)(d) to the extent wherein it has been provided, if the amount or value of the subject matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees,..." He disputes the following portion of the captioned clause which, in his estimation, has to be read as under: "......or such other sum as may be specified in that behalf by Act of the Council and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below;"
His precise contention is that the condition of setting aside or varying the judgment of the lower Courts by the High Court comes into operation only where some other amount has been specified in that behalf by act of the Council. The condition of variance or setting aside the judgment of the lower Court by the High Court, in the estimation of the learned counsel, is not applicable and doesn't constitute any embargo as far the first part of clause (d) sub-section (11) of Section 42 is concerned, which deals with the amount or value of the subject matter of the dispute in the Court of first instance and also in dispute in appeal in this Court, is not less than fifty thousand rupees.
We wonder how this interpretation and meaning can be allotted to a clearly drafted clause by the law-makers. It is an admitted rule of interpretation that phraseology used along with punctuations and conjunctions has to be understood keeping in view first principle of interpretation of statutes, which provides that words and phrases are ordinarily be given the plain dictionary meaning. In clause (d) the word `or' has been used between amount and value of the subject matter of dispute and the conjunction 'and' has been used by placing it after part of the sentence ending at the word `was' and followed by a coma (,). The word 'or' has again been used after mentioning the 'minimum' amount of fifty thousand rupees and again the word 'or' has been used before the words 'such other sum as may be specified in this behalf by the act of the Council'. The punctuation/conjunction 'and' has finally been used preceding the condition the judgment, decree or final order appealed from is varied or set aside the judgment, decree or final order of the Court immediately below. In the first part of the rendering meaning of `or' is used in disjunctive sense and covers each of the words 'amount' and 'value' but doesn't postulate the condition of inclusion of amount as well as value. Therefore, the word 'amount' or 'value' of the subject matter of the dispute in the Courts of first instance would mean that either the amount of the claim or value of the subject matter of the dispute in the Court of first instance is not less than fifty thousand rupees. As far the placement of word 'and' after coma (,) is concerned, it clearly speaks that the amount or value in this Court should not also be less than fifty thousand rupees. After this expression 'or' has been used to cover the cases wherein the amount of appeal has been mentioned as more than fifty thousand rupees by act of the Council. 'Such other sum' used means any amount fixed by law and it shall be read as fifty thousand rupees or such other amount. We, therefore, on plain meaning, interpret this part of clause (d) as providing that whether the amount or value of the subject matter of the dispute in the Court of first instance as well as in dispute in appeal is not less than fifty thousand rupees or such other amount as may be specified in that behalf by the act of the Council a direct appeal shall lie in the Supreme Court.
8. Now adverting to the later part of clause (d) which reads, "...and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below;", this condition of variance and setting aside the judgment covers the eventuality discussed in the first part of clause (d) and that amount or value of the subject matter in the first instance and in this Court should not be less than fifty thousand rupees or any other amount which is brought on the Statute-Book by the act of the Council.
9. The punctuation/conjunction "and", which is abbreviated as & the word having a cumulative sense of joining together all conditions, so primarily it is an antithesis of "or". In order that the second part might be held independent of the first part, it should by itself be complete and be capable of operating independently. Unless this test is satisfied the conjunction "and" would have to be read as importing into what follows it, the conditions or considerations set out earlier, as otherwise even the first would be incomplete. This is what was held in the case reported as AIR 1964 SC 1099.
Although the word 'and' is sometime used as 'or', in Stroud's Judicial Dictionary, 3rd edition, it has been stated at Page 135 that 'and' has generally cumulative sense requiring fulfillment of all the conditions that it joins together and herein. It is antithesis of `or'. (AIR 1964 SC 1099 and AIR 1968 SC 1050 considered).
Again, in different judgments the word `and' is normally implied to express the relation of addition, the adding of something to that which preceded.
Similarly the umpteen authorities and judgments recorded by the Judges of sub-Continent appear to have barrowed the wisdom from corpus juris secundum, Vol. 82, wherein at Page 673 it has been observed as under:-- "Generally the words `and' and 'or' as used in statutes are not interchangeable, being strictly of a conjunctive and disjunctive nature respectively, and their ordinary meaning should be followed if it does not render the sense of the statute dubious. It has been held, however, that such words are not words of technical meaning and they derive their force and meaning from the context and connection of the matter in which they are used. Accordingly, the words 'or' and "and" may be construed as interchangeable, when, and only when, necessary to effectuate the obvious intention of the legislature, as where the failure to adopt such construction would render the meaning of the statute ambiguous or result in absurdities, but it has been held that meaning of the term or phrase, as the case may be, and in order to save rather than to destroy the provisions of the statute. Both the words 'and' and 'or' are used interchangeably, so as to advance the purpose and objective of the provisions of the statute."
10.The above-referred definition of the word "and" brings us to the irresistible conclusion that it has to be allotted a meaning giving cumulative effect and can be used as "together", also, plus, as well as, with.
11.Keeping in view the above made discussion and while interpreting the use of punctuations in the Statute, it is held that although it is a celebrated proposition of interpretation of statutes that the punctuation in the Statute has to be allotted clear meaning and cannot be left unnoticed, the use of word 'and' has to be read in a cumulative sense. One of the rules of construction and interpretation of statutes is that where the legislature intends two sub-clauses to have conjunctive effect, the word 'and' Would find place at the end of sub-clause (i).
12.To have further clearance on the formulated point, dealing with the direct appeals to be filed in the Supreme Court we can safely borrow the wisdom of Mr. Justice Muhammad Munir, a former Chief Justice of Pakistan, who in his book, "A commentary on the Constitution of Pakistan, 1973" has observed as under-- "Civil cases.--In civil cases a party is entitled to appeal to the Supreme Court if the amount or value of the subject-matter both in the Court of first instance and in the appeal to the Supreme Court is not less than fifty thousand rupees or such other sum as may be specified by Act of Parliament and the judgment, decree or final order has varied, or set aside the judgment, decree or final order of the Court immediately below it. By reason of sub-clause (1) the judgment, decree or final order from which an appeal is brought must be that a High Court. Subject to the restrictions just mentioned appeal will also lie if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value, and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below. It will be noticed that sub-Clause (e) does not specifically require that the value of the property in the Court of first instance must be 50 thousand rupees or more though it is apparent that if the amount involved in the claim or question before the High Court was fifty thousand rupees or more the same must have been the minimum amount or value involved in the Court of first instance. Item 46 of the concurrent list gives to the Provincial Legislature concurrent power to determine the jurisdiction and power of all Courts except the Supreme Court, with respect to any of the matters in that list. This would mean that a Provincial Legislature cannot confer any powers on the Supreme Court. Item 3 of the same list, however, refers to all matters included in the Code of Civil Procedure on the commencing day and on that day Sections 109 and 110 of the Code gave a right of appeal to the Supreme Court where the value of the subject-matter in appeal and in the Court of first instance was twenty thousand rupees or above. The minimum amount has been raised by the Constitution now to fifty thousand rupees, and an appeal in the case lies as of right, provided the judgment, decree or final order has varied or set aside the judgment, decree or final order of the Court immediately below. But Section 110 of the Code had further provided on the commencing day that where the judgment of the Court from which appeal was brought and affirmed the decision of the Court immediately below the Court passing the judgment, decree or order, the appeal must involve some substantial question of law. There is thus a difference in the Constitutional jurisdiction of the Supreme Court in cases and the jurisdiction it possesses under the Code of Civil Procedure. Will the restriction of Section 110 of the Code regarding a substantial question of law being involved where the decree of the Court below was affirmed by the High Court still apply though the Constitution does not say anything to that effect. The Constitution fixes the minimum value of the claim but permits it to be altered by an Act of Parliament, which by its definition in Article 260(1) does not seem to include an existing law and the Constitution does not contemplate an appeal from a decree of affirmance." (underlining is ours)
13. Mr. S. M. Zaffar in his book "Understanding Statutes/Cannons of Construction", while discussing the rules of language as literal aids to construction has referred Lord Byrne who in Great Western Railways vs. Swinden Extra Railways, observed, "as a matter of ordinary construction, where several words are followed by a general expression, which is much applicable to the first and other words to the last, that expression is not limited to last, but applies to all. For instance horses, oxen, pigs and sheep from whatever country they may come--the later words would apply to horses as much as to sheep." But there is also a limiting rule of construction applicable where there is a particular description of objects sufficient to identify what was intended, followed by some general or "omnibus" description. This latter description will be confined to objects of some classes and kinds of as former. Furthermore language applied in former statutes reveals that in old statues and even still in some acts particularly in Section 109, Civil Procedure Code, clause (a) has been couched/drafted in the following rendering :-- [109. When appeals lie to the Supreme Court.--An appeal from a judgment, decree or final order of a High Court shall lie to the Supreme Court:-- (a)If the amount or value of the subject-matter of the dispute in the Court of first instance was and also in appeal is (unless varied by an Act of Parliament) 50,000 rupees or upward and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or (b)--------------------------- (c)--------------------------- It, therefore, follows that intention of the legislature is clear on the point that where the amount or value of the subject-matter of the suit in the Court of first instance and also in appeal, unless varied by an act of the parliament, fifty thousand rupees and the appellate Court i.e. the High Court has varied, altered or set aside the judgment, decree or final order of the Court immediately below, a direct appeal shall be competent before the Supreme Court. The intention of the Legislature referring to any amount "fixed by an act of the parliament" clearly means that it refers to an increase or decrease in the amount of fifty thousand rupees, that's why the legislature in the Civil Procedure Code has expressed its intention by using the word 'unless varied by an act of the Parliament' has been used and the same has been put in brackets.
14.Mr. Khalid Rasheed Chaudhary, the learned counsel, while arguing the case on behalf of the respondents, submitted that phraseology used in clause (d) sub-section (11) of Section 42 can better be collected if clause (e) of the same Section is considered. In his decree clause (e) concedes to the eventuality where the judgment, decree or final order passed by the High Court directly or indirectly in respect of a property of the like amount or value has been altered by the High Court, a direct appeal shall not be competent. He submits that clause (d) refers to a case where the amount or value of the subject-matter in the Court of first instance and in dispute before the High Court in appeal is more than fifty thousand rupees and the High Court has varied or set aside the judgment, a direct appeal shall be -competent before this Court whereas in clause (e) irrespective of the fact, whatever the amount in the Court below or before the High Court was, where the High Court passes a decree of fifty thousand rupees or more and the judgment or decree is varied or set aside, a direct appeal would be competent. While discussing the fact of use of punctuations in the Statute we have already held that the word 'and' is usually giving a cumulative effect and the word 'and' is antithesis of 'or'. The word 'or' in ordinary literal meaning is and includes 'separate', 'different' and `moreso', denoting opposition or contrast. It is used in disjunctive sense.
15.It, therefore, follows that under clauses (d) and (e) of subsection (11) of Section 42 of the Interim Constitution Act, 1974 a direct appeal lies to the Supreme Court if the amount or value of the subject-matter in the first Court as well as in appeal before the Supreme Court is not less than fifty thousand rupees or any increased sum specified by the Act and the judgment, decree or final order placed before the Court is varied or set aside by the High Court. OR If the judgment, decree or final order by the High Court involves directly or indirectly claim or question respecting property of fifty thousand rupees amount or value and the High Court has varied or set aside the judgment, decree or final order of the Court immediately below.
16.We, therefore, hold that the intention of the legislature is clear on the point that if the High Court doesn't vary, alter or set aside the judgment of the Courts below, a direct appeal to the Supreme Court is not competent, although the amount or value of the subject-matter is H more than fifty thousand rupees. To reiterate the view of Mr. Justice Munir we hold that the Constitution fixes the minimum value of the claim unless the same is not altered by an act of the Parliament, the Constitution doesn't contemplate the appeal from a decree of affirmance. Individual merits of the appeals shall be determined by the division bench already seized with the matter. This order/judgment shall be attached with each file and each appeal shall be placed before the division bench already seized with the matter.