Mrs. Ayesha A Malik, J.--This is an Intra Court Appeal filed under Section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 against an interlocutory order dated 15.12.2011 passed by the learned Single Judge in Chamber in Constitutional Petition No, 27013 of 2001.
2. Brief facts of the case are that the elections of the. Respondent No, 3 were to be held on 19.12.2011.
By virtue of an order dated 30.09.2011 passed by the DGTO all the actions taken by the Respondent No, 3 for conducting the elections were declared illegal and void. In this regard a show-cause notice dated 25.11.2011 was issued. The said notice was assailed by the Appellants through W.P. No, 27013/2011. The learned counsel for the Appellants also filed an application for the operation of the impugned show-cause notice to be suspended as an interim measure during the pendency of the writ petition. The said application was dismissed by virtue of the impugned order. Hence this I.C.A was filed.
3. The sole question which requires determination in this appeal is with reference to the maintainability of the I.C.A filed under Section 15 of the Code of Civil Procedure (Amendment)
Ordinance, 1980 against an interlocutory order made in a Constitutional Petition.
4. Mr. Shahram Sarwar learned counsel for the Respondents submitted that an appeal against an interlocutory order is not maintainable under the Law Reforms Ordinance, 1972 nor is it maintainable under Section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980.
5. On the other hand Mr. Salman Butt learned counsel for the Appellants argued that the I.C.A is maintainable under Section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 notwithstanding the fact that the impugned interlocutory order was passed in constitutional jurisdiction. It is his case that the High Court when exercising jurisdiction under Article 199 of the Constitution in relation to the enforcement of civil right, is exercising "original civil jurisdiction".
6. Section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 and Section 3 of the Law Reforms Ordinance, 1972 is reproduced hereunder.
"ORDINANCE NO. X OF 1980 Code of Civil Procedure (Amendment) Ordinance, 1980.
An Ordinance further to amend the Code of Civil Procedure, 1980 (Gazette of Pakistan Extra, dated March 26th 1980)
15. Appeal to High Court is certain cases. Notwithstanding anything contained in Section 3 of the Law Reforms Ordinance, 1972(XII of 1972), an appeal shall lie to a Bench of two or more Judges of a High Court from as interlocutory order made by a single Judge of that Court in the exercise of its original civil jurisdiction."
"LAW REFORMS ORDINANCE 1972 Appeal to High Courts in certain cases.
(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an Order made under subparagraph (i) of paragraph (b) of that clause: Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable, provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order.
(3) No appeal shall lie under sub-section (1) or sub-section (2) from an interlocutory order or an order which does not dispose of the entire case before the case before the Court
(4) Nothing contained in this Ordinance, shall be construed as affecting:--
(a) any appeal under the Provisions of the Letters Patent applicable to a High Court or under Section 102 of the Code of Civil Procedure, 1908 (V of 1908) which was pending immediately before the commencement of this Ordinance; Or
(b) any appeal or petition for leave to appeal from a decree, judgment or order of a single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972."
7. The thrust of the arguments advanced by the learned counsel for the Appellants is based on the interpretation of the words "original civil jurisdiction" in Section 15 of Ordinance X. In order to substantiate this argument learned counsel for the Appellants placed reliance on a case titled Brothers Steel Mills Ltd. and others vs. Mian Ilyas Miraj and 14 others (PLD 1996 S.0 543). In this case, the Hon'ble Supreme Court of Pakistan held that since the High Court exercises civil jurisdiction under the Companies Ordinance, 1984 Section 117 of the Code of Civil Procedure, 1908 shall apply.
The reasoning advanced in this case was that since the Companies Ordinance redresses a civil right hence the High Court when exercising jurisdiction under the Companies Ordinance is in fact exercising original civil jurisdiction. The term original civil jurisdiction was explained in detail as being a jurisdiction where the Court is empowered to entertain a suit and a proceeding of a civil nature which is initiated before the Court as a Court of first instance. Such jurisdiction is in contradistinction to the appellate jurisdiction. Interestingly, the Court has held:-- "Under Article 175 of the Constitution, a Court is vested with jurisdiction as is or may be conferred on it by the Constitution or by or under any law. Therefore, the jurisdiction can be conferred on any Court including a High Court by a statute which may provide for initiating the proceedings in that Court as a Court of first instance having power to entertain and decide it. Such Court will thus be vested with original jurisdiction. If it relates to civil dispute it will be termed as original civil jurisdiction. It is not uncommon that statutes are promulgated conferring jurisdiction on the High Court to initiate proceeding as a Court of first instance for purpose of exercises of jurisdiction.
Therefore, in the statute under consideration the term original civil jurisdiction has been used in the general sense."
Mr. Salman Butt argued that for the purposes of interpreting original civil jurisdiction as provided for in Section 15 of Ordinance X, it must be given a general meaning such that it is applicable to constitutional jurisdiction when redressing civil matters.
8. In order to determine whether the High Court exercises original civil jurisdiction under Article 199 of the Constitution the first question that arises is what is original civil jurisdiction and what is constitutional jurisdiction. Article 175 (2) of the Constitution provides that no Court shall have any jurisdiction save as may be conferred on it by the Constitution or by or under any law. A bare reading shows that the said Article provides for two distinctive jurisdictions; a constitutional jurisdiction and a jurisdiction conferred by or under any law.
9. It is settled law that jurisdiction is the authority conferred upon a Court to decide a matter before it. It enables the Court to adjudicate on a particular subject-matter in a given case. The Supreme Court has held that in exercising constitutional jurisdiction under Article 199 the High Court has corrective and directory jurisdiction which has to be tempered with equiy. Reliance is placed upon a case titled Syed Wajih-ul-Hassan Zaidi vs. Government of Punjab and others (1997 SCMR 1901). It is discretionary jurisdiction and the High Court cannot go into disputed questions of fact. Reliance is placed upon a case titled Secretary to the Government of Punjab, Forest Department, Punjab Lahore through Divisional Forest Officer Vs. Ghulam Nabi and 3 Others (PLD 2001 SC 415). It has also held that this jurisdiction is to provide expeditious remedy in a case where the executive or any other authority has acted illegally without going into an elaborate inquiry as to the facts, disputed or complicated. Reliance is placed upon case titled Messrs Ittehad Cargo Service and 2 others Vs. Syed Tasneem Hussain Naqvi and others (PLD 2001 SC 116).
10.Learned counsel for the Respondents, Mr. Shahram Sawar has argued that the Lahore High Court does not possess original civil jurisdiction in the nature of a principal civil Court of original jurisdiction. He relied on Pakistan Fisheries Ltd, Karachi and Others Vs. United Bank Ltd. .(PLD 1993 SC 109) to explain the meaning of original civil jurisdiction, and upon Lahore Race. Club through Secretary and others Vs. Raja Khushbakht-ur-Rehman (2008 CLD 1117) wherein, it was held that original civil jurisdiction of a Court means that the Court is empowered to entertain a suit and such proceedings of civil nature which are initiated before the said Court. The jurisdiction can be conferred on any Court including a High Court by a statue and such a Court being a Court of first instance would be vested with original jurisdiction. Where the matter relates to a civil dispute it will be termed as original civil jurisdiction. Mr. Asim Hafeez, learned counsel for the Respondents elaborated this point and argued that there is distinction between ordinary original civil jurisdiction and extraordinary original civil jurisdiction. Both the jurisdictions were different from constitutional jurisdiction. Ordinary civil jurisdiction was confined to the trial of suits. Extraordinary original civil jurisdiction was given for the removal and trial of suits pending or falling within the jurisdiction of Courts subordinate to the High Court. Therefore constitutional jurisdiction was neither ordinary nor extraordinary nor was it statutory jurisdiction. He argued that to refer to it as special jurisdiction would be to minimize its standing and importance, for it is given by an Article in the Constitution for the purposes of implementing the high directive in Article 2 that no person should be treated otherwise than in accordance with the law. The jurisdiction under Article 199 may at best be described as a constitutional jurisdiction of an original kind. Reliance was placed upon a case titled Ahmad Khan Vs. The Chief Justice and the Judges of the High Court, West Pakistan, through the Registrar, High Court of West Pakistan, Lahore, The Member, Board of Revenue, West Pakistan, Lahore and Muhammad Saeed (PLD 1968 S.C 171).
11. We have heard all the counsel submissions and have gone through the case law to which reference was made regarding the meaning of original civil jurisdiction. We have also reviewed Article 175 (2) of the Constitution. The said Article provides for two clear jurisdictions. Constitutional jurisdiction and that jurisdiction which is conferred by or under any law. A bare reading of the Article leads us to conclude that these are two distinctive jurisdictions. Constitutional jurisdiction is a unique jurisdiction as it is created and conferred by the Constitution. Original civil jurisdiction is a jurisdiction created and conferred by or under a law. Constitutional jurisdiction cannot be taken away, curtailed or abridged by any other law whereas a jurisdiction created by or under a law can be taken away, abridged or curtailed by a law. This clear distinction between the two jurisdictions renders it impossible to read ordinary civil jurisdiction in the constitutional jurisdiction. Hence even in the most general of meanings constitutional jurisdiction is very different from civil original jurisdiction. Simply put the two jurisdictions cannot be equated nor can there be an overlap.
12. We are also of the considered view that the High Court when exercising constitutional jurisdiction in a civil matter, is not exercising original civil jurisdiction. The original jurisdiction of a Court confers the power to hear a case for the first time. Hence even though at times constitutional 'jurisdiction has been referred to constitutional jurisdiction of an original "kind" it is not a Court of first instance exercising civil jurisdiction. A judgment deciding a constitutional petition would not be a judgment in the exercise of the original civil jurisdiction of this Court within the meaning of sub- section (1) of Section 3 of the Law Reforms Ordinance. Reliance is placed on a case titled Asad Ali and 9 others Vs. Settlement & claims Commissioner, Karachi and another (PLD 1974 Karachi 345).
The distinction between the two jurisdiction as provided for in Article 175(2) of the Constitution must be retained. The mere fact that an aggrieved person comes directly to the Court under Article 199 does not mean that the Court exercises original jurisdiction. Original civil jurisdiction when read with Article 175(2) of the Constitution will mean original jurisdiction when created by or under any law. Obviously the jurisdiction under Article 199 of the Constitution pertains to civil as well as other matters. Therefore the jurisdiction of the Court will not be determined by the nature of the proceedings. The jurisdiction is conferred either by the Constitution or by or under a law. We note that interplay of the words such as original, civil, ordinary and extraordinary are just nomenclatures given to describe a jurisdiction and can be misleading. In a very instructive judgment of the Supreme Court Brothers Steel Mills Ltd. supra it was held as under:-- "Article 175 of the Constitution does not use such expressions as ordinary, extraordinary, statutory or special in relation to jurisdiction or Courts. These expressions may have been useful in a particular context in the past, in the present context; they are equivocal and can, therefore, be misleading."
13. We are therefore not convinced by the cases relied upon by the counsel for the Appellants especially the Brothers Steel Mills case as the same is related to a matter under the Companies Ordinance and does not directly answer the question raised in this ICA. We are equally not convinced by the reliance placed on Hussain Bakhsh vs. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) wherein the Hon'ble Supreme Court of Pakistan held that the High Court can review an order under Article 199 of the Constitution of Islamic Republic of Pakistan under Section 114 of the Code of Civil Procedure on the grounds that there is no corresponding provision in the Constitution with regard to the High Court's jurisdiction to review its own decision. This judgment does not advance the case of the Appellants' counsel as the said judgment does not give any findings in relation to the nature and the scope of constitutional jurisdiction or original civil jurisdiction. It simply provides for a procedural remedy as no parallel remedy was available for a review against an order made under Article 199 of the Constitution. Finally the most elementary rule of construction is that if word and phrases are used with a technical meaning then they must interpreted with the technical meaning that they have acquired. (Maxwell; interpretation of statute 12th edition). Both the words E "original" and "civil" jurisdiction have specific legal meanings, which we might add even in the most general of sense should be interpreted in accordance to the meaning attributed to them. By interpreting original civil jurisdiction under Section 15 of Ordinance X so as to include constitutional jurisdiction would mean creating artificial categories within the constitutional jurisdiction which clearly is not the intention of the Constitution.
For the foregoing reasons we find that the ICA is not maintainable, hence dismissed.