AZIZ-UR-REHMAN, J.---By means of the listed application bearing C.M.A. No,2574 of 2017, Respondent No,1 viz. Messrs Searle IV Solution (Pvt.) Limited, is seeking suspension or judgment dated 03.08.2017 passed by Hon'ble Division Bench of this Court in High Court Appeal No,263 of 2015 (The Collector, Model Customs Collectorate and others v. Messrs Naveena Industries Ltd. and others] and other connected High Court Appeals including HCA No, 83 of 2015 [Collector of Customs and others v. Messrs Searle IV Solution (Pvt.) Ltd. and others] wherein an identical legal issue relating to maintainability of suit[s], was involved i,e, bar of the suit inter alia in view of section 217 of the Customs Act, 1969.
2. For ready reference and convenience purpose, Paras 29 and 30 of the common judgment dated 03.08.2017 are reproduced here below: "29. In view of hereinabove and circumstances of the case and the legal position, which has emerged from perusal of the relevant legal provisions and the ratio of the judgments of the Hon'ble Supreme Court as referred to hereinabove on the subject legal issue, we are of the considered opinion that suits filed by the respondents before the learned single Judge(s) of this Court at original side, exercising original civil jurisdiction are not maintainable for the following reasons: -
(i) In view of specific bar provided in terms of section 217 of the Customs Act, 1969 and the exclusion of jurisdiction of civil Courts in terms of section 9 of the Civil Procedure Code, 1908, any dispute relating to determination and assessment of duty and taxes under Customs Act, 1969 or Sales Tax Act, 1990, Income Tax Ordinance, 2001 and Federal Excise Act, 2005, as well as a dispute under the Sindh Sales Tax on Services Act, 2011, cannot be agitated by filing a suit before a Civil Court or learned Single Judge of this Court. while exercising original civil jurisdiction, therefore, impugned judgment(s) and dacree(s) are hereby set aside and instant High Court Appeals are allowed.
(ii) A Civil Court constituted under (West Pakistan) Civil Courts Ordinance, 1962 duly amended by Sindh Civil Court (Amendment) Ordinance, 2002, and Sindh Civil Court (Amendment) Act, 2010, has not been conferred with any jurisdiction under the Constitution or any other law to entertain or decide a dispute relating to determination and assessment of duty and taxes under special taxation laws including Customs Act, 1969, Sales Tax Act, 1990, Income Tax Ordinance, 2001 and Federal Excise Act, 2005, as well as under the Sindh Sales Tax on Services Act, 2011, therefore, cannot be treated as a Civil Court of ultimate jurisdiction for the purposes of deciding any controversy arising or relatable to the aforesaid taxing statutes. Accordingly, assumption of jurisdiction by a civil Court including the Court of learned single Judge of High Court in the instant matters, while exercising original civil jurisdiction, is without lawful authority, hence the impugned judgment(s) and decree(s) are hereby set-aside, and the instant High Court Appeals are allowed.
30. Before parting with the judgment, we may, clarify that this bar of jurisdiction is only in respect of entertaining a suit by Civil Courts, including the learned single Judge of this Court while exercising original civil jurisdiction under Section 7 of the (West Pakistan) Civil Courts Ordinance, 1962 duly amended by Sindh Civil Court (Amendment) Ordinance, 2002 and Sindh Civil Court (Amendment) Act, 2010, whereas, a Divisional Bench of the High Court can exercise jurisdiction in respect of disputes arising or relatable to special laws of taxation under its reference jurisdiction as conferred by law under section 217 of the Customs Act, 1969 section 51 of the Sales Tax Act, 1990, section 227 of the Income Tax Ordinance, 2001 and section 41 of the Federal Excise Act, 2005, under lawful instituted proceedings and also in appropriate' cases, under its extra ordinary constitutional jurisdiction under Article 199 of the Constitution, provided an aggrieved party can demonstrate some jurisdictional defect, violation of express provision of law or principle of Natural justice by a public functionary, and in cases, where the vires of any enactment, Rules, Regulations, or Notification/SRO, has been brought under challenge. However, above jurisdiction is discretionary in nature, which can be exercised by Divisional Bench, and not by a learned Single Judge of this Court, while sitting at original side and exercising powers and functions of a Civil Court."
3. It is worth mentioning that upon announcement of the judgment on 03.8.2017, no any request for suspension of the said judgment was made, Nevertheless, subsequently on 8.8.2017, the listed application [C.M.A. No,2575/2017], was filed mainly on the ground that the Respondent No,1, is, in the process of filing an appeal before the Hon'ble Supreme Court of Pakistan along with a stay application, as such, the operation of judgment dated 03.08.2017 passed in the above disposed of HCA be suspended for a period of thirty (30) days.
4. On 8.8.2017, when C.M.A. No,2574/2017 came-up before the Court, then besides issuing notice for 10.8.2017 the same was ordered to be served through first three [3] modes. On service, Ms. Masooda Siraj, learned counsel for the appellants, effected appearance and sought time for seeking instructions and filing of reply in response to the said application. The relevant observations made in order dated 16.8.2017 read as follows:- ".. ...As an indulgence we are adjourning this matter to 18.08.2017, however, with an observation that in view of pendency of listed application before this Court and the adjournment sought by learned counsel for the appellant, appellant shall be careful before taking any adverse action against the respondent in respect of Bank Guarantees, pursuant to judgment of this Court in the above High Court Appeal". [Underlining is ours]
5. Pursuant to the aforesaid order, a detailed 'counter-affidavit' was filed on behalf of Assistant Collector of Customs, Model Custom Collectorate, Port Muhammad Bin Qasim, Karachi, wherein, the 'averments' made in the listed application (C.M.A. No,2574/2017) and its' supporting affidavit were vehemently denied. Again on 18.8.2017, when the aforesaid C.M.A. No,2574/2017, came-up before the Court then Mr. Abdul Sattar Pirzada, learned counsel for the Respondent No,1, sought time to 'affidavit in rejoinder' in response to the 'counter affidavit' filed on behalf of the appellants.
The relevant part of order dated 18.8.2017 for ready reference and convenience purpose is reproduced herein below: - "Ms. Masooda Siraj, learned counsel for the appellants files reply/objections to the listed application, which are taken on record, copy thereof has been supplied to the learned counsel for the Respondent, who requests for short adjournment to file rejoinder, however, submits that Respondent will not press the listed application, if ten (10) days' time is granted to the Respondent to seek appropriate orders from the Hon'ble Supreme Court in the appeal, which according to learned counsel has already been filed by the Respondent against the impugned judgment passed by this Court in the instant High Court Appeal, and in the meanwhile, the appellant department may be restrained from enacashment of the bank guarantee furnished by the Respondent before the Nazir of this Court pursuant to order dated 01.04.2016 passed in the instant High Court Appeal. Such request of the learned counsel for the Respondent is opposed by learned counsel for the appellant. [Underlining is ours] As an indulgence, the matter is being adjourned to 24.08.2017 to be taken up at 11.00 a.m. Interim order passed earlier to continue till next date."
6. In response to the. 'counter-affidavit', the Respondent No,1, however, failed and/or avoided to file any 'affidavit-in-rejoinder' and that too, despite granting of time for such purpose on 18.08.2014. The 'averments' and 'assertions' made in the 'counter-affidavit' of the appellants have thus gone unrebutted/unchallenged. Lastly,' on 24.8.2017, when again, the above application for suspension of judgment dated 3.8.2017 came-up before the Court, then also learned counsel for the Respondent No,1, pressed the prayer for suspension of judgment of 03.8.2017 though Respondent No,1 as evident from order dated 18.8.2017 has not only filed the appeal before the Hon'ble Supreme Court of Pakistan, but had also committed 'for non-pressing of C.M.A. No, 2574 of 2017.
7. Per Mr. Abdul Sattar Pirzada, Respondent No,1, though has already filed an appeal before the Apex Court, but no stay order/suspension order therein, so far, has been passed. For and in view of this position, learned counsel for the respondent contended that the judgment dated 3.8.2017 needs to be suspended by the Divisional Bench of this Court otherwise, the Respondent No,1 shall suffer irreparable loss.
8. In contra, Ms. Masooda Siraj, learned counsel for the appellant, vehemently contended that upon passing of the judgment on 3.8.2017, this Court in fact has become 'functus officio' in the matter, as such, C.M.A. No, 2574/2017 is not only mis-conceived, mis-leading but also liable to be dismissed with costs otherwise, the appellants' interest shall be seriously prejudiced.
9. Heard.
10. From perusal of C.M.A. No,2574/2017, it appears that respondent No,1, is seeking suspension of the operation of judgment announced on 3.8.2017 during pendency of the appeal before Hon'ble.
Supreme Court of Pakistan. The prayer sought in C.M.A. No,2574/2017 by the Respondent No,1 reads as follows:- "......This Honourable Court may be pleased to direct the suspension of the operation of its judgment/order announced on 03.08.2017 and direct the appellants and Respondents Nos,2 and 3 not to take any action in pursuance thereof, for a period of thirty (30) days, so as to enable the Respondent No,1 to prefer an Appeal before the Honourable Supreme Court of Pakistan, and obtain therefrom stay of the judgment during pendency of the Appeal." [Underlining is ours]
11. On the record, it is an, admitted position that the Respondent No,1 besides, filing of an appeal has also filed a stay application before the Hon'ble Supreme Court of Pakistan for suspension/stay of the impugned judgment dated 03.08.2017. Ex-facie, the prayer made in C.M.A. No,2574 of 2017 vis- -vis obtaining a stay order/suspension of the judgment dated 3.8.2017, during pendency of appeal before the Hon'ble Supreme Court of Pakistan, is not only mis-leading but also mis- conceived. No stay/suspension of a judgment already impugned in an appeal before the Hon'ble Supreme Court of Pakistan, can be granted as prayed in view of the doctrine of functus officio. At this juncture, we would like to refer to the definition of "functus officio", as defined in Law Lexicon Venkatraramaiya. The expression 'Functus Officio' as per law of Lexicon Venkatraramaiya means having fulfilled the functions, having discharged the duty, having discharged the office, or accomplished the purpose and, therefore, of no further force or authority.
12. Apart from the above, on the basis of a 'common judgment' passed against the Respondent No,1 amongst others and now impugned before the Hon'ble Supreme Court of Pakistan through appeals, Respondent No,1 herein, is not justified to claim any prejudice and/or otherwise, alleged suffering of any irreparable loss on account of a judgment in field until and unless the same is suspended by the appellate forum/Apex Court. Moreover, for the same cause/relief i,e, suspension of judgment during pendency of appeal as prayed [C.M.A. No,2574/2017] one cannot be vexed twice under the law.
13. For and in view of the above position, C.M.A. No,2574 of 2017 was dismissed by our short order dated 24.08.2017 after having found the same devoid of any merits.
14. Forgoing are the detailed reasons of our short order dated 24.8.2017. whereby, C.M.A.
No,2574/2017 for stay/suspension of judgment dated 03.08.2017 which is now subject matter of appeal before Hon'ble Supreme Court of Pakistan was dismissed.
15. C.M.A. No,2574/2017 stands dismissed.