MAHMOOD A. KHAN, J.----This matter is placed before me by the order of the Respected Chief Justice to act as a third/referee Judge on account of difference of opinion occurring between the two learned members (as they then were) comprising the bench of this High Court Appeal which arising from an order passed on an application under Order VII, Rule 11, C.P.C., whereby the plaint of the appellant stood rejected by the learned Single Judge (as he then was) of this Court in the suit on the original side being impugned therein. The learned bench was also pleased to summarize the required in the form of a question / reference to be answered for resolution being; "Whether in the facts and circumstance s of the present case the learned Single Judge rightly held that the jurisdiction of the Civil Court was barred under section 217(2) of the Customs Act?"
2. Although the authored opinions of the learned members of the appellate bench as well as in the impugned order the learned Single Judge has discussed the background, facts along with the relevant laws and the reported cases, however , I have preferred to put the same down for the sake of continuity . The subject suit was filed by the appellant (an importer) before the original side of this Court bearing No. 509/1993 (presented on 23.08.1993) wherein the Central Board of Revenue was taken as defendant No. 1 along with two collectorates of the customs department as defendants Nos. 2 and 3 whereas Port Qasim Authority is defendant No. 4. The plaintif f in the said suit alleges that the goods comprising of "aluminum broken auto parts with iron attachment as waste scrap " were imported from Singapore having value of $30500 requiring to be classified under ITC Schedule Heading 7602-0000 to be so classified and be treated for free list imported items. The said consignment arrived on 12.07.1993 and was examined on 17.07.1993 by the Examining Officer of defendant No. 2 without a notice to the plaintif f or his agent whd reported the same as "Aluminum waste and scrap broken with iron attachment and some serviceable auto parts ". That the said observation was noted on the bill of entry and the plaintif f was orally notified that the said consignment will be partially released to the extent of 29-080 metric tons whereas the remaining 51.920 metric tons will be withheld and/or confiscated on account of being serviceable items. It is claimed by the plaintif f that the Customs officials have delayed the relea se on one pretext or the other and have harassed the plaintif f without assigning any cogent reason. The plaintif f also claimed that the concerned defen dants have completely ignored that the subject consignment was sent from Singapore where automobiles are periodically declare scrap after a few years of service and the same are exported to other countries under the nomenclature of "scrap". That the concerned defendant in the previous year/s had issued letters for release of similar consignments treating the same 'as scrap. That the concession of the concerned defendant for few parties / section of traders is highly discriminatory , arbitrary and without support of any law. That as a result of illegal detention, and confiscation the plaintif f had suffered demurrages for every day. That an approach in this regard by way of constitutional petition on account of adequate remedy available could not be entertained hence the said suit. That any other legal action in this behalf will not only be long drawn but also be time consuming unduly burden ing the plaintif f with payment of heavy demurrages. Making a reference to the relevant Import Policy of 1992 and 1993 along with the import license it was claimed that the aluminum waste and scrap do not form part of restricted categories. It is further claimed that the decision on part of the said defendant is neither just nor proper being absolutely arbitrary amounting to harassment, coercive action/s, irregular , illegal and improper . It is finally claimed that the defendants sale by auction of such scrap under the same nomenclature are getting a lower auction price compared with the duty chargeable on such scrap causing losses for the Government revenue.
3. Objecting to the said suit, written statement stood filed on part of the Custo ms denying the jurisdiction on account of statutory bar along with a denial to the allegations made. An application under Order VII, Rule 11, C.P.C. was also filed on the specific ground of the said proceedings being barred under Order 217(2) of the Customs Act, 1969 being not maintainable. An interim order of provisional release dated 26.08.1993 was also obtained by the plaintif f to the effect that the disputed amount be deposited with the Nazir of this Court and the goods be released thereon.
4. The learned Single Judge heard the parties on the said application Under Order , VII Rule 11, C.P.C. (C.M.A. No. 3384/1996) and was pleased to reject the plaint on two grounds i.e. being (i) barred on account of restriction imposed under section 217(2) of the Customs Act, 1969 and (ii) Section 42 of the Specific Relief Act, 1877 by order dated 24.03.1997. Learned Single Judge was pleased to discuss the following authorities in respect of the two elements referred above;
(1) PLD 1975 SC 331 (Chief Settlement Commissioner v . Muhammad Fazil Khan )
(2) PLD 1978 Karachi 612 (Syed Mushtaque Hussain v . Riaz Muhammad Hazarvi )
5. On hearing the appeal the learned member of the bench allowing the appeal concluding that both the said bar/s are not available as provided in the said laws appreciating the following authorities:- 1) MLD 1999 Page 1728 (Saleem Impex v . Central Board of Revenue)
2) MLD 1994 Page 1473 (Khyber T raders Proprietorship v . Central Board of Revenue and others )
3) CLC 1995 Page 1456 (Messrs Al-Rukiya T raders v . Central Board of Revenue and others )
4) CLC 1996 Page 31 1 (Usman Punjwani and others v . Govt. of Sindh and others )
5) PLD 1997 Karachi 541 (Messrs K. G T raders and another v . Dy. Collector of Customs )
6). AIR 1971 SC 558 (Union of India v . Tarachandar Gupta )
7). PLD 1996 Karachi 451 (Collector of Customs and another v . Abdul Razzak)
8). MLD 1994 Page 904 (Qureshi V egetable Ghee Mills, Magla v . Deputy Collector Excise and T axation, Mirpur and others )
9). AIR 1958 Patna 439 (Union of India v . Ayed Ram )
10) AIR 1940 Privy Council 105 (Secretary of State v . Mask & Co.)
11) AIR 1957 Madras 1 10 (Union of India v . Vittappa Kamath and another)
12) AIR (38) 1951 ORISSA 342 (The Province of Orissa and another v . Durjodhan Das Gaontia and others)
13) PTD 1999 Page 1313 (Asia Petroleum Ltd. v . Federation of Pakistan)
14) 2002 PTD 173 (Al-W aris T rader v . Federation of Pakistan)
15) PLD 1997 SC 3 (Abbasia Cooperative Bank v . Hakim Hafiz)
16) YLR 1999 Page 1661 (Shell Pakistan v . Federation of Pakistan)
17) SCMR 2000 Page 751 (State v . Tariq-Aziz)
6. The learned member of the bench holding a contrary view and not entertaining the appeal was pleased to accept the restriction of Section 217(2) of the Customs Act, 1969 affecting the following laws having similar bar/s and the citations;
(1) Section 51(1) of the Sales Tax Act, 1990
(2) Section 40(1) of the Central Excise Act, 1944 by Finance Act, 1967
(3) Section 162 of the Income Tax Ordinance, 1979
(4) Section 293 of the Indian Income Tax Ordinance, 1961
(5) Section 67 of the repealed Income Tax Ordinance, 1922
(6) Section 25 of the Displaced Persons (Compensation and Rehabilitation) Act
(7) Section 1 1 of the Sindh Revenue Jurisdiction Act, 1876 1) PLD 1956 FC 72 (Punjab Province v . Federation of Pakistan)
2) PLD 1967 SC 698 "Muhammad Jamil Asghar v . The Improvement T rust, Rawalpindi)
3) AIR 1940 P .C. 105 "Secretary of State v . Mask & Col 4) PLJ 1975 Lahore 295 (Pakistan Government v . Pak Cement Ind. Ltd.)
5) PLD 1975 SC 331 (Chief Settlement Commissioner , Lahore v . Raja Muhammad Fazil Khan)
6) PLD 1975 SC 624 (Chief Settlement Commissioner , Lahore v . Raja Muhammad Fazil Khan).
7) ILR 1908 Culcutta 35 Page 859 (Chairman of Giridib Municipality v . Srish Chandra Mozumdar)
8) CUR 1922-35 Page 304 (Partap v . Secretary of State)
1918-35 Madras L.J 23 (Messrs Best & Co. Ltd. v . The Collector of Madras)
10) AIR 1969 SC 78 (Dhulabhai v . State of M.P)
11) AIR 1970 SC 1298 (West Bangal v . The India I& S Co.)
7. I must admit that Wing had the honour to going through the well written opinions of the learned single Judge as well as the two learned members of the appellate bench wherein apparently the relevant law at the relevant time stood discussed thoroughly in favour and against, leading to the respective conclusions acquired, it was difficult to take any side entirely based upon the same, perhaps so also as assistance was not forthcoming from the parties despite being given many opportunities.
8. To my understanding the issue revolves around the element of jurisdiction being available to this Court i.e. High Court of Sindh on the original side to be treated as Civil Court or otherwise i.e. being the High A Court while entertaining civil matters with the higher pecuniary valuation which is the only exception in the whole of Pakistan.
Fortunately I come across the judgmen t of the Hon'ble Supreme Court of Pakistan in the case of Searle IV Solution (Pvt.) Ltd. and others v. Federation of Pakistan and others reported as 2018 SCMR 1444 wherein along with many other similar matters the said vary specific issue has been considered by the three members' bench holding that the High Court of Sindh exercises original civil jurisdiction as High Court / Constitutional Court and as such is not restricted by the bar of the statutes which may restrict the civil court in this regard. The relevant portion/ s of the said judgment are quoted below for a ready reference. The first portion comprising of the question framed in the said judgment and the second comprising of the discussion thereon; FIRST PORTION I. Whether the appellants fall within the exceptions created by the case law to a bar to jurisdiction of civil courts in light of the ouster clause in Section 217(2) of the Customs Act, read with the limitation to the jurisdiction of civil courts in Section 9 of the CPC? Whether the suits of the appellants in the civil jurisdiction were maintainable?
II. Whether the exercise of the original civil jurisdiction by the Single Bench of the Sindh High Court is ultra vires of the Constitution of the Islamic Republic of Pakistan (Constitution) in light of Article 25 thereof? And further , whether the exercise of this civil jurisdiction by the Single Bench of the Sindh High Court will render it a 'civil court' for the purposes of the ouster clause in Section 217(2) of the Customs Act?
SECOND PORTION It is evident that in this context, the only judgment of this Court in the field which carefully examines the exercise of the civil jurisdiction by the Single Bench at Karachi and the implications of the same on its status is found in Haji Razzaq's case (supra) wherein on page 219 a brief background of the origin of such jurisdiction is compre hensively explained: "Accordingly the Governor -General by G.G. Order No.19 of 1955 created the West Pakistan High Court with its seat at Lahore and Benches at Karachi and Peshawar and Circuit Courts at other places within the Province consisting of such Judges as may from time to time be nominated by the Chief Justice. Para 3 of this Order provided that the High Court shall have such original, appellate and other jurisdiction and such powers and authority in respect of the territories included in the. Province of West Pakistan as the High Court of Judicature at Lahore had immediately before the commencement of this Order , in respect of the territories in relation to which it exercised appellate jurisdiction. The Letters Patent of the Lahore High Court was also applied to West Pakistan High Court subject to such modification and alteration as the provisions of the Establishment of West Pakistan Act, 1955 or any order made thereunder or any other law for the time being in force may warrant. Under para 5 of the said Order it is laid down that notwithsta nding anything in this 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 power s 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 Courts Act, 1926, subject to the power of the Governor -General to direct that, as from a specified date such jurisdiction and powers shall cease to be exercisable by that Bench and as from that date that Bench shall cease to exercise that jurisdiction and powers."
From the above articulate synopsis of the historical background of the Sindh High Court, it transpires that the Governor General through the High Cour t of West Pakistan (Establishment) Orde r (Order No.XIX) of 1955 (Order of 1955 ) created the High Court of West Pakistan with its seat inter alia at Karachi. Under para 5 of the said Order it has been provided that notwithstanding any other law for the time being in force , the Bench of the High Court at Karachi shall have the same original jurisdiction for the civil district of Karachi as was exercised prior to the commencement of this Order under the Act of 1926; the jurisdiction thus is the same but the status has been elevated. Prior to the Order of 1955, the "Chief Court" by virtue of Section 219 of the Government of India Act, 1935, was deemed to be a High Court, whereas after the enactment of this Order of 1955 the same had been given the permanent status of a High Court bringing it at par with other High Courts. The Single Bench of the Sindh High Court is therefore a "High Court" and cannot be equated with any other civil court and hence falls outside of the armbit of the ouster clause. This view finds support in Haji Razzaq's case (supra) wherein this Court came to the conclusion that the Chief Court of Sindh was not a District Court within the meaning of section 2(4) of the Civil Procedure Code. The definition of "Distri ct Court" has been given at page 223 of the Haji Razzaq's case (supra) wherein it was held that: "It will be pertinent to refer here to the definition of "district" in section 2(4) of the Civil Procedure Code. In this definition a clear distinction is made between the local limits of the jurisdiction of a principal Civil Court of original jurisdiction and the local limits of the ordinary original civil jurisdiction of the High Court. It reads as under: 'District means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a 'District Court') and includes the local limits of the ordinary original civil jurisdiction of a High Court.'
This distinction also appears from the definition of "District Judge" in section 3(17) of the General Clauses Act, which is in the following terms:- District Judge shall mean the Judge of a principal Civil Court of original jurisdicti on, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction."
It appears to me that the expression "Prin cipal Civil Court of original jurisdiction" is not so much a description of any particular class of Courts, as a designation thereof. But there can be no doubt that this jurisdiction is distinct from the ordinary civil jurisdiction of the High Court."
14. This Court thus agreed with the finding in para No.12 of the judgment of Thadani, J. reported as In the Matter of Muhammad Osman Sumro (AIR 1948 Sindh 89) wherein he observed that 'It is not disputed that this Court is a High Court. But ... as I have pointed out before, if this Court is a district Court, when exercising its original civil jurisdiction, by reason of section 2(4), C.P.C., the right of appeal would also be governed by the Code of Civil Procedure from a decision of a single Judge of this Court. In view of section 14, Sindh Courts Act, 1926, however , I do not think such an interpretation is permissible". Therefore, even prior to the Order of 1955, this Court, in light of Section 14 of the Act of 1926, was a "High Court" merely exercising the original civil jurisdiction for the District of Karachi. As insisted upon by the learned counsel for the appellants, we are convinced by the argument that in light of the above, the Single Bench of the Sindh High Court, regardless of what jurisdiction it exercises, is a "High Court" and will always remain a High Court because it is a constitutional Court and is not a District Court, therefore the two cannot be equated by any stretch of imagination.
15. Obviously , a literal interpretation of Section 217(2) would lead to the conclusion that only "civil courts" are barred from taking cognizance of civil suits arising out of disputes regarding the claim of entitlement to exemption from tax duties under the Customs Act. Had it been the intention of the Legislatu re to bar the cognizance of any court exercising civil jurisdiction, the language of the said provision would have used the words "civil original jurisdiction" and not simply used the term "civil courts". This approach can be grasped better when looked at with the rich history of this exercise of civil jurisdiction by the Single Bench of the High Court, an overview of which has been beautifully encapsulated in the judgement of Haji Razzaq's case (supra); the Legislature was aware of such exercise of special jurisdiction and thus had its intention been to place a complete bar on cognizance by any court exercising such jurisdiction, it would have used language that clearly reflected its intent. The question of the status of the Single Bench of the Sindh High Court at Karachi, stands conclusively decided in the judgment of Province of Sindh v. Haji Razaq judgment (supra) which relies almost entirely on Justice Waheeduddin Ahmed, J's judgment in Firdous Trading Corporation v. Japan Cotton and General Co. Ltd. (supra) wherein he had in unequivocal words stated that: "I have not the slightest doubt on the language of section 3 of Sindh Act, 1926 and the definition of "District" in section 2(4) of the Civil Procedure Code, that it was exercising District Court jurisdiction in contradistinction to the ordinary original civil jurisdiction of the High Court. In my opinion the mere fact that the Sindh Chief Court later on was included within the definition of High Court under section 219 of the Government of India Act, did not change the nature of this jurisdiction"
This view, being the conclusive view of this Court ever since Haji Razzaq's case (supra) as the settled law on the matter shall prevail. We therefore hold that the High Court of Sindh, is a `High Court' and for this reason, the Single Bench of the Sindh High Court was correct in holding the suits of the appellants to be maintainable. A statutory provision must be interpreted within the meaning that is attributed to it by the language and specific words used by the Legislature, and the principles of law dictate that redundancy cannot be attributed to any word used therein.
Section 217(2) therefore, only bars the cognizance of suit filed under the civil jurisdiction exercised by the, civil courts, and this bar cannot be extended to include the exercise of the same jurisdiction by the Single Bench of the Sindh High Court at Karachi. As for the question regarding whether , Article 25 of the Constitution can be said to have been violated by allowing such special jurisdiction to the Sindh High Court while the same is not available to other Provinces is concerned, suffice it to say that such jurisdiction has been exercised by the Sindh High Court at Karachi as far back as the pre-partition era. Striking a careful balance between the fundamental right to be treated in accordance with the law under Article 4 of the Constitution and Article 25 thereof, the principles of justice would require that the litigants in Sindh High Court at Karachi are not deprived of this forum of grievance redressal which is limited to only Karachi, as this right to approach such forum has accrued to them over decades and the law mandates certainty in the judicial administration system".
9. Before I conclude this matter , I find myself compelled to express and appreciate the manner in which the learned members of the bench had handled the difference of their opinions, finding myself disturbed witnessing the present unfortunate situation on disagreement/s in our society in general which naturally creeping into the legal fraternity .
We as a society and especially the legal fraternity must revisit our manner/ s and revitalize our minds by agreeing to disagree which phrase may be described as; "Agreeing to disagree in resolution of conflict " wherein all the parties while tolerating each other without accepting the opposing views when facin g a situation where further conflict would be unnecessary , ineffective or otherwise undesirable, remain amiable and amicable (friendly , cordial, kind and polite), continuing to disagree for the unresolved issue/ s within the boundaries of decency "agree" to let the same to be decided by fate in order to utilize the time of their limited life in productive pursuits.
The historical background of this phrase dates back to 1770 (referred from Wikipedia). In our own history the contemporary scholars of Sharia had a conduct between them which can well be referred and awaits its reincarnation in our demeanor. It was indeed a delight to observe that the learned members of the bench agreed to phrase the reference/question in unity while retaining their respective opinions deserving the required appreciation for which I pray to Allah-Almighty that we may also learn to establish.
10. The referred and relied authority quoted supra resting the subject controversy having concluded this long standing issue at the highest forum presently available, determines that the restric tions imposed by Section 217(2) of the Customs Act, 1969 is not applicab le to proceedings before the Sindh High Court on the original side. The same is not found requiring any input on my part. Relying upon the said judgment covering the issue as present to which no distinction is found present in this matter , the referred question quoted supra stands answered in "negative" as both the restrictions of Section 217(2) of the Customs Act, 1969 as well as Section 42 of the Specific Relief Act, 1877 are not found restricted and the opinion for entertainment of the appeal is favored accordingly . The same in .majority it is ordered that the impinged order dated 24.03.1997 stands, set-aside, resulting the subject suit stands restored to its position as was when the same was passed, further considering the said relied upon judgment it is ordered that in case the amount as required by the interim order dated 26.08.1993 has been deposited, 50% of the same be transferred to the concerned collectorate of customs, failing which the plaintif f is directed to do the needful forthwith for enjoyment of the interim order and in failure thereof the consequences as required in the said judgment shall be forthcoming. No costs awarded in the present circumstances. The matter stands disposed of.