MUHAMMAD SHAN GUL-J :- Through this judgment the titled constitutional petition filed to challenge an order dated 04.05.2016 passed by a learned Additional District Judge Multan whereby he allowed the Punjab Healthcare Commission to become a party and to be arrayed as a respondent in an appeal filed by the petitioners was accepted in terms of Order I Rule 10 CPC. Besides laying a challenge to the acceptance of an application under Order I Rule 10 CPC on the premise that the Code of Civil Procedure is not specifically applicable in terms of the Punjab Healthcare Commission Act 2010, the petitioners have also laid a challenge to the hearing of their appeal by a learned Additional District Judge instead of the District Judge himself on the premise that Sections 30 and 31 of the Punjab Healthcare Commission Act 2010 only vest jurisdiction in the court of the District and Sessions Judge and that an Additional District Judge has been separately defined. That the definition of a District Judge, according to the Punjab General Clauses Act 1956 does not include an Additional District Judge. That the vesting of jurisdiction is to be strictly construed and an Additional District Judge being alien to such proceedings, the proceedings so far conducted by him are non est and should be declared thus.
2. On the other hand, learned Assistant Advocate General Punjab has supported, both, the assumption of jurisdiction by way of delegation by assignment to the Additional District Judge and has equally supported the order dated 04.05.2016 through which the Punjab Healthcare Commission was allowed to be made a party to the appeal, being a necessary and proper party since the appeal was filed against an order passed by the Punjab Healthcare Commission closing the healthcare establishment managed by the petitioners and imposing fine on them and simultaneously directing the district police Multan to initiate proceedings against the petitioners.
3. Heard. Record Perused.
4. What is in issue before this court is the question whether in the presence of Sections 30 and 31 of the Punjab Healthcare Commission Act 2010, is it possible for a District Judge to delegate and assign the hearing of appeals to Additional District Judges in the District. Likewise, the ancillary question whether an application under Order 1 Rule 10 CPC could be filed and was maintainable in an appeal emanating out of imposition of penalty in terms of Punjab Healthcare Commission Act 2010 also needs to be answered.
5. The statutory provisions that may have a bearing on the present matter are reproduced as follows:- PUNJAB HEAL THCARE COMMISSION ACT 2010
30. Bar of jurisdiction .-- Save as provided in this Act, no court other than the Court of the District and Sessions Judge shall have jurisdiction-
(a) to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Act; or
(b) to grant an injunction or stay or to make any interim order in relation to any proceeding before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Commission.
31. Appeal.--(1). A person who is aggrieved by the
(a) refusal of the Commission to issue or renew a license;
(b) decision of the Commission to suspend or revoke a license;
(c) order of closing down of a healthcare establishment or making improvements in the healthcare establishment;
(d) order relating to equipments, apparatus, appliances, or other things at a healthcare establishment; or
(e) imposition of fine by the Commission . may, within thirty days from the date of communication of the order of the Commis sion, prefer an appeal in writing to the District and Sessions Judge.
The Act, 2010 through its Section 30 confers exclusive jurisdiction upon "Court of District & Sessions Judge" to adjudicate the validity of anything done under the Act, 2010 or to grant an injuncti on against the proceedings and acts of healthcare commission whereas Section 31 of the Act, 2010 states that appeal lies against (a) refusal of the Commission to issue or renew a license; (b) decision of the Commission to suspe nd or revoke a license; (c) order of closing down of a healthcare establishment or making improvements in the healthcare establishment; (d) order relating to equipment' s, apparatus, appliances, or other things at a healthcare establishment; or (e) imposition of fine by the Commission to " the District and Sessions Judge ".
The Act, 2010 does not create any court but confers jurisdiction to assess the actions of the healthcare commission at any stage of those actions as well as appellate jurisdiction against certain final orders of healthcare commission on a Court already established and functioning under the Civil Courts Ordinance, 1962.
6. While two different composite expressions i.e. 'Court of District and Sessions Judge' and the 'District and Sessions Judge' have been used, not much should be made of this because of what honourable Mr. Justice Yaqoob Ali as he then was, noted in his minority opinion in (PLD 1962 Lahore 887) "Mst. Aziz Begum Vs. Sh.
Nur Muhammad (Additional District & Sessions Judge, Lyallpur) and others " at paragraph 10, "that there is thus no content in the distinction between the District Judge and the District Court and that there is no valid distinction between a District Judge and a District Court". Even in (PLD 1977 Lahore 687) "Abdul Samad Vs. Muhammad Ali and another" the Lahore High Court while adjudicating the validity of assignment of original powers under Section 115(2) CPC treated the terms District Courts and District Judge interchangeably and synonymously and upheld the assignment of hearing of revision by Additional District Judges on the basis of section 6(2) of the Punjab Civil Courts Ordinance 1962. The relevant portion is reproduced as follows: ".......Applying the ratio of the above precedent to the facts and circumstances of the present case, it is not disputed that "the Court of the District Judge" (being the District Court) had the jurisdiction to decide the revision. It is again not disputed that the District Judge was the Judge of the principal civil Court of original jurisdiction who obviously was to perform functions of that Court i.e. of the District Court. Section 6(2) of the Ordinance indicates that the District Judge could assign his functions to an Additional District Judge who in the discharge of those functions shall exercise the same powers as the District Judge..................... We are in no manner of doubt that to hear a revision under section 115(2) of the Code of Civil Procedure is one of the "functions" of the District Judge within the scope of the word "functions" as used in section 6(2) of the` Ordinance . Again the exercise of revisional jurisdiction under section 115(2), Code of Civil Procedure by the District Judge to the Court of the District Judge falls within the phrase "any civil business cognizable by his Court". It is not disputed that the Cour t of the Additional District Judge is under the control of the District Judge. Consequently he can safely assign this "function" and distribute this part of his "civil business" to an Additional District Judge and this distribution of civil business as laid down in section 15, of the Ordinance he can do notwithstanding anything contained in the Code of Civil Procedure, 1908.
Black' s Law Dictionary: Judge : A public official appointed or elected to hear and decide legal matters in court. But in ordinary legal usage, the term is limited to the sense of an officer who (1) is so named in his or her commission, and (2) presides in court. Judge is often used interchangeably with court.
Court : A governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice.
2. The judge or judges who sit on such a governmental body .
P. Samantha Aiyar 's The Law Lexicon (2nd Edition)
Court : Court is defined as a place wherein justice is judicially administered.
"The word court in the statutes is used in its generic sense and includes both judge and jury in a case where jury is present. 4 C. 483 (FB)= 3 CLR 270 Court, means the Court, judge , arbitrator , Persons or Person, before whom a legal proceeding is held or taken.
Any person empowered to deal with a particular matter and authorised to receive evidence bearing on that matter in order to enable him to arrive at a determination is a court. 13 CrLJ 723 = (1912) MNN 1012 (per SUNDARA AIYAR, J.)
When the rules say "the Court or a judge" it is understood that 'the Court' means judge or judges in open court and 'a judge' means a judge sitting in chambers (re B., (1892) 1 Ch. 463 Per KAY L.J. Judges Are presiding officers or Chief Magistrates in the law, to try civil and criminal causes and punish of fences ( Tomlin Law Dictionary)
A judge is a public of ficer, who by virtue of his of fice is clothed with judicial authority .
Judge and Court: "judge " and "court" are not, strictly speaking, convertible terms; but they are so in popu lar sense. A court is not judge nor a judge a court.
The words "judge" and "court" are often interchangeable. The judge of a court, while presiding over the court, is by common courtesy called the court and the lords "the court" and "the judge (or judges)" are frequently used as synonyms .
7. It appears that for the purpose of defining functions and powers, the terms 'Court' and 'Judge' are synonymous and are to be treated as such when mentioned individually or collectively . While the term 'Court' denotes the Judicial Public Office created by a statue, the judge is the public official occu pying the said judicial office.
The powers and functions conferred upon Courts are exercised by the Judges and but for semantics there is no operational difference leading to a clash in meanings of both terms . The power reserved for the Courts are validly exercised by Judges even if the terms are individually used in a statue without reference to the other .
The power of the Court is the power of the Judge.
8. An alternative way for arriving at the same conclusion is to attempt the question from a different perspective. The question whether there is any distinction between the terms 'Court of District Judge' and 'District Judge' in terms of the Punjab Healthcare Commission Act 2010 can also be tackled by reference to the nature of functions being performed by a District Judge. A combined reading of both sections (supra) reveals that functions envisaged in the said provisions are of a judicial nature and are to be performed by the Court. A District Judge while performing such functions would indeed be acting as a Court. In the present case the terms 'District Judge' or 'District Court' have not been defined in the Punjab Healthcare Commission Act 2010 and there being nothing repugnant in the subject or context of the said Act, the definition of the terms as given in the General Clauses Act as also in terms of the Punjab Civil Courts Ordinance 1962 may very well be applicable.
9. The Punjab Healthcare Commission Act 2010 which is a special law does not create any courts nor does it define the term court. It is only by implication that the Act of 2010 presupposes the terms District and Sessions Judge and District and Sessions Court . This makes us move over to analyze the statutory provisions in terms of which the District Court is established.
Punjab Civil Courts Ordinance, 1962 : Section 5 District Judges .- Government shall, in consultation with the High Court, appoint as many persons as it thinks necessary to be District Judges and post a District Judge to each district: Provided that the same person may be appointed to be District Judge of two or more districts.
Section 6 Additional District Judges .- (1) Government may, in consultation with the High Court, appoint as many Additional District Judges as may be necessary .
(2) An Additional District Judge shall discharge such functions of a District Judge as the District Judge may assign to him, and in the discha rge of those functions he shall exercise the same powers as the District Judge.
Section 15 Power to distribute business .-Notwithstanding may by written order direct that any civil business cognizable by his Court and the Courts under his control shall be distributed among such Courts in such manner as he thinks fit: Provided that no direction issued under this section shall empower any Court to exercise any powers or deal with any business beyond the limits of its jurisdiction.
Section 17. Appeals from District Judges or Additional District Judges.- (1) Save as otherwise provided by any enactment for the time being in force, an appeal from a decree or order of District Judge or Additional District Judge exercising original jurisdiction shall lie to the High Court.
(2) An appeal shall not lie to the High Court from a decree or order of an Addition al District Judge in any case in which, if the decree or order had been made by the District Judge, an appeal would not lie to that Court.
10. Since the Punjab Healthcare Commis sion Act 2010 does not create any court nor prescribes any specific rules for the purpose of carrying out the functions and duties by the Court or by the Judge thereunder but merely adds another judicial function to be performed by already established courts, in such cases, the Courts and Judges upon whom the added duties or functions are conferred may well be governed in such matters by the laws which create such courts/judges and prescribe the process of enforcement of duties and exercise of functions by them.
11. Sections 30 and 31 of the Punjab Healthcare Commission Act 2010 ("2010 Act") have conferred exclusive original as well as appellate jurisdiction on the Court of the District and Sessions Judge in respect of matters specified in those Sections.
12. Although the nomenclature 'the Court of District and Sessions Judge' used in the 2010 Act, is somewhat unusual as the Civil Courts Ordinance 1962 and the Code of Criminal Procedure 1898, under which the civil and criminal courts of general jurisdiction are constituted, use the terms 'the Court of District Judge' and 'the Court of Session', yet the intention of the legislature is more than evident that it has conferred original as well as appellate jurisdiction on an already existing court, i.e., the Court of District and Sessions Judge, and has not created or constituted any new Court. That is why the legislature has not also specified the powers and procedure of the Court of District and Sessions Judge referred to in Sections 30 and 31 of the 2010 Act.
13. The principle of law so enunciated by Constitutional Courts is well established by now that when an already established Court without specifying anything more is provided as a forum for a particular redress under a special law, it will be implied that the ordinary procedure, power and jurisdiction of that Court is to attach to it, and in such a case the Presiding Officer of that Court performs his functions under that special law in the exercise of his ordinary powers and procedure and not as a persona designata.
14. Sections 30 and 31 of the 2010 Act though mention the 'Court of the District and Sessions Judge' as the forum of a suit and an appeal in respect of the matters specified therein, but do not state as to how that Court or the Presiding Judge of that Court is to regulate its or his functioning in the matter of hearing the suit or appeal. This matter being not dealt with in the 2010 Act is to be regulated by the ordinary powers of the Presiding Officer of the Court of the District and Sessions Judge under the Civil Courts Ordinance 1962, the Code of Civil Procedure 1908 and the Code of Criminal Procedure 1898. Therefore, a District & Sessions Judg e can, in exercise of his ordinary powers under the said enactments, entrust a suit or an appeal filed in his Court under Section 30 or Section 31 respectively of the Punjab Healthcare Commission Act 2010 for decision to an Additional District & Sessions Judge.
15. Reliance and authority for what has been narrated above can be found with advantage in (1992 SCMR 2192 )
"The State Vs. Syed Qaim Ali Shah" at paragraph No.20, (1995 PLC 120) "Qutab-ud-Din Vs. Punjab Labour Appellate Tribunal, Lahore and another" at paragraph No.10, (PLD 1974 Karachi 118) "Abdul Salam (represented by ten heirs) Vs. Messrs Hafeez Sons Ltd." at paragraph No.9 and 10 (PLD 1977 Lahore 718)
"Mst. Malookan Vs. Sher Muhammad and 2 others" at paragraph No.6 and 10, (1991 MLD 745 (Lahore)
"Mst. Sajida Parveen Vs. The Additio nal District Judge, Rawalpindi and 2 others" and (1996 MLD 1749 Karachi) "Dr . Raes Farhan Mushtaq and another Vs. Mst. Naheed alias Mona and 3 others".
16. In a judgment which may be squarely applicable to the matter under adjudicat ion it has been held by the Sind High Court in (PLD 1970 Karachi 362) "Mst Faizan Vs. Pakistan Telegraph and Telephone Department Karachi " that:
3. The term 'District Judge, has not been defined in the Telegraph Act itself. This is a departure from the pattern followed in statutes like the Succession Act and the Divorce Act which Acts, white conferring certain jurisdiction upon the District Judge, have also defined the District Judge to mean a Judge of a principal civil Court of original jurisdiction. This omission, however , creates no complexity because the General Clauses Act defines the term 'District Judge' in subsection (15) of section 3 of the Act as follows "'District Judge' shall mean the Judge of a principal civil Court of original jurisdict ion, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction."
Since the term 'District Judge' has not been defined in the Telegraph Act itself and there being nothing repugnant in the subject or context of the said Act, the definition of the term as' given is the General Clauses Act becomes applicable.
5....The word 'principal' is a term of comp arative significance and implies that in relation to others in the hierarchy the body which it denotes should be the highest.
The mere nomenclature, 'District Judge', is by itself of no significance whatsoever . It is wholly the jurisdiction and the powers that are exercisable by him which will be relevant in determining whether he is the principal civil Court of original jurisdiction of the district.
17. The High Court Rules and Orders provide as follows: Lahore High Court Rules & Orders: V olume IV , Chapter 1, Part-G PART G --- POSITION OF ADDITIONAL DISTRICT AND SESSIONS JUDGES:
3. District Judge may assign any of his judicial functions to the Additional Judge.-- In judicial matters, Section 21 of the Act provides that an Additional Judge shall discharge any of the functions of a District Judge which the District Judge may assign to him; and by Section 34 of the District Judge may distribute civil business among the Courts under the control in such manner as he think s fit. Once the functions of a District Judge have been assigned to an Additional Judge , the Additional Judge exercises, in the discharge of those functions, the same powers as the District Judge himself. It is only in respect of the functions actually assigned to him, however , that the Additional Judge enjoys these powers; and the functions so assigned, will, as a general rule, be purely judicial functions.
It appears that both in Civil Courts Ordina nce, 1962 and LHC Rules & Orders, whenever delegation or assignment is mentioned, it is mentioned as the power are exercisable by "District Judge".
18. The specific assignment or delegation of the appellate function of a District Court or District Judge is provided in Section 18 of the Ord., 1962:
18. Appeals from Civil Judges .- (1) Save as aforesaid, an appeal from a decree or order of a Civil Judge, shall lie-
(a) to the High Court if the value of the original suit in which the decree or order was made exceeds fifty million rupees; and
(b) to the District Judge in any other case.
(2) Where the function of receiving any appeal which lie to the District Judge under the last preceding sub-section has been assigned to an Additional District Judge , the appeal may be preferred to the Additional District Judge .
Section 31 of the Act, 2010 provides that the appeal shall lie to 1962 states that wherever (by any another statute) appellate function is bestowed upon the "District Judge", such function can (a) be assigned to the Additional District Judge and (b) when such has been so assigned, the appeal could directly be preferred to the court of Additional District Judge.
19. After having taken into consideration the provisions of law that have a bearing on the present matter it is now time to analyze precedent cases on the subject.
20. In PLD (2000 Lahore 186) "MUNA WWAR JAMIL versus Mst. NOSHI (NISHA T) GILLANI and 3 others " where the matter involved an appeal under Section 65 of the Copyright Ordinance 1962, a special law (just like the present case) and where the special law conferred appellate jurisdiction 'in the Court of District Judge', quite similar to the present case under adjudication in which the expression (in the Court of District & Sessions Judge has been used), this Court held at paragraph No.5 as follows:-
5. I have heard the learned counsel for the parties and have also perused the record. The contention of learned counsel for the appellant that under section 65 of the Copyright Ordinance, 1962, only District Judge is competent to adjudicate upon the matter and not the Additional District A Judge, has got no force.
Section 6(2) of the West Pakistan Civil Courts Ordinance indicates that the District Judge could assign his functions to an Additional District Judge, who in the discharge of those functions shall exercise the same powers as the District Judge. Similarly under section 15 the District Judge can by a written order direct that any civil business cognizable by his Court and the Courts under his control shall be distributed among such Courts in such manner as he thinks fit. Section 17(1) of the said Ordinance II of 1962 contemplates that the District Judge and the Additional District Judge both can hear cases in original jurisdiction. If the District Judge is assigned his functions which are vesting in him as Judge of a District Court i.e. Principal Civil Court of original jurisdiction then the Additional District Judge shall also have the same powers in the exercise of B functions so assigned to him. Reference may be made to Abdul Samad v.
Muhammad Ali and another PLD 1977 Lahore 687 wherein the Division Bench of this Court has held as under:-- "It is to be remembered that the Code of Civil Procedure by itself does not create the Civil Courts. See Dost Muhammad and another v. Rais Satik and another . These Courts, so far as relevant for our case, are created by the West Pakistan Civil Courts Ordinance (II of 1962). The statute which creates Civil Courts also makes certain provisions quite new and different from those of the Code of Civil Procedure if the matter of assignment of functions by the District Judge or the distribution of his business to Additional District Judge (on which the Code of Civil Procedure is rather quite silent or not comprehensive)."
21. In (2004 MLD 1851 ) "Haji Jamal Din Vs. Haji Muhammad Nazir " where the matter involved the question whether a District Judge could assign his judicial function in terms of Order XXXVII Code of Civil Procedure to an Additional District Judge with the code employing the term 'District Court' it was held at paragraph 7 as follows:-
7. I would advert to the question of jurisdiction of the Additional District Judge to decide the case. Section 6(2) of West Pakistan Civil Courts Ordinance (II of 1962) provides that the Additional District Judge shall discharge such functions of the District Judge as the District Judge may assign to him and in the discharge of those functions he shall exercise the same powers as the District Judge. Similarly , under section 15 of the Ordinance ibid the District Judge can by a written order direct that "any civil business cognizable by this Court and the Courts under his control" shall be distributed among such-Courts in such manner as he thinks fit. There is no doubt that to decide the case under Order XXXVII, Code of Civil Procedure is one of the functions of the District Judge within the scope of word, "function" as used in section 6(2) of the Ordinance ibid. In a case reported as Abdul Samad v.
Muhammad Ali and another (PLD 1977 Lah. 687) while interpreting the provision of section 6(2) of the West Pakistan Civil Courts Ordinance (II of 1962), it was held that, "section 6(2) of the Ordinance ibid embraces all or sum total of all functions of District Judge, both as Judge' of principal Civil Court of original jurisdiction or as a recipient of other functions additionally ". In the case of Mst. Sajida Perveen. v. The Additional District Judge, Rawalpindi and 2 others (1991 MLD 745), a question arose that, "in case of a decision or a decree passed by a Family Court presided over by a Civil Judge, appeal lies to the District court which means the principal Civil Court of original civil jurisdiction of a district and in this view of the matter whether the Additional District Judge had the powers to decide the appeal his Lordship Gul Zarin Kiani, J as (Lordship then was) while interpreting the provision of section 6(2) of the West Pakistan Civil Courts Ordinance (II of 1962) held that, "in case of a decision or a decree passed by a Family Court presid ed over by a Civil Judge, appeal lies to the "District Court" which means the principal Civil Court of original civil jurisdiction of a district". District Judge, therefore, can transfer any case pending before him to the Additional District Judge who shall then have the same powers in regard to it as the District Judge . In the case reported as Begum Akhtar Akhlaque Hussain and another v. Saghir Ahmad and 12 others (1980 CLC 1892 ), the Additional District Judge Lahore while accepting the revision against the orders of the trial Court transferred the suit to his own file and decreed without other proceedings. Since the case was not entrusted by the District Judge and on the mandate of section 6(2) of the West Pakistan Civil Courts Ordinance (II of 1962) it was held that, "Additional District Judge can handle and decide only such cases as are assigned to him by the District Judge". Accepting the revision petition by transferring the file on its own without its entrustment by the District Judge was set aside and declared to be without lawful authority . This being so, I may observe here that the Additiona l District Judge had the jurisdiction to decide the suit under Order XXXVII, C.P.C. As the same was entrusted to him by the District Judge. The objection of the learned counsel for the appellant that there was no jurisdiction available to the Additional District Judge is rejected.
22. In (PLD 1977 Lahore 718) "Mst. Malookan Vs. Sher Muhammad and 2 others " where the matter involved the West Pakistan Family Courts Act 1964 and in which law both terms, 'District Court' and 'District Judge' had been used but where the forum of appeal provided by the special law was the District Court, it was held at paragraphs No.6, 8,9 and 10 as follows:-
6. The Act has introduced the District Court, as well as District Judge and the Additional District Judge, but it is silent in respect of their establishment and constitution. Since there is no specific definition prescribed for them in the Act, their existence appears to be presupposed.
8. The difficulty still remains unresolved when the Code of Civil Procedure by itself does not establish the District Court. A District Court is a civil Court presided over by the District Judge, civil Courts are constituted under West Pakistan Civil Courts Ordinance (Ordinance II of 1962). Under section 3, three classes of civil Courts namely the Court of the District Judge, the Court of the Additional District Judge and the Court of the Civil Judge are established. Section 5 enables the Govern ment, in consultation with the High Court, to appoint as many persons as it thinks necessary to be District Judges and post a District Judge to each district. It further provides that the same person may be appointed to be District Judge of two or more districts. Similarly , under section 6, the Government may, in consultation with the High Court, appoint as many Additional District Judges as may be necessary .
Subsection (2) further provides that an Additional District Judge shall discharge such functions of a District Judge as the District Judge may assign to him, and in the discharge of those functions he shall exercise the same powers a9 the District Judge.
9. From the provisions mentioned above , there remains no doubt that the Additional District Judge is not the District Court in itself, but when assigned with functions of the District Judge by the District Judge, he would, in the discharge of those functions, exercise the same powers as the District Judge.
10. Some cases, including the present one, were heard along with Writ Petition No. 793 of 1874 titled Abdul Samad v. Muhammad Ali and other which pertained to the bearing of a revision petition by the District Court under subsection (2) of section 115 of the Code of Civil Procedure (Act V of 1908). We have, in that case, referred to section 6 of the West Pakistan Civil Courts Ordinance, 1962, and held that the Court of District Judge established under the said Ordinance is the principal civil Court of original jurisdiction and is the "District Court" and according to subsection (2) of section 6 of that Ordinance, the District Judge could assign a revision petition or, to be more precise, the function of hearing of a revision petition to an Additional District Judge. We are of the opinion that similarly District Judge would be competent to assign an appeal or function of hearing an appeal under subsection (1) (b) of section 14 of the West Pakistan Family Courts Act, 1964, to an Additional District Judge.
Learned counsel for the petitioners in various writ petitions pertaining to Family Courts Act, which were heard along with the various cases of revisions under the Code of Civil Procedure, submitted that the said Act was a special law and as it made mention of only the "District Court" as the forum of appeal, the District Judge should have heard that appeal himself and should not have assigned the same to an Additional Distric t Judge. The plea has no merit.
No doubt subsection (1) (b) of section 14 of the Act, mentions the "District Court" as the forum of appeal but it does not state as to how that Court or the Presiding Judge of that Court is to regulate its or his functioning respectively in the matter of hearing the appeal. This matter being untouched in the West Pakistan Family Courts Act 1964, obviously is to be regulated by section 6 (2) of the West Pakistan Civil Courts Ordinance, 1962. In the circumstances, the assignment of appeal by the District Judge to the Additional District Judge for hearing was not illegal nor would the order by the Additional District Judge be deemed to have been passed without lawful authority . This is all the more so, inasmuch as, here the case is stronger than the Revision Cases because section 6 (2) of the West Pakista n Civil Courts Ordinance, 1962, contemplates assignments and hearings of appeals by the Additional District Judges.
23. In (AIR 1922 P C 361) Behari Lai Bulaki Ram v. Kundan Lai, where the expression employed under the special law i.e. Companies Act 1913 was the 'District Court' and where a question arose whether a District Judge could assign the hearing of an appeal under the special law to the Additional Distric t Judge, it was held that it is not disputed that under the Companies Act the District Court had jurisdiction. After relying on Section 6 of the Punjab Courts Act 1888 (pari materia with the Law in force in the province) it held that the Additional District Judge could perform all functions of the District Judge to ensure speedy disposal.
24. In (1991 MLD 745), "Mst. Sajida Parveen Vs. The Additional District Judge, Rawalpindi and 2 others " where the power of hearing an appeal under the special law was conferred on the 'District Court', it was held as follows:- Section 2 (21) of the Punjab General Clauses Act 1956 says that "District Court" shall mean the principal Civil Court of original civil jurisdiction of a district; but shall not include the High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. Section 2 (2) defines "District Judge" to mean "the Judge of a principal Civil Court of original jurisdiction, but shall not include the High Court in the exercise of its ordinary or extraordinary original civil jurisdiction". Under section 2 (4) Code of Civil Procedure, a District Court is defined as the principal Civil Court of original jurisdiction in the District. Section 5 of the Civil Courts Ordinance 1962 empowered the Government in consultation with the High Court to appoint as many persons as it thinks necessary to be the District Judges and post a District Judge to each District. Section 6 of the Ordinance deals with the appointment of Additional District Judges and in subse ction (2) says that an Additional District Judge shall discharge such functions of a District Judge as the District Judge may assign to him and in discharge of those functions he shall exercise the same powers as the District Judge. From this, it is clear that a District Judge can transfer any case pending before him to an Additional District Judge who shall then have the same powers in regard to it as the District Judge . According to definitions in section 2 of the Family Courts Act, expression `District Court' as defined in section 2 (4) of Civil Procedure Code has been adopted for purposes of the Act. It is not correct to state that learned District Judge had no jurisdiction to assign the appeal to learned Additional District Judge and the latter had no power to hear and decide it. Therefore, his decision, did not suffer from want of jurisdiction.
25. In (PLD 1977 Lahore 687) "Abdul Samad Vs. Muhammad it was held that Section 115(2) CPC only mentions the District Court but at the same time, the assignment of functions to Additional District Judges could be made and endorsed by relying upon provisions of the Punjab Civil Courts Ordinance 1962. Even though such powers are reserved for the District Judge under the 1962 Ordinance and not the District Court yet a Division Bench of this Court treated the terms interchangeably and held that powers under section 115 CPC could be assigned to the Additional District Judges, despite such powers being available to a District Court and not a District Judge.
26. In (PLD 2005 Karachi 393) "Mst. Shah Jahan Behum and others Vs. House Building Finance Corporation through District Manager " where the matter involved the adjudication of an application under Section 30 of the House Building Finance Corporation Act 1952 in which the term 'District Judge' has been employed, the learned Court allowed assignment of such functions to an Additional District Judge by relying on the provisions of the W est Pakistan Civil Courts Ordinance 1962.
27. In (1987 SCMR 399) "Muhammad Din and 7 others Vs. Noor Muhammad and 2 others " where the question was whether an Additional District Judge could receive a plaint when so authorized by the District Judge, it was held that if the District Judge was himself competent to receive the plaint being the court of original jurisdiction in the District then he also had the power under Section 6(2) of the Civil Courts Ordinance 1962 to entrust his functions in this regard to an Additional District Judge also.
28. A celebrated Full Bench judgment (decided by majority) reported as (PLD 1962 Lahore 887) "Mst. Aziz Begum Vs. Sh. Nur Muhammad (Addi tional District & Sessions Judge, Lyallpur) and others " may also be equally instructive in the present context even though it is a distinguishable judgment on facts and law because the special law in this case allowed hearing of appeal by an appellate authority in the following terms 'the government by notification confer on such District Judges as it thinks fit' it was held rightly that since the function and power had been conferred on a persona designate and not a Court there could be no delegation. At pages 896 and 897 "that under the ordinance a District Judge who functions as an appellate authority functions not as a District Judge but on account of a notification to be issued in terms of Section 15. The words 'confer on such District Judges as it thinks fit' are very significant. The appellate authority does not hear appeals as District Judge but as persona designate. In the ordinance under cons ideration the government could not and did not include the Additional Judges as section 15 had only empowered the government to confer these powers on such District Judges only whom it considered fit.
29. Although quite attractive at first sight to whittle down the effect of what has been stated earlier , this judgment is squarely distinguishable on account of the terminology employed in section 15 of the West Pakistan Urban Rent Restriction Ordinance. In the case under adjudication before this court there is no such question of any powers being conferred on persona designate. Rather judicial functions and powers have been conferred on the District Court so to be exercised by the District Judge and Additio nal District Judges could be assigned such functions in terms of the Civil Courts Ordinance 1962.
30. A celebrated judgment of the West Pakistan High Court reported as (PLD 1964 W.P. Karachi 418) "Syed Ahsan Ali Vs. Jaffer Ali and others " has correctly appreciated this Full Bench judgment of the Lahore High Court and noted quite aptly that the Full Bench judgment is distinguishable on account of the distinct phraseology employed in Section 15 of the Urban Rent Restriction Ordinance and which terminology took the matter in the realm of persona designate.
31. In "Azizul Huq Vs. Messrs Hanif Ltd., Dacca and others (7 D L R 287) it was held that the words 'District Judge' in Section 29 of the East Benga l Premises Rent Control Act mean the Court of the District Judge. It was held that a very relevant consideration for determining the question whether the words District Judge meant the Court of District Judge was to look at the nature of the functions the District Judge was called upon to discharge and if such functions had been conferred by way of judicial functions on a court then the same could be assigned.
32. From a perusal of these decided cases it is evident that since sections 30 and 31 of the Punjab Healthcare Commission Act 2010 do not create any additional forum nor prescribe any new rules of procedure so as to be applicable but merely add another function and power to an already established Court of District and Sessions Judge. Hence, a District and Sessions Judge acting under Section 31 of the Act, acts as a Court and not as a persona designate . Therefore, the procedural nuances in respect of the cause to be taken up by such District Judge under Section 31 shall be governed by the civil courts ordinance 1962 as also the Lahore High Court Rules and Orders and, thus, these functions in terms of Section 30 and 31 of the Act could be validly assigned being judicial functions and being vested in a Court rather than an individual designate.
33. Learned counsel for the petitioner has laid great emphasis on a recently reported and informed judgment of this Court reported as (2021 CLC 377) "The Chief Administrative Auqaf Vs. Syed Abid Hussain L.Rs. and others ".
The question involved in this reported case was with reference to an Additional District Judge assuming jurisdiction under Section 11 of the Punjab Waqf Properties Ordinance 1979 in the presence of the fact that the Ordinance vested jurisdiction in the District Court only. The Court held that since Section 11 of the Punjab Waqf Properties Ordinance 1979 only mentions District Court and since the term District Court did not include an Additional District Court, the power conferred under section 11 of the Ordinance could not be delegated so as to be exercised by an Additional District Judge. His lordship ruled after referring to the provisions of the Civil Courts Ordinance 1962 that 'it does not mean that in this way an Additional District Judge can assume the status of District Court' .
34. The question before the Court in the present matter is not whether an Additiona l District Judge can assume the status of a District Court or Judge but that whether a District Judge can validly delegate and assign functions to an Additional District Judge. Here, it may be very beneficial to quote paragraph 9 of a Division Bench Judgment reported as PLD 1977 Lahore 718 "Mst. Malookan Vs. Sher Muhammad and 2 others" (not considered in PLD 2021 Lahore 377 ); "from the provisions mentioned above, there remains no doubt that the Additional District Judge is not a District Court in itself, but assigned with functions of a District Judge by a District Judge, he would, in the discharge of those functions, exercise the same powers as the District Judge".
35. While (PLD 2021 Lahore 377) "The Chief Administrative Auqaf Vs. Syed Abid Hussain L.Rs. and others " merely states that an Additional District Judge cannot assume the powers and functions of a District Court or Judge (PLD 1977 Lahore 718 DB) "Mst. Malookan Vs. Sher Muhammad and 2 others " explains that if further steps are taken in terms of the enabling Civil Courts Ordinance 1962, which is an enabl ing law, and the functions of the District Court are assigned by the District Judge to an Additional District Judge, then the Additional District Judge shall in the course of performance of those functions act as a District Judge. Furthermore, in all precedent cases discussed above there was a special law involved which invested jurisdiction in a District Court or a District Judge and in all such precedent cases delegation by way of assignment was allowed by resorting to the enabling provisions of the Civil Courts Ordinance 1962.
36. The question is not whether the Additional District Judge can be bestowed with the status of a District Judge but that a District Judge can assign matters to such Additional District Judge on account of the enabling provisions of the Civil Courts Ordinance 1962. Therefore, while cognizance may only be taken by the Court of District and Sessions Judge under the Punjab Healthcare Commission Act 2010, the Court of District and Sessions Judge can assign the hearing of appeal to an Additio nal District Judge on the basis of the Civil Courts Ordinance 1962. This will not amount to bestowing an Additional District Judge with the status of a District Judge but shall only mean that an Additional District Judge may, in terms of the Civil Courts Ordinance 1962, be assigned functions of the District Judge so as to be exercised by an Additional District Judge.
37. What is also evident from a perusal of reported cases on the subject is that in both cases, where the special law conferred power on a District Judge and where the special law conferred power on a District Court, the provisions of the Civil Courts Ordinance 1962 have been relied upon and delegation by way of assignment has been countenanced in both cases.
38. In (PLD 1977 Lahore 687) "Abdul Samad Vs. Muhammad Ali and another " the original power was reserved for the District Court whereas in (PLD 1964 W.P. Karachi 418), "Syed Ahsan Ali Vs. Jaffer Ali and others " the original power was conferred upon the District Judge. Hence, the distinction between a District Judge and a District Court was not treated as substantial and was rather treated as being without content.
39. Furthermore, what may also be interesting in the present matter is the presen ce of the term 'Sessions' in the composite expressions used in sections 30 and 31 of the Punjab Healthcare Commission Act 2010. The use of the term 'Sessions' in turn attracts the Code of Criminal Procedure 1898 just as the use of the word 'District' attracts the Civil Courts Ordinance 1962. While Sections 9 of the Criminal Procedure Code establishes a Court of Session and also provides power to appoint a Sessions Judge as also to appoint Additional Sessions Judges and section 409 of the same Code clearly provides that an Additional Sessions Judge shall only hear such an appeal as the Sessions Judge of the Division may make over to him, section 439-A Cr.P.C also states that an Additional Sessions Judge may exercise the powers of a Sessions Judge under any general or special order of the Sessions Judge.
40. Since Sections 30 and 31 of the Punjab Healthcare Commission Act 2010 use the composite expression of 'the District and Sessions Judge', therefore, the code of Criminal Procedure is equally applicable in respect of Sections 30 and 31 on the same lines and on the same analogy as the Punjab Civil Courts Ordinance 1962.
41. Looked at from all angles it is evident that Additional District and Sessions Judg es can hear appeals in terms of Section 31 of the Punjab Healthcare Commission Act 2010 if the same have been so assigned to them by the court of District and Sessions Judge. The Civil Courts Ordinance 1962 is an enabling law and is to be read alongwith Sections 30 and 31 in the matter of their application. Especially so because the Punjab Healthcare Commission Act 2010 is absolutely silent about the composition or establishment of the Court of District and Sessions Judge.
42. Insofar as the ancillary question of whether in an appeal under Section 31 of the Punjab Healthcare Commission Act 2010 an application unde r Order I Rule 10 CPC could be filed so as for the commission to become a party in an appeal in which it had not been arrayed as a respondent is concerned, the question requires a short shrift on account of five reasons. The first is rooted in fairness and due process and since the order under challenge in appeal has been passed by the Punjab Healthcare Commission, it is axiomatic that it must be afforded an opportunity to defend its order . The Court can only gain from the technical knowhow , experience and expertise of the Punjab Healthcare Commission in the matter . Furthermore, a judgment of this Court reported as (PLD 2010 Lahore 1) "Government of the Punjab, through Chief Secretary Lahore Vs. Chief Election Commissioner , etc" clearly provides that like all living citize ns and persons, the government and its agencies are also entitled to due process of law and to equal protection of laws and therefore, the right of the Punjab Healthcare Commission guaranteed in terms of Articles 4 and 10-A of the Constitution will be compromised if the Commission is not allowed to present its stance in the matter . Most of all in judgments reported as (1992 SCMR 2192 ), "The State Vs. Syed Qaim Ali Shah" (1995 PLC 120) "Qutab-ud-Din Vs. Punjab Labour Appellate Tribunal, Lahore and another " and (PLD 1974 Karachi 118), "Abdul Salam (represented by ten heirs) Vs. Messrs Hafeez Sons Ltd." it has been clearly noted that when an established Court without more is provided as a forum for a particular redress, it will be employed that the ordinary postulates of procedure of that court are to be attached to it and that while exercising powers under the special law such forum exercises its normal jurisdiction and all nuances and postulates which are attached to proceedings before such a court would also be attracted to proceedings under the Act.
43. While Section 41 of the Punjab Health care Commission Act 2010 allows for Regulations and Rules to be made so as to give effect to the provisions of the Act and so as to carry out the purposes of the Act, as per information provided to this Court by the Punjab Healthcare Commission through the agenc y of learned Assistant Advocate General, no Rules or Regulations with respect to the conduct and process of an appeal under Section 31 of Punjab Healthcare Commission has been made thus far and therefore while hearing an appeal the judge is free to employ the ordinary facets of its normal jurisdiction and procedure which are available to it under its general jurisdiction.
Furthermore, on the strength of Article 4(2) of the Constitution it may be stated that what is not prohibited is permitted. Also germane to this list is the case of "H.M. Saya & C., Karachi Vs. Wazir Ali Industries Ltd Karachi and another" (PLD 1969 SC 65) according to which "even a stranger to proceedings is competent to file an appeal if he is adversely effected by order passed in such proceedings". At the end it may also be stated that the Court has to adopt and pursue some procedure and what is better than the tried and tested procedure contained in the Civil Procedure Code.
44. Viewed from another angle, delegati on by way of assignment may also be countenanced on account of the concomitant right of Article 9 and that being of the right of access to justice. It is common knowledge based on empirical record that a District and Sessions Judge is heavily burdened with many cases and in order to facilitate the public at large in quick decision of cases it is necessary for him to delegate such matters to Additional District Judges so as for them to facilitate quick disposal and ensure speedy justice.
45. In view of what has been stated above, the petition is dismissed. The learned Assistant Advocate General has, upon gaining instructions from the Sessions Judge Multan confirmed that requisite assignment has been and is in place by the Sessions Judge Multan for decision of appeals under Section 31 of the Punjab Healthcare Commission Act 2010. The counsel for the petitioner had argued the matter on 18.10.2021 while the learned Assistant Advocate General has put up his case today i.e. 21.10.2021.