Through High Court Appeal No.85/2021, the appellant has impugned the orders dated 21.05.2021 and 24.05.2021, whereas, through High Court Appeal No.92/2021, the appellant has impugned another order dated 31.05.2021, passed by the learned Single Judge in Suit No.664/2008, with the prayer to set-aside the impugned orders for being without jurisdiction and illegal.
2. Brief facts relevant for the purposes of disposal of above appeals are that the respondent No.2 filed a Suit No.664/2008 against the respondent No. 3 for possession, injunction, mesne profit and damages, wherein, after recording of evidence and framing of issues, the suit was fixed for arguments in Court on 18.05.2021, when request for adjournment was made on behalf of Mr. Rasheed A. Razvi, Advocate, appearing on behalf of the defendant in the suit, which was objected by the learned counsel for the plaintiff, namely, Mr. Ikram Ahmed Ansari, Advocate, who raised an objection with regard to appearance and eligibility of Mr. Rasheed A. Razvi, Advocate, before the High Court of Sindh, on the ground that since, Mr. Rasheed A. Razvi, who retired as permanent Judge of this Court, has started receiving pension of a Judge of this Court, therefore, he cannot appear as an Advocate before Sindh High Court. On such objection by the counsel for the plaintiff in the suit, the learned Single Judge, while adjourning the matter to 24.05.2021 was pleased to order that "Mr. Rasheed A. Razvi, may graciously be pleased to explain his position, that whether he can still appear in the High Court of Sindh as counsel for litigant, despite receiving pension as retired judge of this Court." In view of hereinabove objection and the query of the learned Single Judge in the Suit, Mr. Salahuddin Ahmed, Advocate, shown appearance on behalf of Mr. Rasheed A.
Razvi, on 24.05.2021, filed his vakalatnama and requested for time to assist the Court. However, on a query by the learned Single Judge, Mr. Salahuddin Ahmed, Advocate, submitted brief response to such query and referred to provisions of 270AA of the Constitution of Islamic Republic of Pakistan, 1973, read with Chief Executive's Order 5 of 2000 published on 30.03.2000 pursuant to Provisional Constitutional Order No.1 of 1999 (P.C.O. No.1 of 1999) and the reported judgment in the case of Mr. Justice (Retired) Shahid Anwar Bajwa v. S. M. Asif and others (PLD 2018 SC 337) particularly, the observation of the Hon'ble Supreme Court in the aforesaid case, which read as follows:- "In order to ascertain the real intention of the legislature, it is necessary to keep in mind the provisions of Article 207(3) (a) ibid, which provides that "A person who has held office as a permanent judge of the Supreme Court, shall not plead or act in any Court or before any authority in Pakistan", Thus, from this provision the intention of the legislature is clear that a ban has been imposed on a Judge Not only to appear before the courts/forums subordinate to that Court but also from the court where he acted as a permanent judge. This fact further receives support from the fact that when two permanent Judges of the High Court of Sindh i.e. Mr. Rasheed A. Rizvi and Mr. Mushtaq Ahmed Memon, were removed from their office by virtue of the Oath of Office (Judges) Order, 1999, considering that they were restricted to act and plead before the said High Court being permanent Judges, special permission was given to them by means of the Chief Executive's Order No.5 of 2000. (Emphasis is provided)."
3. While referring to hereinabove provisions of Constitution, CEO No.5/2000, PCO No.1 of 1999 and above observations of the Hon'ble Supreme Court, the learned counsel attempted to satisfy the learned Single Judge that in view of hereinabove amendment in the constitutional provisions and the judgment of the Hon'ble Supreme Court as referred to hereinabove, Mr. Rasheed A. Razvi, is entitled to practice in the High Court Sindh. However, the learned Single Judge, formulated six (06) questions, which according to learned Single Judge were the fundamental questions of public importance, in the following terms:-- i. Whether the benefit of Chief Executive Order 5 of 2000 for the Judges in category (a) in the said order can be continued even after 20.4.2010 the date of amendment in Article 270AA and insertion of clause (3)(b) of the Constitution? ii. What is the effect of insertion of clause 3(b) to the Article 270AA of the Constitution on the Judges to whom benefit of "special permission" was extended by Chief Executive Order 5 of 2000 on account of being removed from the office of a Judge of High Court before completion of 5 years period of service to qualify for pensionary benefit as a Judge of High Court? iii.; Whether clause 3(b) of Article 270AA of the Constitution can be interpreted to create another class of permanent Judges who, on attaining the age of superannuation can be entitled for pensionary benefits and shall not be hit by the provisions of Article 207(3)(b) of the Constitution whereas other permanent Judges on attaining the age of superannuation can be restrained to act and plead in the same Court? if yes, what is its' effect? iv. Whether after the 18th Amendment on insertion of clause (3)(b) of Article 270AA of the Constitution if one permanent Judge on retirement for attaining the age of superannuation is allowed to act and plead in any Court including the one in which he was a Judge and any other permanent Judge with five years' service on retirement at superannuation age, if not allowed to act and plead in any Court including the one in which he was a permanent Judge, would it be violative of Article 25 of the Constitution or not? v. Whether clause (3) of Article 270 of the Constitution itself is discriminatory and is in conflict with Article 18 of the Constitution and/or otherwise after 18th Amendment it is not applicable to the judges who retire on attaining the age of superannuation after serving as a Judge for five years or more since Article 18 of the Constitution does not impose any restriction to carry on the profession on attaining 62 years (superannuation)? vi. Whether sub-clause (3) of Article 207 is in conflict with the fundamental right guaranteed under Article 18 of the Constitution since it curtails freedom of profession of a permanent Judge after retirement from the service as a Judge though no such restriction is imposed on anyone else and there is no age limit for practice in the field of Law and as such entire clause (3) of the Article 270 of the Constitution is liable to be struck down being subservient to the fundamental rights guaranteed to the citizen of Pakistan including permanent Judge?"
The learned Single Judge was further pleased to observe that since above questions are pure constitutional questions, therefore, notice under Order XXVIIA, C.P.C. was issued to the Attorney General of Pakistan for the next date i.e. 31.05.2021.
4. The appellant being aggrieved by above two orders passed by the learned Single Judge in the subject suit filed H.C.A. No.85 of 2021 on 28.05.2021, wherein, while recording contention of the learned counsel for the appellant, Notices were issued to the respondents as well as to the Attorney General of Pakistan and to the Advocate General Sindh under Order XXVIIA, C.P.C., however, in the meanwhile, operation of the aforesaid impugned orders was suspended. On 01.06.2021, when the matter was fixed for hearing in Court, learned counsel for the appellant informed the Court that in spite of suspension of the aforesaid order passed by the learned Divisional Bench of this Court, the learned. Single Judge has proceeded further in the suit, and has also passed yet another order dated 31.05.2021 in the same manner, whereby, according to learned counsel for appellant, the matter has been referred to the Hon'ble Chief Justice for constitution of a larger bench to decide the, legal issue relating to entitlement of Mr. Rasheed A. Razvi, Advocate, to appear in High Court of Sindh, therefore, it was prayed that the operation of the aforesaid order may also be suspended.
However, such request of the learned counsel for the appellant was not acceded to, for the reason that said order was not the subject matter of appeal (H.C.A. No.85/2021), therefore, it was left at the option of the appellant to seek appropriate remedy against the said order in accordance with law.
Accordingly, the appellant challenged the said order by filing another H.C.A. No.92/2021, whereby, impugned order passed by the learned Single Judge to this effect on 31.05.2021 has been assailed on similar grounds with a prayer to set-side the impugned order for being illegal and without lawful authority. Since in both the appeals, primarily a common legal issue relating to jurisdiction of learned Single Judge at Original Side of this Court, to decide the eligibility of Mr. Rasheed A. Razvi Advocate to appear in High Court of Sindh, after having been retired as a permanent Judge of this Court, particularly, on his having received the pension as a Judge of this Court, is involved, therefore, both these appeals have been taken up for hearing together by consent of the parties, and will be disposed of through common order.
5. Mr. Salahuddin Ahmed, learned counsel, has made his submissions on behalf of the appellant in H.C.A. No.85/2021, whereas, Mr. Anwar Mansoor Khan. learned counsel for the appellant in H.C.A.
No.92/2021, while supporting the arguments of Mr. Salahuddin Ahmed, learned counsel for the appellant in H.C.A. No.85/2021, has also added his own submissions in H.C.A. No.92/2021 on behalf of the appellant. In both the aforesaid High Court Appeals Mr. lkram Ahmed Ansari, learned counsel has advanced his arguments on behalf of the respondent. The arguments of learned counsel for the parties can be summarized as under:
6. Learned counsel for the appellant has vehemently argued that impugned orders have been passed beyond the scope of Section 9 of. C.P.C. by the learned Single Judge exercising jurisdiction of a civil Court while hearing the suit, whereas, the purported constitutional points of public importance formulated by the learned Single Judge are neither the issues of public importance nor part of pleadings, issues framed, and the relief sought in the suit, in which the appellant is not even the party and representing the defendant as a counsel. According to learned counsel for the appellant, in the subject suit, evidence has been recorded after framing of issues, whereas, the suit was fixed for final arguments and ripe of announcement of judgment, however, the learned Single Judge, in the absence of any application by the parties to the suit and without any amendment in the pleadings or the relief sought in the suit, formulated the points relating to eligibility of the counsel representing the defendant in the suit, to appear in this Court as an Advocate, which exercise, according to learned counsel for the appellant, could not be undertaken by the learned Single Judge in the subject suit, wherein, neither any relief has been claimed against the appellant nor any declaration has been sought to this effect. Moreover, according to learned counsel for the appellant, the eligibility of an Advocate to appear in a Court of law is determined by the respective bar council under the Legal Practitioners and Bar Councils Act, 1973, and cannot otherwise be disputed or challenged by filing a civil suit. It has been further argued that the learned Single Judge sitting at the original side of this Court, has no Suo Motu powers or even upon an objection from any party to the proceedings, to examine the eligibility of an Advocate to appear before this Court, therefore, any inquiry or examination- on this issue, particularly, in the absence of any decision to this effect by the forum as provided under the Legal Practitioners and Bar Councils Act, 1973, is illegal and without lawful authority. Without prejudice to hereinabove submissions, learned counsel for the appellant have further argued that the appellant derives his right to practice before this Court under Clause 4 of High Court Judges (Service Benefits) Order 2000, Presidential Order, which according to learned counsel, was protected and saved under Article 270AA of the Constitution of Islamic Republic of Pakistan, 1973. Whereas, the appellant derives his right to claim pensionary benefits under Article 270AA(3)(b) of the Constitution. Reliance in this regard has be placed in the case of Mr. Justice (Retired) Shahid Anwar Bajwa v. S. M. Asif and others (PLD 2018 SC 337), wherein, according to learned counsel for the appellant, it has been held by the Hon'ble Supreme Court that Administrative or consultative action by the Chief Justice or. Judges of the High Court cannot be called in question by filing any proceedings before the Court of law. According to learned counsel for the appellant, such right of the appellant to practice before this Court has also been recognized in the aforesaid judgment. It has been further contended by the learned counsel for appellant that even otherwise, the order passed by the Hon'ble Chief Justice of this Court regarding release of pensionary benefits to the appellant in view of hereinabove constitutional provision cannot otherwise be challenged by filing a suit as it is protected under the law as held by the Hon'ble Supreme Court in the case of Gul Taiz Khan Marwat v. Registrar, Peshawar High Court (PLD 2021 SC 391). In addition to hereinabove submissions relating to authority of the learned Single Judge to examine the eligibility and entitlement of an Advocate, who otherwise has duly been registered with the respective Bar Councils under Legal Practitioner and Bar Councils Act, 1973, learned counsel for the appellant have argued that the learned Single Judge has no authority to formulate the purported constitutional points of public importance and to invoke the provision of Rule 10 of Sindh Chief Court Rules (0.S.) Part-1 Chapter-II while referring the matter to the Hon'ble Chief Justice of this Court, to constitute a bench of two (02) or more Judges for the decision on the issues framed by the learned Single Judge, as according to learned counsel, the issues so formulated do not relate to the controversy between the parties in the suit, whereas, neither in the pleadings such plea has been raised nor any issue has been formulated by the learned Single Judge in the above mentioned suit relating to eligibility of the appellant to practice before this Court as an Advocate after his retirement as permanent Judge of this Court. While concluding their arguments, it has been stated by the learned counsel for appellant that the impugned orders as referred to hereinabove are illegal and without lawful authority and also lack jurisdiction for the reason, that through impugned orders the scope and complexion of the suit has been changed, without seeking any amendment in the pleadings or the prayer clauses in the suit, which is not permissible in law, therefore, the aforesaid orders are liable to be set-aside. In support of their contention, learned counsel for the appellant have placed reliance in the following reported judgments:- 1) Messrs A.R. Builders (Pvt.) Ltd. v. Faisal Cantonment Board and 4 others (PLD 2004 Karachi 492)
2) Mian Irfan Bashir v. The Deputy Commissioner (D. C), Lahore and others (PLD 2021 SC 571)
3) Prof. Muhammad Usman and others v. Punjab University Academic Staff Association (1991 SCMR 320)
4) Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan and another (PLD 1971 SC 677)
5) Jahanzaib Malik v. Balochistan Public Procurement Regulatory Authority through Chairman Board of Directors and others (2018 SCMR 414)
6) Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others (2014 SCMR 122)
7) Pakistan through the Secretary, National Assembly v. (1) Khondkar Ali Afzal and (2) Speaker, National Assembly of Pakistan (PLD 1960 SC 1)
8) Chief Executive Officer, Multan Electric Power Company Ltd, Khanewal Road, Multan v.
Muhammad Ilyas and others (2021 SCMR 775)
9) Rehmat Ali v. Additional District Judge, Multan and others (1999 SCMR 900)
7. Learned Advocate General Sindh and the learned Assistant Attorney General for Pakistan, who were present on Court Notice have concurred with the submissions of learned counsel for the appellant, and adopted the arguments of the learned counsel for the appellant and have candidly stated that the impugned orders passed by the learned Single Judge are without lawful authority and beyond the pleadings between the parties in the subject suit. It has been further contended by both the learned counsel appearing on behalf of the Federation and the Province that while hearing a civil suit filed at the Original Side of this Court, the learned Single Judge cannot exercise Suo Motu powers of framing issues beyond the pleadings, in such a manner that it may change the complexion of the suit, whereas, the authority to refer the matter to the Hon'ble Chief Justice for constitution of a larger bench in terms of Rule 10 of Sindh Chief Court Rules (O.S.), Part 1 Chapter II can be exercised in rare cases of public importance, provided such legal point shall arise from the pleadings in the suit and in respect of a controversy relatable thereto. It has been prayed that the impugned orders may be set-aside for, having been passed without lawful authority, therefore, not sustainable in law, facts and circumstances of the instant case.
8. Conversely, learned counsel for the respondent has supported the impugned orders passed by the learned Single Judge in the above suit, and submitted that before announcement of judgment and decree in the suit, the appellant was put to notice to explain his position with regard to his eligibility to appear before this Court, after his retirement as a permanent judge, particularly, when he has started receiving the pensionary benefits. According to learned counsel for the respondent, the learned Single Judge has the authority and discretion tore-formulate the issues and to confront the parties in respect of some important legal and constitutional issue, and also to refer the same to the Hon'ble Chief Justice for constitution of a bench comprising of two or more Judges in terms of Rule 4 of the Sindh Chief Court Rules (0.S.) so that the legal issue and constitutional points formulated by the learned Single Judge may be decided by the learned bench as may be constituted by the Hon'ble Chief Justice, in accordance with law. It has been further argued by the learned counsel for the respondent that since no adverse order has -been passed against the appellant, whereas, the matter has simply been referred to the Hon'ble Chief Justice for constitution of a bench to decide the legal issues so formulated by the learned Single Judge, therefore, instant appeals are not maintainable for being premature. While concluding his arguments, learned counsel for the respondent has submitted that there is no mala fide on his part as a counsel while pointing out the relevant provisions of the Constitution relating to entitlement and eligibility of the appellant, who after having retired as a permanent Judge of this Court and still practicing in the same Court from where he retired as a permanent Judge, in spite of constitutional bar to this effect, particularly, when the appellant has also started to receive the pensionary benefits. It has been prayed by the learned counsel for the respondent that instant appeals being devoid of any merits, besides being premature, may be dismissed.
9. We have heard the learned counsel for the parties as well as learned A.G. Sindh and learned Assistant Attorney General for Pakistan and have also perused the record with their assistance. We have also gone through with the pleadings, issued framed, evidence of the parties and have also examined the relevant provisions of Civil Procedure Code relating to the various steps to be taken under the C.P.C. starting from institution of a suit till announcement of judgment and passing a decree. Since no final order has been passed by the learned Single Judge in the subject suit relating to eligibility of the appellant to practice before this Court, who retired as permanent Judge, however, without attaining the age of superannuation, therefore, we need not venture to record our finding on the relevant Notification and the Constitutional provisions, which attracted the attention of the learned Single Judge during the course of hearing in the subject suit, wherein, on the basis of pleadings, the issues were framed and pursuant to such issues, evidence on such issues of both the parties has been recorded, and the suit was fixed for argument and ripe for pronouncement of judgment in accordance with law. Though, during the course of arguments in these appeals, the learned counsel for the appellant have referred to the Notification of retirement of Mr. Rasheed A Razvi, Advocate, the appellant in these appeals, as a permanent Judge of Sindh High Court, with the permission to practice before this Court, being CEO No.5/2000, PCO No.1 of 1999, published on 30.03.2000, the provisions of Article 270AA of the Islamic Republic of Pakistan, 1973, as well as the relevant observations of the Hon'ble Supreme Court in the case of Mr. Justice (Retired) Shahid Anwar Bajwa v. S. M. Asif and others (PLD 2018 SC 337) in respect of the appellant and another Judge of this Court, who also retired as a permanent Judge of this Court, and has been allowed to practice in this Court, however, as we have already observed that since there is no finding recorded by the learned Single Judge in the impugned orders relating to implications and interpretation of the aforesaid Notification and the constitutional provisions, whereas, the appellant have mainly expressed their grievance by raising an objection with regard to authority of the learned Single Judge to examine this aspect of the subject suit in which, neither the appellant is a party nor any declaration or relief has been sought relating to eligibility of the appellant to appear before this Court as a counsel or not, therefore, we would only examine the legal objection relating to the jurisdiction and the authority of the learned Single Judge, sitting on Original Side of this Court to consider or decide the eligibility of the appellant to appear as a counsel in the subject suit.
Admittedly, the subject Suit No.664/2008, was filed by the respondent No.1 against respondent No.2, for possession, injunction, mesne profit and/or damages with the following prayer, whereas, the appellant is neither a party to suit, nor any "'declaration or relief whatsoever has been sought by the plaintiff:- a. That the defendant be directed to restore/hand over to the plaintiff the possession of the balance/remaining area of about 40 sq. yds., b. That the judgment and decree be passed against the said defendant and declaration be given that in the circumstances of the case the plaintiff is entitled to recover and receive from the defendant mesne profits/damages at the rate of Rs.25,000/- per month with effect from 22.10.2003 i.e. the date of execution and registration of the conveyance deed (annexure P/l) referred to hereinabove till the delivery of possession of the short delivered possession of an area of about 40 sq. yds. c. To direct the defendants that after the measurement of the suit property by the Nazir and/or a qualified engineer/architect to be appointed by the Honourable Court they would not cause any hindrance or dispute with the plaintiff regarding the construction of the boundary wall around her said purchased property No.F-9/1, measuring 669.45 sq. yds, according to the official site plan thereof.
Costs of the suit may also be awarded to the plaintiff.
Any other relief or reliefs as this Honourable Court may deem fit and proper may also be awarded to the plaintiff against the defendant.
10. The suit proceeded in accordance with the provision of Civil Procedure Code, whereas, keeping in view the pleadings and the relief sought therein in the following terms:-
1. Whether the suit is barred by Limitation Act, 1908, and is without a caused of action or suffers from any other infirmity as alleged in the written-statement of the defendant?
Did the defendant sell the suit property to the plaintiff on "as is where is basis" as alleged in his written statement?
3. What the effect of the Conveyance Deed (annexure-P/1 to the Plaint) executed by and between the Plaintiff and defendant, schedule whereof stipulates that the said transaction was in respect of all "that piece and parcel of immovable property, bearing Plot No.F-9/1, Hatim Alvi Road, Block-4, KDA Scheme No.5, Kehkashan Clifton, Karachi, measuring 699.45 sq. yds. Along with construction consisting of double storyed bungalow?
4. Did the defendant give possession of the suit property to the Plaintiff with lesser area of land as submitted in the plaint of the suit?
What is the effect of Nazir's report dated 26.05.2008 submitted in the matter and taken on record by this Court?
To what relief the Plaintiff is entitled in the matter?
Whether the suit is barred by Sections 54 and 56 of Specific Relief Act, 1877?
Whether the suit is barred by Section 8 of the Transfer of Property Act, 1882?
Whether the letter filed as Annexure P-2 and P-4 with the Plaint are forged and bogus documents?
10. What should the decree be?
11. Pursuant to aforesaid issues, evidence of both the parties was recorded and the matter was being fixed for final arguments and ripe for announcement of judgment and decree in accordance with law. However, when the matter came up for arguments on 18.05.2021, request for adjournment was made on behalf of Mr. Rasheed A. Razvi, learned counsel representing the defendant in the suit on health grounds and also keeping in view the spread of pandemic i.e. of Covid-19, which request, however, was objected by Mr. lkram Ahmed Ansari, Advocate, learned counsel representing the appellant in the suit, who submitted that learned counsel for the defendant is seeking unnecessary adjournments on frivolous grounds, whereas, the excuse of his non-appearance on account of Covid-19 is not a valid ground for the reason that he is also of an advance age, however, regularly appearing before Court to argue the matter. In addition to above objection, Mr. lkram Ahmed Ansari, Advocate, for the first, also raised an objection on the appearance of Mr. Rasheed A. Razvi, Advocate, before Sindh High Court, who according to him, retired as a permanent Judge of this Court, and has now started receiving pension as a Judge of this Court, therefore, he cannot appear as an Advocate before this Court. The learned Single Judge, having recorded the above contention of the learned counsel for the plaintiff, adjourned the matter to 24.05.2021, however, required Mr. Rasheed A. Razvi, Advocate, to explain his position as to whether, he can still appear in the High Court of Sindh as a counsel for the litigant parties, despite receiving pension as a retired Judge of this Court. The matter came up for hearing on 24.05.2021, when Mr. Salahuddin Ahmed, Advocate shown appearance and filed his vakalatnama on behalf of Mr.Rasheed A. Razvi, Advocate for the appellant, and requested for time to submit response to the queries of the Court. However, in response to query of the learned Single Judge, he made an attempt to submit response to the query of the Court, relating to eligibility and entitlement of Mr. Rasheed A. Razvi, Advocate to appear before this Court in the following terms:- "2. The relevant clause (3)(b) of Article 270AA of the Constitution of 1973 introduced by 18th Amendment in the Constitution on 20.4.2010 is reproduced below:--
(3) Notwithstanding anything contained in the Constitution or clause (1), or judgment of any court including the Supreme Court or a High Court.-- (a)............................................................................................................................................................................................. .................................................................................................................................................................................................. .................................................................................................................................................................................................. ..................................................................................................................................................................................................
(b) Judges of the Supreme Court, High. Courts and Federal Shariat Court who not having been given or taken oath under the Oath of Office of (Judges) Order, 2000 (1 of 2000), and ceased to hold the office of a Judge shall, for the purpose of pensionary benefits only, be deemed to have continued to hold office under the Constitution till their date of superannuation.
3. The Chief Executive's Order 5 of 2000 published on 30.3.2000 was in respect of the Judges of High Courts who ceased to continue to hold office of Judges of High Court in pursuance of Article 3 of the Oath of Office (Judges) Order, 2000. The relevant petition with particular reference to the retirement and pension of Judges in Article 4 of the said Chief Executive's Order 5 of 2000 is reproduced below:--
4. Retirement and pension, etc.---A Judge who was not administered oath and ceased to continue to hold office of a Judge of High Court in terms of Article 3 of the Oath (Judges) Order, 2000 (C.E.O.
No.1 of 2000), shall
(a) if he has rendered service as such Judge for Jess than five years, be eligible to plead or act as an Advocate in any Court or before any authority including the High Court in which he had served as such Judge; and
(b) in case such Judge has rendered service as a Judge for five years or more be deemed to have retired from his office on attaining the age of sixty-two years for the purpose of pension and shall be entitled to receive full pension and all benefits calculated on that basis:
4. The Chief Executive's Order 5 of 2000 deals with two categories of Judges of High Court at the time of promulgation of the said Order 5 of 2000. In category (a) are Judges who have not completed five years of service as a judge of High Court and in category (b) are Judges who have qualified to receive pension on account of length of service as judge of High Court. Apparently the effect of sub-clause (b) of Clause (3) of Article 270AA of the Constitution is that the judges falling in category (a) of the Order 5 of 2000 have been shifted to or merged in category (b) of the judges and 3 prima facie on receiving pensionary benefit in terms of clause 3(b) of Article 270AA of the Constitution like the judges of category (b) in the Order 5 of 2000 they are also hit by Article 207(3)
(b) of the Constitution. Therefore, once a simple question whether Mr. Rasheed A. Rizvi is receiving pensionary benefit or not when answered by Mr. Salahuddin Ahmed in affirmative there is hardly any controversy left except interpretation of the relevant Articles of Constitution like Article 207(3)
(b) and Article 270AA(3)(b) and effect of these Articles of Constitution on the Judges who were allowed by the Chief Executive Order 5 of 2000 to act and plead before the smile High Court in derogation to Article 207(3)(b) of the Constitution.
5. Mr. Salahuddin Ahmed, Advocate has also referred to following observation of the Hon'ble Supreme Court in the case of Shahid Anwar Bajwa v. S.M. Asif and others (PLD 2018 SC 337 relevant page 343):-- In order to ascertain the real intention of the legislature, it is necessary to keep in mind the provisions of Article 207(3)(a) ibid, which provides that "A person who has held office as a permanent judge of the Supreme Court, shall not plead or act in any Court or before any authority in Pakistan", Thus, from this provision the intention of the legislature is clear that a ban has been imposed on a Judge not only to appear before the courts/forums subordinate to that Court but also from the court where he acted as a permanent judge. This fact further receives support from the fact that when two permanent Judges of the High Court of Sindh i.e. Mr. Rasheed A. Rizvi and Mr. Mushtaq Ahmed Memon, were removed from their office by virtue of the Oath of Office (Judges)
Order, 1999, considering that they were restricted to act and plead before the said High Court being permanent Judges, special permission was given to them by means of the Chief Executive's Order No.5 of 2000. (Emphasis is provided)
12. However, it appears that the learned Single Judge was not convinced with such submissions of the learned counsel for the appellant, and was pleased to pass following order: "6. In view of the contentions of. Mr. Salahuddin Ahmed, Advocate and in the background of the above discussion, the following fundamental questions of public importance have emerged:- i. Whether the benefit of Chief Executive Order 5 of 2000 for the Judges in category (a) in the said order can be continued even after 20.4.2010 the date of amendment in Article 270AA and insertion of clause (3)(b) of the Constitution? ii. What is the effect of. insertion of clause 3(b) to the Article 270AA of the Constitution on the Judges to whom benefit of "special permission" was extended by Chief Executive Order 5 of 2000 on account of being removed from the office of a Judge of High Court before completion of 5 years period of service to' qualify for pensionary benefit as a Judge of High Court? iii. Whether clause 3(b) of Article 270AA of the Constitution can be interpreted to create another class of permanent Judges who on attaining the age of superannuation can be entitled for pensionary benefits and shall not be hit by the provisions of Article 207(3)(b) of the Constitution whereas other permanent Judges on attaining the age of superannuation can be restrained to act and plead in the same Court? If yes, what is its effect? iv. Whether after the 18th Amendment on insertion of clause (3)(b) of Article 270AA of the Constitution if one permanent Judge on retirement for attaining the age of superannuation is allowed to act and plead in any Court including the one in which he was a Judge and any other permanent Judge with five years' service on retirement at superannuation age, if not allowed to act and plead in any Court including the one in which he was a permanent Judge, would it be violative of Article 25 of the Constitution or not? v. Whether clause (3) of Article 270 of the Constitution itself is discriminatory and is in conflict with Article 18 of the Constitution and/or otherwise after 18th Amendment it is not applicable to the judges who retire on attaining the age of superannuation after serving as a Judge for five years or more since Article 18 of the Constitution does not impose any restriction to carry on the profession on attaining 62 years (superarmuation)? vi. Whether sub-clause (3) of Article 207 is in conflict with the fundamental right guaranteed under Article 18 of the Constitution since it curtails freedom of profession of a permanent Judge after retirement from the service as a Judge though no such restriction is imposed on anyone else and there is no age limit for practice in the field of Law and as such entire clause (3) of the Article 270 of the Constitution is, liable to he struck down being subservient to, the fundamental rights guaranteed to the citizen of Pakistan including permanent Judge?
7. The above are pure constitutional questions and the learned counsel in terms of Order XXVIIA o C.P.C. has rightly suggested that notice may be given to Attorney General of Pakistan. Order accordingly.
Copy of this order be faxed to office of Attorney General for Pakistan and also provided to the Additional Attorney General, at Karachi.
To come up on 31.05.2021"
13. From perusal of above record, it has emerged that aforesaid questions as framed by the learned Single Judge while holding that the same are fundamental questions of public importance are entirely different and distinct from the issues framed by the Court in the suit on the one hand, and are also beyond the pleadings issue framed, and the evidence produced by the parties in support of their respective claim as reflected in the plaint and written statement and the evidence produced before the learned Single Judge. It is also evident that the questions proposed hereinabove are totally outside the purview and scope of the suit, as the same are neither the subject matter of the suit nor any amendment in the pleadings in terms of Order VI, Rule 17 has been sought or made by the Court, whereas, even no issue to this effect has been framed by the Court in the suit. It is also evident from the record that issues already framed in the suit, have also not been amended in terms of Order XIV, Rule 5, C.P.C. by the learned Single Judge, whereas, the proceedings in the suit have already been concluded as the matter was fixed for final arguments, hence ripe for announcement of judgment. All civil suits are governed by the provision of Civil Procedure Code 1908, including the suits filed before the High Court at Original Side, wherein, the provisions of Sindh Chief Court Rules (O.S.) are also attracted, however, only to the extent and for the purpose specified therein. A suit commences from the date of its institution in terms of Section 26 read with Order IV, Rule 1, C.P.C. and concludes on announcement of judgment and decree in terms of Section 33 read with Order XX, C.P.C., however, after fulfilment of certain procedural steps, including framing of issues under Order XIV and examination of witnesses under Order XVIII, C.P.C.
Exceptions have also been provided under the relevant provisions of C.P.C., however, ultimate conclusion of a suit is through announcement of a judgment and decree based on the pleadings, issues framed and the evidence produced by the parties in accordance with law. It is now well settled legal position that a judgment and decree has to be passed on each issues framed in the suit separately, unless the Court gives reasons for non-pronouncing the judgment and decree on each issue separately. Whereas, a learned Single Judge while sitting on (O.S.) of this Court, though exercises special original civil jurisdiction to try a civil suit directly, however, it does not enlarge the jurisdiction or expands the authority of the. Court to travel beyond the pleadings by changing complexion of the suit. Similarly, Court while exercising original civil jurisdiction cannot undertake an exercise to formulate or decide any purported legal point of public importance, which otherwise, is beyond the scope of the suit proceedings, and would adversely affect right or interest of an individual, who is not even a party to the suit proceedings, nor any declaration or relief has been sought on such legal point. In the instant case, it has been observed that the purported fundamental questions, as formulated by the learned Single Judge, would still require framing of issues of fact and law both, in order to examine the special circumstances under which, the Notification relating to retirement of Mr. Rasheed A. Razvi was issued as well as interpretation and application of the relevant provisions of the Constitution of Islamic Republic of Pakistan, 1973, and the effect of the judgment of the Hon'ble Supreme Court in the case of Mr. Justice (Retired) Sh hid Anwar Bajwa v.s, M As and others (PLD 2018 SC 337), Such exercise, therefore, would attract detailed scrutiny of facts and determination of legal and constitutional issues through full fledge trial, after framing of issues of fact and law through pronouncement of judgment on such issues in accordance with law. Admittedly,, no proceeding whatsoever to this effect either in the original suit between the parties nor through any application by any party to the suit seeking amendment in the pleadings and the issues already framed in the suit, nor the appellant has been impleaded as a party, so that proper opportunity could be provided to the appellant to, defend himself in accordance with law. Record shows that the subject suit, which was pending since 2008 between the plaintiff and the defendant, was fixed for arguments after recording of evidence and conclusion of the suit proceedings, whereas, the next steps would have been pronouncement of judgment and decree, however, on the fateful date, on account of non-appearance of the appellant for health reasons, learned counsel for the defendant while objecting request of adjournment made on his behalf, raised the objection regarding eligibility of the appellant to appear before this Court as a counsel, after his retirement as a permanent Judge of this. Court, which tempted the learned Single Judge to formulate the purported constitutional questions, however, without realizing as to what would be the effect of undertaking such exercise in the suit pending between the parties to the suit since 2008, and as to whether any finding, if recorded by the learned Single Judge relating to eligibility of the appellant, representing the defendant in the aforesaid suit, would also affect the suit proceedings which stood almost concluded. Examining the eligibility of the appellant to appear before this Court as an Advocate in the subject suit between two private parties, would amount to changing the complexion of the suit altogether which is not permissible under law, In view of hereinabove facts and circumstances of the case, we are of the considered opinion that the learned Single Judge was not justified either in facts or in law to formulate the aforesaid questions relating to eligibility of the appellant to appear as an Advocate before this Court, in these proceedings, and thus travelled beyond the jurisdiction and the authority as vested in Court while hearing a suit between the two private parties, in which the appellant was not even a party. We may further observe that even if this would have, been a case where the eligibility of an Advocate to appear before this Court would have been challenged in terms of the Legal Practitioners and Bar Councils Act, 1973, then reference to the relevant provisions of such Act, under which an Advocate is enrolled and permitted to practice before this Court, would have been necessary, which exercise in the instant case, appears to have not been undertaken by the learned Single Judge. Though we have reservations even with regard to jurisdiction of this Court on (0.S.) to examine this aspect of the matter, and to entertain a suit directly, in the absence of any proceedings or decision by the Bar Council under Chapter VI of the Legal Practitioners and Bar Councils Act, 1973, which governs and regulates the enrollment, right of practice, seniority, pre- audience etc. of an Advocate, however, without recording any finding in this regard, as it has not been argued by either party during the course of hearing instant High Court Appeal, we hold that formulation of aforesaid questions by the learned Single Judge in the subject suit, was beyond the scope of the suit on the one hand, and also contrary to the pleadings, the issues framed, and the evidence produced by the parties to the suit, hence the same was without lawful authority. It may be further observed that reference to the provisions of Rule 10 of Sindh Chief Court Rules (O.S.), whereby, the learned Single Judge has been pleased to refer the matter to the Hon'ble Chief Justice for constitution of Special Bench to examine the issue of eligibility of the appellant i.e. Mr. Rasheed A Razvi, Advocate, to appear before this Court as a counsel, is also misconceived, as above provision does not allow formulation of a question, which was neither the subject matter of the suit, nor part of the WWI framed by the Court, whereas, no evidence whatsoever has been recorded on the questions so formulated, which otherwise, requires formulation of entirely separate issues of facts and law both, We are fortified in our view by the following judgments of High Courts as well as the judgments of Hon'ble Supreme Court, the gist of ratio of such judgments is given below:-
15. A. In the case of Messrs A.R. Builders (Pvt.) Ltd. v. Faisal Cantonment Board and 4 others (PLD 2004 Karachi 492), the learned Divisional Bench of this Court, while examining the various provisions of the Civil Procedure Code, has been pleased to define the scope of jurisdiction and the authority of the Court hearing a suit on original side in the following manner:-- "9....................... This is an established law that the Courts would not travel outside the scope of the suit to grant either final or interim relief of the nature, when such relief has no nexus with the facts pleaded in the plaint and or relief sought in the suit. The denial of facts in the written statement and pleadings additional grounds in the written statement would not authorize the Court to enlarge the scope of the suit when the plaintiff has not pleaded any such fact nor has sought relief of the nature. The Courts are bound in law to confine themselves to the reliefs sought and/or which flow from the facts pleaded in the plaint."
B. The issue relating to the jurisdiction and the authority of the Court has been dealt with by the Hon'ble Supreme Court of Pakistan in the case of Rehmat Ali v. Additional District Judge, Multan and others (1999 SCM R 900) in the following terms;-- "14. The grounds taken at best fall in the category of erroneous exercise of jurisdiction and not within the term "want or lack of jurisdiction". There is a distinction between "want of jurisdiction" and "Irregular exercise of jurisdiction", The word 'Jurisdiction' signifies the power and authority of the Court to decide- issues in exercise of its judicial functions. The jurisdiction of the Court has reference to (1) subject-matter, (2) territorial extent, (3) pecuniary value of the claim involved, (4) nature of dispute and (5) amenability of the parties to the process of the Court. The jurisdictional defect may arise with reference to absence of any of the afore-noted defects or there may be legal bar itself by a Statute or something else having the force of law. On account of existence of any jurisdictional defect, The judgment passed can be said to have been passed "without lawful authority" and illegally and can be set aside on the ground of want of jurisdiction...................................,"
C. In the cue of Prof. Muhammad Usman and others v b University Academic Staff Association and another (1991 SCMR 320) the Hon'ble Supreme Court of Pakistan, while dilating upon the authority of the Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been pleased to hold as under:-- "Now, it is established law that a writ can be granted only in terms in which it has been applied for and the relief must be confined to the prayer made in the writ petition and that the High Court cannot issue a writ suo motu see A. G. Khan v. Shujauddin Qureshi and others PLD 1961 SC 1 and Akhtar Abbas and others v. Nayya r Hussain 1982 SCMR 549.
In this case there is no prayer made in the writ petition for setting aside of the allotment order dated 23-1-1973, made in favour of the petitioner Professor Muhammad Usman and hence, the High Court was not justified in setting aside the said allotment suo motu by its impugned order."
D. The Hon'ble Supreme Court of Pakistan in its recent judgment passed in the case of Mian Irfan Bashir v. The Deputy Commissioner (D.C.), Lahore and others (PLD 2021 SC 571) while dilating upon the jurisdiction and the authority of a High Court and the judicial power to be exercised in its writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been pleased to hold as under: - "2. After hearing the learned counsel for the parties, we at the very outset wish to point out that there must exist a dispute before the High Court before it exercise judicial power, "On the application of an aggrieved party" is an essential pre-requisite to invoke the constitutional jurisdiction of the High Court under Article 199 of the Constitution. There must be an application and an applicant to invoke the jurisdiction of judicial review as the High Court does not enjoy suo motu jurisdiction under Article 199."
In the same Judgment, the Hon'ble Supreme Court of Pakistan, while dilating upon the concept of Judicial overreach and the authority of the Court has been pleased to hold as under:-- 6............... A judge is to remain within the confines of the dispute brought before him and decide the matter by remaining within the confines of the law and the Constitution, The role of a constitutional judge is different from that of a King, who is free to exert power and pass orders of his choice over his subjects. Having taken an oath to preserve, protect and defend the Constitution, a constitutional judge cannot be forgetful of the fact that he himself, is first and foremost subject to the Constitution and the law. When judges uncontrollably tread dip path of judicial overreach, they lower the public image of the judiciary and weaken the public trust reposed in the judicial institution. In doing so they violate their oath and turn a blind eye to their constitutional role. Constitutional democracy leans heavily on the rule of law, supremacy of the Constitution, independence of the judiciary and separation of powers. Judges by passing orders, which are not anchored in law and do not draw their legitimacy from the Constitution, unnerve the other branches of the Government and shake the very foundations of our democracy."
16. Accordingly, both the impugned orders dated 18.05.2021 and 24.05.2021 in H.C.A. No.85/2021 and the order dated 31.05.2021 it H.C.A. No.92/2021 passed by the learned Single Judge in Suit No.664/2008, were set-aside vide our short order dated 14.10.2021 in the following terms: "For the reasons :o be recorded later on, instant High Court Appeals are allowed and the impugned orders dated 18.05.2021 and 24.05.2021 in High Court Appeal No.85/2021 and impugned order dated 31.05.2021 in High Court Appeal No.92/2021 passed in Suit No.664 of 2008 are hereby set-aside, whereas, learned Single Judge may proceed to decide the Suit as per pleadings on merits, in accordance with law."
17. Above are the reasons for such short order.