QADEERUDDIN AHMED, C. J.-These two applications have been made under Article 102 of the Constitution of 1962. The prayer in both of them is as follows: "It is, therefore, prayed by the petitioner that it may please the Hon'ble Court to call for the record of the case and set aside aforesaid judgment and decree in exercise of the powers vested in it under Article 102 of the Constitution."
On receipt of these applications, the office was confronted with two questions, firstly, whether the court-fee of Rs. 4 which was paid on each of them represented the correct amount or each of them should bear court-fee of the value of Rs. 100 in terms of Rule 10 of Chapter 4-J of Vol. V of the Rules and Orders of the High Court ; and, secondly, whether these applications should be heard by a Single Judge or by a Division Bench under Rule 3 of the said Rules. The two rules are as follows : "10. A court-fee of Rs. 100.00 shall be payable on each petition but no court-fee shall be required in case a writ is required in respect of the detention of any person by or under orders of any public authority."
3. "Unless otherwise ordered by the Chief Justice the applica--tion shall be laid before a Division Bench which may summarily dismiss it or pass such order as it may deem necessary. During vacation the application may be disposed of by a Vacation Judge."
2. Counsel for the petitioners insisted that the correct amount of court-fee payable on these applications was Rs. 4 and not Rs. 100 because the relief which has been asked for fn them is not of the nature of the reliefs to which rule 10 relates because that rule relates to applications in which the relief sought is in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari in terms of Article 170 of the Constitution of 1956. As to the question whether they be heard by a Single Judge or a Division Bench, learned counsel was indifferent.
3. Counsel was right in saying that Rule 10 was made with reference to the writs which could be granted under Article 170 of the Constitution of 1956 but now Article 98 of the Constitution of 1962 has taken the place of Article 170 of the 1956-Constitution and the remedies which are granted under the new Article do not coincide with those which could be granted under Article 170 of 1956- Constitution. The reason of this discrepancy is that new rules were not framed after the promulgation of the Constitution of 1962 but its Article 98 is a provision which corresponds to Article 170 ; therefore, no difficulty was felt in applying rule 10 to the applications made under Article 98 of the Constitution of 1962. The present two applications are made under Article 102 of the Constitution of 1962 but the office took the view that since Constitutional remedies are granted under Article 98 also and these applica--tions though made under Article 102 of the Constitution of 1962 are also described as Constitutional petitions by the applicant himself ; therefore, rule 10 should be applicable to them. Counsel for the applicant disagreed with this view on the ground that according to him the remedies which are granted under Article 98 are entirely different from the remedies which the applicant has asked for under Article 102. According to him, he has invoked Article 102 mainly on the ground that Article 98 was not applicable to these cases. This state of affairs, there--fore, according t4 him, is by itself sufficient to differentiate between Article 98 and Article 102 and in consequence the court-fee required to be paid under rule 10 should not be charge--able on these applications.
4. These applications came up for consideration before a Division Bench consisting of Mr. Justice Abdul Kadir Sheikh and Mr. Justice K. B. Marri before whom learned counsel for the applicant explained his above point of view and added that these applications were maintainable in respect of the relief asked for in them under Article 102, in view of the judgment of a Singe Judge of this Court in Mst. Farida Parwin v. Qadeeruddin Ahmad Siddiqi (PLD 1971 Kar. 118). The Division Bench thought that if counsel for the applicant was right, then the court-fee of Rs.4 paid on these applications may be adequate but in that event these applications may properly be heard by a Single Bench. It has, therefore, ordered as follows : "The office to examine this aspect and put up the case before the Chief Justice for appropriate orders."
5. The office put up to me a lengthy note dated the 2nd of April 1971. I have in my order referred to the conflict of views that is supposed to exist on the question of maintainability of applications made under Article 102 and directed as under "The reference may be placed before the (named) Full Bench in the last week of this month with notice to the Advocate who has filed constitution Petitions Nos. 65 and 66 of 1971 and to the Advocate-General of the Province of Sind. Notice may also be given to the President of the High Court Bar Association with a request to appear as amicus curiae."
These applications were accordingly laid before this Full Bench and counsel were heard at length.
The main arguments were addressed by the Assistant Advocate-General who was well prepared.
6. His approach to the subject was mainly historical and partly analytical. He referred to section 15 of the High Courts Act, 1861, section 107 of the Government of India Act, 1915, section 224 of the Government of India Act, 1935, Article 226 of the Indian Constitution, Article 170 of the abrogated Constitution of 1956 and Article 102 of the Constitution of 1962. There are scores of judicial pronouncements to be analysed and understood if all of these provisions need be kept in mind for understanding the meaning and import of Article 102. But is it necessary to do so ?
7. Article 102 is as follows : "102. Each High Court shall supervise and control all other Courts that are subordinate to it."
Its language is simple and clear. It means that all those Courts which are subordinate to a High Court shall be supervised and controlled by that High Court. There seems nothing in its meaning of historical significance unless the history of the idea which is contained in the provision is sought to be traced as an independent subject of inquiry. Such history is an external circumstance to the provision itself and its value to the understanding of the provision would depend upon the light which the extraneous evidence of historical circumstances would throw on its meaning, provided we find the intention of the Legislature to depart or not to depart from the purpose which it had in its mind earlier. How is that to be discovered ? The answer is: primarily from the language and then "the condition and position and course of dealing of the persons who made" them. If this is correct, then the historical method of interpretation is far from being simple. It can be easily misleading if attempted half-heartedly and without thoroughness. An incomplete setting of historical background can contribute a look of erudition because the superficiality of such arguments is not easy to discover and demonstration of its errors is full of intricacies. Apart from its value as a display of erudition, it ought not be attempted unless historical connection with language, condition, position and course of dealings is found to be cogent and significant.
8. Additionally, I feel that the method of referring to precedents for understanding a written provision of law is, of much less value than it is for understanding an unwritten aw like the unwritten part of English common law. The value of precedents in respect of written law lies in the elucidation which they provide but a precedent remains binding only until it does not come into conflict with a statute ; when it does it pale away into colourless non-entity because of the supremacy of statutes over precedents. Yet is not easy to restrict the us of precedents to strictly necessary occasions because second--hand thoughts are convenient to use as well as appear respectable since reference to precedents confer a look of learning to a speech made in Court and to judicial writings. But we have to keep in mind that a precedent is not meant to be the exposition of any statutory provision as a whole 5 therefore, it contains the view of law relevant to the facts of a particular case It has the angle which the facts give to it and no two sets of facts, unless extremely simple or unique, are exactly the same ; therefore, if many judgments are cited they present many angles of thought which- come to the notice of the Court, They may or may not have essentially different facts but all of them are bound to have fine, yet sometimes, decisive variants in them which need to be duly noticed if it is necessary to use them.
The necessity ordinarily arises if there is an ambiguity or uncertainty to be clarified or if there is a disagreement of views between the Court and counsel or if there is a conflict in judicial opinion.
9. For understanding a written provision of law, I would first try to study it. If there are any ambiguities or uncertainties in it, I would try to resolve them by studying the language more carefully, looking at the provision as a whole, seeing it in the context of the whole statute, referring to a relevant higher principle, if any, and then only turn to precedents for enlighten--ment or self- assurance as the case may be. I would cite precedents only to remove doubts and sometimes to create a conviction but not as a prop to or substitute for thinking.
10. I find self-assurance in respect of what I have stated above in an address delivered before the University of Oxford on "Precedent in English and Continental law" by Dr. A. C. Goodheart and published in 50 L. Q. R. 4 in 1934. He has observed that the English doctrine of precedents was established mainly to supply the need of creating certainty in Common Law, but "the rigidity of strict precedent, when superimposed on the rigidity of a statute is unnecessary and inconvenient".
"This may also explain", he said, "why the English system is less satisfactory when applied to statute law than it is in the case of judge-made law". He has quoted similar observations of Sir Fredrick Pollock and Professor Allen.
11. Now turning to Article 102, I may preface my views by saying that the Assistant Advocate-General has worked hard and rendered useful assistance to us. If he has worked too hard, then it is not to his discredit. He has followed the harder pattern of preparing cases because he thought that there was apparently a conflict of opinion on the meaning of this provi--sion as expressed in Mst.
Gaman v. Taj Din (PLD 1968 Lah. 987), Mst. Safia Begum v. Abdul Hamid (PLD 1968 Lah. 1358), Karim Bakhsh v. Mst. Mubarik Jan (PLD 1970 Pesh. 169) and Mst. Farida Parwin v. Qadeeruddin Ahmad Siddiqi. I feel that it is unnecessary to trace the history of the thought which is contained in Article 102 ; therefore, would not refer to - the judgments which were given on similar provisions of earlier years.
12. In Mst. Gaman's case, there is only one direct sentence on Article 102. It is as follows "The present Article 102 of the Constitution, however, brings the position back to what it was under the provisions of section 107 of the Government of India Act, 1915, which gave to the High Courts power to control all subordi--nate Courts administratively as well as judicially."
In Mst. Safia Begum's care, there are the following three direct sentence's on Article 102 : "With the disappearance of the aforesaid sub-clause in Article 102 of the Constitution of 1962, the power vested in the High Court under section 187 of the Govern--ment of India Act, 1915, appears to have been restored. No doubt the power is unlimited but it does not have the effect of converting the High Court into a Court of appeal or revision, regardless of the limitations imposed by law on those powers. 1, however, agree with the view that the power is to be exercised only in very rare and exceptional cases and may be used ex debito justitiae, where there is no other remedy available under the ordinary law,"
In both of these cases orders of Family Courts were in question and in both of them the cases were transferred from one Court to another. No interference was made with any order on its merits. In Mst. Farida Parwin's case there are three paragraphs which deal with Article 102. They are paragraphs Nos. 15, 17 and 18. The final view is expressed in paragraph 17 as follows : "It is, therefore, clear that the judicial control thus is limited to the correction of exercise of jurisdiction or non--compliance of any statutory provision or the concerned law. It does not extend to the interference on merits if otherwise the subordinate Court has acted within its bounds."
This last judgment is by Mr. Justice Muhammad Haleem who is a member of this Bench. He observed during the course of arguments on these applications that he agrees with the judg-- ment given in Karim Bakhsh v. Mst. Mubarik Jan, nor is there any sound reason to conclude from his judgment that it contains any difference in views. The Peshawar judgment was not cited before him, yet his conclusions are not inconsistent with it.
13. I was a party to the judgment which was given at Peshawar in the case of Karim Bakhsh. That is the only Division Bench judgment amongst the four judgments which have been mentioned above.
The other three have been delivered by Single Benches. In the judgment of the Division Bench the two Single Bench judgments which were delivered earlier at Lahore have been cited. Respectful agreement with them was expressed, but it was felt at the time of writing the judgment that misunderstanding could arise ; therefore, detailed views founded on the same bases were expressed. Our apprehen--sion has come true inasmuch as the detailed discussion has been regarded by counsel for the applicant to be in conflict with the basic ideas.
14. I inquired from counsel for the applicants as to how the judgment given at Karachi in Mst. Farida Parwin's case on which he has relied, supports his contention that orders and judgments of the lower Courts be interfered with in respect of the merit of cases under Article 102. His reply, though not expressed in clear terms, was in effect that Mr. Justice Muhammad Haleem found the order of an appellate Court to be without jurisdiction and set it aside in terms of Article 102 because there was no other provision which enabled him to do so. That was a relief of "judicial" nature as distinguished from an administrative relief. In the two Single Bench cases of Lahore also the learned Judges have observed that Article 102 confers the power of "Judicial" control.
15. The above explanation points to the difficulty of con--veying ideas in a manner which may not be misunderstood. I pointed out to counsel that in the Division Bench judgment delivered at Peshawar the two judgments given at Lahore have been referred to as follows: "We respectfully agree with the view expressed in the above judgments that a Family Court constituted under the West Pakistan Family Courts Act (XXXV of 1964), is a Court subordinate to the High Court, within the meaning of Article 102 of the 1962-Constitution. Likewise, we agree with the proposition that the power conferred by the Article on the High Court `to supervise and control all other Courts that are subordinate to it being a general power and includes the control of subordinate Courts not merely administratively but also judicially, we are also in accord with the view, taken in those judgments, that Article 102 confers upon the High Court unlimited power to correct or revise all proceedings, orders and judgments of the Courts subordinate to it, for the purpose of enforcing the law correctly and guiding or compelling the subordinate Courts to follow the law and to exercise their jurisdiction properly."
To this, he replied that the rest of the judgment was in conflict with the above passage. This disarmed me completely yet I shall try to express my ideas more clearly by reverting to the language of Article 102 which has been reproduced in paragraph 7 above.
16. A glance at it would show that the Article mentions no relief which may be given to a party under it. It does not even refer to any proceedings, order, judgment, relief or remedy They are all outside the ambit of the provision except of course to the extent that the conduct of the Courts themselves may be involved in them. It merely confers on the High Court the power of supervision and control over its subordinate Courts. This power has nothing to do with grievances of parties or with doing justice to them. The High Court is under this Article concerned with its lower Courts only and has to keep an eye on them so that they may not fail to do their own duties apart from the problems and Interests of the parties. Such duties are to attend the Courts regularly and punctually; to hear and decide those cases only which fall within their jurisdiction and not to hear and decide those which may be ousting their jurisdiction; to obey legitimate directions of their superior authorities; to know the law and to conduct themselves like judicial officers. Their judicial orders and judgments are subject to scrutiny, on appeal or revision, in accordance with the provisions that confer those jurisdiction on Courts of various grades. Every appeal and every revision does not lie to the High Court, nor is the power to hear appeals and revisions inherent in Courts. This power is a creation of law; therefore, they do not exist unless conferred by law. Thus where these powers have not been conferred by law they cannot be exercised and should not be exercised in order to give relief to an aggrieved party by way of supervision and control of subordinate Courts. Mr. Justice Muhammad Haleem did not set aside the appellate judgment on the consideration that one of the parties was aggrieved but because the appellate Court had to be checked and controlled since it had acted without jurisdiction. The two cases which were transferred by the two judgments given at Lahore were so dealt with because the Courts were found to be unfit for hearing them.
11. The observations that Article 102 confers "judicial" supervision and control are necessary corollaries to administra--tive supervision and control because every judicial proceeding, order or judgment when interfered with from any point of view amounts in the strict sense judicial interference but the Judges have been at pains to make it clear that such control should neither play the role of an appeal nor of a revision. In an appeal or revision the central consideration is correction of errors of law, facts and conclusions in the interest of the parties concerned. Questions of jurisdiction may also involve the interest of the parties or of any one of them, and when such interest is involved the High Court may act on the request of an aggrieved party made under a proper provision of law. Article 98 of the Constitution is one of the provisions which provides a remedy to the aggrieved party. Section 151, C. P. C., gives overall powers to Courts for doing justice.
But Article 102 merely empowers the High Court to supervise and control the Courts which are subordinate to it so that they may be guided, kept in check and even encouraged to act and conduct them--selves rightly as Courts. If a party applies to the High Court under this Article; it merely brings the failure, faults or derelic--tions of duty to the notice of the High Court and if the High Court takes action on such an application it does so for keeping the administration of justice pure and not to help the appellant. "This duty is to be performed (by the High Court) irrespective of whether anybody has been harmed or not and irrespective of whether anybody will be benefited by it or not". It is easy to imagine that an action taken under this Article may be against the liking and even the private interests of both the parties to a proceeding.
18. My learned brothers, who are members of this Full Bench, have made two suggestions. Firstly that in order to emphasise the administrative nature of Article 102 a direction should be issued to the office that all applications made under it should be laid before the Chief Justice. Secondly, that as far as practicable no judge should make an order under this Article which may look like exercising the jurisdiction of an appellate or revision Court. The latter suggestion can be followed in good many cases by pointing out the defect or declaring an order bad and then returning the case for disposal accordingly, but there would still be a few cases in which it will be proper to make direct orders such as the cases which are to be transferred from one Court to another.
19. My conclusion, therefore, is that Article 102 is not analogous to Article 98. It neither needs the court-fee of Rs. 100, nor need it be heard by a Division Bench.
ABDUL KADIR SHAIKH, J. -I agree.
MUHAMMAD HALEEM, J.-I agree.
K. A. B.