1. Mr. U. Niamat Moulvi, Advocate, who is appearing for the defendant in this Suit, which is fixed for hearing of a miscellaneous application has contended that in terms of para 1 of Article 192 of the Constitution, which provides, a High Court shall consist of a Chief Justice and so many other Judges as may be determined by law or, until so determined, as may be fixed by the President read with clause (2) of Article 175, which provides that, no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law, the High Court is not duly constituted as there is no Chief Justice appointed in terms of Article 48 of the Constitution after consultation of Prime Minister.
2. The above contention seems to be devoid of any force in view of the judgment of the Hon'ble Supreme Court in the case of Mr. 7uioqar A.I Bhutto v. The State, reported in PLD 1978 SC 40, the relevant portion of which reads as follows:-- "However, the question of the effect of the office of the Chief Justice remaining vacant was directly considered in Emperor v. Sohrai Koeri, AIR 1938 Pat.550. The learned Chief Justice of the High Court had died in England and an objection was taken that there being no Chief Justice, the High Court was not properly constituted and the Bench hearing that particular case ceased to have jurisdiction to pronounce judgment, which had been reserved on the conclusion of arguments at an early date. The objection was based on the fact that clause (2) of the Letters Patent, by which the High Court was created, provided that it shall consist of a Chief Justice and six other Judges.
3. The learned Judges overruled the objection on the ground that clause (2) of section 222 of the Government of India Act,1935, clearly contemplated the appointment of an Acting Chief Justice if the Office -of the Chief Justice of a High Court became vacant, or if any such Chief Justice was by reason of absence or for any reason unable to perform the duties of his office. The learned Judges went on to say that "Thus the contingency of the Office of Chief Justice remaining vacant for some time is expressly recognised and provided for. In the case of "a vacancy caused by death, sonic time must necessarily elapse before a new appointment is made. It will be preposterous to hold that during that interval there is no properly constituted High Court. The vacancy in any office implies that the office exists. Vacancy must be distinguished from abolition of the office. When a Chief Justice dies the office does not die with him but still continues. It only remains vacant until it is filled up ...So long as the office is not abolished the constitution remains unbroken and unchanged".
4. A similar view was taken in Sampatlal v. Baliprasad Shah AIR 1950 Assam 6, in which an objection to the constitution of the Assam High Court on the ground that the Chief Justice alone had been appointed before the prescribed day was overruled, and it was said that delay in the appointment of the other Judges did not affect the constitution of the High Court and the Chief Justice was not debarred from performing the duties of his office or from discharging his functions as a Single Judge till the appointment of other Judges. The distinction made in the two earlier cases mentioned above between vacancy in the office of the Chief Justice and its total abolition was reiterated.
5. We have no hesitation in adopting the view taken in these cases from the Indian jurisdiction. There is indeed a distinction between a vacancy in any office, and its abolition. The existence of a vacancy implies that the office exists. The true requirement of Article 192 of the constitution is that in order to bring a High Court into existence there should be created the office of a Chief Justice and the prescribed number of Judges. If these offices have been created then the High Court has properly come into existence, and would be able to start functioning as soon as appointments to these offices, or to some of them have been made. Any temporary vacancy in any of these offices would not affect the Constitution and jurisdiction of the High Court."
6. The hearing of the application is adjourned.
7. H.B.T./A-690/KObjection overruled.