1. ' RAZA AHMAD KHAN, J.--This Intra-Court Appeal calls in question the judgment of this Court given in Writ Petition No,28 of 1981, which was dismissed by Mr. Justice Nazir Ahmad Bhatti, vide his judgment dated 20-6-1987.
2. ' On the point of competency of this appeal, in view of the judgment of this Court in case Muhammad Ismail v. Secretary to Government of N.-W.F.P. Settlement/Rehabilitation Department, Peshawar reported in PLD 1988 Peshawar 19, the learned counsel for the parties sought time, on the last hearing i.e, 20-41-1988, for preparation and the appeal was adjourned.
3. ' A brief history of the Intra-Court Appeal, a nomenclature used for what was earlier called Letters Patent Appeal for the purpose, commences with the Law Reforms Ordinance No,XII of 1972 enforced on 14th April, 1972 (hereinafter referred to as Ordinance No,XII). Section 3 of Ordinance XII which barred certain appeals reads thus:- "As from the commencement of this Ordinance--
(a) no appeal under the provisions of any Letters Patent, as applicable to a High Court, shall be entertained by such High Court; and
(b) no second appeal shall lie in any suit of the nature referred to in section 102 of the Code of Civil Procedure 1908 (V of 1908), as amended by this _Ordinance: ' Provided that nothing contained in this Ordinance shall be construed as affecting any such appeal which was pending immediately before the commencement of this Ordinance."
4. ' The same year Law Reforms (Amendment) Ordinance, 1972 (XXXIV of 1972) was enforced whereby certain amendments were introduced in Ordinance XII and for section 3 (ibid) following was substituted with retrospective effect:- "3. Appeal to High Court in certain cases.-
(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that High Court in exercise of its original civil jurisdiction: ' Provided that no such appeal shall lie from an order which does not dispose of the whole matter before the Court.
(2) No appeal shall lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that High Court under clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan in a matter arising under any law relating to the rehabilitation and settlement of displaced persons or from an order so made under sub-paragraph (i) of paragraph
(b) of that clause.
5. ' Again came the Law Reforms (Amendment) Act, 1972 (VIII of 1972), also enforced with retrospective effect from the date of enforcement of Ordinance XII i.e, 14th April, 1972 and incorporated certain further amendments in Ordinance XII as a result whereof the amended section 3 was again substituted. It however repealed the Law Reforms (Amendment) Ordinance No,XXXIV of 1972. Yet another legislation was brought in force vide Law Reforms (Amendment) Act, 1974 (VI of 1975) and subsection (2) of section 3 of Ordinance XII was further amended. For all intents and purposes section 3 of Ordinance XII, which now is the substantive law on the subject, shall read as follows:- "3. Appeal to High Court in certain cases.--
(1) An appeal shall lie to a Bench of two or more of a High Court from a decree passed or final order ,r ide by a Single Judge of that Court in the exercise of its original civil jurisdiction .
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan, not being an order made under sub-paragraph (i) of paragraph (b) of that clause: ' Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, tribunal or authority against the original order.
(3) No appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court,
(4) ........................................................
6. ' However, section 15 of the C.P.C. Stood amended by the Code of Civil Procedure (Amendment)
7. Ordinance X of 1980 and thereby the effect of subsection (3) of section 3 of Ordinance XII against an interlocutory order arising out of the proceedings in the origipal civil jurisdiction of a Single Judge of a High Court stood negated inasmuch as the amended section 15 C.P.C. States: "Notwithstanding anything contained in section 3 of the Law Reforms Ordinance, 1972 (XII of 1972), an appeal shall lie to a Bench of two or more Judges of a High Court from an interlocutory order made by a Single Judge of that Court in the exercise of its original civil jurisdiction."
8. ' So one aspect is established beyond any doubt that no IntraCourt Appeal shall be competent against an interlocutory order passed by a Single Judge of the High Court in a matter under clause
(1) of Article 199 of the Constitution. To this extent, as also relating to incompetency of an appeal against an interlocutory order, this Court in the case Muhammad Ismail v. Secretary to Government of N.-W.F.P. Reported in PLD 1988 Peshawar page 19 has correctly laid down the law. Unfortunately the Law Reforms (Amendment) Act, 1972 (VIII of 1972) nor for that matter Law Reforms (Amendment) Act, 1974 (VI of 1975) was brought, by either party, to the notice of the learned Judges at the time of hearing of the aforesaid case.
9. ' It however becomes crystalised that in the law as it stands today, a clear distinction has been drawn between a decree or final order made by a Single Judge of a High Court in the exercise of its' original civil jurisdiction as per subsection (1) of section 3 and an order passed by a Single Judge under clause (1) of Article 199 of the Constitution not being made under sub-para, (i) of para, (b) of that clause as per subsection (2) of section 3 of the Ordinance XII.
10. ' We are therefore, out of the realm of controversy of the orders of a Single Judge liable to be appealed against in exercise of its original civil jurisdiction and civil jurisdiction simplicitor, inasmuch as only two categories of jurisdiction are mentioned in the amended section 3 of Ordinance XII, namely, the original civil jurisdiction and the Constitutional jurisdiction exercised by a Single Judge of the High Court. We are thus left to exclusively examine the applicability of the proviso to subsection (2) of section 3 of Ordinance XII which has already been reproduced above in extenso.
11. ' Since we are confined to' the question of competency of this appeal, therefore we would refrain to enter into the merits of the case before us, yet a few admitted facts may be relevant for the just decision of this case.
12. ' It is stated that the property in question consists of two rooms of the house which was initially transferred by the Deputy Settlement Commissioner to one Muhammad Ahmad on 24-11-1959 whereby P.T.O. Was issued to him on 6-5-1960. The same year on 15-9-1960, he surrendered his rights in favour of respondent No,3 and a freA P.T.O. Was issued to him on 24-9-1960 and later a P.T.D. Was also issued on 7-5-1962. Respondent No,3 allegedly inducted the appellant in the two rooms of the ground floor of the house in dispute on 9-4-1964. There were some litigation under the West Pakistan Rent Restriction Ordinance also between the appellant and respondent No,3 ending in an eviction order passed in favour of respondent No,3. Meantime, it is stated, the appellant submitted a fresh form for the transfer of the property in his favour to the Settlement Authorities on 22-10-1973 claiming the portion of the house in his possession as an independent unit. The Deputy Settlement Commissioner Peshawar On 17-6-1975 by a short order held that the prcperty in possession of the appellant does not form part of the house of respondent No,3 and formally transferred the same vide an order dated 12-9-1975. Respondent No,3 filed two revision petitions against both the aforementioned orders which were dismissed on 10-11-1976. Against this order a Writ Petition No,5/77 was filed in this Court which was allowed by Mian Burhanuddin, J. (as he then was) as per his order dated 29-4-1980 and remanded the case to the Settlement Authorities for further enquiry into the matter and a fresh decision thereon. The Settlement Commissioner vide his order dated 24-12-1980 held that the property in dispute formed part of the house transferred to and in possession of respondent No,3. Against this order the present appellant filed a Writ Petition No,28 of 1981 which was dismissed vide judgment dated 20-6-1987 of a Single Judge of this Court.
13. This judgment is impugned by the present Intra-Court Appeal.
14. ' In the context of the foregoing chronology of events the point that falls for determination, turns on the interpretation of proviso to subsection (2) of section 3 of Ordinance XII as amended upto date, a plain reading whereof reveals that no appeal will be available or competent before a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court in a Constitutional petition, if such petition arises out of any proceedings in which the law applicable provided for at least one appeal against the original order.
15. ' It may be noted that contrary to the early legislation as contained in Ordinance XII originally, the scope of law is enlarged and instead of confining to the Settlement Laws, the reference to the proceedings is under any statute which prescribes a hierarchy of the forms for carrying into effect the purpose of such statute. In such a situation the law envisages an original order against which the remedy of appeal was provided by the relevant statute.
16. ' In the present case the relevant statute is the Displaced Persons (Settlement and Rehabilitation)
17. Act, 1958, which had its own hierarchy of forms to deal with the right created thereunder including the transfer of evacuee property from the compensation pool under the said Act. It is section 19 which conferred a right of appeal to the next higher officer in rank from the original order passed by an officer of the Settlement Department. There was a provision of revisional powers vested in the higher officer under section 20 as also the powers of review. The right of appeal, however, was abolished with effect from 30-7-1973 when Evacuee Property and Displaced Persons Laws'
18. (Amendment) Act, 1973 came into force. It would thus e seen that in the present case though right of appeal was available t the time when the property in dispute was transferred to the nitial transferee on 14-11-1959 or for that matter when in consequence whereof a P.T.O. Was issued to him on 6-5-1960 or even when a fresh P.T.O. To respondent No,3 was issued on 14-9-1960, yet the right of appeal or right of revision or review was no more available on 17-6-1975 or for that matter on 12- 9-1975 when the disputed property was transferred in favour of the appellants by the Settlement Authorities. These dates are very pertinent in order to resolve the controversy regarding the foregoing orders, one in favour of respondent No,3 and the other in favour of the appellant as to which is the original order within the meaning of proviso to subsection (2) of section 3 of Ordinance XII.
19. ' We have heard Mr. N.M. Khan, Advocate, the learned counsel for the appellant and Mr. M.Sardar Khan, Advocate, the learned counsel for respondent No,3 as also the learned counsel for respondents No,1 and 2 at length. Both the learned counsel agree that it is these crucial dates which matter in finally deciding the competency or otherwise of the instant appeal in the light of she proviso to subsection (2) of section 3 of Ordinance XII.
20. ' It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable, is not in relation to the impugned order in the Constitutional petition. The test to determine which order is the original order passed in the proceedings and- subject to an appeal, disregarding the fact whether the remedy of appeal so provided was availed of or not, obviously is the one with which the proceedings under the relevant statute commenced.
21. ' In this context, the word "proceedings" itself is a term which enjoys a wide meaning and includes every step, right from the first to the last, taken towards achieving the final object from the commencement of an action to the execution of the final judgment.
22. ' An almost identical situation came before the Supreme Court in a case Mst. Karim Bibi v. Hussain Bakhsh reported in PLD 1984 SC 344. In that case too the Deputy Settlement Commissioner had passed an order, in favour of predecessor-in-interest of the appellants before the Supreme Court, on 25-7-1960 and P.T.D. Was issued on 30-11-1962 but by a subsequent order dated 24-8-1963 two rooms of the house which were converted into shops and rented out to the respondent were transferred to them under scheme No,6 and P.T.D. Was also issued in their favour on 24-11-1964.
23. ' With reference to the term "proceedings" and the phrase "original order" the learned Judges of the Supreme Court, after examining their connotation in the context of the statute, arrived at a conclusion that the original order in the case before them was obviously the one passed by the Deputy Settlement Commissioner in favour of the predecessor-in-interest of the appellants on 25- 7-1960. It is observed: "10. The original order in this case was obviously the one passed by the Deputy Settlement Commissioner in favour of Sher Muhammad predecessor-in-interest of the appellants on 25-7- 1960. The portions of the property in dispute consisting of the two shops was subsequently transferred to the first respondent by the Deputy Settlement Commissioner on 24-8-1963, ch order was set aside by the Additional Settlement CImissioner vide his order dated 24-11-1973 in suo motu revisional jurisdiction, which order was impugned in the Constitutional Petition filed by the said respondent. Therefore, at the time the original order dated 25-7-1960 in favour of the predecessor- in-interest of the appellants was passed by the Deputy Settlement Commissioner as well as at the time the subsequent order dated 24-8-1963 was passed by him, the law as it stood provided for an appeal. The Constitutional petition arose out of the proceedings with regard to the transfer of the property in dispute in favour of the predecessor-in-interest of the appellants, inasmuch, as the final order passed by the Additional Settlement Commissioner restoring the transfer in his favour was challenged in the Constitutional petition and the original order was subject to appeal when it was passed. This is sufficient to satisfy the requirements of the proviso which is thereby attracted to the present case."
24. ' It was further held: "The obvious intention underlying the provision was to abolish Intra-Court Appeal in cases in which the impugned order in the Constitutional Order arises out of the proceedings in which the original order was appealable. Necessarily therefore, the question whether the original order was appealable or not will be determined with reference to the law that was applicable on the date of such original order and not the date when the matter came before the High Court in Constitutional jurisdiction . " ' and it was also observed that: "It is also not possible to construe the language of the proviso to hold that the -relevant date for determining whether appeal lay against the original order passed by the Settlement Authorities, or not was the date when the impugned order was passed by the Additional Settlement Commissioner on 24-11-1973."
25. ' Following the law as laid down by the Supreme Court, in the above-mentioned case, we have no hesitation in holding that the order of Deputy Settlement Commissioner passed in favour of Muhammad Ahmad on 24-11-1959 or for that matter the issuance of P.T.O. To respondent No,3 on 24-9-1960 was the original order against which, irrespective whether availed or not, one right of appeal was available under section 19 of the Displaced Persons (Settlement and Rehabilitation)
26. Act, 1958, the law applicable to the proceedings out of which arose the matter brought before the High Court under Article 199 of the Constitution and decided by a Single Judge of this Court vide his impugned judgment.
27. ' We are thus clear in our mind that the present appeal falls within the mischief of proviso to subsection (2) of section 3 of Ordinance XII of 1972 and accordingly suffers from incompetency.
28. ' This Intra-Court Appeal, therefore, fails and is hereby dismissed with no orders as to costs.