' RUSTAM S. SIDHWA, J.---This judgment will deal with Civil Appeal No,271 of 1988 filed by Ghee Corporation of Pakistan and another, appellants, against the judgment of the Lahore High Court dated 13-11-1979 passed in Writ Petition No,1355 of 1975 and Civil Appeal No,272 of 1988 filed by Sh.
Abdul Haq and Sons Ltd., appellant, against the order of a learned Single Judge of the Lahore High Court dated 9-7-1983 passed in Civil Miscellaneous No,1424 of 1983 in Writ Petition No, 1355 of 1975.
2. The brief facts of the case are that Sh. Abdul Haq and Sons Ltd. Filed a Writ Petition No,1355 of 1975 against the Punjab Industrial Development Board, Lahore, the Crescent Factory Ltd., Chichawatni, and the Government of Pakistan through the Secretary, Ministry of Industries, in the Lahore High Court to settle the account and the question of compensation with the petitioner in respect of the forced determination of their lease with the Crescent Factory Ltd., Chichawatni, consequent on the said management and majority of the shareholding of the said Ghee Mill being taken over by the Federal Government. On 13-11-1979, Chief Justice Mushtaq Hussain, after hearing arguments, orally announced the acceptance of the said petition with costs. On 27-5-1980, the learned Chief Justice ceased to be the Judge of the Lahore High Court, as he was appointed as an ad hoc Judge of the Supreme Court and took charge of the said office on 2-6-1980. In August 1980, Mr. Justice Mushtaq Hussain called his ex-Reader and handed over to him a number of case files, including that relating to Writ Petition No,1355 of 1975, and the said Reader sent this case to the office on 25-8- 1980.
3. On receipt of the certified copy of the above judgment, the Ghee Corporation of Pakistan, Lahore and another, petitioners, filed a petition C.P.S.L.A. No, 1384 of 1986 seeking leave to appeal against the judgment of Chief Justice Mushtaq Hussain, dated 13-11-1979 passed in Writ Petition No,1355 of 1975.
4. On 28-4-1983, the Ghee Corporation of Pakistan filed a miscellaenous application C.M. No,1424 of 1983 in Writ Petition W.P./No, 1355 of 1975 in the Lahore High Court under section 151, C.P.C. Praying that as the judgment in the writ case had been written by the learned Chief Justice after he had ceased to hold the office, as such the judgment was a nullity in law and that the writ petition may kindly be ordered to be set down for hearing again and decided thereafter in accordance with law.
On 25-6-1983, the said application came up before Chief Justice Javid Iqbal who directed the office to report on the said application as to when oral announcement of the judgment was made by the former Chief Justice Mushtaq Hussain and when the judgment was actually written. The report was directed to be submitted within a week. Pursuant to the said order, the ex-Reader of Chief Justice Musthaq Hussain, reported that in August, 1980, Mr. Justice Mushtaq Hussain had handed over to him a number of cases, including that relating to Writ Petition No, 1355 of 1975, which contained the judgment in the said case, and that he had sent this case to the office on 25- 8-1980. In this view of the matter, when the miscellaneous application came up before the learned Chief Justice on 9-7-1983, the learned Chief Justice observed that it appeared that the judgment in the case had been written after Mr. Justice Mushtaq Hussain had been elevated to this Court and in view of a number of legal citations which had been cited before him, he directed that the main writ petition should still be considered as pending and be reheard. He, therefore, ordered notice for hearing of the case to the parties concerned.
5. On 8-9-1983, Sh. Abdul Haq and Sons Ltd., petitioner, filed a petition C.P.S.L.A. No,1194 of 1983 seeking leave to appeal against the said order passed by the learned Chief Justice of the Lahore High Court on 9-7-1983 in Miscellaneous Application Civil Miscellaneous No, 1424 of 1983 in Writ Petition No,1355 of 1975.
6. Both the petitions for leave to appeal filed by the Ghee Corporation of Pakistan and Sh. Abdul Haq and Sons Ltd. Came up before a Bench of this Court on 11-5-1988, when leave was granted in both the cases
7. Before we take up Civil Appeal No,271 of 1988, it is necessary to first dispose of Civil Appeal No,272 of 1988 preferred by Sh. Abdul Haq and Sons Ltd. Appellant.
8. Raja Muhammad Akram, Senior Advocate, appears on behalf of Sh. Abdul Haq and Sons Ltd., appellant. On behalf of the appellant it is submitted that when Miscellaneous Application C.M. No, 1424 of 1983 was filed by the Ghee Corporation of Pakistan, Lahore, respondent, before the High Court, no notice of the same was given to the appellant, with the result that all proceedings were conducted behind the back of the appellant and the final order was also passed by the learned Chief Justice on 9-7-1983 behind the back of the appellant. It is submitted that the report of the ex- Reader of Mr. Justice Mushtaq Hussain did not anywhere unequivocally stated that the judgment was written by the learned Judge on or after 2-6-1980, with the result that the order of the learned Chief Justice dated 9-7-1983 suffers from a material misappreciation of the report. It is submitted that had the appellant been heard by the learned Chief Justice before he passed his order dated 9-7-1983, he would have raised certain contentions touching upon the legal aspects of the case. In this connection it is submitted that Mr. Justice Mushtaq Hussain held office as an Acting Judge of this Court w,e,f. 2-6-1980 and as such under the Constitution continued to hold his substantive appointment as Judge of the Lahore High Court and that being so, the judgment, dated 13-11-1979 written in pursuance of oral announcement in that behalf, was perfectly valid and in order and the contrary view taken by the learned Chief Justice was unsustainable.
9. Mr. S.M. Zafar, Senior Advocate, appears on behalf of the Ghee Corporation of Pakistan and others, respondents Nos.1 to 3. On behalf of the respondents it is submitted that under section 3 of the Law Reforms Ordinance, 1972, the present appeal is incompetent and the appellant should have preferred an intra Court appeal before the High Court. It is further submitted that the proceedings before the Chief Justice, even assuming they were conducted in the absence of the appellant, would hardly have affected the proceedings, as the ex-Reader of Mr. Justice Mushtaq Hussain had recorded a note which showed that the file of the writ petition concerned, containng the judgment, with other similar files, had been delivered to him by Mr. Justice Mushtaq Hussain in August, 1980 and it hardly lay in the domain of the appellant to challenge this minute in collateral proceedings. In these circumstances, it is submitted that the contention of the appellant that since the proceedindgs conducted by the learned Chief Justice, which led upto his order dated 9-7-1983, which were allegedly conducted behind the back of the appellant, should be set aside, has no merit and should be rejected. In support of the legal contention that where a Judge of the High Court ceases to hold his office as such for any reason, including his elevation to a higher Court, he becomes functus officio and his power to exercise judicial functions terminate with such cessation, a large number of rulings, apart from passages from the Cyclopaedia of Law and Procedure, Volume XXI, American Jurisprudence Volume 38, Corpus Juris Secondum Volume 48-A, the Code of Civil Procedure and the Lahore High Court Rules and Orders, Volume V, have been referred, which for the moment we would not like to discuss, in view of the nature of the order which we propose to pass in this appeal. It would not be out of place to mention at this stage that the learned counsel for the appellant has also referred to certain rulings in support of his version of the case, namely, that since Mr. Justice Mushtaq Hussain, after his elevation, was an Acting Judge of this Court, he continued to hold his substantive appointment as Judge of the Lahore High Court which did not disentitle him to write out the judgment in the case after he had been elevated, in pursuance of the oral announcement which was made by him before his elevation.
10. We have heard the arguments of the learned counsel for the appellant and the respondents and have perused the record. From the time that the proceedings commenced on the Miscellaneous Application C.M. No,1424 of 1983 filed by the respondents before the High Court and the final order dated 9-7-1983 was passed by the learned Chief Justice thereon, it appears that no notice was given to the appellant nor was he associated with those proceedings. The contention of the learned counsel for the appellant that the noting recorded by the ex-Reader of Mr. Justice Mushtaq Hussain did not clearly show that the judgment was actually written by Mr. Justice Mushtaq Hussain on or after 2-6-1980, when he was elevated to this Court, requires some examination. In these circumstances, without going into the merits of this case or giving any finding which may prejudice the case of either party, we would remand the Miscellaneous Application C.M. No, 1424 of 1983 filed by the respondent to the High Court, so that the same can be decided afresh after notice to the parties and hearing their arguments. In remand proceedings, both the parties shall have adequate opportunity to present their legal submissions, which they have done before us, but which we think should first be dealt with by the High Court when A deciding afresh this miscellaneous application.
11. For the foregoing reasons, we hereby accept Civil Appeal No,272 of 1988 set aside the order of the learned Single Judge dated 9-7-1983 passed in Miscellaneous Application Civil Miscellaneous No,1424 of 1983 in Writ Petition No,1355 of 1975 and remand the said miscellaneous application to the High Court for determination afresh, after notice to and hearing all the parties concerned. There shall he no order as to costs.
12. So far as Civil Appeal No,271 of 1988 is concerned, which has been filed by the Ghee Corporation of Pakistan and others, appellants, we would direct that the same be kept pending, till the High Court finally decides the above miscellaneous application, of which notice should be given by the learned counsel for the parties to this office.