1. ' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the order of the High Court, dated 29-7-1992, whereby the writ petition filed by resplendent No,1 was admitted for regular hearing by the High Court.
2. ' The brief facts of the case are that the appellant was appointed as Judge of the High Court on 5th May 1991 and has been preforming functions as such since 7-5-1991. A writ petition was filed by respondent No,1 on 28-7-1992 challenging his appointment as Judge of the High Court of Judicature of Azad Jammu and Kashmir (hereinafter shall be called the High Court) alleging that the appellant, herein, was a resident of Indian-held Kashmir and temporarily visited Azad Kashmir on Indian passport; he was enrolled as a pleader of the High Court on 30-7-1976 and as an Advocate on 4-6-1977. It was averred that he, being a foreigner, was on temporary visit to Azad Kashmir as an Indian national and as such he was not entitled to be enrolled as a pleader or an Advocate of the High Court. It was also alleged that subsequently the appellant was permitted to reside in Azad Kashmir on the condition that he would not claim any right as a refugee from Indian-held Kashmir and, thus, he was not entitled to be appointed as Judge. It was further the case of the respondent that under the relevant statutory rules, the appellant did not satisfy the necessary conditions for the enrolment as a pleader or an Advocate of High Court but despite that he was enrolled as such. It was also averred in the petition that the appointment of the appellant as Advocate-General on the basis of the said enrolments was also void and subsequently his elevation to the Bench on 5-5-1991 was also illegal, inter alia, on the grounds that the post of High Court's Judge was created on 30-5-1991 whereas he was appointed as Judge on 5-5-1991. Thus, it was prayed that the appellant should be called upon to show as to under what authority of law he held the office as Judge of the High Court.
3. ' The High Court, after considering the averments made in the writ petition, admitted the same for regular hearing.
4. ' We have heard the arguments and perused the file. A preliminary objection has been raised by Sh.
5. Abdul Aziz, Advocate, the counsel for respondent No,1, that the order challenged in the appeal is not a final order and, as such, the appeal is not competent. He has contended that an appeal to the Supreme Court lies only against a 'final order' and not against a provisional or an interlocutory order.
6. ' In reply, it was contended by the learned counsel for the appellant that it is a long standing practice of this Court that in proper cases appeals are entertained even against provisional and interlocutory orders. A number of cases of this Court were cited in support of the above contention.
7. We have given due consideration on the preliminary point and we are of the opinion that the objection raised was dealt with by this Court in some detail in an unreported case entitled Qazi Bashir Ahmad v. Amjad Ali Civil Appeal No,13 of 1988, decided on 15-11-1988, wherein after discussing various authorities from Pakistan and Indian jurisdiction, it was held that generally the superior Courts of sub-continent are slow to grant petition for leave to appeal against an interlocutory order yet there is no bar to allow the petition for leave to appeal on the ground that an order is not 'final' and, thus, an appeal was not competent against the same. It was observed that subsection (12) of section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 does not envisage that an appeal was competent only against a final order. It was further observed that the word order in the aforesaid provision was not qualified by the word final and, thus, in proper cases even an interlocutory order can be challenged through an appeal to this Court. Thus, in view of the aforesaid state of law, the preliminary objection that the appeal is incompetent because the same was filed against an interlocutory order is hereby repelled.
8. Coming to the merits of the case, the learned counsel for the appellant has argued that the averments made in the writ petition that as the post of the Judge in the High Court was created on 30-5-1991, the appointment of the appellant as Judge of the High Court before the creation of the post, on 5-5-1991, was violative of law and as such advice of the Azad Jammu and Kashmir Council should have been obtained afresh after the creation of the post, has no legal merits. He has contended that it is not the case of the contesting respondent that there existed no vacancy in the High Court when the Council tendered the advice, rather the case is that as creation of the post was made on 30-5-1991, the previous advice of the Council was not according o Constitutional provision. The learned counsel for the appellant has argued I hat whether there existed any vacancy of the Judge in the High Court is to be is curtained in the light of the Courts and Laws Code, 1949 and keeping in view he number of Judges who held office as Judges at the relevant time. The post )f the Judge of the High Court cannot be created by the President or the Prime Minister through an executive order because no such powers vest in hem by virtue of Constitution or subordinate legislation, i,e, the Courts and B Laws Code, 1949. The primary object of the notification dated 30-5-1991, whereby the post of a Judge in the High Court is alleged to have been 'created' was to make budgetory provisions for the Judge of the High Court and his staff and not to create the post of a Judge. The mere fact that budgetory provisions were made for the Judge on 30-5-1991, it cannot be interpreted to mean that no vacancy of Judge of the High Court existed on 5-5-199.1 when the appellant was appointed as Judge of the High Court or the post of the Judge of the High Court would be deemed to have been created on the date when the budgetory provisions were made. Thus, it was contended that the argument that as the budgetary provisions , were made subsequent to the appointment of the appellant as Judge, the appointment was violative of law or fresh advice of the Council was necessary is a prevarication and has no substance.
9. ' In reply, the learned counsel for the contesting respondent has contended that in the relevant notification the word 'creation' has been used and it would be deemed that the post had been created on 30-5-1991.
10. We have given due consideration to the arguments on the point and would like to note that no law has been cited that the President or the Government are empowered under the Courts and Laws Code or the Azad Jammu and Kashmir Interim Constitution Act to 'create' the post of a Judge in the High Court. Even otherwise, sometimes the budgetory provisions for a newly appointed Judge are made after his appointment and that is never C interpreted to mean that the order of the Government making budgetory provisions for the Judge and his staff would imply that the post of the Judge was created by the said order. Thus, the argument advanced by the learned counsel for the appellant prevails; the aforesaid ground should not have weighed with the High Court while admitting the writ petition for regular hearing.
11. ' Next, it has been argued by the counsel for the appellant that as the appellant was an Indian national, he was not entitled to be enrolled as a pleader or an Advocate of the High Court. It has been argued that the relevant Legal Practitioners Rules envisage that a 'State subject' is entitled to be enrolled as a pleader or an Advocate subject to the other conditions laid down therein. It has been argued that the question of appellant being a State subject is not to be resolved in view of the Foreigners Act of 1946, rather it is to be determined in view of the relevant law. Under section 2 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the expression 'State subject' ha been defined as under:--- "....`State subject' means a person for the time being residing in Azar Jammu and Kashmir or Pakistan who is a 'State subject' as defined is the late Government of the State of Jammu and Kashmir Notification No,I-L/84, dated the 20th April, 1927, as amended from time to time;'
12. ' It is evident from the above Constitutional provision that in case 01 appellant, the question as to whether he is a State subject or not is to be determined in view of Notification No,I-L/84, dated the 20th April, 1927. The status of the appellant as State subject ha, , not been disputed even by the relator in the memorandum of writ petition. No law has been cited that the appellant ceased to be a State subject because he had come to Azad Kashmir on Indian Passport. The relevant fact for resolving the points involved is as to whether the appellant was a State subject and not the question of bias nationality in view of the provisions contained in the Foreigners Act or any other law for the time being in force. It is not even the case of the respondent before this Court that the appellant is not a State subject within the meaning of the Notification No, I-L/84, dated 20th April, 1927. Thus, the fact that the appellant came to Azad Kashmir on Indian passport is not relevant for resolving the questions involved in the present appeal. Besides, the contention that when the appellant was permitted to reside in Azad Kashmir, he undertook not to claim any right as refugee is also irrelevant because he did not seek enrolment as a pleader or an Advocate on the basis of being a refugee but as a State subject, as required under the relevant rules.
13. ' It has been also argued that it has been recorded by the High Court in the impugned order that it had been also alleged in the writ petition that the relevant documents were not filed along with the application for the enrolment as pleader but no such averments find place in the memorandum of the writ petition. Thus, according to the learned counsel, the High Court did not apply mind to the points raised in the writ petition and proceeded on wrong assumption of the facts. The perusal of the contents of the writ petition shows that it has not been specifically averred in the writ petition that the relevant documents were not filed along with the application for enrolment as pleader. The argument is valid to the extent that some facts have been assumed by the High Court to have been alleged despite the fact that the same find no place in the memorandum of writ petition. It shows that the impugned order was passed without giving due consideration to the points raised and the matter was dealt casually.
14. ' The learned counsel for the appellant has further submitted that the appellant was enrolled as pleader in 1976 and as Advocate in 1977; he was appointed as Advocate-General in 1986 and was elevated to the Bench on 5-5-1991. Thus, the validity of his enrolment as a pleader and Advocate has been challenged after about 13/14 years of his enrolment as a pleader and Advocate; and after five years of his appointment as Advocate-General. Similarly, his appointment as Judge has been assailed after one year and two months of the relevant appointment order. Some authorities were also cited in support of the contention that the writ petition entailed dismissal on this sole ground.
15. ' In reply, it has been argued that the principle of laches is not attracted in case of a writ of quo warranto. It has been also contended that even otherwise the question of lathes is to be considered in view of the facts of each case; in some cases delay of few months is not condoned while in other cases the delay of years is ignored. It has been maintained that even if the delay is regarded as relevant that may be condoned in the circumstances of the case.
16. It may be observed that the principle of laches is not strictly applicable to a case of quo-warranto but it is definitely a relevant consideration in case of a quo warranto if mala fides is pleaded in defence. In the present case it has been argued on behalf of the appellant that the relator- respondent who was a practising advocate of the High Court did not challenge the enrolment of the appellant as pleader, advocate or his appointments as Advocate-General and the Judge of the High Court earlier and he came with the present writ petition only to wreak vengeance and not with bona fide intention of upholding the majesty of law or in the public interest. It was argued that the question of laches is very relevant in this case because it is on the record that the present petition was filed only when the appellant, herein, as Judge of the High Court, moved the Chief Justice of the High Court to initiate the contempt of Court proceedings against the contesting respondent in a case. A notice of the contempt of Court was issued by the Chief Justice at the instance of the appellant who as Judge of the High Court was seized with the matter in which contempt was alleged to have been committed. Thus, for judging the 'bona fides' of contesting respondent, the question of laches is not only relevant but also important. The writ petition entailed dismissal on the sole ground of mala fide irrespective of the merits of the writ petition. A reference was made to the following authorities in support of the contention:---
1. Dr. Kamal Hussain v. Muhammad Sirajul Islam PLD 1969 SC 42 and (2) Syed Ali Raza Asad Abidi v.
17. Ghulam Ishaq Khan, President of Pakistan PLD 1991 Lah.
18. 420.
19. We have given due consideration to the matter and in view of the principle laid down in the above authorities, particularly the case reported as Syed Ali Raza Asad Abidi v. Ghulam Ishaq Khan, President of Pakistan PLD 1991 Lah. 420, it is evident that in a case of quo warranto the question of laches is relevant to test the bona fides of the relator. In the present case there is no explanation whatsoever as to why the respondent did not challenge either the enrolment of the appellant as a pleader, and Advocate or his appointment as Advocate-General previously and kept mum for about 13/14 years and 5 years respectively in each case. He also failed to challenge the appointment of the appellant as Judge of the High Court for one year and two months. He filed the wrti petition when the notice of contempt of Court was served upon him at the instance of the appellant. We are of the view that the contesting respondent filed the present writ petition due to the aforesaid incident, i,e,, the initiation of the contempt of Court proceedings against him and not for serving the cause of law or in the public interest, especially so because no explanation for delay in filing the writ petition has been put forth. It may be stated that delay in a case of quo warranto is considered as an important piece of evidence in support of plea of mala fides of the relator. It is specially so when the relator was not an aspirant to the office which he intends to get vacated. It is settled principle of law that in absence of bona fides a writ of quo warranto must be refused on this sole ground. A reference may be made to a case reported as Dr. Kamal Hussain v. Muhammad Sirajul Islam PLD 1969 SC 42, wherein it was observed that it is quite legitimate to test the bona fides of the relator and to see that he has come with clean hands in writ jurisdiction. A writ of quo warranto in particular is not to be issued as a doctrinaire approach. Identical view has been expressed in Syed Ali Rua Asad Abidi v. Ghulam Ishaq Khan PLD 1991 Lah.
420. So much so that in some cases of writ of quo warranto, the Courts even insisted that relator must show the invasion of his personal right where there is a plea of mala fide, despite the-fact that a writ of quo warranto may be sought even by a person who has no personal interest in the matter. A reference may be made to the cases reported as Masudul Hassan v. Khadim Hussain PLD 1963 SC 203 and Surendra Mohan Patnaik v. Gopal Chandra Patnaik AIR 1952 Orissa 359. Thus, we are of the view that the writ petition entailed dismissal on this sole ground.
20. ' Coming to the averments made regarding the enrolment of the appellant as a pleader and an advocate of the High Court, it may be stated that the question which needs resolution is as to whether the legality of the said enrolments can be challenged after 14 years or so in a writ of quo warranto. The case of the contesting respondent is that as the enrolment of the appellant as pleader and Advocate of the High Court was violative of the relevant rules, he could not be appointed either as Advocate-General or subsequently the Judge of the High Court. It is not the case of the contesting respondent that the appellant had not practised for ten years as Advocate when he was appointed as Judge of the High Court, rather his case is that as his practice as an Advocate was in consequence of defective enrolment as a pleader and Advocate, he could not be deemed to be an 'Advocate' for having ten years legal practice to his credit. Irrespective of the validity of this argument, we are of the view that the question pertaining to the alleged invalidity of the enrolment of the appellant as a pleader and an Advocate cannot be gone into in a writ of quo warranto because the same are beyond the scope of the same. The question of legality of the enrolment as a pleader and an Advocate does not immediately preceded the appointment of the appellant as a Judge of the High Court nor it directly relates to it. In a writ of a quo warranto, only the violation of law pertaining to the matters which are directly related and immediately preceded the appointment of an office holder can be considered. The acts performed in the remote past which are collateral to the appointment of an office holder cannot be gone into in the proceedings of quo warranto. In a writ of quo warranto, the concerned office holder is called upon to show under what authority of law he was holding the office and he, in answer, has to show his appointment order, the law under which the same was made, the competency of authority which made the appointment and the same was made in accordance with law directly related to the appointment in question. The legality of the enrolment of the appellant as a pleader or an Advocate does not fall within the ambit of proceedings of quo warranto. The questions regarding the legality of the enrolment of the appellant as pleader and Advocate might have been made subject of a writ of certiorari or mandamus or some other appropriate proceedings, had the same been agitated at the proper time but it cannot be made subject of a writ of quo warranto. We are supported in our view in case reported as K.J. Joseph v Hon'ble Justice K. Sukumaran AIR 1987 Kerala 140, wherein it was observed that a writ of quo warranto postulates an enquiry as to under what authority, the person in question is holding his office, franchise or liberty as the case may be. Since writ of quo warranto is a somewhat drastic remedy the Courts in administering it should proceed with anxious deliberation and with utmost caution. In exercising the discretion, the Court should consider all the circumstances of the case, including lapse of time, and circumstances which would establish laches, acquiescence or estoppel, and whether the public interest will be served. The Court should decline to enterain a petition to grant a quo warranto writ where it would be vexatious to do so.
21. ' It was further observed as under:-- "I feel that in a writ of quo warranto, this Court has no jurisdiction or power to examine and explore the mind of the appointing authority. What all facts entered the mind of the Appointing authority in appointing a particular person seems to be not a relevant fact to be considered in a proceeding for a writ of quo warranto. This is so because the main question that is before the Court for determination is the title of the person who holds the office. It is a case of an examination whether the first respondent concerned is a usurper. This Court's function is circumscribed to a query to the person in question `what is your authority to hold the office'? Of course, he can be asked, wheher the authority or the warrant he produced is by the person who is authorised to make an appointment to the office which he holds. The petitioner has no case that the first respondent is holding the office without a warrant properly signed and issued by the President of India and that the President has no power to appoint the first respondent as a Judge of this Court."
22. ' In Corpus Juris Secundum, Vol. 74, after making reference to various authorities in Note 45(c) at page 264, it has been stated as follows:--- "In a quo warranto proceeding to test the right to an office, the scope of inquiry and decision is ordinarily limited to the validity of defendant's title to the office; collateral matters or matters outside the scope of the action will not be investigated or adjudicated."
23. ' The appellant cannot be called upon to show in a writ of quo warranto that under what authority of law he was enrolled as a pleader or an Advocate of the High Court. The writ of quo warranto lies in case of usurper of a public office and needless to say an Advocate on the roll of the High Court cannot be regarded to be a holder of a public office.
24. ' It has been vehemently argued on behalf of the appellant that notice to the appellant, herein, was issued as a matter of routine. The High Court was empowered to send for the record pertaining to the appointment of the appellant as Judge of the High Court and the record relating to collateral matters under sub-rule (3) of Rule 33 of the High Court Procedure Rules, 1984 (hereinafter to be referred as the High Court Rules) but it was not done. The notice was issued casually and is not according to law because in a case of writ of quo warranto, the notice under law must be issued in terms that respondent should show under what authority of law he was holding the particular office. But in the instant case the appellant was merely called upon to file written statement etc. Besides, the allegation that the appellant was a foreigner and was not entitled to be appointed as Judge of the High Court does not find any mention in the memorandum of writ petition; the allegation was in context of his enrolment as pleader and Advocate. Even otherwise, the relevant rules do not contain the terms 'foreigner' or 'national' in context of enrolment of a person as a pleader or an Advocate of the High Court rather the expression 'State subject' has been used therein.
25. ' It may be stated that it is well-settled principle of law that the superior Courts insist that in case of writ of quo warranto which is purely a discretionary matter, the Court should closely scrutinise the averments made in the writ petition before issuing notice and it should not be issued as a matter of routine. We find support in cases reported as Dr. Kamal Hussain v. Muhammad Sirajul Islam PLD 1969 SC 42 and Ch. Muhammad Anwar v. Ch. Muhammad Rashid PLD 1987 SC (AJ&K)
41. In case titled Kh. Noor-ul-Amin v. Sardar Muhammad Abdul Qayyum Khan Civil PLA No,90 of 1991, this Court had the occasion to examine the principles which should be kept in mind while issuing a rule in a writ of quo warranto. It was observed that a rule nisi cannot be issued as a routine. The following observations are relevant:--- "If initially, he makes out his prima facie case, the burden of proof would shift to the opposite side but if the material facts are not pleaded by the petitioner on which he bases his claim or the same, are not sufficient enough to make a prima facie case in favour of the petitioner, it cannot be said that a rule nisi can be issued as a matter of routine. The non-petitioner would be called upon to show that he was holding the office under what authority of law would arise only if, in the first instance, the petitioner makes out a prima facie case that he was not so holding the office. The two cases from Indian jurisdiction cited by Kh. Noor-ul-Amin do not lay down any.
26. The view of the High Court might have been different if before admitting the writ petition for hearing, a notice under sub-rule (3) of rule 33 of the High Court Rules would have been issued to the appellant and an opportunity had been afforded to the appellant as to why the writ petition should not be admitted, for regular hearing. Keeping in view the nature of the functions of a Judge of a superior Court, it is all the more necessary to adhere to the spirit of the aforesaid rule in case of a writ of quo warranto. Needless to say, in our society if notices of quo warrant() are issued against Judges of a superior Court as a matter of routine, it is likely to encourage the vexatious proceedings against the Judges so as to harass them rather than seeking redressal of genuine grievances. In light of the above conclusions, we are of the opinion that the High Court was not justified in issuing the notice in the case.
27. We find no force in the contention of learned counsel for respondent No,1, Sh. Abdul Aziz, that the High Court should be allowed to decide the case and the points raised in the case may be attended to if and when an appeal is brought to this Court. We had the occasion to observe in an unreported case entitled Sardar Sikandar Hayat Khan v. Syed Ghulam Mujtaba Bokhari (Civil Misc.
28. Nos. 7 and 8 of 1990, decided on 15-5-1990) that:- "The High Court is a Court created by the Constitution and it is primarily the High Court which is clothed with the powers of issuing writ petitions. It is only after the High Court has become functus officio that normally a case is called up by this Court. But it cannot be denied that this Court has the power to interfere at an earlier stage and pass any suitable order where a case is made out. If there was any doubt on this point i' has been set at rest by a judgment of this Court in a case titled Qazi Bashir Ahmad v. Amjad Ali Civil Appeal No,13 of 1988."
29. ' In the light of the conclusions reached by us, we are convinced that it is a case in which interference at the preliminary stage is fully justified.
30. ' In the light of the foregoing, we accept the appeal and order that the writ petition titled 'Sain Mullah v. Azad Government and others' stands dismissed with no order as to costs.