1. M. A. RASHID, J.-An application for the grant of succession certificate was filed on 13-10-1976, by Jia Ram son of late Maharaj Saran Das.
2. By a separate application it was prayed that as there was no District Judge appointed for the District of Kalat therefore the application under section 372 of the Succession Act was being made directly in the High Court. On 1st December 1976, when the petition was placed before my Lord the Acting Chief Justice it was ordered that it could wait till the powers of the District Judge in Kalat are conferred on a functionary. Subsequently when on 13th November 1977, the matter was again placed before my Lord the Acting Chief Justice it was found that District Judge, Quetta was concurrently functioning as Additional Sessions Judge, Kalat. Civil Jurisdiction in Kalat is exercised by Majlis-e-Shoora. The question therefore arose if District Judge, Quetta could, in the circumstances, act with respect to Kalat District as the principal civil Court of original jurisdiction under the Succession Act.
3. Originally the Full Bench was constituted to resolve such difficulty. But before the matter could be taken up by the Full Bench a regular incumbent took over in Kalat, who has been notified as "District and Sessions Judge, Kalat", vide High Court's Notification No. 114/VI (M-46) dated 14th February 1978.
4. Mr. Kohli states that as a District Judge has since been appointed the application could be transmitted to him for disposal according to law. But the question is if a District Judge, can, in law, be appointed in any of the districts comprising former Kalat Division.
5. Civil Courts of the nature of the Court of District Judge, Additional District Judge and Civil Judge are the creation of the West Pakistan Civil Courts Ordinance, 1962 (hereinafter called the Ordinance).
6. Although the Ordinance extended to the whole of the Province of West Pakistan, as it then was, but it was not enforced in the Division of Kalat by virtue of subsection (3) of section 1 thereof. This is perhaps because the policy of the Government is to continue the present Courts of Kazi, constituted under the Dastur-ul-Amal Diwani Kalat (hereinafter called the Dastur). The Ordinance, by its section 28, repeals, among other laws, the Dastur as well. But because the Ordinance is not enforced in the areas of the former Kalat Division therefore such repealing provisions do not come into play in that area and the result is that the Dastur stays in the field. In the absence of enforcement of the Ordinance in the areas of former Kalat Division, the power to create civil districts (section 4), and to appoint District Judges thereto (section 5), in such areas is not available to the Government or for that matter to the High Court. Any notification therefore, which notifies any appointment of a District Judge, is without lawful authority and is, to that extent, of no effect.
7. The Succession Act in its section 372 empowers a District Judge to grant a succession certificate and section 2(bb) of the Act defines District Judge to mean the Judge of a principal civil Court of original jurisdiction. According to section 7 of the Ordinance, the Court of District Judge was declared to have jurisdiction in original civil suits without limit as regards the value. As such ordinarily the District Judge appointed under the Ordinance is the principal civil Court of original jurisdiction. But as this provision is not available for the areas of the former Kalat Division the questions for determin--ation before this Full Bench would be :-
(1) What is the principal civil Court of original jurisdiction for such areas ;
(2) if there is no such Court, dogs the High Court have concurrent powers to issue a succession certificate.
8. Mr. Basharat the learned amicus curiae, duly supported by the learned Advocate-General contends that according to the Dastur the Deputy Commissioner of a District is the principal civil Court of original juris--diction. According to the Scheme of the Dastur a plaint, in a civil suit, is to be filed before the Hakim. The words Hakim is not defined in the Dastur. But according to section 20, which lays down the pecuniary jurisdiction of various forums, the Naib Tehsildar, the Tehsildar, the Nazim and the Deputy Commissioner are styled as Hakims. According to this section the Deputy Commissioner is empowered to hear cases of the value of more than Rs. 10,000. Section 2 of the Dastur provides that a plaintiff shall personally present the plaint before the Court of competent jurisdic--petition. In the light of these provisions, Mr. Basharat contends that the Deputy Commissioner, having unlimited pecuniary jurisdiction, is to be deemed to be the principal civil Court of original jurisdiction. In contradis--tinction, it is argued, the Court of a Kazi is not a Court of original jurisdic--petition because a suit could not be directly filed before it. Additionally it is contended that in Civil Revision No. 41/74 a Single Judge of the Sind & Baluchistan High Court had referred the matter for grant of Succession Certificate to the Deputy Commissioner.
9. As to the last submission I may state that Naim-ud-Din, J., in Civil Revision No. 41/74 has passed a consent order and, such order is therefore not to be construed as laying down a rule of law.
10. Secondly the learned Single Judge has not, while referring the application for grant of succession certificate to the Deputy Commissioner, determined if he is the principal civil Court of original jurisdiction. The learned Single Judge has left the question open. Following observations of his Lordship are relevant "The contention of the learned Advocate for the petitioner is that the Deputy Commissioner should be deemed to be District Judge within the meaning of section 2(1) (bb) of the Succession Act, being the principal civil Court of original jurisdiction. However, I am informed by the learned Advocate-General that this question is under active consideration of the Government but it is not known how long the Government will take to resolve the difficulty faced by the applicants for Succession Certificates in Kalat Division. Therefore, the learned Advocate-General agrees that in order to obviate the difficulty faced by applicant, he may again present his application before the Deputy Commissioner, Kalat, who shall entertain the same and decide it on merits, and suggest
(sic) that the question be left to be decided in future, in case the Government does not resolve the difficulty."
11. This judgment therefore does not lay down any precedent. Mr. Aslant Chishti the other learned amicus curiae contends that the Deputy Commissioner according to the powers enjoyed by him under the Dastur, is not a Court, and therefore, in the absence of the basic ingredient of the definition of a District Judge he cannot be termed as such. In support of such contention the learned counsel has taken us through various definitions of the word `Court'.
12. According to the Words and Phrases Legally Defined (1969 Edition, Vol. I, p. 367) the terms `Court' originally meant the sovereign's palace ; A it acquired the meaning of the place where justice is administered and has come to mean the person who exercises judicial functions. Same definition of the term occurs in Halsbury's Laws of England. (10th Edition). A Court or a Judge are frequently used by statutes as synonymous and are inter--changeable. In Nasir Muhammad v. Murad A.I (PLD 1960 Lah. 757), a Division Bench, while dealing with the word Court observed as follows ----- "Now the expression `Court' has not been defined either in the Limitation Act or the General Clauses Act and this can be said of almost all Acts in force in Pakistan. The expression, however, means according to the context in each case either the Presiding Officer or the whole Court including the Presiding Officer of the Court or the place where cases are heard."
13. According to Ballentine's Law Dictionary Court is the organ of the Govern--ment, consisting of one person, or of several persons called upon and authorized to administer justice. According to this Dictionary three elements are found to be essential for the conception of Court and they are :---
(1) rime when Judicial functions may be exercised.
(2) A place for the exercise of Judicial functions.
(3) A person or persons exercising Judicial functions.
14. Judicial functions are the common characteristic of each element. Thphrase `Judicial function' has not been clearly spelt out either in this Dictionary or in any other book cited before us. However, in Shell Co. Of Australia Limited v. Federal Commissioner of Taxation ((1930) All E R 671) Lord Sankey quoted with approval the definition of the term, Judicial powers as given by Griffith, C. J. In Huddart Parker's case, which is to the following effect;--- "I am of opinion that the words 'Judicial power' as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subject, or between itself and its subjects, whether the rights relate to life, liberty, or property. The exercise of this power does not come into being until some tribunal which has power to give binding and authoritative decision (whether subject to appeal or not) is called upon to take action."
15. This definition was later approved by the Privy Council in United Engineer--ing Workers' Union v.
16. Uevanayagam ((.1976) 2 All E R 367). According to these rulings of the English Courts exercise of Judicial power is considered to be an essential feature of a Court, and it distinguishes a Court from an administrative tribunal. Lord Sankey, in Shell Co.'s case, cited above, observed that a tribunal is not a Court, no matter if;
(i) it gives a final decision,
(ii) it hears witnesses on oath,
(iii) two or more contending parties appear before it between whom it is to decide,
(iv) it gives decision which affects the rights of subject,
(v) because its decision could be appealed against before a Court, and
(vi) it is a body to which a matter is referred by another body.
17. This means that a tribunal does not become a Court, even if it is empowered to do all these things, unless it exercises the judicial power. Giving a definitive and binding judgment is an essential concomitant of judicial power. Keeping in view this standard we may now examine if the Deputy Commissioner under the Dastur enjoys such powers.
18. The learned Advocate-General contends that a Hakim under the Dastur, has the powers to demand correction in the plaint ; to order ex parte proceedings, to frame issues after obtaining written statement and to' dismiss the suit in case of absence of the plaintiff. These powers are derived from sections 4, 6, 7 and 8 of the Dastur. But all these powers dot not enable the Deputy Commissioner to give a definitive and binding judgment. It has been held in Shenal Mal v. Bhawani Mal Tora Chand (PLD 1969 Quetta 81), that the Deputy Commissioner cannot pass an ex pare decree. His powers under section 8 of the Dastur, to dismiss a suit in the absence of the plaintiff, is also limited and liable to be set aside. This is clear from the provisions of this section and the succeeding two sections.
19. Section 11 of the Dastur also lays down scope of the functions of Hakim. This section reads as under :- According to this section the Hakim has to try to decide the dispute either through compromise or arbitration or Shariat. If, however, the matter relates to custom it is to be referred to a jirga. If the parties are Hindu then the matter is to be referred to a Panchayat or a Special Jirga. The power to decide disputes according to Shariat is conferred upon the Kazis by section 22. Thus the only cases where a dispute is finally resolved before the Deputy Commissioner is when it is settled through compromise or arbitration. But the power to effect compromise, or get disputes settled through arbitration fall outside the scope of judicial power. These two elements are, therefore, not enough to supply the essential attributes of a Court to a Deputy Commissioner.
20. The Deputy Commissioner, therefore cannot be termed as a Court. At best it is a non judicial office, created to perform administrative functions and details necessary to the performance of the duty of a Court. They help in the administration of justice by relieving the Kazis, Jirgas or the Panchayats of such details, permitting them to concentrate on purely judicial aspects of the Court work.
21. The Court of Kazis or for that matter the Jirgas and the Panchayats constituted under section 11 of the Dastur are not Courts of original jurisdiction, as the disputes of civil nature cannot be brought before them directly. This leaves us with no forum, in the areas of former Kalat, which could be termed as principal civil Court of original jurisdiction. We therefore answer the first question accordingly.
22. This brings us to the second question, namely, if the High Court has concurrent jurisdiction to grant a succession certificate, section 300 of the Succession Act provides as follows;---- "300. Concurrent jurisdiction of High Court.---(1) The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge.
(2) .
23. Mr. Basharatullah contends that as this section falls in Chapter 4 of Part IX of the Act, which deals with probate, letters of administration and administration of assets of deceased, therefore the concurrent jurisdiction of the High Court is to be confined to the powers enjoyed by the District Judge with respect to these matters alone. In the first place it may bed mentioned that the headings prefixed to sections or sets of sections, and regarded as preambles to these sections cannot control the plain words of the statute (Maxwell on Statutes, p. 11) (Indian Reprint, 1969). A heading may be looked into to resolve any doubts the Courts may entertain as to ambiguous words, but such headings cannot be used to give a different effect to clear words in a section where there cannot be any doubt to these ordinary meanings. The fact, therefore, of this section falling in Part IX wig not be construed to mean that it refers to matters of probate etc. And not to the succession certificate if otherwise the plain meanings of the language used is not so restrictive.
24. Subsection (1) of section 300 says that the High Court shall have concurrent jurisdiction in the exercise of all powers hereby conferred on the District Judge. The District Judge does not enjoy powers under Part IX t alone. His powers are also enumerated in sections falling outside this part.
25. So the use of the phrase "all the powers cannot be equated with a restrictive phrase powers under this part." The Legislature refrained from using such a restrictive phrase, therefore it would not be proper for the Courts to introduce it in the language of the section. There is no doubt that the phrase 'all the powers' is followed by the phrase `hereby conferred'. But the word 'I hereby' if given ordinary dictionary meaning would not mean Chapter 4 of Part IX of the Act. Its ordinary meanings are 'by' or 'through this', 'by this means'. Which would ordinarily mean this instrument or this statute or 'this law', and not 'this chapter', nor 'this part'. So the meanings of the phrase 'all the powers conferred' would mean all these powers which are conferred by the whole Act and not merely those conferred by Chapter 4 of Part IX of the Act.
26. Another aspect of the matter is that if restricted meanings are given to this phrase, as is canvassed by Mr. Basharat and the learned Advocate-General that would mean that people in the area of former Kalat Division would no have any means of obtaining a succession certificate. Now one of the fundamental principles of law is that where there is a right there is a remedy (Ubi jus ibi remedium) it would be a vain thing to imagine a right without a remedy. The application of the Succession Act to the areas of forme Kalat has conferred a right to the citizens living in that area to obtain a succession certificate. And this right is not without meaning. To cite an example, the institutions, associated with modern civilised living, such as banking are fully operating in that area.
27. For this single reason alone it would be essential to obtain a succession certificate by those who are left heirs to a deceased, leaving behind cash assets deposited with a bank. Such heirs would be left without a remedy, if we were to hold that the High Court under section 300 of the Act, can exercise concurrently, only those powers with the District Judge, which fall under Part IX of Act.
28. Before parting with this case we would like to record our appreciation for the assistance rendered to us in the decision of this case by the learned Advocate-General and the learned amicus curiae.
29. We are particularly indebted to the help provided by M. Adam Chishti in this behalf.