' SYED ZAHID HUSSAIN, J.---A Suit for the performance of agreement to sell, dated 2-9-1990 was instituted by the appellants on 19-11-1990 which has been dismissed by the trial Court vide judgment, dated 1-3-1992. This is Regular First Appeal there against which arises in the circumstances briefly stated below:--
2. By agreement, dated 2-9-1990 (Exh.P.1) land measuring 4 Kanals, 10 Marlas, described therein and the plaint situated in village Maraka, Tehsil District Lahore was agreed to be sold @ Rs,72,000 per Kanal by the respondent/defendant. A sum of Rs,1,24,000 was received by him, whereas, the balance of Rs,2,00,000 was to be paid before the Sub-Registrar at the time of sale-deed. The agreement provided that on demarcation of the land on the spot the defendant/vendor would inform the vendee and within 15 days, the sale-deed was to be executed and registered, and, in case, it was not so done, the earnest money paid by the vendee would stand forfeited. In -the suit, brought by the appellants, ; they pleaded the steps and efforts made by them showing their willingness and readiness to perform their part of the agreement and that in view of the refusal of the respondent on 2-11-1990, they had to file the suit. In the written statement, filed by the respondent, number of preliminary objections were taken to the maintainability of the suit.
Execution of the agreement, dated 2-9-1990 was admitted. It was also admitted that the wife and son of the respondent/defendant had appeared before the Sub-Registrar on 2-10-1990 disclosing that the respondent/defendant was sick at Sialkot and that the Local Commissioner had not visited him there. The plaintiffs/appellants were blamed for non-performance of the agreement. Number of issues were framed by the trial Court. Issues Nos.1 to 5 more or less pertained to the form and maintainability of the suit were decided against the defendant/respondent. It was, however, Issue No,6 which was decided against the plaintiff. Since the said issue covered the crucial controversy and the findings thereon lave been challenged before us, the same is reproduced hereunder:-- "Whether the plaintiffs are entitled to decree ' for possession through specific performance of the contract, dated 2-9-1990 in respect of the 'suit land or in alternate for recovery of amount with interest as prayed for? OPP"
' In order to prove their case, the appellants produced Malik Zameer-ul-Hassan, Property Dealer, P.W.1, who had struck the bargain between the parties. Zafar Iqbal, P.W.2, Reader of Sardar Muhammad Akram Javed, Magistrate 1st Class, Lahore was produced, who stated that he was posted as Record Keeper in the Registry Branch in the year, 1990 and application Exh.P2 was presented by the appellants/plaintiffs in his presence. Shaukat Ali, P.W.3, the Scribe of sale-deeds, Exh.P3 to Exh.P6 was also produced. Rehmat Ali was produced as P.W.4 Wajid Hussain, Advocate, P.W.5, who had been appointed as Local Commissioner, Ghulam Hussain, P.W.6 were also produced, whereas, Mian Mahmood Ashraf, the appellant/plaintiff appeared as P.W.7. The respondent/defendant did not appear himself. However, his wife Mst. Nargis Zaheer appeared as D.
W.1, his special attorney; Ghulam Nabi, Post Man, was produced as D.W.2, whereas, Ijaz Ahmed, son of the respondent/defendant appeared as D.W.3. The learned trial Judge mainly concentrated on the deposition of Wajid Hussain, Advocate, P.W.5, who had been appointed as Local Commissioner.
Noting some inconsistencies in his statement, the learned trial Court came to the conclusion that the statement of the local commission was not reliable. According to the view, formed by the learned trial Judge, the local commission had been appointed for Sialkot where he had never visited. He was of the view that "the local commission did not approach the defendant for the attestation of the sale-deeds" and proceeded to decide the issue against the plaintiffs dismissing their suit. This was vide judgment, dated 1-3-1992.
3. It is contended by the learned counsel for the appellants that the appellants had always been ready and willing to perform their part of agreement. According to him, the appellants had by paying substantial stamp duty even purchased stamp papers on 27-9-1990 and had also paid District Council Fee. According to him the appellants had been making strenuous efforts which are borne out from the record for the performance of the agreement and cannot be blamed for any delay whatsoever. It is contended that it was a transaction relating to - immovable property, the time was not of essence for such transaction.
4. The learned counsel for the respondent/defendant while supporting the judgment of the learned trial Court contended that the appellants/plaintiffs were disentitled to the relief of specific performance in law of their conduct and the suit has rightly been dismissed .By the trial Court. It is, however, contended that the respondent was willing to perform the agreement if he was paid increased price in view of the appreciation of the prices of the land.
5. In View of the execution of the agreement having been admitted by the respondent, the controversy narrows down to the point as to whether the time was of essence of the agreement and that the conduct. Of the appellants was so evasive that they were not ready and willing to perform their part and thus disentitled to the performance of the agreement. We have closely scrutinized this evidence that has come on record and after taking the ambient circumstances into consideration in totality, are of the view that dismissal of the suit was not justified. As mentioned above, the agreement was executed between the parties on 2-9-1990 which authorized the vendee to join with him any other person or persons. In pursuance thereof, four sale deeds in the names of Mst. Rana Ashraf, Exh.P3 Mian Mahmood. Ashraf, Exh.P4, Mian Maroof Ashraf, Exh.P5 and Mian Mahmood Ashraf, Exh. P6 were drawn on stamp papers by spending substantial amount of stamp duty and the District Council Fee. The stamp papers were purchased on 27-9-1990 and were written the same day. It has also come on record that the vendees had been taking all necessary steps for the execution and completion of the sale-deeds. Exh. P2 is an application, presented by Mian Mahmood Ashraf, before the Sub-Registrar, Lahore on 1-10-1990 to show the preparation of the sale-deeds and readiness on their part for the performance. On 2-10-1990, an application was made on behalf of the respondent/defendant by his son Ijaz Ahmed before the Sub-Registrar, Lahore for the appointment of Local Commission that the vendor was unable to appear on account of his ailment. Wajid Hussain, Advocate was, accordingly, appointed as Commission by the Sub-Registrar the same day, who submitted his report, Exh.P7, that he was unable to get the sale-deeds executed due to evasive attitude and ultimately the refusal of the respondent/defendant. The view taken by the learned trial Court that the Local Commission had to visit Sialkot, does not find support from the facts and circumstances inasmuch as the land is situated in Lahore, the parties had their residence also at Lahore. The address, mentioned in the agreement Exh.P1 of the vendor, is also of Lahore. In the application, made on his behalf, to the Sub- Registrar, by his son for the appointment of Local Commission, the address of 'Gulshan-e-Ravi, Lahore' has been stated. Even the special power of attorney, executed by him in favour of his wife, gives the address of 'Gulshan-e-Ravi Scheme, Lahore' Exh.D1. There is one line appearing in the application that he was unable to travel from Sialkot to Lahore which apparently on a naked eye view appears a latter addition in the application with different ink and pen. That seems to have been made basis by the learned trial Court for the findings that the Local Commission had to visit Sialkot. To our mind, this was not so nor the Local Commission was obliged to visit Sialkot. Moreover, the criticism of the conduct of the Local Commissioner or his report could not be made basis for attributing non performance to the appellants. It may be reiterated here that the appellants had filed the suit on 19-11-1990 quite promptly. In order to show their bona fide and readiness they had even deposited the balance consideration of Rs,2 lacs in pursuance of the order of the trial Court, dated 13-4-1991. Taking into consideration the preponderance of the evidence and the circumstances, it is extremely difficult to attribute violation of the agreement to the appellants.
6. It is almost a settled law by now that in transactions relating to immovable property, time is not ordinarily of the essence. Mere mention of some period or inclusion of forfeiture clause would not have such an effect. It was so reiterated in Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCMR 2189). It was also held in that case that "delay simpliciter which is short of period of limitation prescribed under the law is not enough to disentitle a plaintiff to the relief of specific performance." There is nothing on the record in the present case to show that the appellants had committed such acts as could disentitle them to the relief of specific performance. We have also considered the contention of the learned counsel for the respondent that on account of appreciation of the value of the property the price should be increased. We are unable to agree with him inasmuch as a substantial amount (Rs,1,24,000) more than 1/3rd of the total price of the land had been paid to the respondent/defendant at the time of agreement to sell and the balance of Rs,2 lacs had been deposited by the appellants before the learned trial Court. Moreover,there is no evidence on the record as to how much appreciation in value would have taken place.
7. In view of the execution of the agreement having been admitted, the same should have been performed. There was no valid justification to refuse its performance; the appellants were thus entitled to the decree of specific performance.
' As a result of the above, the judgment of the learned trial Court, dated 1-3-1992 is set aside. The appeal is accepted; the appellants shall deposit balance amount of Rs,2 lacs within one month, failing which, the suit shall stand dismissed. No order as to costs. Appeal allowed.
2002 YLR 1482 [Lahore] Bofore Maulvi Awnarul Haq.J LAL DIN---Petitioner versus MUHAMMAD SARDAR and 3 others---Respondents Civil Revision No, 1581/D of 1993, heard on 7th February, 2002.
(a) Contract Act (IX of 1872)--- ----S.55---Time as essence of contract-- Determining factor---Contracts relating to immovable property---Scope---What is to be determined is not the form of the document but the intention of the parties i,e, that time should be essence of contract---Time is not of tie essence of contract in contract relating to immovable properties. [p. 1485] A Seth Essabhoy v.
Saboor Ahmad PLD 1973 SC 39 ref.
(b) Contract Act (IX of 1872)--- ----S.55---Time as essence of contractDeterminatiOn-Intention of parties is relevant at the time of making of the, contract and not to what happened thereafter although under some circumstances the parties may agree to make the time essence of the contract at a later stage. [p.
1485] B
(e) Contract Act (IX of 1872)--- ----S.55---Specific Relief. Act (I of 1877), S.12---Specific performance of agreement to sell---Time as essence of contract---Intention of the parties-Performace of agreement within two months of its execution---Making of, demand of balance amount after expiry of time mentioned in contract- --Defendants refused to execute sale-deed in favour of plaintiff on the ground that despite demands made by them, the plaintiff failed to pay the balance price---Trial Court as well as Appellate Court dismissed the suit and appeal respectively for the reason that time was essence of contract---Plaintiff contended that time was not essence of the contract as he was willing to perform his part of contract--Validity---As the defendants for the first time demanded balance amount after expiry of two months, in such case it was proved that it was never the intention of the parties that the agreement had to be performed within two months-If the agreement, in the present ease, had to be performed within two months, , lie defendants must have approached the ,-;.'aintiff at a point of time earlier than the i.Viry of two months to put him on notice that the agreement had to be performed within the stipulated time---Time was not essence of the contract in the case---Judgments and decrees passed by both the Courts below were set aside and suit was decreed in favour of plaintiff [p. 1486] C & G
(d) Contract Act (IX of 1872)--- ----Ss. 37 & 38-Specific Relief Act (I of 1877), S.12---Specific performance of agreement to sell--- Performance of the contract---Onus to prove---Promisee had partly performed the contract by paying partial amount to the promisors--- Burden of proving the willingness to perform his part of contract was on the part of promisee which was discharged in the present case-Promisee was ready and willing to perform his part of contract in circumstances. [p. 1486] D
(e) Transfer of Property Act (IV of 1882)--- ----S.41---Specific Relief Act (I of 1877), S.27(b)---Bona fide purchaser for valuable consideration-- -Onus to prove---Plea of purchase from ostensible owner---Effect--- Burden on a person claiming to be a bona fide purchaser within the meaning of S.27(b) of Specific Relief Act, 1877, was much lighter than the burden of a person claiming benefit of S.41 of Transfer of Property Act, 1882-- - Denial in witness-box shifts the onus to other side. [p. 1486] E Mst. Khair-ul-Nisa and 6 others v.
Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 ref.
(f) Transfer of Property Act (IV of 1882)- ----S.41---Specific Relief Act (I of 1877), S.27(b)---Bona fide purchaser for valuable consideration without notice---Plea of purchase from ostensible owner---Defendant contended that he purchased the portion of suit property from the owner and he had no knowledge of prior agreement executed by the owner in favour of the plaintiff-Plaintiff fiiiled to prove on record that the defendant had any knowledge about the agreement executed in his favour---Effect---As there was 1:o positive assertion on behalf of the plaintiff that the.
Defendant had the knowledge of the agreement, defendant was discharged of the Onus of issue regarding bona fide purchaser in circumstances. [p. 1486] F Rana Nasrullah Khan for Petitioner.
Abdul Ghafoor for Respondent.
Date of hearing: 7th February, 2002.
' On 14-11-1989 the petitioner tiled a suit against respondents Nos. 1 and 2. It was stated in the plaintiff that respondents Nos.1 and 2. Agreed to sell the suit land to the petitioner vide agreement to sell, dated 10-6-1989 for a consideration of Rs,6,400 and that out of this amount a sum of Rs,2,500 was paid by way of earnest money and promised to execute the sale-deed and get it registered within two months. Respondents Nos. 1 and 2 in their written statement, dated 22-2-1990 admitted the execution of the agreement and receipt of earnest money but took the plea that the time was of the essence of the contract and since the petitioner had failed to pay the amount within the stipulated time they had sold the land to respondents Nos. 3 and 4 who were impleaded in the suit and an amended plaint was filed. The said respondents filed a written statement stating that they have purchased the land from respondents Nos. 1 and 2. Some preliminary objections were also taken. Following issues were framed by the learned trial Court:--
(1) Whether the defendants Nos. 1 and 2 have agreed to sell the suit land to the plaintiff for Rs,6,400 vide agreement, dated 10-6-1989?
(2) Whether the defendants Nos.1 and 2 have received Rs,2,500 from the plaintiff in persuance of the impugned agreement of sale? OPP (3)Whether the plaintiff has always been willing and prepared to perform his part of the contract?
OPP (4)Whether the subsequent sale of the suit land made by defendants Nos.1 and 2 in favour of defendants Nos.3 and 4 vide mutations of oral sale Nos.128 and 129 is illegal, void and inoperative against the rights of the plaintiff? OPP (5)Whether the plaintiff is entitled to a decree for specific performance of the impugned agreement of sale dated 10-6-1989, if so on what terms? OPP (6)Whether the suit is not maintainable in its present form? OPD (7)Whether the suit is bad for non joinder of necessary parties, if so to what effect? OPD 1 and 2.
(8)Whether the plaintiff is estopped by his words and conduct from filing this suit? OPD (9)Whether the defendant No, 4 is bona fide purchaser for value without notice, if so to what effect?
OPD 4.
(10)Whether the defendants are entitled to special costs under section 35-A, C . P.0 .? OPD
(11) Relief.
' Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree, dated 30-4-1992 while thefirst appeal was dismissed by a learned Additional District Judge, Narowal on 31-5-1993.
2. Learned counsel for the petitioner contends that there is no evidence on record to show that time was of the essence of the contract and as such both the learned Courts below have acted with material irregularity in the exercise of their respective jurisdiction, while passing. The impugned judgments and decrees dismissing the suit of the petitioner. Also questions are findings of the Courts below on the said Issue No,9. Learned counsel. For the respondents, on the other hand, argues that since it was stipulated in the agreement itself that the contract was to be performed within two months and penal consequences were provided, it shall be deemed that time was of the essence of the contract.
3. I have gone through the copies of the records, appended with this civil revision, with the assistance of the learned counsel for the parties. As stated by me above the execution of the agreement and receipt of earnest money thereunder was admitted by respondents Nos.1 and 2.
Copy of the agreement is available on record as Exh. P.1. It does state that within two months of the date of execution respondents Nos.1 and 2 shall get a sale-deed registered in favour of the petitioner on payment of balance price and in case of petitioner's failure to get the sale registered in the said terms and earnest money will be forfeited. However, by now it is well-settled that what is to be determined in such-like cases is not the form of the document but the intention of the parties i,e, that time should be of the essence of the contract. There is also no dearth of authorities that in contracts relating to immovable properties time is not of the essence of the contract. Reference may be made to the case of Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39.
4. The said contract Exh. P.1. Also provides that in case respondents Nos. I, and 2 refused to get the sale-deed registered the petitioner can get the contract completed through the Court. To my mind this contention which relates to a period after the expiry of the said time of two months derogates from the said condition fixing the time for performance.
5. Now the intention of the parties is question of fact and both the Courts below have found that it was the intention of the parties that time was to be the essence of the contract. Before I proceed to examine the evidence I may note here that the intention is relevant to the time of making of the contract and not to what happened thereafter although under some circumstances the parties may agree to make the time essence of the contract at a later stage.
6. Now Muhammad Sardar, respondent No,1 has entered the witness-box as D. W .1 . After admitting the execution of the agreement and receipt of earnest money of Rs,2,500 out of the agreed price of Rs,6,400, he states that after the expiry of two months he went to.The shop of the petitioner twice or thrice because he was in need of the money and he repeatedly demanded that the petitioners should pay the balance. Now he states that the response of the petitioner was that he had already purchased some other land and if respondents Nos.1 and 2 are in that much of a hurry he may sell the land wherever he liked. Consequently, after waiting for three months he sold the land. Both the learned Courts below have believed this statement and have treated it to be evidence of the fact that the intention of the parties was that time stipulated in the agreement, was to be of the essence of the contract. I am constrained to state that instead of proving that the time was of the essence of the contract the said statement of D.W.1 proves the contrary to be true. It is his own case that for the first time he demanded the balance amount after the expiry of two months. Thus it stands proved that it was never the intention of the parties that the agreement had to be performed within the said two months. Had it been so respondents Nos.1 and 2 must have approached the petitioner at a point of time earlier than the expiry of the said two months to put him on notice that the agreement has to be performed within the said stipulated time. Further the statement does not ring true for the reason that the petitioner could not have told respondents Nos.1 and 2 to sell away the land without claiming back Rs, 2,500 which constitutes almost half the sale price already paid by him to respondents Nos.1 and 2. In cross-examination D.W.1 has admitted that no one else was present when the said conversation took place. He has stated that for the first time he approached the petitioner when two months had already passed. On the other hand, Lal Din, P.W.3 has stated that he had asked respondents Nos. 1 and 2 to transfer the land to him within stipulated time but they avoided performance. It will also be noted that the suit was filed on 14-1-1989. In the said state of evidence on record and the circumstances reflected therefrom it cannot be said at all that time was of the essence of the contract or that the parties to the contract ever intended it to be so.
7. So far as the willingness of the petitioner to perform the contract is concerned, which was the burden of Issue No,3, I find that he had already partly performed the contract by paying Rs,2,500 to respondents Nos.1 and 2. It will be pertinent to note here that the yarn, woven by D.W.1 in the course of his examination-in-chief was not at all put to this witness. I, therefore, do find that he was ready and willing to perform his part of the contract.
8. . So far as Issue No,9 is concerned, Nazir Ahmad, respondent 'No,4 (defendant No,4 in the suit) has purchased 9 Kanals, 16 Marlas of land comprising Khasras Nos.226 and 228 vide Mutation No, 129 (Exh. D.1). The total land agreed to be sold by respondents Nos.1 and 2 to the petitioner is 27 Kanals and 12 Marlas. Now he has appeared as D.W. 3 and has stated that he was not aware of the said agreement and no one has told him about the said agreement. The petitioner, on the other hand, while appearing as D.W. 3 has not controverted the said statement of 4. In fact he has not stated at all that the said respondent No,4 was aware of the agreement between him and respondents Nos.1 and 2. The burden on person claiming to be a bona tide purchase within the meaning of section 27(b) of that Specific Relief /Vet, 1877 is much lighter that the burden of a person claiming benefit on section 41 of the Transfer of Property Act 1882. A denial in the witness- box normal shifts the onus as held in the case of Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25. In the present case there is no positive assertion on behalf of the petitioner that respondent No,4 had the knowledge of the said agreement. I,- therefore, do find that respondent No,4 has discharged the onus or Issue No,9 but for reasons stated herein
9. As a result of the above discussion this civil revision is partly allowed. The judgments and decrees passed by both t' e 'learned Courts below are set aside and inste d a decree is passed in favour of the petition and respondents Nos.1 to 3 (defendants No .1 to 3 in the suit) for specific performance of the agreement to sell dated 10-6-P 39 (Exh.Pl) and they are directed to execut a sale-deed in favour of the petitioner transferring the suit land measuring '7 Kanals, 11 Marlas comprising Khasra No,163 (9 Kanals, 17 Marlas), 171 (min-West) (1 Kanal, 9 Marlas), 173 (4 Kanals, 17 Marlas) and 1227 (1 Kanal, 8 Marlas) situated in village Sukhu Chak, Tehsil Shakargarh, District Narowal (as per entries in the Register Haqdaran Zamin for the year 1983-84). This will be subject to payment of Rs,1,607 being the proportionate balance price of the land as agreed to be paid by the petitioner. In case despite the said deposit, the said respondents failed to execute the sale-deed, the learned trial Court/executing Court shall depute an official of the Court to do to needful.
Possession of land sold shall also be delivered. The suit as against defendant No,4 is dismissed in respect of the land sold to him by respondents Nos.1 and 2. No orders as to costs.
Order accordingly.
2002 YLR 1487 [Lahore] Bofore Ch. Ijaz Ahmad and Syed Sakhi Hussain Bukhari, JJ EMPLOYEES MANAGEMENT GROUP, PAK-SAUDI FERTILIZERS LIMITED through Authorised Representative---Appellant versus GOVERNMENT OF PAKISTAN IN THE MINISTRY OF PRIVATIZATION (PRIVATIZATION COMMISSION), PAK SECRETARIAT, ISLAMABAD through Secretary and 8 others---Defendants Objection Case, decided on 12th March, 2002.
(a) Law Reforms Ordinance (XII of 1972)--- ----S. 3---Intra-Court Appeal-Maintainability-Office objection at the time of filing of petition in High Court---Original civil jurisdiction, exercise of---Office objection was maintained by High Court---Intra-Court Appeal was filed against-the order of Single Judge of High Court-Validity--- Proceedings regarding deciding office objection were not akin to the original nature of proceedings referred to in S.3 of Law Reform Ordinance, 1972---Any order passed by High Court on office 'objection would not be an order in exercise of original civil jurisdiction amenable to Intra-Court Appeal---Intra-Court appeal was not competent in circumstances. [pp. 1488, 1489) A & C Begum D. F. Hassan v. Habib Bank Ltd., Lahore PLD 1974 Lah. 117 and Khushi Muhammad and others v. Agha Hassan Rua 1990 ALD 207(1) rel.
(b) Constitution of Pakistan (1973)- ----Art. 199---Constitutional jurisdiction---Civil jurisdiction---Constitutional jurisdiction though original jurisdiction is distinct from civil jurisdiction. [p. 1489] B Ahmad Khan v. The Chief Justice and the Judges of the High Court West Pakistan through the Registrar, High Court of West Pakistan, Lahore and 2 others PLD 1968 SC 171 ref. Dr. A. Basit for Appellant.
' Objection Case: ' Appellant filed Constitution 1 petition challenging the vires of Ordinance No,3 of 2000 known Privatization Commission Ordinance, 2000 through Constitutional petition in the office of this Court.
The Deputy Registrar (Judi.) raised following objection: "Please file it at proper Bench".
' The learned counsel of the petitioner re-filed the same in the office on 5-3-2002.
2. Additional Registrar (Judl.) on 6-3-2002 fixed 'the case before the Hon'ble Chief Justice as objection case for 7-3-2002. The objection was up held by the Hon'ble Chief Justice on 7-3-2002.
The appellant being aggrieved filed this Intra-Court appeal.
3. The learned counsel of the appellant submits that office objection as well as the order of the lamed Single Judge is not sustainable in the: eyes of Law on the following grounds:
(i) Head office of the respondent No,1 is situated at Alfalah Building, the Mall, Lahore. Therefore, the objection is in violation of section 20 Explanation No,2 of C.P.C.
(ii) Petitioner had already filed W.P. No,5865 of 1996, which had already been admitted for regular hearing. The same is pending before the Full Bench of this Court, when the question about the maintainability of the appeal was asked, learned counsel of the appellant submits that any order passed by the learned Single Judge in Constitutional petition is an order in exercise of original jurisdiction, thus in view of section 3 of Law Reforms, Ordinance, 1972 I.C.A. Would be competent. He further urged the bar contained by virtue of Proviso of section 3(2) of Law Reforms Ordinance is not attracted in the present case as the appellant has no right to tile appeal or revision to challenge the vires of the impugned Ordinance.
4. We have considered the contention of the learned counsel of the appellant and perused the record yourself. We are of the view that appeal is not competent as the learned Single Judge has not exercised its original civil jurisdiction at the time of passing the impugned order. In arriving to this conclusion we are fortified by the law laid down by the Division Bench of this Court in Begum D.F. Hassan v. Habib Bank Ltd. Lahore (PLD 1974 Lahore 117). The relevant observation is reproduced here under:--- "Furthermore, under the provisions of subsection (1) of section 3 an appeal is competent against an order passed by a Single Judge in exercise of this Court's original civil jurisdiction. Even if the appellant's argument was to be accepted that the jurisdiction exercised by the High Court while dealing with Constitutional petitions is an original jurisdiction, the jurisdiction exercised shall at best be its 'special original jurisdiction' and not its ' original civil jurisdiction' as observed by the Supreme Court while considering the nature of this Court's jurisdiction qua writ petitions dealt with in this Court. As appeals under the Ordinance and the Law Reforms (Amendment) Act, 1972 are competent only if they fall within the terms of the provisions of section 3. The present appeal must be held to be incompetent as it is not covered in terms. Either by the provisions of subsection (1) or by subsection (2) the above enactments."
It is also settled principle of Law that the Constitutional jurisdiction though original jurisdiction is distinct from the civil jurisdiction as observed by the learned Judges of the Supreme Court in Ahmad Khan v. The Chief Justice and the Judges of the High Court, West Pakistan, through the Registrar, High Court of West Pakistan, Lahore and two others. (PLD 1968 Supreme Court 171). The jurisdiction must obviously be described in Constitutional jurisdiction of an original kind, therefore, Intra-Court appeal is not 'maintainable as per principle laid down by the Division Bench of this Court in Khushi Muhammad etc. v. Agha Hassan Raza. (1990 ALD 207(1)). These proceedings are not akin the original nature of proceedings referred in section 3 of the Law Reforms Ordinance, 1972. It is not conceivable that any order passed by this Court on the office objection would be an, order in the exercise of original civil jurisdiction amenable to therefore, this appeal is incompetent and the same is dismissed.