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Petitioner: PATRICIA ANNE PATEL VS Respondent: GERALD COWLING PATEL
Court Name: Sindh High Court Judge(s): Abdul Qadir Sheikh, Durab Patel, Muhammad Ali Sayeed Title: PATRICIA ANNE PATEL vs GERALD COWLING PATEL Case No.: Reference No. 1 of 1968, Date of Judgment:1971-10-11 Reported As: PLD 1972 Karachi 444 Result: Decree confirmed
JUDGMENT
JUDGMENT JtrDomrr MUHAMIIAD Am SAYBBD, 1.-The petitioner, claiming to be a Christian of the Catholic faith, applied to the learned District Judge of Karachi for dissolution of her marriage with the appellant under section 10 of the Divorce Act (No. 1V) of 1869. The petition was admitted by the District Judge and transferred to an Additional District Judge for trial. The learned Additional District Judge, by his judgment dated 22-12-1967, decreed the dissolution of the marriage. This decree has now come up before us for confirmation under section 17 of the Divorce Act. 2. A preliminary question of some interest which arose in this as well as other divorce cases before us was with regard to the competence of the District Court of Karachi to entertain petitions for dissolution of marriage under section 10 of the Divorce Act. This section enables a husband or a wife to present a petition to the 'District Court' or the High Court praying that the marriage may be dissolved. It was under this section that the present petition was filed in the District Court at Karachi. The term 'District Court' has been defined by section 3 (3) of the Divorce Act as followst "'District Courts' means, in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this Act, the husband and wife reside or last resided together." The terms "District Judge" used in the foregoing provision has also been the subject of a definition in section 3 (2) of the same Act and is defined as meaning in a Province, a Judge of a principal Civil Court of original jurisdiction, however designated. By reading the two definitions together, it would seem that, regardless of the name by which it is called, the District Court is that Court which , is the
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principal civil Court of original jurisdiction. The term 'District Judge' has also been defined by the General Clauses Act, as meaning "the Judge of a Principal Civil Court of Original Jurisdiction" but excludes the High Court in the exercise of its ordinary or extraordinary original civil jurisdiction from the purview of the definition. Since, however, the Act with which we are now concerned provides the concerned definitions it will not be necessary for us to refer to the latter definition save In so far as it is indicative of consistency in legislative intendment. 3. In the context of the above definition of the District Court the qucation which immediately arises for consideration is whether the District Court at Karachi is the Principal Civil Court of Original Jurisdiction for the civil district of Karachi? In relation to a Court with limitless pecuniary jurisdiction it could perhaps have been assumed that it was a principal civil Court of Original Jurisdiction. We were however impelled in the instant case to examine this question with particular reference to Karachi since the pecuniary jurisdiction of the District Court at Karachi was limited to a maximum of Rs. 25,000 and it appeared rather absurd that a Court with such limits on its jurisdiction should be considered as the principal civil Court of Original Jurisdiction, notwithstanding its designation as such. The term `Principal Civil Court of Original Jurisdiction' has not been defined in the Divorce Act nor in the General Clauses Act. It will, therefore, be necessary to embark on a short legislative history of the establishment of the District Court at Karachi. 4. On 21st of August 1926, the Sind Courts Act being Bombay Act No. V1I of 1926 was passed. This Act came into force on the 15th of April 1940. Section 22 of the Act made provision for the establishment of District Courts in civil districts other than Karachi and designated the District Court as the principal Court of Original Civil Jurisdiction. It will be useful to reproduce this section 22.-(1) There shall be In each civil district other than that of Karachi a district Court and the (a) Provincial Government shall appoint a district Judge to each such Court. (2) The district Court shall be the principal Court of Original Civil Jurisdiction in the civil district." Karachi itself was however governed by section 8 of the Sind Courts Act which, before 1955, was in the following terms: "The Chief Court shall be the highest civil Court of appeal and revision and the highest Court of criminal appeal of Original Jurisdiction for the civil district of Karachi and shall be the Court of Session and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi." It will be seen from a perusal of the foregoing provisions that whilst in every other civil district of the province the District Court in the district was pronounced to be the principal civil Court of Original Jurisdiction, in relation to Karachi it was the Chief Court of Sind which exercised the jurisdiction of a Principal Civil Court of Original Jurisdiction and was named as such. 5. In 1948 the area constituting Karachi ceased to form part of the Province of Sind and began to be centrally administered under the Pakistan (Establishment of the Federal Capital) Order known as G. G. O. No. 15 of 1948. Section 9 of the said Order provided that the Chief Court of Sind shall continue to be the High Court fot Karachi and shall retain such jurisdiction as it had immediately before the coming into force of the said Order. In other words, the Chief Court of Sind continued to be the principal civil Court of original jurisdiction in relation to Karachi.. On 11th October, 1955 Sind Ordinance called the Sind Laws (Adaptation, Revision, Repeal and Declaration) Ordinance (No. V of 1955) was passed to adapt and revise the then existing laws applicable to Sind. The Sind Courts Act of 1926 was one of the several laws which came in for amendment by the aforesaid Ordinance. Section 8 of the Sind Courts Act cuss amended so as to exclude therefrom the words "and the principal civil Court of original jurisdiction for the civil district of Karachi and shall be the Court of Session and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi". Furthermore in subsection (1) of section 22 of the said Act, the words "other than that of Karachi" were omitted. These amend--ments were obviously necessary in the
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application of the Sind Courts Act to the area constituting the Province of Sind and their operation was confined only to the said area. So far as Karachi was concerned the said amendments had no effect since only the centre could have validly legislated in respect thereto with the result that the Sind Courts Act continued to apply to Karachi without any change. 5-A. The next law in the gamut of legislation which calls for notice Is the Karachi Courts Ordinance, XXIX of 1955. This Ordi--nance was to have come Into force on a date to be appointed by the Provincial Government. No such date was ever notified by the Government with the result that the Ordinance remained a dead letter and was never enforced. Nonetheless It will be useful to notice a few of its relevant provisions. Section 3 of the Ordinance provided for the establishment of two classes of civil Courts in Karachi, namely, (i) the Court of the District Judge and (ii) the Courts of the Subordinate Judges. Section 5, which Is an important provision in the context of the present discussion, may be reproduced "5. The Court of District Judge to be the Court of original dvit Jurisdiction-- (1) The Court of the District Judge shall be deemed to be the District Court or principal civil Court of original jurisdic--tion. (2) Except as otherwise provided by any enactment for the time being in force the Court of District Judge shall have jurisdiction in original civil suits without limit as regards the value." Two outstanding features of the foregoing provision were firstly that the Court of the District Judge of Karachi was to be a Court of unlimited pecuniary jurisdiction and secondly the said Court was expressely deemed to be the District or the Principal civil Court of original jurisdiction." I have focussed attention to the above features in an attempt to sh uw that the designation of the Court of the District Judge to be the District Court or the princi--pal civil Court of original jurisdiction is wholly consistent with the fact that it was intended by the aforesaid Ordinance to be a Court of unlimited pecuniary jurisdiction. However, as observed eariler, the said Ordinance never saw the light of the day. 6. Meanwhile on the 3rd of October 1955 the integration of the multiple Provinces of West Pakistan under the establishment of West Pakistan Act, 1955 took place. The only provision of the said Act that need be noticed for the purposes of the present case is section 7 which empowered the Governor-General to establish by order a single High Court for the Province of West Pakistan, replacing the High Court at Lahore, the Chief Court of Sind and the Judicial Commissioner's Court of the ~orth--Western Frontior Province. The single High Court of West Pakistan was to exercise jurisdiction in respect of the whole Pro--vince of West Pakistan and was to have the powers and authority as enjoyed by the High Court at Lahore. Pursuant to the afore--said provision, the Governor-General made and promulgated on 9th of October, 1955 the High Court of West Pakistan (EStablish--ment) Order, 1955 known as Governor-General's Order No. XIX of 1955. This order came into force on the 14th of October 1955 and proceeded to establish the High Court of West Pakistan as visualised in section 7 of the Establishment of West Pakistan Act with such jurisdiction, powers and authority as held by the High Court at Lahore immediately before the commencement of the said Order. Section 5 of the Order, however, preserved and continued the original civil jurisdiction formerly exercised by the Karachi Bench under section 8 of the Sind Courts Act, with the result that the Bench here continued to be the principal civil Court of original jurisdiction for Karachi. 7. On 23rd March 1956, the first Constitution of the Islamic Republic of Pakistan came into force and soon thereafter on 20th of April 1956 the President promulgated the Karachi Courts Order being President's Order No. 2 of 195 ?~. Section 3 of this Order sought to establish two classes of civil Courts at Karachi, (i) the Court of the District Judge and (ii) the Courts of the sub--ordinate Judges. This section, it must be said, was identical with section 3 of the unenforced Karachi Courts Ordinance No. XXIX of 1955. But section 4 of the President's Order No. 2 of 1956 made a substantial departure from the corresponding
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provision (also section 4) of the Karachi Court's Ordinance No. XXIX of 19.15. It will be necessary to reproduce these two provisions Section 4 of the Karachi Courts Ordinance XXIX of 1955 "4. Appointment of District Judge.-The Provincial Govern--ment shall appoint a person to be a District Judge for the Province of Karachi. Section 4 of the Karachi Courts Order No. II of 1956 "4. Appointment of District Judge.-(1) The Central Govern--ment shall appoint a person to be the District Judge for the Federal Capital. (2) Unless the Central Government by order under the pro--viso to subsection (2) of section 22 of the Sind Courts Act, 1926 (Born Act VII of 1926), otherwise directs, the Court of the District Judge shall not have Jurisdiction in original civil suits and proceedings wherein the subject-matter exceeds twenty-five thousand rupees in amount or value." The points of distinction that emerge between the two foregoing provisions may be analysed as under s Karachi Courts Ordinance of 1955 : (1) The Court of the District Judge to have unlimited pecuni--ary jurisdiction. (ii) Court of District Judge to be deemed to be the District Court, or the principal civil Court of original jurisdiction. Karachi Courts Order No. 11 of 1956: (1) The Court of the District Judge not to have jurisdictions in original civil suits and proceedings wherein the subject. Matter exceeds twenty-five thousand rupees in amount or value. (ii) The Court of the District Judge is neither termed as tha District Cotart nor is it deemed to be the principal civil Court of original jurisdiction. 8. It at first, seemed that the avoidance in the Karachi Courts Order of 1956 of the use of terms such as the `District Court' or the `Principal Civil Court of Original Jurisdiction' was meaningful inasmuch as the Court of the District Judge of Karachi being reduced to a Court of limited jurisdiction it could not properly be called a District Court - a term invariably used to signify the principal civil Court of original jurisdiction. But section 2 of the Karachi Courts Order, 1956 effected important amendments in the Sind Courts Act. The words "other than that of Karachi," appearing in subsection (1) of section 22 of Sind Courts Act were omitted with the result that the whole of the said section in the form written below, became applicable to Karachi. 22.-(1) There shall be in each civil district a district Court and the Provincial Government shall appoint a District Judge to each such Court, (2) The district Court shall be the principal Court of original civil jurisdiction in the civil district. Thus the seeming wisdom in omitting to use the terms "District Court" and "the principal civil Court of original jurisdiction" in section 4 of the Karachi Courts Order No. II of 1956 lost its significance when viewed in juxtaposition with the amendments effected by the same Order in section 22 of the Sind Courts Act. Furthermore a proviso was added by the said Order to sub--section (2) of section 22 of the Sind Courts Act in the following terms "Provided that, unless the Central Government by order Aerwise directs, the District Court of Karachi shall not Dave jurisdicti,)n in original civil suits and proceedings wherein the subject-matter exceeds twenty-five thousand rupees in amount or value." As would appear from a perusal of the above proviso, the _term `District Court' was used to denote what sections 3 and 4 of the Karachi Courts Order, 1956 had referred to as the Court of the District Judge. This would further show that the frame of section 4 of the said Order cannot be construed as a clear intention to deny to the Court of the District Judge of Karachi the status of a District Court or of a principal civil Court of original jurisdiction.
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9. The other important amendment made by the Karachi Courts Order, 1956 was in relation to section 8 of the Sind Courts Act. This section, before the amendment, stood in the following form "The Chief Court shall be the highest civil Court of appeal and revision and the highest Court of criminal appeal and revision for Sind and the principal civil Court of original jurisdiction for the civil district of Karachi and shall be the Court of Sessions and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi." The effect of the amendment was that for the words "and shall be the Court of Session and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi", the words "in respect of suits and proceedings wherein the subject-matter in amount or value exceeds twenty--five thousand rupees or such sum as the Central Government may, by order under the proviso to subsection (2) of section 22 prescribe" wore substituted. The amended section 8 would read "The Chief Court shall be the highest civil Court of appeal and revision and the highest Court of criminal appeal and revision and the principal civil Court of original jurisdiction for the civil district of Karachi in respect of suits and proceed--ings wherein the subject-matter in amount or value exceeds twenty-five thousand rupees or such sum as the Central Govern--ment may, by order under the proviso to subsection (2) of section 22 prescribe." The obvious effect as gleaned from the foregoing amendments of sections 8 and 22 of the Sind Courts Act was that the Court of the District Judge of Karachi was also the District Court and the principal civil Court of original jurisdiction for Karachi in respect of Suits and proceedings wherein the subject-matter in amount or value did not exceed twenty-five thousand rupees. In respect, however, of all suits and proceedings whose amount or vaule exceeded twenty-five thousand rupees the Bench of the High Court of West Pakistan at Karachi was deemed to be the principal civil Court of original jurisdiction. 10. With effect from the 1st of July 1961, Karachi became merged into the Province of West Pakistan under the West Pakistan Administration (Merger of the Federal Territory of Karachi) Order, (President's Order No. 9 of 1961). This merger had no effect on the set up and status of the Karachi Courts, but it is necessary to take note of the merger since thereafter the legislative and executive authority in respect of Karachi passed on to the Province. 11. On 8th January 1962 the Governor of West Pakistan promulgated Ordinance No. Il of 1962 known as the West Pakistan Civil Courts Ordinance of 1962. This Ordinance consoli--dated and unified the law relating to civil Courts in the whole of the Province of West Pakistan. Section 3 of the Ordinance provided for the establishment of three classes of civil Courts, namely, the Court of the District Judge, the Court of the Additional District Judge and the Court of the Civil Judge. By section 7 the Court of the District Judge was assigned unlimited pecuniary jurisdiction. While the Additional District Judges were to discharge such functions of a District Judge as were assigned to them by the District Judge; the jurisdiction and powers of the Civil Judges were to be determined by the High Court. By section 14 all the civil Courts were to be subordinate to the High Court and, subject to its general superintendence and control, the District .Fudge was given control over all civil Courts within the local limits of his jurisdiction. By section 15 the District Judge was given the power to distribute the civil business among the Courts under his control. Appeals from orders and decrees passed by Civil Judges in suits whose valuation did not exceed twenty-five thousand rupees lay to the Dictrict Judge. 12. The West Pakistan Civil Courts Ordinance of 1962 repealed amongst others, the following laws which were in some way applicable to Karachi: (i) The Sind Courts Act, 1926; applicable to the District of Karachi-the whole except section 8. (ll) The Karachi ~ Courts Order of 1956-the whole except clause 4 (2).
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Besides the above, the said Ordinance also repealed all the Acts and Regulations setting up civil Courts in the former provinces of West Pakistan. I shall now proceed to examine the effect of continuing section 8 of the Sind Courts Act, 1926, in relation to Karachi and clause 4 (2) of the Karachi Courts Order, 1956, and will also consider the effect of the repeal of the other laws. 13. After the amendment effected by the Karachi Courts Order, 1956, section 8 of the Sind Courts Act, as already seen, operated to constitute the Karachi Bench of the High Court of West Pakistan as the principal civil Court of original jurisdiction for the civil district of Karachi in respect of suits and proceedings wherein the subject-matter in amount or value exceeded twenty--five thousand rupees. This position of the High Court has been continued by the Civil Courts Ordinance, 1962. The effect of preserving clause 4 (2) of the Karachi Courts Order, 1956, is to continue the limitation on the pecuniary jurisdiction of the Court of the District Judge of Karachi to a maximum of twenty-five thousand rupees. But the Karachi Courts Order, it will be recalled, had also amended section )2 of the Sind Courts Act so as to make it applicable to Karachi. By this processr the District Court at Karachi had been admitted to the status of a principal civil Court of original jurisdiction and, section 22 of the Sind Courts Act read with its amended section 8 gave room for the conclusion that, within its limited pecuniary jurisdiction, the Court of the District Judge of Karachi was the principal civil Court of original jurisdiction for the civil district of Karachi. What has, however, happened is that West Pakistan Civil Courts Ordinance, 1962, repealed section 22 of the Sind Courts Act even in its application to Karachi. Furthermore no provision, whatsoever, has been made by the said Ordinance designating the Courts of the various District Judges as the principal civil Courts of original jurisdiction. This omission, it may be emphasised, is not only in relation to Karachi but to the whole complex of the Courts of District Judges sought to be established by the Civil Courts Ordinance. In this view of the prevailing situation the important question which arises for determination is whether the Courts of the District Judges established by and under the West Pakistan Civil Courts Ordinance, 1962, can be deemed to be the principal civil Courts of original jurisdiction notwithstanding the failure of the said Ordinance to designate or describe them as such. 14. The term `principal civil Court of original jurisdiction' has not by itself been the subject of a statutory definition. But a review of contemporary legislative history concerning the present day pattern of the subordinate judicial set up will show that the status of a Court of the District Judge as being a principal civil Court of original jurisdiction was not referable merely to its role as a Court having control of the subordinate judiciary but was the product of a clear, conscious and express designation in all the statutes and enactments providing for its establishment. Thus section 5 of the Bombay Civil Courts Act (No. XIV) of 1869 has provided that: "There sliall be in each district a District Court presided over by a Judge to be called the District Judge", and section 7 of the same Act laid down that "The District Court shall be the principal Court of original civil jurisdiction in the district, within the meaning of the Code of Civil Procedure". Section 18 of the Punjab Courts Act (No. Ill) of 1914 provided, inter afa, for the establishment of the Court of the District Judge and section 24 of the said Act stipulated that "the Court of the District Judge shall be deemed to be the District Court or principal civil Court of original jurisdiction in the district." In the year 1918 the Punjab Courts Act was re-enacted as the Punjab Courts Act (No. VL of 1918). Section 18 of this Act also provided for the establishment, inter alia, of the Court of the "District Judge" and section 24 once again laid down that "the Court of the District Judge shall be deemed to be the District Court or principal civil Court of original jurisdiction in the district." The Punjab Courts Act of 1918 is one of the Acts which the West Pakistan Civil Courts Ordinance of 1962 repealed in whole. Reference may also be made to the North-West Frontier Province Law and Justice Regulation (No. V1I of 1901). Section 47 of this Regulation provided for the establishment of
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the Court of the District Judge and section 53 stated that "save as otherwise provided by any enactment for the time being in force, the Court of the District Judge shall be deemed to be the District Court or principal civil Court of original jurisdiction in the district." The same position was maintained in 'the N.-W. F. P. Courts Regulation (No. I) of 1931 and the N.-W. F. P. Courts Act (No. X of 1952). Since the latter is one of the Acts which the West Pakistan Civil Courts Ordinance repealed in whole it will be useful to notice its relevant provisions. Section 19 of the N.-W. F. P. Courts .Act of 1952 provided that "there shall be in each civil district a District Court and the Provincial Government in consultation with the Chief Court shall appoint a District Judge to each such Court". Section 20 laid down that "the District Court shall be the principal Court of original civil jurisdiction in the civil district." I have already referred to similar provisions in the Sind Courts Act of 1926. It can be shown by reference to numerous other enactments made in various parts of India that wherever the law provided for the establish--ment of a District Court or the Court of the District Judge it also laid down that the said Court was or was to be deemed to be the principal civil Court of original jurisdiction. In fact such designation appears to have been both necessary and essential…
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