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Petitioner: ABDUL SAMAD VS Respondent: MUHAMMAD ALI AND ANomna
Court Name: Lahore High Court Judge(s): Karam Elahi Chauhan, Munawar Elahee Rana Title: ABDUL SAMAD vs MUHAMMAD ALI AND ANomna Case No.:First Appeal No, 40 of 1963 First Appeal No, 40 of 1963 Writ Petition No, 793 of
JUDGMENT
Reported As: PLD 1977 Lahore 687 Result: Petitions dismissed Judgment JUDGMENT ' KARAM ELAHEE CHAUHAN, J.-Abdul Samad (hereinafter called the plaintiff) filed a civil suit for a perpetual injunction against (1) Mohammed All ; (2) Mohammed Amin; and (3) Saghir Ahmed (hereinafter called the defendants) so as to restrain them from changing possession of property/ building No, S-38-R-207 situated outside Mori Gate, Lahore, which was the subject-matter of the suit. Defendant No, 3 Saghir Ahmed, it may be mentioned, was added as a party later on. In that suit the plaintiff filed an application under Order XXX1X, rules 1 and 2 of the Code of Civil Procedure (Act V of 1908) praying for a temporary injunction on the same lines meanwhile. A temporary injunction in the form of a status quo was issued by the learned Civil Judge on 10-9-1973. Later on due to certain complications, the details whereof are not necessary to be mentioned here, the learned Civil Judge on 11-10-1973 passed an order sealing the property in dispute under section 94 of the Code of Civil Procedure. Against that order two appeals were filed; one by defendants 1 and 2 and the other by defendant No, 3 in the Court of the learned District Judge, Lahore, who assigned the same to the learned Additional District Judge, Lahore. The learned Additional District Judge on prayer of the appellants concerned treated and dealt with those appeals as revisions and for the reasons contained in his order dated 16-2-1974 set aside the order of the learned Civil Judge impugned before him. The plaintiff has come up in writ petition under Article 199 of the Constitution against the last mentioned order of the learned Additional District Judge and his learned counsel has raised a number of points to which we will presently advert. 2. Learned counsel for the plaintiff-petitioner referred us to section 2(4) of the Code of Civil Procedure (Act V of 1908) where it is written that "in this Act, unless there is anything repugnant in
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the subject or context, "district" means the local limits of the jurisdiction of a principal civil. Court of original jurisdiction (hereinafter called a "District Court". And includes the local limits of the ordinary original civil jurisdiction of a High Court". In section 2(8) it is similarly written that "Judge' means the Presiding Officer of a civil Court". He then referred to section 115 of the Code of Civil Procedure which is headed as "Revision". Subsection (1) of that section deals with revisional powers of the High Court whereas subsection (2) with those of the District Court and lays down that "the District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court". Reference was also made by the learned counsel to section 3(15) of the General Clauses Act X of 1897 which states that "in this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context, "District Judge" shall mean the Judge of a principal civil Court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction". To the same strain is the definition of this word as contained in section 2(20) of the West Pakistan General Clauses Act VI of 1956. However, in that Act section 2(21) defines District Court to mean "the principal civil Court of original civil jurisdiction of a district; but shall not include the High Court in the exercise of its ordinary or extraordinary original civil jurisdiction". After referring to these provisions of law, learned counsel argued that the Court of the District Judge was the principal civil Court of original jurisdiction and the power of revision under section 115(2) of the Code of Civil Procedure was conferred on that Court and that Court alone, and as such, the Court of an Additional District Judge which, according to him, was not a principal civil Court of original jurisdiction could not have exercised that jurisdiction. 3. At this stage learned counsel took us elaborately through the provisions of the West Pakistan Civil Courts Ordinance II of 1962 (hereinafter called the Ordinance), which was enacted on 8-1-1962 "to amend and consolidate the law relating to civil Courts in the Province of West Pakistan". Chapter II of this Ordinance (which comprises of sections 3 to 16) deals with "civil Courts". Section 3 which is headed as "Classes of Courts" states that "besides the Courts of Small Causes established under the Provincial Small Cause Courts Act. 1887, and the Courts established under any ether enactment for the time being in force, there shall be the following classes of civil Courts, namely, (a) the Court of the District Judge; (b) the Court of the Additional District Judge; and (c) the Court of the civil Judge". Section 4 is headed as "Civil Districts" and states that "for the purposes of this Ordinance, Government may. By notification, divide the Province into civil districts, fix the limits of such districts and determine the headquarters of each such district". Section 5 deals with "District Judges" and lays down that "Government shall, in consultation with the High Court, appoint as many persons as it thinks necessary to be District Judges and post a District Judge to each district: Provided that the same person may be appointed to be District Judge of two or more districts". Section 6 deals with "Additional District Judges" and states that (1) Government may, in consultation with the High Court, appoint as many Additional District Judges as may be necessary. (2) An Additional District Judge shall discharge such functions of a District Judge as the District Judge may assign to him, and in the discharge of those functions he shall exercise the same powers as the District Judge". Section 7 deals with "Original jurisdiction of District Judges in suits" and states that "except as otherwise provided by any enactment for the time being in force, the Court of the District Judge shall have jurisdiction in original civil suits without limit as regards the value". Sections 8 to 13 deal with Civil Judges. Section 14 is headed as "Control of Courts and Presiding Officers" and lays down that "(I) all civil Courts in the areas to which this Ordinance extends shall be subordinate to the High Court, and subject to the general superintendence and control of the High Court, the District Judge shall have control over all civil Courts within the local limits of his jurisdiction. (2) The posting of Civil
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Judges shall be made by the High Court". Section 15 is headed as "Power to distribute business" and states that "notwithstanding anything contained in the Code of Civil Procedure, 1908, every District Judge may by written order direct that any civil business cognizable by his Court and the Courts under his control shall be distributed among such Courts in such manner as he thinks fit: Provided that no direction issued under this section shall empower any Court to exercise any powers or deal with any business beyond the limits of its jurisdiction". Section 16 deals with "Delegation of powers by District Judges" and lays down that "a District Judge may, with the previous sanction of the High Court, delegate, in respect of any specified portion of the district, to any Civil Judge in the district, his powers under sections 14 and 15 of this Ordinance and the powers of the District Court under section 24 of the Code of Civil Procedure, 1908, and such powers may be exercised by such Civil Judge subject to the general control of the District Judge". Chapter III, which comprises of sections 17 and 18 deals with "Jurisdiction in Civil Appeals". Section 17 pertains to "Appeals from District Judges or Additional District Judges" and lays down that "(1) Save as otherwise provided by any enactment for the time being in force, an appeal from a decree or order of a District Judge or Additional District Judge exercising original jurisdiction shall lie to the High Court. (2) An appeal shall not lie to the High Court from a decree or order of an Additional District Judge in any case in which, if the decree or order had been made by the District Judge, an appeal would not lie to that Court". Section 18 deals with "Appeals from Civil Judges" and lays down that "(1) save as aforesaid, an appeal from a decree or order of a Civil Judge, shall lie-(a) to the High Court if the value of the original suit in which the decree or order was made exceeds twenty-five thousand rupees: and (b) to the District Judge in any other case. (2) Where the function of receiving any appeals which lie to the District Judge under the last preceding subsection has been assigned to an Additional District Judge, the appeals may be preferred to the Additional District Judge. (3) The High Court may, by notification, direct that appeals lying to the District Judge from all or any of the decrees or orders passed in any original suit by any Civil Judge shall be referred to such other Civil Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly, and the Court of such Civil Judge shall be deemed to be a District Court for the purposes of all appeals so preferred. Chapter IV is headed as "Supplemental provisions" and comprises of sections 19 to 28. Section 21 deals with the "temporary vacancy of office of District Judge" and lays down that "in the event of the death of a District Judge or of his being prevented from performing his duties by iillvess or other cause, the Additional District Judge, if any, or in the absence of the Additional District Judge from the district, the seniormost of the Civil Judges at the headquarters, shall assume charge of the district without interruption of his ordinary jurisdiction, and while so in charge shall perform the duties of the District Judge with respect to the filing of suits and appeals, receiving pleadings, execution of processes and the like and shall be designated Additional District Judge or Civil Judge, as the case may be, in charge of the district and shall continue in such charge until the office of the District Judge has been resumed or assumed by an officer duly appointed thereto". Section 22 is headed as "Delegation of powers of the District Judge" and states that "any District Judge leaving the headquarters and proceeding on duty to any place within his jurisdiction or in the event of his absence from the district on leave, may delegate to the Additional District Judge or in the absence of an Additional District Judge to the seniormost of the Civil Judges at the headquarters, the power of performing any of the duties enumerated in section 21 that may be emergent; and such officer shall be designated Additional District Judge or Civil Judge, as the case may be, in charge of the district". 4. After referring in detail to the aforesaid provisions of the Ordinance learned counsel made out the following points.. (a) that section 3 of the Ordinance itself contemplates that the Court of the District Judge is different from the Court of the Additional District Judge, inasmuch as, both these Courts are
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separately mentioned in the aforesaid enactment ; (b) that sections 3, 4 and 7 suggest that in a civil district it is the Court of the District Judge alone which shall have jurisdiction in original suits without limit as regards the value. From that point of view, it was argued, that the Court of the District Judge alone shall be the civil Court of original jurisdiction; (c) that section 14 indicates that all civil Courts (i,e, Court of the District Judge, Court of the Additional District Judge and the Court of a Civil Judge) shall be subordinate to the High Court, and subject to the general superintendence and control of the High Court, the District Judge shall have control over the civil Courts within the local limits of his jurisdiction. Learned counsel argued that this shows that the Court of the Additional District Judge is rather under the control of the District Judge and not in its own nature Court of the District Judge itself, and from that point of view, also is not a principal civil Court of original jurisdiction ; (d) that similarly section 15 authorises that every District Judge may by written order direct that any civil business cognizable by his Court and the Courts under his control shall be distributed among such Courts in such manner as he thinks fit. According to the learned counsel this also shows that the principal civil Court of origin jurisdiction remains the Court of the District Judge and that the Court of the Additional District Judge is simply a recipient of such business of the Court of the District Judge which may be distributed to him ; (e) that whereas section 16 authorises a District Judge to delegate his powers under section 24 of the Code of Civil Procedure to, any Civil Judge, there is no such authority for delegating powers, of section 115(2), Code of Civil Procedure to any Additionali District Judge; (f) that similarly section 17(1) and section 18(2) suggest that the Additional District Judge might exercise original jurisdiction or appellate jurisdiction, but there is no indication that he can exercise revisional jurisdiction also under section 115(2), Code of Civil Procedure. Again whereas under section 18(3) in certain cases Court of a nominee Civil Judge may be deemed to be a District Court, there is no such deeming fiction to treat the Court of the Additional District Judge as a District Court. The same, it was submitted, was the corollary of section 21 and section 22 where in case of a temporary vacancy of the office of a District Judge, or when he is absent, an Additional District Judge may assume charge of the district and perform duties of the District Judge with respect to the filing of suits and appeals, receiving pleadings, execution of processes and the like. Learned counsel submitted that there is no mention in this section of the revisional functions under section 115(2) of the Code of Civil Procedure, with the result that those functions in no case can be exercised by an Additional District Judge. 5. We have given due consideration to the above submissions and are prepared to agree that "the Court of the District Judge" as it is so described in section 3 of the Ordinance read with section 7 is the principal civil, Court of original jurisdiction, and as such, is the "District Court", but we do not endorse the plea that the Additional District Judge (or to be more precise the Court of the Additional District Judge) was not authorised or competent to hear or dispose of a revision under section 115(2) of the Code of Civil Procedure when the same was assigned to him by the District Judge. Before proceeding further, we may refer to a case reported in Behar' Lai Bulaki Ram v. Kundan Lal and another (1) (this, case is also reported in AIR 1922 P C 361 but the facts in that report are scanty which quotes a wrong section of the Companies Act and is misleading therefore, we have made reference to 27 C W N). The said case pertains to the Indian Companies Act VI of 1882 and the Indian Companies Act VII of 1913. The provisions of both these Acts, as pointed out by the Privy Council, were quite similar on the subject. We have noticed that in section 3 of Act VI of 1882 it was written that "Court" means the Principal Civil Court of original jurisdiction in a district, and includes the High Court in the exercise of its ordinary original civil jurisdiction". It was further written that "District Court" means the principal civil Court of original jurisdiction in a district, but
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does not include the High Court in the exercise of its ordinary original civil jurisdiction". Part IV of that Act which comprised of sections 124 to 219 dealt with winding up of companies and sections 128 to 140 dealt particularly with winding up by Court. In section 130 it was written that "the expression "the Court" as used in this Part of this Act shall mean the principal Court having original civil jurisdiction in the place in which the registered office of the Company is situate, unless in the regulations for the management of the Company it shall be stipulated that the Company, if wound up, shall be wound up by the High Court of judicature at Fort William, Madras or Bombay (as the case may be), or by the Chief Court of the Punjab, in which case the word "Court" shall mean the said High Court or Chief Court (as the case may be) in the exercise of its original civil jurisdiction " A company by the: name of Diamond Jubilee Flour Mills Company was wound up by the (1) 27 C W N 509 ' learned Additional District Judge, Delhi on 31.7-1914. Thereafter some other orders regarding disposal by sale or otherwise of that company were passed by the Additional District Judge on 15- 3-1920. From that decision an appeal was made to the Punjab Chief Court which was heard by Shadi Lal, J., who set aside the relevant sale order. At the conclusion of his judgment, the learned Judge of the Punjab Chief Court observed as follows:- "Some doubt has been thrown upon the competency of an Additional Judge to exercise the special jurisdiction conferred by the Indian Companies Act, the reason of the doubt being that the statute confers the jurisdiction upon the District Court and does not contemplate an assignment of proceedings by the latter to the Court of an Additional Judge. It is unnecessary to make a pronouncement upon the subject, but it is desirable that the validity of the proceedings should no longer be open to doubt. Accordingly, I order that the proceedings in the liquidation of the Diamond Jubilee Flour Mills Company be hereafter conducted by the District Judge, Delhi." ' Against the judgment of the Punjab Chief Court the matter went up in appeal to the Privy Council who dealt with the subject in hand and held as "This is an appeal from an order of the Chief Court of the Punjab made in the matter of the winding up of the Diamond Jubilee Flour Mills Company, and reversing an order of the Additional District Judge at Delhi. ' In the course of the proceedings in the Chief Court a point was raised which the Judge thought it unnecessary to decide, but which in their Lordships' view should be decided. It was contended on behalf of the creditor objecting to the order in question, that the Additional District Judge had no jurisdiction, and that all orders made in the winding-up of a Company must be made by the District Judge. Their Lordships think that this is not so. When this matter began, the Indian Companies Act of 1882 was in force, but as it progressed the existing Act, being the Indian Companies Act, 1913, came into operation. For this purpose, however, the two Acts are so similar that no distinction need be made. ' It is not disputed that under the Act the District Court has jurisdiction, the only question is whether that jurisdiction is confined to the District Judge or can be exercised also by an Additional District Judge. ' This matter appears to be settled by the Punjab Courts Act, 1888, which by section 6 provides as follows `The following section shall be added to the Punjab Courts Act, 1884, namely:- 75.-(1) When the business pending before any Divisional Court consisting of one Judge, or before the Court of any District Judge, requires the aid of an Additional Judge for its speedy disposal, the local Government may appoint to the Court an Additional Divisional Judge or an Additional District Judge, as the case may be. 42) An Additional Judge so appointed shall discharge any of the functions of a Divisional Judge or District Judge, as the case may be, which the Divisional Judge or District Judge may assign to him,
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and .Shall, as regards the discharge of those functions and subject to the provisions of the next following subsection, be deemed, for the purposes of this Act, to be a Divisional Judge or District Judge . ' There is no doubt that the District Judge had assigned to the Additional District Judge all the functions of supervising this liquidation. He discharged these functions apparently without any objection for a considerable time and made many orders; and no point was taken till this appeal was made at an advanced stage of the liquidation. He had jurisdiction, and the question which remains to be decided is the propriety of the order which he made." ' Applying the ratio of the above precedent to the facts and circumstances of the present case, it is not disputed that "the Court of the District Judge" (being the District Court) had the jurisdiction to decide the revision. It is again not disputed that the District Judge was the Judge of the principal civil Court of original jurisdiction who obviously was to perform functions of that Court Le. Of the District Court. Section 6(2) of the Ordinance indicates that the District Judge could assign his functions to an Additional District Judge who in the discharge of those functions shall exercise the same powers as the District Judge. Similarly under section 15 the District judge can by a written order direct that "any civil business cognizable by his Court and the Courts under his control" shall be distributed among such Courts in such manner as he thinks fit. No doubt the distribution is not to authorise a Court to which business is distributed to exercise any power deal with any business beyond the limits of its jurisdiction but while applying this limitation to an Additional District Judge when any business is so delegated to him it will mean that just as his powers will be the same as of the District Judge his limitation will also be the same. We are in no manner of doubt that to hear a revision under section 115(2) of the 4 Code of Civil Procedure is one of the "functions" of the District Judg within the scope of the word "functions" as used in section 6(2) of the Ordinance. Again the exercise of revisional jurisdiction under section 115(2), Code of Civil Procedure by the District Judge i,e, the Court of the District Judge falls within the phrase any civil business cognizable by his Court". It is not disputed that the Court of the Additional District Judge is under the control of the District Judge. Consequently he can safely assign this "function" and distribute this part of his "civil business" to an Additional District Judge and this distribution of civil business as laid down in section 15 of the Ordinance he can do notwithstanding anything contained in the Code of Civil Procedure, 1908. It was argued that section 15 deals with purely ministerial business of the District Court or District Judge. This is not correct. The terms "cognizable", "power" and "jurisdiction" rather show that it covers judicial matters and functions as well. This is a complete answer to any objection to the authority and jurisdiction of the Additional District Judge to decide the revision petition assigned, marked, sent or, distributed to him by the District Judge. 6. Section 6(2) of the Ordinance has been reproduced above in extenso. Careful perusal of that subsection shows that it makes two provisions viz - (a) that an Additional District Judge shall discharge such functions of a District Judge as the District Judge may assign to him; (b) that in the discharge of those functions he shall exercise the same powers as the District Judge. The earlier portion contemplates that an Additional District Judge is to discharge so much of the functions of the District Judge as may be ' assigned to him. This is so far as what matters can be assigned to him. The latter portion then indicates as to what will be the powers of an Additional District Judge when he is discharging the so assigned functions of the District Judge. This latter portion, according to the learned counsel for the contesting respondents, could have two meanings. Firstly that he can exercise the same powers as the District Judge can or has in those matters. Secondly that while discharging those functions his 'status' shall be that of the District Judge i,e, he shall exercise the same powers as "the District Judge". This is so, according to the learned counsel for the contesting respondents,
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because, after the words "the District Judge" there are no such words as "can" or "has". We need not resolve this ambiguity, because, looked at from whatever angle the conclusion is inescapable so far as relevant for…
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