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Petitioner: MUHAMMAD ABDULLAH SUFI VS Respondent: MESSRS. MUHAMMAD BUX & SON
P L D 1957 (W
P L D 1957 (W. P.) Karachi 445
Before Wahiduddin Ahmad, J
MUHAMMAD ABDULLAH SUFI-Applicant versus
Messrs. MUHAMMAD BUX & SON and others ---Respondents
Revision Application No. 222 of 1956, decided on 17th April 1957.
Civil Procedure Code (V of 1908), O. XXXVII, r. 1 (c) -Suit of amount less than Rs. 25,000 including suits under O. XXXVII, Civil Procedure Code-Not entertainable by Karachi Bench of West Pakistan High Court-Karachi Courts Order (11 of 1956), Arts. 2 and 28 and Schedule Part A, para, 1-Plaintiff desiring suit' to be tried under O. XXXVII, Civil Procedure Code but instituting suit at Karachi in Court of Sub-Judge not empowered to deal with suit under that Order-Suit may be proceeded with in ordinary way.
Held, that according to Article 28 of the Karachi Courts Order (II of 1956) and the amendment of section 8 of the Sind Courts Act (Bombay Act VII of 1926) all suits without any reservation, whether under the ordinary law or under the summary -chapter Order XXXVII, Civil Proce dure Code or under any other special provision of law wherein the subject matter or the amount or value does not exceed Rs. 25,000 have to be transferred to the District judge for disposal in a manner as if they had been instituted in his Court. The aforesaid provisions of the President's Order are very emphatic. They not only confer jurisdiction on the Karachi District Courts with respect to all suits, including those under Order XXXVII, Civil Procedure Code, below the value of Rs. 25,000 but also oust the jurisdiction of every Civil Court including the jurisdiction of the Karachi Bench of the West Pakistan High Court to try suits below the said value.
The Bench at Karachi has no jurisdiction to entertain suits below the value of Rs. 25,000; all suits below Rs. 25,000 are to be filed in the District Courts at Karachi and if no power has been conferred on those Courts under Order XXXVII, Civil Procedure Code that would not deprive them to try such suits in the ordinary way. This principle was to be followed also in cases where the Karachi Bench had issued summons under Order XXXVII rule 2, Civil Procedure Code, but being below the value of Rs. 25,000 had been transferred to the District Court at Karachi for disposal.
Held, that there was no substance in the contention that the powers conferred under Order XXXVII, Civil Proce dure Code on a Court are in the nature of special jurisdiction and the Courts designated under Order XXXVII are special Courts upon which exclusive jurisdiction has been conferred to try the suit under that order.
Held, therefore, that a suit for Rs. 2,236 instituted in the Court of a Sub-Judge at Karachi after the coming into force of Karachi Courts Order (II of 1956), the plaintiff desiring that the suit be tried under the procedure prescribed by Order XXXVII, Civil Procedure Code, could be tried in the ordinary way, and that the Sub-Judge was in error in refusing to exercise his ordinary jurisdiction and returning the plaint to be presented to the proper Court.
Doulatram Valabdas v. Halo Kanya .and another 5 S L R 155 ; Wor Lee Lone v. A. Rahman A I R 1918 L Bur. 135 (1) ; Bhondu Mal v. Muhammad Ahmad Mushtaq Ahmad A I R 1927 Lah. 174 and S. -P. Basalingappa v. Ninjunda Setty (1948) 53 Mys. H C R 1 ref.
Goverdhanlal Bansilal v. Ramrichpal Dalsukhrai A I R 1952 Bom. 75 and V. Ramamirtham, Sole Proprietor Glorious Pictures v. Rama-Film Service A I R 1951 Mad. 93 distinguished.
Motiur Rehman for Applicant.
Muzaffar Hassan for Opponents.
Amicus curiae : E. V. Castellino, Dingomal and Sharifuddin
ORDER
WAHIDUDDIN, J.---This revision application is against the order of Mr. S. M. Abdul Aziz Jaffary, Sub-Judge First Class, Karachi, dated 25th October 1956, whereby the plaint was returned to the applicant/ plaintiff for presentation to the proper Court.
The applicant/plaintiff filed a suit for the recovery of Rs. 2,236 on a cheque drawn on the Mercantile Co-operative Bank Ltd., Karachi by the opponents in his favour. The suit was titled as one under Order XXXVII, Civil P. C. It was admitted and numbered as Suit No. 719 of 1956 on 4th September 1956 and on 6th September 1956, an interim attachment order was issued in respect of truck KAP 3007 belonging to the opponents. During the pendency of the suit the applicant realised that the subordinate judge at Karachi had no power to issue summons under Order XXXVII rules 1 and 2, Civil P. C., and filed an application for amend ment of the plaint. This application was rejected on the ground that Subordinate judge concerned had no jurisdiction to hear the suit under Order XXXVII, Civil P. C. and the suit was not properly filed.
When the matter came up for hearing on 14th February 1957, the learned counsel for the parties represented that it raises an important question of law and is likely to affect large number of other summary chapter suits transferred to the subordinate Courts at Karachi, and requested that some particular date may be fixed for the hearing of arguments at length. Considering the importance of the matter, notices were also issued to Mr. Castellino, Mr. Dingo mal and Mr. Sharifuddin as amicus curiae. They have also appeared and given valuable assistance in this case.
Before dealing with the merits of the case it is to be noted that in the City of Karachi there was no District Court and the Court of the Judicial Commissioner of Sind was the Principal Court of Civil Jurisdiction. On 15th April 1940 the Sind Courts Act, 1926, was brought into operation and the Court of the Judicial Commissioner of Sind from that day became the Chief Court of Sind and under it also became the principal Civil Court of original jurisdiction for the Civil District of Karachi. On 14th October 1955, the Governor-General promulgated an order known as "The High Court of West Pakistan, Establishment Order, 1955" to establish the West Pakistan High Court for the Province of West Pakistan to replace the High Court in Lahore, the Chief Court of Sind and the Judicial Commissioner's Courts in N.-W. F. P. and Baluchistan etc. A Bench of the High Court of West Pakistan was also established at Karachi and under this Order this Bench was to exercise the same original civil jurisdiction for the Civil District of Karachi as was exercisable by the Chief Court of Sind under section 8 of the Sind Courts Act, 1926. Consequently all civil suits over the valuation of Rs. 2,000 pending in the Chief Court of Sind automatically stood transferred to the Karachi Bench of the West Pakistan High Court, and suits of the aforesaid valuation continued to be filed on the Original Side of the Karachi Bench of West Pakistan High Court. On 20th April 1956, the Sind Courts Act of 1926 in its application to the Federal Capital and the Karachi Small Causes Court Act, 1929, were amended under President's Order No. II of 1956. In the Federal Capital the Court of the District Judge and the Courts of Subordinate judges were established from the appointed date. Article 7 of this Order says :-
"7. Limits of jurisdiction of Subordinate Judges.-(1) The ordinary jurisdiction of a Subordinate Judge of the First Class shall extend to all original suits and proceedings of a civil nature wherein the subject matter in amount or value does not exceed twenty-five thousand rupees, or such sum as the Central Government may by order under the proviso to subsection (2) of section 22 of the Sind Courts Act, 1926 (Bombay Act VII of 1926), prescribe.
(2) The ordinary original jurisdiction of a Subordinate judge of the second class shall extend to all such suits and proceedings wherein the subject matter does not exceed five thousand rupees in amount or value".
Article 28 of the said Order provides:
"28. Provision regarding suits and other proceedings.-All suits, executions and other proceedings wherein the subject matter in amount or value does not exceed twenty-five thousand rupees, or such sum as the Central Government may by order under the proviso to subsection (2) of section 22 of the Sind Courts Act, 1926 (Bombay Act VII of 1926) prescribe other than appeals, revisions and reviews pending before the Bench of the High Court of West Pakistan at Karachi immediately before the appointed day in which no evidence has been recorded shall be transferred to the Court of the District judge, who shall dispose of such suits, executions and other proceedings in the manner as if they had been instituted in his Court ; and all such suits, executions and other proceedings in which evidence has been commenced to be recorded shall, notwithstanding anything in this order, be disposed of in the manner prescribed by law in force on the subject immediately before-the appointed day as if this order had not been made".
Section 22 of the Sind Courts Act, 1926 was also amended and the following proviso was added to it.
"Provided that, unless the Central Government by order otherwise directs, the District Court of Karachi shall not have jurisdiction in original civil suits and proceedings wherein the subject matter exceeds twenty five thousand rupees in amount or value".
In section 8 of the Sind Courts Act, 1926 the following most important amendment was made :-
"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 as the Central Government may, by order under the proviso to subsection (2) of section 22 prescribe shall be substituted".
It will thus be noticed that the jurisdiction of the Karachi Bench of the West Pakistan High Court was only confined in respect of suits and proceedings wherein the subject matter in amount or value exceeds Rs. 25,000. All suits from the, appointed date below the value of Rs. 25,000 were to be filed in the District Courts at Karachi. The matter in dispute being below the value of Rs. 25,000 was accordingly filed in the Court of the First Class Sub-Judge at Karachi. It will be further observed that under Article 28 of the President's Order, all suits below the value of Rs, 25,000 pending in the Karachi Bench of West Pakistan High Court were to be transferred to the Court of the District Judge at Karachi for disposal in the manner as if they had been instituted in his Court. Amongst the suits transferred to the Court of the District judge are also suits filed under Order XXXVII rules 1 and 2 Civil P. C. Order XXXVII rules 1 and 2, Civil P. C. Order XXXVII rule 1 reads as under :-
"This order shall apply to-
(a) ...
(b) ...
(c) The Chief Court in Sind".
Order XXXVII rule 2, Civil P. C. is as follows :-
"2. (1) All suits uppn bills of exchange, hundies or promissory notes may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed ; but the summons shall be in Form No. 4 in Appendix B or in such other form as may be from time to time prescribed.
(2) In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defend the suit unless he obtains leave from a judge as hereinafter provided so to appear and defend ; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree-
(a) for the principal sum due on the instrument and for interest calculated in accordance with the provisions of section 79 or section 80, as the case may be, of the Negotiable Instruments Act, 1881, up to the date of the institution of the suit or for the sum mentioned in the summons, whichever is less, and for interest up to the date of the decree at the same rate or at such other rate as the Court thinks fit ; and
(b) for such subsequent interest, if any, as the Court may order under section 34 of this Code ; and
(c) for such sum for costs as may be prescribed:
Provided that, if the plaintiff claims more than such fixed sum for costs, the costs shall be ascertained in the ordinary way.
(2) A decree passed under this rule may be executed forthwith".
At this stage it will also be observed that the provisions of Order XXXVII, Civil P. C. are only applicable to those Courts that are mentioned in Order XXXVII, rule 1, Civil P. C. The Chief Court of Sind is one of those Courts. The newly-created District Courts at Karachi have not been included or designated as one of the Courts either speci fically or to which sections 532-37 of the Civil P. C. (1882) have been applied.
The learned counsel Mr. Motiur Rehman, Mr. Castellino and Mr. Dingomal have with much force contended that the order of the learned Subordinate Judge is erroneous as he had jurisdiction to entertain the suit in the ordinary way. They further urge that the suit in the first instance is commenced in the ordinary way but if the plaintiff requests the Court to adopt the procedure laid down under Order XXXVII rule 2, Civil P. C. and to issue summons in Form 4 in Appendix B, then the Court will issue such summons if it is invested with power to adopt that procedure. If, however, it does not possess such power, then it would try the suit in the ordinary way. It was contended that the applicant by abundant caution applied for the amendment of the plaint. There was no need to do so. They also urged that in the City of Karachi there is too Civil Court at present to try suits under Order XXXVIL rules 1 and 2, Civil P. C. upto the value of Rs. 25,000 and the learned Subordinate judge committed an error in refusing to exercise the jurisdiction vested in him and in returning the plaint for presentation to the proper Court, which in fact does not exist.
Mr. Muzaffar Hassan on behalf of the opponents and Mr. Sharifuddin strongly supported the view of the learned Subordinate Judge. They contended that the Courts desig nated under Order XXXVII rule 1 are special Courts with exclusive jurisdiction with regard to a particular subject matter and their jurisdiction arises not by reason of pecuniary or territorial considerations but it arises by reason of the subject-matter being of the nature mentioned in Order XXXVII, Civil P. C. It was urged that in order to determine the jurisdiction of the Special Court the only thing that has to be looked at is the subject-matter of the suit, and if the subject-matter of the suit is that which is prescribed in Order XXXVII, then the Special Court has jurisdiction and no further question as to its pecuniary and territorial jurisdiction can arise. It was strenuously argued that under Order XXXVII rule 1 the Chief Court of Sind was designated as a Special Court with exclusive jurisdiction, that the Karachi Bench of the West Pakistan High Court being the successor Court still possesses the jurisdiction to entertain suits below the value of Rs.25,000 under Order XXXVII, Civil P. C., and this jurisdiction has not been taken away under the President's Order II of 1956. The substance of their arguments is that the provisions of Order XXXVII, Civil P. C. are provisions of a special kind and that this jurisdiction still vests in the Karachi Bench of the West Pakistan High Court and has not been taken away by the President's Order II of 1956.
The arguments in support of the contention raised on behalf of the opponents are without any force. The relevant provisions of Article 28 of the President's Order and the amendment of section 8 of the Sind Courts Act, 1926 leaves no doubt in my mind that all suits without any reservation, whether under the ordinary law or under the summary chapter or under any other special provision of law wherein the subject-matter in the amount or value does not exceed Rs. 25,000 have to be transferred to the District Judge for disposal in the manner as if they have been instituted in his Court. Similarly, the Karachi Bench of the West Pakistan High Court for future is the only principal Court of Original Civil Jurisdiction in respect of suits and proceedings wherein the subject-matter in amount of value exceeds Rs. 25,000. The aforesaid provisions of the President's Order II of 1956 are very emphatic on this point. They not only confer jurisdiction on the Karachi District Courts with respect to suits below the value of Rs. 25,000 but also oust the jurisdiction of every Civil Court including the jurisdiction of the Karachi Bench of the West Pakistan High Court to try suits below the said value.
Mr. Sharifuddin invited my attention to two decisions of the Indian Courts in Goverdhanlal Bansilal,v. Ramrichpal Dalsukhrai (A I R 1952 Bom. 75) and V. Ramamirtham, Sole Proprietor, Glorious Pictures v. Rama Film Service (A I R 1951 Mad. 93). But these decisions are clearly distinguishable as they are based on entirely different considerations and provisions of Law. In the Bombay case the relevant provisions under consideration were sections 12 and 18 of the City of Bombay Civil Court Act of 1948. Section 12 of the said Act reads as under :-
"Notwithstanding anything contained in any law the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Court.
Provided that the High Court may for any special reason and at any stage remove for trial by itself any suit or proceeding from the City Court".
Section 18 reads as under :-
"18. (1) All suits and proceedings cognizable by the City Court and pending in the High Court, in which issues have not been settled or evidence has not been recorded on or before the date of the coming into force of this Act, shall be transferred to the City Court and shall be heard and disposed of by the City Court and the City Court shall have all the powers and jurisdiction thereof as if they had been originally instituted in that Court.
(2) In any suit or proceeding so transferred institution fee shall be paid, credit being given to any Court-fee levied in the High Court, and costs incurred in the High Court till the date of the transfer shall be assessed by the City Court in such manner as the Provincial Govern ment may, after consultation with the High Court deter mine by rules".
The question under consideration in that case was whether a suit based on a mortgage by reason of deposit of title deeds in respect of property not situated in the City of Bombay could be entertained in the High Court of Bombay on its original side. The learned judge on the Original Side returned the plaint for presentation to the proper Court holding that such suit cannot be heard by the High Court as its jurisdiction up to Rs. 25,000 has been taken away. The Division Bench of the Bombay High Court held that the jurisdiction of the High Court has been taken away only in respect of those suits which are cognizable by City Courts. They came to the conclusion that the suit under consideration was not cagnizable by the City Court and therefore they had jurisdiction to hear the matter. The learned judge in that connection observed:
"The jurisdiction of the Bombay City Civil Court is governed by the Civil P. C. Under section 16 of the Code no Court can entertain a suit with regard to a mortgage if the property, tire subject-matter of the mortgage, is situated outside its jurisdiction. Therefore, although the amount involved in a mortgage suit is less than Rs. 25,000 yet where the plaintiff wants to enforce the mortgage and the property in respect of which the mortgage is created is in Ajmer the City Civil Court cannot entertain the suit.
It is only with regard to those suits which have been made cognizable by the City Court by reason of the Bombay City Civil Court Act that the jurisdiction of the High Court has been taken away ; but with regard to all those suits which are cognizable by the High Court and which have not been made cognizable by the City Court, the jurisdiction of the High Court continues. A suit on a mortgage is not a suit for land ; it is a suit to enforce a debt, and although the property mortgaged is outside the jurisdiction, yet if the deposit of rule-deeds is made in Bombay, the High Court has jurisdiction to entertain and try the suit."
The scheme of the Bombay City Civil Court Act of 1948 is entirely different from one governing the City Civil Courts at Karachi. The jurisdiction of the high Court of Bombay was taken away in respect of those suits only that were cognizable by the City Civil Court. On the other hand, under the President's Order, the jurisdiction of the Karachi Bench of the West Pakistan High Court upto Rs. 25,000 has been taken away in respect of all suits: The view taken by me with respect to the Bombay case is expressed by Chagla. C. J. in the case of Mehersingh Sethi v. Khurshed Nadirshaw Satarau;alla (L V I Born. L R 540). The learned Judge observed while considering the aforesaid Bombay case, as follows:-
"Mr. Desai relied upon two decisions of this Court one is the decision of Mr. Justice Tendolkar in Urmilabai v. Jehangir Pastakia ((1951) 54 Bom L R 763) and the other is the decision of the appellate Court in Goverdhanlal v. Ramrichpal ((1951) 53 Bom. L R 825) where we were considering the effect upon the juris diction of this Court of section 12 of the City Civil Court Act; and what was held iii those two cases was that suits on mortgages in respect of land situated out side the ordinary jurisdiction which were cognizable by this Court, before the City Civil Court Act was enacted con tinued to be cognizable by this Court, because under the Bombay City Civil Court Act jurisdiction has not been conferred upon the City Civil Court to try suits of that nature. Now, when one looks at the Bombay City Civil Court Act and the scheme of the Bombay Rents, Hotel and Lodging House Rates Control Act the position becomes amply clear. Under section 3 of the City Civil Court Act power is given to the State Government to issue a notifica tion conferring jurisdiction upon the Court to try, receive and dispose of all suits and other proceedings of a civil nature the value of, the subject-matter of which does not exceed the amount mentioned therein, and this notification may be issued notwithstanding anything contained in any law ; and under section 12 of the Act, notwithstanding anything contained in any law, the High Court shall not lave jurisdiction to try suits and proceedings cognizable by the City Civil Court.
The first distinction which is obvious is that section 3 does not set up a special Court with exclusive jurisdiction ; it sets up a Civil Court with a particular pecuniary jurisdic tion ; and the position of the City Civil Court is like that of the other Civil Courts in the State and all rules as to jurisdiction contained in the Civil P. C. apply to the City Civil Court. Therefore, in both these decisions what we held was that section 16 of the Civil P. C. applied to the City Civil Court ; and if the property was not situate within the jurisdiction of the City Civil Court, the City Civil Court could not entertain a suit to enforce a mortgage merely because the pecuniary limit was not exceeded in the mortgage suit. Further, section 12 provides that the High Court has no jurisdiction to try only those suits which are cognizable by the City Civil Court. Therefore, the Bombay City Civil Court Act takes away a part of the jurisdiction which the High Court had and confers it upon this new Court ; but to the extent that the jurisdiction is not con ferred upon the City Civil Court, the jurisdiction of the High Court continues unimpaired. Section 12 does not contain any prohibition against the High Court trying any particular or specific kind of suit of deciding or determining any particular question As far as the test to be applied in order to determine the jurisdiction of the High Court when one considers the Bombay City Civil Court Act is, is a particular suit cognizable by the City Civil Court ; if it is not, then the jurisdiction of the High Court continues. But the test to be applied when considering the Bombay Rents, Hotel and Lodging House Rates Control Act is entirely different. The question there is : what is the nature of the suit ; what are the questions to be determined ; and if the nature of the suit is that of a suit relating to the recovery of rent or possession by landlord and tenant, or it relates to any question that arises under the Act, then under section 28 there is an express prohibition against Courts other than the named Court trying the suit or determining that question. Therefore, applying that test to the matter before us what we have to ask ourselves is, does this suit involve any question which can solely be determined by the Special Court ? In our opinion the only answer to that question can be, that it undoubtedly does. As already pointed out, the principal question is the question of determination of rent ; that question arises…
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