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Petitioner: Dr. Muhammad Eshfaq Gujjar and another VS Respondent: Additional District Judge JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Shan Gul Title:Dr. Muhammad Eshfaq Gujjar and another vs Additional District Judge
JUDGMENT
Reported As: 2021 LHC 5486, 2022 [M] CLR 655 Result: Petition dismissed Judgment JUDGMENT MUHAMMAD SHAN GUL-J :- Through this judgment the titled constitutional petition filed to challenge an order dated 04.05.2016 passed by a learned Additional District Judge Multan whereby he allowed the Punjab Healthcare Commission to become a party and to be arrayed as a respondent in an appeal filed by the petitioners was accepted in terms of Order I Rule 10 CPC. Besides laying a challenge to the acceptance of an application under Order I Rule 10 CPC on the premise that the Code of Civil Procedure is not specifically applicable in terms of the Punjab Healthcare Commission Act 2010, the petitioners have also laid a challenge to the hearing of their appeal by a learned Additional District Judge instead of the District Judge himself on the premise that Sections 30 and 31 of the Punjab Healthcare Commission Act 2010 only vest jurisdiction in the court of the District and Sessions Judge and that an Additional District Judge has been separately defined. That the definition of a District Judge, according to the Punjab General Clauses Act 1956 does not include an Additional District Judge. That the vesting of jurisdiction is to be strictly construed and an Additional District Judge being alien to such proceedings, the proceedings so far conducted by him are non est and should be declared thus. 2. On the other hand, learned Assistant Advocate General Punjab has supported, both, the assumption of jurisdiction by way of delegation by assignment to the Additional District Judge and has equally supported the order dated 04.05.2016 through which the Punjab Healthcare Commission was allowed to be made a party to the appeal, being a necessary and proper party since the appeal was filed against an order passed by the Punjab Healthcare Commission closing the healthcare establishment managed by the petitioners and imposing fine on them and simultaneously directing the district police Multan to initiate proceedings against the petitioners. 3. Heard. Record Perused.
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4. What is in issue before this court is the question whether in the presence of Sections 30 and 31 of the Punjab Healthcare Commission Act 2010, is it possible for a District Judge to delegate and assign the hearing of appeals to Additional District Judges in the District. Likewise, the ancillary question whether an application under Order 1 Rule 10 CPC could be filed and was maintainable in an appeal emanating out of imposition of penalty in terms of Punjab Healthcare Commission Act 2010 also needs to be answered. 5. The statutory provisions that may have a bearing on the present matter are reproduced as follows:-
PUNJAB HEAL THCARE COMMISSION ACT 2010
30. Bar of jurisdiction .-- Save as provided in this Act, no court other than the Court of the District and Sessions Judge shall have jurisdiction- (a) to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Act; or (b) to grant an injunction or stay or to make any interim order in relation to any proceeding before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Commission. 31. Appeal.--(1). A person who is aggrieved by the (a) refusal of the Commission to issue or renew a license; (b) decision of the Commission to suspend or revoke a license; (c) order of closing down of a healthcare establishment or making improvements in the healthcare establishment; (d) order relating to equipments, apparatus, appliances, or other things at a healthcare establishment; or (e) imposition of fine by the Commission . may, within thirty days from the date of communication of the order of the Commis sion, prefer an appeal in writing to the District and Sessions Judge. The Act, 2010 through its Section 30 confers exclusive jurisdiction upon "Court of District & Sessions Judge" to adjudicate the validity of anything done under the Act, 2010 or to grant an injuncti on against the proceedings and acts of healthcare commission whereas Section 31 of the Act, 2010 states that appeal lies against (a) refusal of the Commission to issue or renew a license; (b) decision of the Commission to suspe nd or revoke a license; (c) order of closing down of a healthcare establishment or making improvements in the healthcare establishment; (d) order relating to equipment' s, apparatus, appliances, or other things at a healthcare establishment; or (e) imposition of fine by the Commission to " the District and Sessions Judge ". The Act, 2010 does not create any court but confers jurisdiction to assess the actions of the healthcare commission at any stage of those actions as well as appellate jurisdiction against certain final orders of healthcare commission on a Court already established and functioning under the Civil Courts Ordinance, 1962. 6. While two different composite expressions i.e. 'Court of District and Sessions Judge' and the 'District and Sessions Judge' have been used, not much should be made of this because of what honourable Mr. Justice Yaqoob Ali as he then was, noted in his minority opinion in (PLD 1962 Lahore 887) "Mst. Aziz Begum Vs. Sh. Nur Muhammad (Additional District & Sessions Judge, Lyallpur) and others " at paragraph 10, "that there is thus no content in the distinction between the District Judge and the District Court and that there is no valid distinction between a District Judge and a District Court". Even in (PLD 1977 Lahore 687) "Abdul Samad Vs. Muhammad Ali and another" the Lahore High Court while adjudicating the validity of assignment of original powers under Section 115(2) CPC treated the terms District Courts and District Judge interchangeably and synonymously and upheld the assignment of hearing of revision by Additional District Judges on the basis of section 6(2) of the Punjab Civil Courts Ordinance 1962. The relevant portion is reproduced as follows: ".......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 i.e. of the District Court. Section 6(2) of the Ordinance indicates that the
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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..................... We are in no manner of doubt that to hear a revision under section 115(2) of the Code of Civil Procedure is one of the "functions" of the District Judge 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 to the Court of the District Judge falls within the phrase "any civil business cognizable by his Court". It is not disputed that the Cour t 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.
Black' s Law Dictionary:
Judge : A public official appointed or elected to hear and decide legal matters in court. But in ordinary legal usage, the term is limited to the sense of an officer who (1) is so named in his or her commission, and (2) presides in court. Judge is often used interchangeably with court. Court : A governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice. 2. The judge or judges who sit on such a governmental body .
P. Samantha Aiyar 's The Law Lexicon (2nd Edition)
Court : Court is defined as a place wherein justice is judicially administered. "The word court in the statutes is used in its generic sense and includes both judge and jury in a case where jury is present. 4 C. 483 (FB)= 3 CLR 270 Court, means the Court, judge , arbitrator , Persons or Person, before whom a legal proceeding is held or taken. Any person empowered to deal with a particular matter and authorised to receive evidence bearing on that matter in order to enable him to arrive at a determination is a court. 13 CrLJ 723 = (1912) MNN 1012 (per SUNDARA AIYAR, J.) When the rules say "the Court or a judge" it is understood that 'the Court' means judge or judges in open court and 'a judge' means a judge sitting in chambers (re B., (1892) 1 Ch. 463 Per KAY L.J. Judges Are presiding officers or Chief Magistrates in the law, to try civil and criminal causes and punish of fences ( Tomlin Law Dictionary) A judge is a public of ficer, who by virtue of his of fice is clothed with judicial authority . Judge and Court: "judge " and "court" are not, strictly speaking, convertible terms; but they are so in popu lar sense. A court is not judge nor a judge a court. The words "judge" and "court" are often interchangeable. The judge of a court, while presiding over the court, is by common courtesy called the court and the lords "the court" and "the judge (or judges)" are frequently used as synonyms . 7. It appears that for the purpose of defining functions and powers, the terms 'Court' and 'Judge' are synonymous and are to be treated as such when mentioned individually or collectively . While the term 'Court' denotes the Judicial Public Office created by a statue, the judge is the public official occu pying the said judicial office. The powers and functions conferred upon Courts are exercised by the Judges and but for semantics there is no operational difference leading to a clash in meanings of both terms . The power reserved for the Courts are validly exercised by Judges even if the terms are individually used in a statue without reference to the other . The power of the Court is the power of the Judge. 8. An alternative way for arriving at the same conclusion is to attempt the question from a different perspective. The question whether there is any distinction between the terms 'Court of District Judge' and 'District Judge' in terms of the Punjab Healthcare Commission Act 2010 can also be tackled by reference to the nature of functions being
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performed by a District Judge. A combined reading of both sections (supra) reveals that functions envisaged in the said provisions are of a judicial nature and are to be performed by the Court. A District Judge while performing such functions would indeed be acting as a Court. In the present case the terms 'District Judge' or 'District Court' have not been defined in the Punjab Healthcare Commission Act 2010 and there being nothing repugnant in the subject or context of the said Act, the definition of the terms as given in the General Clauses Act as also in terms of the Punjab Civil Courts Ordinance 1962 may very well be applicable. 9. The Punjab Healthcare Commission Act 2010 which is a special law does not create any courts nor does it define the term court. It is only by implication that the Act of 2010 presupposes the terms District and Sessions Judge and District and Sessions Court . This makes us move over to analyze the statutory provisions in terms of which the District Court is established. Punjab Civil Courts Ordinance, 1962 :
Section 5 District Judges .- 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 Additional District Judges .- (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 discha rge of those functions he shall exercise the same powers as the District Judge. Section 15 Power to distribute business .-Notwithstanding 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 17. Appeals from District Judges or Additional District Judges.- (1) Save as otherwise provided by any enactment for the time being in force, an appeal from a decree or order of 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 Addition al 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. 10. Since the Punjab Healthcare Commis sion Act 2010 does not create any court nor prescribes any specific rules for the purpose of carrying out the functions and duties by the Court or by the Judge thereunder but merely adds another judicial function to be performed by already established courts, in such cases, the Courts and Judges upon whom the added duties or functions are conferred may well be governed in such matters by the laws which create such courts/judges and prescribe the process of enforcement of duties and exercise of functions by them. 11. Sections 30 and 31 of the Punjab Healthcare Commission Act 2010 ("2010 Act") have conferred exclusive original as well as appellate jurisdiction on the Court of the District and Sessions Judge in respect of matters specified in those Sections. 12. Although the nomenclature 'the Court of District and Sessions Judge' used in the 2010 Act, is somewhat unusual as the Civil Courts Ordinance 1962 and the Code of Criminal Procedure 1898, under which the civil and criminal courts of general jurisdiction are constituted, use the terms 'the Court of District Judge' and 'the Court of Session', yet the intention of the legislature is more than evident that it has conferred original as well as appellate jurisdiction on an already existing court, i.e., the Court of District and Sessions Judge, and has not created or constituted any new Court. That is why the legislature has not also specified the powers and procedure of the Court of District and Sessions Judge referred to in Sections 30 and 31 of the 2010 Act.
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13. The principle of law so enunciated by Constitutional Courts is well established by now that when an already established Court without specifying anything more is provided as a forum for a particular redress under a special law, it will be implied that the ordinary procedure, power and jurisdiction of that Court is to attach to it, and in such a case the Presiding Officer of that Court performs his functions under that special law in the exercise of his ordinary powers and procedure and not as a persona designata. 14. Sections 30 and 31 of the 2010 Act though mention the 'Court of the District and Sessions Judge' as the forum of a suit and an appeal in respect of the matters specified therein, but do not state as to how that Court or the Presiding Judge of that Court is to regulate its or his functioning in the matter of hearing the suit or appeal. This matter being not dealt with in the 2010 Act is to be regulated by the ordinary powers of the Presiding Officer of the Court of the District and Sessions Judge under the Civil Courts Ordinance 1962, the Code of Civil Procedure 1908 and the Code of Criminal Procedure 1898. Therefore, a District & Sessions Judg e can, in exercise of his ordinary powers under the said enactments, entrust a suit or an appeal filed in his Court under Section 30 or Section 31 respectively of the Punjab Healthcare Commission Act 2010 for decision to an Additional District & Sessions Judge. 15. Reliance and authority for what has been narrated above can be found with advantage in (1992 SCMR 2192 ) "The State Vs. Syed Qaim Ali Shah" at paragraph No.20, (1995 PLC 120) "Qutab-ud-Din Vs. Punjab Labour Appellate Tribunal, Lahore and another" at paragraph No.10, (PLD 1974 Karachi 118) "Abdul Salam (represented by ten heirs) Vs. Messrs Hafeez Sons Ltd." at paragraph No.9 and 10 (PLD 1977 Lahore 718) "Mst. Malookan Vs. Sher Muhammad and 2 others" at paragraph No.6 and 10, (1991 MLD 745 (Lahore) "Mst. Sajida Parveen Vs. The Additio nal District Judge, Rawalpindi and 2 others" and (1996 MLD 1749 Karachi) "Dr . Raes Farhan Mushtaq and another Vs. Mst. Naheed alias Mona and 3 others". 16. In a judgment which may be squarely applicable to the matter under adjudicat ion it has been held by the Sind High Court in (PLD 1970 Karachi 362) "Mst Faizan Vs. Pakistan Telegraph and Telephone Department Karachi " that: 3. The term 'District Judge, has not been defined in the Telegraph Act itself. This is a departure from the pattern followed in statutes like the Succession Act and the Divorce Act which Acts, white conferring certain jurisdiction upon the District Judge, have also defined the District Judge to mean a Judge of a principal civil Court of original jurisdiction. This omission, however , creates no complexity because the General Clauses Act defines the term 'District Judge' in subsection (15) of section 3 of the Act as follows "'District Judge' shall mean the Judge of a principal civil Court of original jurisdict ion, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction." Since the term 'District Judge' has not been defined in the Telegraph Act itself and there being nothing repugnant in the subject or context of the said Act, the definition of the term as' given is the General Clauses Act becomes applicable. 5....The word 'principal' is a term of comp arative significance and implies that in relation to others in the hierarchy the body which it denotes should be the highest. The mere nomenclature, 'District Judge', is by itself of no significance whatsoever . It is wholly the jurisdiction and the powers that are exercisable by him which will be relevant in determining whether he is the principal civil Court of original jurisdiction of the district. 17. The High Court Rules and Orders provide as follows: Lahore High Court Rules & Orders: V olume IV , Chapter 1, Part-G PART G --- POSITION OF ADDITIONAL DISTRICT AND SESSIONS JUDGES: 3. District Judge may assign any of his judicial functions to the Additional Judge.-- In judicial matters, Section 21 of the Act provides that an Additional Judge shall discharge any of the functions of a District Judge which the District Judge may assign to him; and by Section 34 of the District Judge may distribute civil business among the Courts under the control in such manner as he think s fit. Once the functions of a District Judge have been assigned to an Additional Judge , the Additional Judge exercises, in the discharge of those functions, the same powers as the District Judge himself. It is only in respect of the functions actually
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assigned to him, however , that the Additional Judge enjoys these powers; and the functions so assigned, will, as a general rule, be purely judicial functions. It appears that both in Civil Courts Ordina nce, 1962 and LHC Rules & Orders, whenever delegation or assignment is mentioned, it is mentioned as the power are exercisable by "District Judge". 18. The specific assignment or delegation of the appellate function of a District Court or District Judge is provided in Section 18 of the Ord., 1962: 18. Appeals from Civil Judges .- (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 fifty million rupees; and (b) to the District Judge in any other case. (2) Where the function of receiving any appeal which lie to the District Judge under the last preceding sub-section has been assigned to an Additional District Judge , the appeal may be preferred to the Additional District Judge . Section 31 of the Act, 2010 provides that the appeal shall lie to 1962 states that wherever (by any another statute) appellate function is bestowed upon the "District Judge", such function can (a) be assigned to the Additional District Judge and (b) when such has been so assigned, the appeal could directly be preferred to the court of Additional District Judge. 19. After having taken into consideration the provisions of law that have a bearing on the present matter it is now time to analyze precedent cases on the subject. 20. In PLD (2000 Lahore 186) "MUNA WWAR JAMIL versus Mst. NOSHI (NISHA T) GILLANI and 3 others " where the matter involved an appeal under Section 65 of the Copyright Ordinance 1962, a special law (just like the present case) and where the special law conferred appellate jurisdiction 'in the Court of District Judge', quite similar to the present case under adjudication in which the expression (in the Court of District & Sessions Judge has been used), this Court held at paragraph No.5 as follows:- 5. I have heard the learned counsel for the parties and have also perused the record. The contention of learned counsel for the appellant that under section 65 of the Copyright Ordinance, 1962, only District Judge is competent to adjudicate upon the matter and not the Additional District A Judge, has got no force. Section 6(2) of the West Pakistan Civil Courts 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. Section 17(1) of the said Ordinance II of 1962 contemplates that the District Judge and the Additional District Judge both can hear cases in original jurisdiction. If the District Judge is assigned his functions which are vesting in him as Judge of a District Court i.e. Principal Civil Court of original jurisdiction then the Additional District Judge shall also have the same powers in the exercise of B functions so assigned to him. Reference may be made to Abdul Samad v. Muhammad Ali and another PLD 1977 Lahore 687 wherein the Division Bench of this Court has held as under:-- "It is to be remembered that the Code of Civil Procedure by itself does not create the Civil Courts. See Dost Muhammad and another v. Rais Satik and another . These Courts, so far as relevant for our case, are created by the West Pakistan Civil Courts Ordinance (II of 1962). The statute which creates Civil Courts also makes certain provisions quite new and different from those of the Code of Civil Procedure if the matter of assignment of functions by the District Judge or the distribution of his business to Additional District Judge (on which the Code of Civil Procedure is rather quite silent or not comprehensive)." 21. In (2004 MLD 1851 ) "Haji Jamal Din Vs. Haji Muhammad Nazir " where the matter involved the question whether a District Judge could assign his judicial function in terms of Order XXXVII Code of Civil Procedure to an Additional District Judge with the code employing the term 'District Court' it was held at paragraph 7 as follows:-
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7. I would advert to the question of jurisdiction of the Additional District Judge to decide the case. Section 6(2) of West Pakistan Civil Courts Ordinance (II of 1962) provides that the Additional District Judge shall discharge such functions of the 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. Similarly , under section 15 of the Ordinance ibid the District Judge can by a written order direct that "any civil business cognizable by this Court and the Courts under his control" shall be distributed among such-Courts in such manner as he thinks fit. There is no doubt that to decide the case under Order XXXVII, Code of Civil Procedure is one of the functions of the District Judge within the scope of word, "function" as used in section 6(2) of the Ordinance ibid. In a case reported as Abdul Samad v. Muhammad Ali and…
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