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Petition No. 526 of 1968, decided on 1st May 1968.

Art. 102‑Supervisory juris diction of High Court‑Includes administrative as well as judicial powers Powers conferred by Art. 102 though unlimited yet do not have the effect of converting High Court into a Court of appeal or revision regardless of limitations imposed by law on such powers‑Judicial power under Art. 102‑To be exercised in very rare and exceptional cases and may be used ex debito justitiae where no other remedy is available under ordinary law.

Where wife's application under Article 102 of the Constitution seeking transfer of respondent husband's suit from the Family Court, Lyallpur to Family Court at Lahore was resisted on the contention that sections 24 and 151, Civil Procedure Code were not applicable because provisions of Civil Procedure Code had been expressly excluded by section 17, West Pakistan Family Courts Act, 1964 and that the powers conferred by Article 102, Constitution of Pakistan, 1962 were confined to administrative control only and that the High Court could not under Article 102 interfere on judicial side:

Held, with the disappearance of sub‑clause (2) of section 224, Government of India Act, 1935 in Article 102 of the Constitution of Pakistan, 1962, the power vested in High Court under section 107, Government of India Act, 1915 appears to have been restored. No doubt the power is unlimited but it does not have the effect of converting the High Court into a Court of appeal or revision, regardless of the limitations imposed by law on those powers, however, the power is to be exercised only in very rare and exceptional cases and may be used ex debito Justitiae, where there is no other remedy available under the ordinary law. Extra ordinary power of superintendence under Article 102 was invoked and the petition allowed directing the transfer of suit.

S. M. Zamir Zaidi for Petitioner.

Muhammad Naseer Ullah Qureshi and Talib Hussain Rizvi for Respondent.

Dates of hearing: 3rd and 4th April 1968.

This is an application by the petitioner wife under Article 102 of the Constitution of the Islamic Republic of Pakistan read with sections 24 and 151 of the Code of Civil Procedure, seeking trans fer of respondent husband's suit for restitution of conjugal rights pending in the Court of Sh. Saeed Ahmad, Civil Judge with powers of Family Court, Lyallpur, to the Court of Mr. Hassan Nawaz, Senior Civil Judge, with powers of Family Court at Lahore, before whom the petitioner's suit for dissolution of marriage and recovery of dower is pending. The grounds taken are that the petitioner is a pardahnashin lady and it is impossible for her to go to Lyallpur to pursue the frivolous suit brought by the respondent as a counterblast to her suit for dissolution of marriage and recovery of dower money, which suit she had filed earlier in time as compared with the respondent's suit and that the petitioner does not feel safe in going to Lyallpur and defend ing the respondent's suit and that because in both the suits common questions of fact and law are likely to arise, it is in the interest of justice that possibility of conflicting judgments by separate trials be avoided.

2. The application is resisted by learned counsel for the respondent on a legal ground only. He argues that sections 24 and 151 of the Code of Civil Procedure are not applicable because section 17 of the West Pakistan Family Courts Act (XXXV of 1964) has expressly excluded application of the provisions of the Code of Civil Procedure. He further contends that Article 102 of the Constitution, no doubt, speaks of supervision and control by the High Court of Courts subordinate to it, the power conferred does not extend beyond administrative control of the subordinate Courts. He maintains that whether we consider the ordinary significance of the term "superintendence" or construe it in connection with the context, it appears to confer on the High Court administrative authority and not judicial powers and, there fore, it would be incompetent for the High Court In the exercise of this authority to interfere on the judicial side with proceed ings pending into different Courts subordinate to it.

3. A perusal of the provisions of section 107 of the Government of India Act, 1915, and section 224 of the Govern ment of India Act, 1935, would show that the superintending jurisdiction of the High Court was fettered by sub‑clause (2) of section 224 by the 1935 Government of India Act, which sub clause read as under :‑

" Nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision."

With the disappearance of the aforesaid sub‑clause in Article 102 of the Constitution Act of 1962, the power vested in the High Court under section 107 of the Government of India Act, 1915 appears to have been restored. No doubt the power is unlimited but it does not have the effect of converting the High Court into a Court of appeal or revision, regardless of the limitations imposed by law on those powers. I, however, agree with the view that the power is to be exercised only in very rare and exceptional cases and may be used ex debito justitiae, where there is no other remedy available under the ordinary law. The case before me is of that description and the circumstances are such that I feel persuaded to invoke the extraordinary power of superintendence under Article 102 of the Constitution. I, therefore, direct that the suit entitled 'Abdul Hamid v. Mst. Safia Begum' pending in the Court of Sh. Saeed Ahmad, Family Judge, Lyallpur, be transferred to the Court of Mr. Hassan Nawaz, Senior Civil Judge, Lahore, for hearing along with the petitioner's suit entiled Mst. Safia Begum v. Abdul Hamid'. There will be no order as to costs.

Petition allowed.

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