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J. Miscellaneous Applications Nos. 30‑32 of 1971, decide on 4th October 1974.
Authority only for what they decide‑Not authority for what seems to follow therefrom.
‑ S. 30 [as amended by House Building Finance Corporation (Amend ment) Ordinance (XXVI of 1973), S. 11] read with Explanation‑jurisdiction‑Liability of borrower and surety in Karachi District exceeding Rs. 50,000‑Jurisdiction to hear application under S. 30‑ Vests in High Court.,
The Explanation is precise and confirms jurisdiction of the High Court to hear applications under section 30 of the said Act if the liability of the borrower and his surety exceeds Rs. 50,000.
Ocean Industries Ltd. and another v. Industrial Development Bank P L D 1966 S C 738 ; Mst. Faizan v. Pakistan P L D 1970 Kar. 262; Aziz Begum v. Noor Muhammad P L D 1962 Lah. 887 and Khadim Mohyud din and another v. Ch. Rahmat Ali Nagra and others P L D 1965 S C 459 distinguished.
Firdous Trading Corporation v. The Japan Cotton & General Trading Company P L D 1961 Kar. 565 ; Fida Hussain v. The State Criminal Miscellaneous Application No. 382 of 1971; Abdul Haq v. Saifur Rahman P L D 1968 Lah. 478 and Moosa Oomer & Company Ltd. v. Messrs Haji: E. Dossa & Sons and another P L D 1971 Kar. 399 ref.
Sh. Mahboob Alam v. Mumtaz Ahmad P L D 1960 Lah. 601 held not. applicable.
S. 30, Explanation read with subsection (10) & S. 6(5) and Law Reforms Ordinance (XII of 1972), S. 3‑Appeal to High Court‑ Sub section (10) of S. 30‑Cannot be read as providing an appeal from an order made by a Single Judge of High Court to Division Bench‑ Intra Court appeals‑Governed by Law Reforms Ordinance, 1972 and not by S. 30(10).
Subsection (10) of section 30 of the House Building Finance Corporation Act, 1952 provides that an order made under _ subsection (5) of section 6 is appealable to the High Court. ,By reason of the explanation added by Act VIII of 1974 such an order may as well be of the High Court itself if the sum involved exceeded Rs. 50,000 in its application to the Karachi District. Subsection (10) of section 30 cannot, therefore, be read as providing an appeal from an order made by a Single Judge of the High Court, to a Division Bench of the High Court for intro‑Court appeals are governed by Law Reforms Ordinance, 1972 (Ordinance XII of 1972) and whether or not appeal would lie from an order of a Single Judge of the High Court against an order made under section 30 of the Act to a Division Bench of the High Court. will depend upon the provisions contained in that law.
Syed Anwar Ali for Applicants.
Ajmal Mian for Respondents.
Advocate‑General (Sind) and A. A. Fazeel : Amicus curiae.
Dates of hearings : 19th December 1972 and 20th May 1974.
‑The circumstances giving rise to this. reference to Full Bench have been dealt with in great detail by My Lord the Chief Justice in his referring order which may be reproduced with advantage :‑
"These are all cases in which the question involved is whether an application under section 30 of the House Building Finance Corporation Act (Act XVIII of 1952) lies to this Court in cases where the amount involved exceeds the pecuniary limit of the jurisdiction of the District Court at Karachi.
2. Mr. Ajmal Mian appearing for the respondents objects to the. jurisdiction of this Court on the ground that section 30 in terms mentions the District Judge. In order to appreciate the argument it is necessary to reproduce the entire section which is as follows
30.‑(1) Where by reason of breach of any agreement by the borrower the Corporation becomes entitled to require the immediate payment of the amount due by the borrower to the Corporation, any officer of the Corporation authorised generally or specially by the Board in this behalf may apply to the District Judge within the local limits of whose jurisdiction the borrower's house is situated for any one or more of the following reliefs, namely:‑
(a) an order for the sale of any property or properties pledged, mortgag ed, hypothecated or assigned to the Corporation as security for the sum due by the borrower;
(b) for an injunction restraining the borrower (or his surety) from in any manner removing, transferring or disposing of any of the properties referred to in clause (a);
(c) for an ad interim attachment attaching the properties referred to in clause (a) above and such other properties of the borrower (or his surety) as in the opinion of the District Judge were sufficient to cover the claim of the Corporation against the borrower including costs and interests.
(2) An application under subsection (1) shall state the nature and extent of the liability of the borrower (and his surety) to the Corporation, the grounds on which it is made and such other particulars as may be prescribed.
(3) The District Judge may if he thinks fit hear the applicant and where the reliefs mentioned in clauses (b) and (c) of subsection (1) are prayed for in the application shall pass ad interim orders granting such reliefs as in the opinion of the District Judge are sufficient to safeguard the full claim of the Corporation against the borrower.
(4) At the time of passing his orders under subsection (3) the District Judge shall order notice of the application to issue to the borrower (and his surety) together with copies of the application, the order passed by the District Judge under subsection (3), and any evidence which may have been recorded at the time of the order under sub section (3), calling upon the borrower (and his surety) to show cause on a date to be specified in the notice, why the interim orders passed should not be confirmed and the reliefs sought in the application be granted.
(5) If no cause is shown on or before the date specified in the notice under subsection (3) the District Judge shall dispose of the application.
(6) If the borrower (and his surety) appear and show cause, the District Judge shall grant them and the Corporation reasonable opportunity to produce their evidence relating to the reliefs claimed in the application; and after considering such evidence and hearing the parties the, District Judge shall pass his orders disposing of the application.
(7) When passing his order under subsection (5) or subsection (6), the District Judge shall‑
(a) record his finding as to the amount due by the borrower to the Corporation, and the interest payable thereon;
(b) direct or refuse to direct the sale of the properties attached;
(c) confirm, discharge or vary any ad interim orders passed restraining the borrower (and his surety) or attaching their properties; and
(d) pass any other incidental orders.
(8) No order passed by the District Judge ordering the release of any property of the borrower (or his surety) from attachment shall be given effect to until after the expiry of 30 days from the date of that order except with the written consent of the Corporation, or where an appeal has been preferred to the High Court, under the orders of the High Court.
(9) An order under this section for the attachment or sale of property shall be carried into effect a; far as may be, in the manner provided in the Code of Civil Procedure, 1908, for the attachment or sale of property in execution of a decree as if the Corporation were the decree‑holder.
(10) Any party aggrieved by an order under subsection (5) or subsec tion (6) may within 30 days from the date of the order appeal to the High Court, and upon such appeal the High Court may after hearing the parties pass such orders as it thinks proper.'
3. The learned counsel fortifies his argument by pointing out that sub section (10) provides for an appeal to the High Court and if the District Judge in subsection (4) is held to mean this Court in its Original Civil Jurisdiction then the purposes of subsection (10) are en tirely defeated and indeed that subsection becomes meaningless. He also referred to the case reported in P L D 1966 S C 738 (Ocean Industries Lid. and another v. Industrial Development Bank). Ordinance (XXXI of 1961) which had similar provisions; admittedly, however, the question was not raised in that case and reliance has been placed on it only as an instance of the fact that the Supreme Court apparently proceeded on the line of reasoning adopted by Mr. Ajmal Mian. Cases, however, are authority only for what they decide and not for what seems to follow from them.
4. He next relied upon the case of Mst. Faizan v. Pakistan (P L D 1970 Kar. 262) in which a learned Single Judge of this Court held that the High Court Judge sitting on the Original Side was a Judge of Principal Civil Court of Original Jurisdiction. The learned Judge, however, held that since the expression, ordinary' and extraordinary' in relation to the Civil Jurisdiction, come from the Letters Patent and since the jurisdiction enjoyed by the then Karachi Bench of the West Pakistan High Court was not derived from the Letters Patent, the Civil Jurisdiction of this Court on the original side could not be described either as ordinary or extraordinary. Inasmuch as the word District Judge' has not been defined in the Act under consideration now, as it was not defined in the Act which the learned Single Judge was considering, recourse had to be taken to the definition in the General Clauses Act which does talk of ordinary and extraordinary original Civil Jurisdiction, and excludes the High Court in the exercise of such jurisdiction from the meaning of the word 'District Judge'. There is, therefore, some reason for distinguishing this case.
5. Mr. Anwar Ali who appears for the applicants also relied upon the General Clauses Act and sought to give several examples of jurisdiction conferred on District Judges by various enactments and exercised by this Court on the original side whether the amount involved was higher than the pecuniary limits of the jurisdiction of the District Judge of Karachi. For example he referred to the Succession Act. He went on to argue that the jurisdiction on the original side is really a special jurisdiction and cited in support thereof the case of Firdous Trading Corporation v. The Japan Cotton & General Trading Co. (P L D 1961. Kar. s 65).
6. A somewhat related point has also come under consideration in a judgment not yet reported which I delivered in Criminal Miscellaneous Application No. 382 of 1971 (Fida Hussain v. The State).
7. Learned counsel then relied upon the words of section 15 of the West Pakistan Urban Rent Restriction Ordinance (Ordinance VI of 1959) as it stood before the amendment. In Aziz Begum v. Noor Mohammad (P L D 1962 Lah. 887) it was held that the District Judge was persona designate' and this decision was approved by the Supreme Court in P L D 1965 S C 459. It seems to me, however, that these cases are somewhat distinguishable though for reasons which will presently appear, I am not detailing my own reasons for taking that view. Section 15 was then amended by Ordinance XXI of 1966 and upon the new definition it was held in Abdul Haq v. Saifur Rahman (P L h 1968 Lah. 478) that the District Judge was to be regarded as a Court and not as a persona designata'.
8. A similar view prevailed in regard to the Karachi Rent Restriction Act (VIII of 1953) where from the beginning the definition had been as was sought to be made in the amendment of the Urban Rent Restriction Ordinance to which I have referred.
9. Mr. Ajmal Mian in reply relied upon the case referred to earlier in P L D 1961 Kar. 565 and argued that the jurisdiction was held there to be neither ordinary nor extraordinary but special. He went on to argue that the procedure prescribed in section 30 of the Act now under consideration is itself special and that there is no real difficulty caused by subsection (10) of section 30. He said the appeal referred to could well mean a Letters Patent Appeal and attempted to argue that the jurisdiction exercised in Letters Patent Appeals is really of review and for that purpose relied upon the case of Sh. Mahboob Alam v. Mumtaz Ahmed (P L D 1960 Lah. 601). I am unable to see anything in that case which describes the jurisdiction as one of review since that word really connotes a re‑hearing or at least a correction by the Court itself. It is true that a Bench of this Court acting in the exercise of the Letters Patent Appellate jurisdiction is still the same Court but the proceedings before it nevertheless are in appeal. The appeal is of course an infra‑Court appeal. However, learned counsel referred to the case Moosa Oomer & Company Ltd. v. M/s. Haji E. Dossa & Sons and another (P L D 1971 Kar. 899) where the word 'review' is used.
10. The questions raised are not free from difficulty and are of great importance inasmuch as they affect the question of jurisdiction in a fairly large number of cases and I, therefore, think it desirable to refer the points involved to a Full Bench for decision. I formulate the questions as under:
(1) Does an application under section 30 of the House Building Finance Corporation Act (XVIII of 1952) involving a sum higher than the maximum pecuniary limit of the jurisdiction of the District Judge, Karachi lie to the High Court or to the District Judge
(2) In the event that such an application lies to the High Court, does an appeal lie under subsection (10) of section 30 and if so to what Court "
2. The first question referred to the Full Bench stands resolved by the amendment made to section 30 of the House Building Finance Corporation Act, 1952 by Act VIII of 1974. By this amendment following explanation has been added to section 30:
"Explanation.‑Where the extent of the liability of the borrower and his surety to which the application relates exceeds fifty thousand rupees, this section shall, in its application to the Karachi District, have effect as if references therein to District Judge' were reference to High Court'."
3. It may be noted that what the Legislature has added to a statutory provision is expressly an explanation and its object, therefore, is to facilitate its proper interpretation and to remove any possible confusion or misunder standing. The explanation is precise and confirms jurisdiction of this Court a to hear applications under section 30 of the said Act if the liability of the borrower and his surety exceeds Rs. 50,000. Accordingly the first question is answered in the affirmative.
4. Subsection (10) of section 30 of the House Building Finance Corpora tion Act, 1952 provides that an order made under subsection (5) of section 6 is appealable to the High Court. By reason of the explanation added by Act VIII of 1974 such an order may as well be of the High Court itself if the sum involved exceeded Rs. 50,000 in its application to the Karachi District. Subsection (10) of section 30 cannot, therefore, be read as providing an C appeal from an order made by a Single Judge of this Court, to a Division Bench of this Court for intra‑Court appeals are governed by Law Reforms Ordinance, 1972 (Ordinance XII of 1972) and whether or not appeal would lie from an order of a Single Judge of this Court against an order made under section 30 of the Act to a Division Bench of this Court will depend upon the provisions contained in that law. The second question is, therefore, answered accordingly.
Reference answered accordingly.
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