Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Original Petition No. 2 of 1948, decided on 17th January, 1949 under section 2 of the Contempt of Courts Act and section 151, Civil Procedure Code.
S. 9‑Right created by Statute which prescribes manner of enforcing it‑Partly complaining of infringement can seek only such remedy as is provided by Statute.
‑The rule is fundamental both here and in England that where a right is created by a statute which also prescribes the manner is which that right may be enforced, the party complaining of any infringement of such right can, only seek such remedy as is provided by that statute.
(1859) 37 L J 248, followed.
S. 9‑Special Tribunal appointed by Act to determine questions as to rights created by Act‑Special Tribunal's jurisdiction is exclusive ‑Ouster of Civil Court's jurisdiction‑Conditional or absolute ouster.
.‑Where a special tribunal out of the ordinary course is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those question is exclusive.
152 Ind. Cas. 792 (All.); I L R 31 Bom. 604 ; I L R 55 All. 406 ; 169 Ind. Cas. 239 (All.); I L R 61 Cal. 980 ; I L R 55 All. 1008 ; 42 C W N 441 ; 157 Ind. Cas. 270 (All.) referred to.
A I R 1946 Lah. 85, distinguished.
‑The argument for ouster is based in such cases on the presumed intention of the Legislature that the right was intended to be exercised only in the manner prescribed by the Act that created it, and if that presumption, is correct, the Civil Courts never acquired any jurisdiction to adjudicate on it as the very Act that created it also declared that it should be excluded from the Civil Courts' cognizance, and the creation and ouster being simultaneous, the Civil Courts never had any jurisdiction in respect of it. Either, therefore, there is or there is no ouster in such cases, but where there is ouster, it must, on the argument employed, be held to be absolute and not dependent on the functioning of the special tribunal. The theory of conditional ouster is, therefore, not at all applicable to such rights. It is, however, otherwise where a right is not created by a statute but existed before disputes relating to it or to some aspect of it were entrusted by statute to a special tribunal. Such pre‑existing rights having originally been within the cognizance of the Civil Courts, the ouster is dependent or the function ing of the special tribunal.
(1919) 36 P L R 642; 31 Bom. 604, referred to.
I L R 43 Bow. 221 ; I L R 1940 Mad. 599, distinguished.
‑The civil suit arose out of an order made by, the Commission itself. There is no question of the improper constitution of the tribunal or of its having exceeded its jurisdiction in the sense that it pronounced on a matter which was not within its competency. The tribunal was properly constituted, it did function and it functioned in a matter which had been entrusted to it by the statute. These conditions being satisfied, its decision right or wrong, is final and cannot be called in question in a Civil Court.
It is true that under the law the Commission was bound to observe the rules of Civil Procedure but it is impossible to contend that merely because a Court governed by the rules of Civil Procedure refuses to grant an adjournment or to issue a commission for the examination of a witness in a foreign country, whatever the grounds of such refusal may be, it exceeds the jurisdiction vested in it by law.
I L R 11 Cal. 6 P C ; I L R 1940 Mad. 599, referred to.
24 Q B D 371 ; 24 Q B D 213, distinguished.
-----
-----Order, 1936, Part III, in accordance with S. 291, Govern ment of India Act, 1935‑Not a Court subordinate to High Court within meaning of S. 115, Civil Procedure Code. (Per Majority Cornelius, J. contra).
‑If I am right in the view that the Election Peti tions Commissioners are a special tribunal with exclusive jurisdiction, it would follow that they are not subordinate to the High Court.
Even, therefore, if the Election Petitions Commissioners can be held to be an "inferior" Court, which word is perhaps used in section 224 of the Government of India Act, 1935, in contra‑distinction to superior Court or Court of record, there is no right of appeal from its decisions to the High Court nor has the High Court been invested with any right of revision, the argument based on the High Court powers to interfere under section 107 of the Government of India Act, 1915, being no longer applicable, and it will be begging the question to say that because exhypothes the Election Petitions Commissioners are an inferior Court, therefore, their decisions are subject to revision by the High Court.
P L D 1949 Lah. 30 ; A I R 1935 Mad. 673; 47 Mad. 369 ; 214 Ind. Cas. 59 ; 1948 Bom. 20; 21 Pat. (1942) 1 ; 37 Bom. 114 ; 49 Cal:'931, distinguished.
‑The Commission never existed as a Court and was only constituted for the specific purpose of investigating and reporting on election disputes.
Unless expressly provided by statute, and such cases though rare in England are abundant in our legislation, that a special tribunal will be the judge of its own jurisdiction Civil Courts are competent and it is for them alone, to determine the question whether a special tribunal has acted within jurisdiction or exceeded its limits but that does not mean or necessarily imply that the tribunal is subordinate to the High Court within the meaning of section 115 of the Code of Civil Procedure. Though that section contemplates some of the well recognised cases where a prerogative writ would issue in England, and the jurisdiction of the High Court in England and that of the High Courts in Pakistan to interfere in revision are analogous, it is a mistake to suppose that these two jurisdictions are identical and do not differ in their scope and charac ter and that the High Courts in Pakistan will interfere in revision where a writ would go in England.
(1910) 2 K B 859 ; 1948 Bom. 20, distinguished.
The Election Petitions Commissioners are not a Court subordinate to the High Court and are an independent and special tribunal exercising exclusive jurisdiction in a defined class of cases. The invitable result of holding the Election Petitions Commissioners as a Court subordinate to the High Court would be that every enterim order of theirs and even their final report would be liable to revision on proof that in exercising their jurisdiction they have committed some illegality or have acted with material irregularity, and the High Court will thus have the power of interfering with their proceedings at every stage which was never the intention of the Legislature. And it would be anomalous to hold that though the High Court has the power to interfere with their interim orders it has no such power in respect of their final report because the latter essentially depends upon the proceedings taken before the making of the report and if anyone of these orders could be properly attacked in revision, the basis of the report would be gone, and this would take away all finality from their report.
‑In my opinion, all the circumstances which are necessary for regarding the Election Petitions Commission as a Court are clearly to be found.
It is undeniable that an election petition challenging the election of a member of a Provincial Legislature raises an issue relating to civil rights between persons within the jurisdiction. It is perfectly clear that by the Corrupt Practices and Election Petitions Order, 1936, the trial of such issues is entrusted exclusively to an Election Petitions Commission to be constituted by the Governor as required by the Order ; the Commission determines these issues not by reason of voluntary submission of the parties to its jurisdiction but under the sanction of law. By express pro vision in a statutory rule, the Commission is required to resolve the issues in the precise manner which a Civil Court has to follow, in the trial of suits, under the Civil Procedure Code. The conclusions reached by the Commission are definitive inasmuch as although the avoidance or otherwise of the election does not take place by direct order of the Commission, its opinion as expressed in its report is binding on the Governor who must make an order in accordance therewith, and such an order is by express words in the Order of 1936 declared to be final.
P L D 1949 Lah. 33 ; I L R 1941 Pat. 373 F B ; A I R 1935 Mad. 673 ; AIR1924Mad.561FB;1913 A C 546;AIR 1946Lah.85;DB214 Ind. Cas. 59 ; I L R 1947 Lah. 1, followed.
I L R 46 All. 513 ; I L R 1946 Lah. 16 ; A I R 1943 Bom. 20, distinguished.
.‑‑I am fully satisfied that section 115, Civil Proce dure Code, embodies a very important part of this Court's functions in relation to all Courts and tribunals which are required by law to observe the procedure laid down in Civil Procedure Code. As has already been seen, the Election Petitions Commission is required by statutory rule to follow that procedure, and it seems to be a necessary consequence of that statutory provision that in procedural matters the Election Petitions Commission should be subject to the revisionary jurisdiction of this Court.
The mere fact that election petitions are exclusively triable by the Commission does not affect this conclusion, for it can never be any part of this Court's intention to interfere with the making of any order by a Court of special jurisdiction, if the grounds on which the order proceeds have been exclusively assigned by law to such tribunal or to interfere by pre-emptory order with the ordinary course of adjudication by such tribunal within its limited jurisdiction except where a grave wrong or defeat of justice is manifest, such as cannot be remedied by the regular procedure, or where there is reason to assume absence of good faith.
The absence of any provision excluding the jurisdiction of Civil Courts from the rules made by the Governor of the Punjab in respect of the 'decision of doubts and disputes arising out of or in connection with elections' when its inclusion was the ordinary legislative practice in the Province where comprehensive protection was to be provided for the special jurisdiction as well as for all the proceedings, of a special tribunal must in my view be regarded as deliberate, and I, therefore, conclude that there is no statutory bar to the interference of this Court with an interim order of the Commission, in the strictly limited circumstances already indicated.
A I R 194.2, Pat. 1 (14) ; L R 1937 A C 473 ; 1 L R 1943 Lah. 257, referred to.
On the point of subordination, I may note that the expression subordinate occurring in section 115, Civil Proce dure Code is not limited in its meaning by the provision in section 3 of the same Code, which renders the District Court, the Court of Small Causes and all Courts subordinate to the District Court subordinate to the High Court. I feel no hesitation in, holding that for the purposes of section 115, Civil Procedure Code direct subjection to the authority of this Court in any or all respects is not necessary in relation to the Court whose orders are to be revised, but it is sufficient that it is a Court of a civil nature, and inferior in rank.
I L R 37 Bom. 114 ; 1 L R 49 Cal. 931, followed.
---
---‑Election Petitions Commission constituted under Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, Part III, in accordance with S. 291, Government of India Act, 1935‑High Court's order staying proceedings before Commissioner is without jurisdiction and void Members of Commission by disobeying such order do not commit con tempt. (Per Majority, Cornelius, J. Contra).
‑Order staying proceedings before the Commission being without jurisdiction was void and that being so no contempt of High Court was committed by the members by disobeying it.
‑I am fully satisfied that in issuing an order staying proceeding before the Commission, I acted in the exercise of jurisdiction properly vesting in me and consequently that the refusal of the Commission to obey this order constitutes contempt. Obedience to an order issued by this Court is incumbent upon every person and authority within the jurisdiction, and as such orders are to be presumed to be within the jurisdiction of this Court until the contrary is estab lished to the satisfaction of this Court, the duty of every person or authority to whom the order is addressed by this Court is to submit thereto in the first instance and, if such person or authority wishes to challenge the regularity of the order, to move this Court by proper petition. It is to be regretted that' in the present case the Commission saw fit, even after the issue of a letter from this Court's Registrar, to adopt a course of action which easily lends itself to misconstruction as defiance of this Court's authority and renders the violation of this Court's order conscious and wilful.
It is a question for consideration whether or not the members of the Commission should be committed for the contempt which they are clearly guilty of. I have given very careful consideration to this question, and it seems to me that regrettable though the Commission's attitude in the matter may appear from one point of view, it can be said in justification that they were bona fide of the opinion that the order of stay issued to them was one which they were not required to obey.
But at the same time, mere lack of courtesy or savoir faire cannot be the foundation of a committal for contempt if there be circumstances re lating to the substantive act which could be urged in mitigation.
I would follow the Court of Chancery in holding that they should not be committed for their proved contempt, but should merely be required to pay the costs of these proceedings to the opposite parties, the costs to be borne by the three members of the Commission in equal proportions.
L R 1876‑77 ; 4 Cr. D 98 referred to.
cl. 1.‑Lahore High Court a Court of Record‑Also "Chartered High Court" within meaning of Part IX and O. XLIX, Civil Procedure Code‑Possessed of Superiority over all Persons and jurisdictions within territory‑Acts of High Court pre sumed to be within jurisdiction unless contrary should appear on the face of proceedings or aliunde‑Submission to its orders at least in first instance incumbent on all.
.‑The High Court of Judicature, Lahore, is consti tuted by clause 1 of its Letters Patent to be a Court of Record. It is also clear that being a Court constituted by Letters Patent, it is a "Chartered High Court" within the meaning of Part IX and O. XLIX of the Civil Procedure Code. There is no other Court or tribunal in the Province to which these descriptions can apply, and it is, therefore, reasonable to claim, in relation to this Court, the superiority which goes with the position of a Court of Record over all persons and jurisdictions within the territory. It is axiomatic that in the delimitation of jurisdictions in the judicial field, nothing but chaos can result if the final decision be left in the hands of more than one authority.
By virtue of the superiority of status of such Court, it becomes incumbent on all persons and authorities within the jurisdiction, to whom an order may be addressed from such a Court, to respect that order and submit to it at least in the first instance, and this is undoubtedly the foundation of the principle which is well established in relation to all orders made by the superior Courts in England, in the nature of injunc tions, that the person or authority to whom it is addressed may only dis obey it at his or its peril, and that the proper course is to make submis sion in the first instance, and then to move the Court issuing the order to have it set aside on the ground of irregularity or otherwise. There is ample authority to be found in the English text books and Law Reports to the effect that an injunction issued from a superior Court must be respected, on pain of committal for contempt.
It may of course be that, being but human, this Court, may on occasion be led into issuing orders which are defective or irregular, or it may even be, having regard to the wealth of statutes by which the judicial process is in these times encumbered, in excess of jurisdiction and if and when a defect or irregularity or excess of this kind is pointed out, I feel no doubt that this Court will unhesitatingly withdraw its order, and exercise the ample powers which it possesses to remedy any injury that may have been suffered thereby, but notwithstanding these possibilities the obligation of obedience to its orders unless they be discharged, which rests on persons and authorities within this Court's jurisdiction is un deniable, and this Court would itself be failing its duty if in a proper case, where there was a breach of such obligation it failed to exercise its powers to commit the offender so that in the field of judicial administra tion, proper discipline should be maintained.
L R (1949) 1 K B 195 (205) ; Daniel's Chancery Practice, Eighth Edition, Vol. II, pages 1419, 1422, 1437 referred to.
---
---Order, 1936, Part III, in accordance with S. 291, Govern ment of India Act, 1935‑Civil Courts to see whether Commission has acted in excess of jurisdiction‑Courts of general jurisdiction Special Tribunals‑‑Exercise of discretion by latter how far rectifiable by former‑Civil Procedure Code (1908), S. 115, O. XVII, r. I, O. XXVI r. 4.
I entirely agree with the view that where there is contravention of statutory requirements, which are binding on the Commission, and consequently an excess o jurisdiction, the Civil Courts as the Courts of general jurisdiction have full power and authority when properly moved to rectify the excess and to remedy the wrong if any. But it seems to me that in relation to the validity of orders made in the exercise of discretion conferred by the statute the view that such exer cise can never amount to excess of jurisdiction is ‑misdirected. For it is well known that when by law something is left to be done according to the discretion of the authority legally empowered, such discretion must be exercised honestly and in the spirit of the statute, otherwise the act done would not fall within the statute or in other' words it would be deemed to have been done in excess of jurisdiction. Discretion must be exercised according to law and not humour ; it must not be arbitrary, vague and fanciful, but legal and regular ; it must not be exercised capri ciously but on judicial grounds and for substantial reasons. In Rook's case (77 E R page 209) discretion has been defined as a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences and not to do according to their wills and private affection". The reference was to Commissioners of sewers, and it; was laid down that notwithstanding that the statute gave them authority to act according to their discretion " yet their proceedings ought to be limited and bound with the rule of reason and law".
L R 1877‑78, 3 A C p. 614 ; L R 1890 ' 24 Q B D p. 213 ; L R 1890 XXIV Q B D p. 371 55 Cal. 748 ; 34 C W N 578 ; 38 C W N 1146, referred to.
By O. XVII, r. 1, it is provided that in the trial of a suit, "the Court may, if sufficient cause is shown, at any, stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit." In the case before the Commission it seems obvious that time was sought by the respondent in the election petition, for the purpose of himself giving evidence as a witness, which was refused. The statute provides that such time might be granted "if sufficient cause is shown" and as to the sufficiency of the cause, the Commission was undoubtedly, in the first instance, the sole judge. But it is not difficult to imagine circumstances in which refusal to grant time may amount to capriciousness or arbitrariness and this would be no exercise of the discretion conferred by the statute.
Also there tan be no doubt whatsoever that the discretion which under O. XXVI, r. 4 is given to the Court to issue Commissions is to be exercised in accordance with the facts and circumstances of the case, which are advanced in support of the prayer for issue of a Commission. There is some authority for the view that where a witness is not under the control of the party asking for a Commission and resides beyond the local limits of the Court's jurisdiction, a commission should issue as a matter of right, unless the Court is satisfied that such issue would be mere abuse of authority; vide Jagan Nath v. Sarathambal (I L R 45 Mad. 574). But other High Courts have held that the grant of such a commission is discretionary, and the Court has to consider what is the right thing to do on the facts of each case.
There was, therefore, sufficient reason for doubting the accuracy of the view taken by the learned Subordinate Judge in his order of the 29th September 1948, as regards existence of powers himself, as a Court of general jurisdiction, to interfere with the order made in the exercise of discretion by the Commission, as a Court of special jurisdiction.
ILR 46 Mad 574; 36 Bom. LRp.272;1852 LJR(Common Law) p. 308 ; L R 1884, 25 Ch. D p. 673 ; 1838 L J R (Common Law) p. 489 referred to
M. F. Rahman with Nawabzada Mumtaz Ali Khan for Petitioner.
Shabir Ahmad, Advocate‑General, with Abdul Aziz Khan, Assistant to the Advocate‑General for Respondents.
‑This proceeding lying in the jurisdiction of this Court to punish contempts of its own orders has come before this Full Bench in the following circumstances. An election petition was proceeding before the Election Petitions Commission at Lahore which had been instituted by one Mian Nut Hussain against the returned candidate Mian Sultan Ali Nanghiana, M.L.A., from the Shahpur Muhammadan Constituency. The recording of evidence had been closed and the case had been fixed for bearing arguments when Mian Sultan Ali Nanghiana instituted a suit in the Court of Mr. Muhammad Saleem, Subordinate Judge, 1st Class, for certain declaration. He complained that the Election Petitions Commission (hereinafter referred to as "the Commission") had unjustly refused to him his right inherent to appear in evidence as his own witness as well as his right to examine on commission, a witness namely Ch. Ram Singh, Senior Superintendent of Police, who was now in the Indian Dominion, by the issue of a commission. At the same time, the plaintiff sought an injunction against the defendant Mian Nut Hussain to prevent him from proceeding further with the case before the Commission till the decision of the suit, and the learned Subordinate judge issued an interim injunc tion to the defendant to this effect and then issued notice, in relation to the prayer for an injunction, in response to which the defendant appeared and showed cause. On the 29th September 1948 the learned Sub‑Judge dismissed the application for an injunction with costs. The grounds for dismissal will be stated in greater detail presently. The plaintiff Mian Sultan Ali Nanghiana immediately filed a petition in this Court on the revision side. The grounds of the petition were as follows. It was repeated that Mian Sultan Ali had an inherent right to give evidence on his own behalf and to have Ch. Ram Singh examined on Commission, and it was averred that the order made by the Commission in its discretion refusing to adjourn the case for these purposes had been made illegally and wrongly, in consequence of which the petitioner stood to suffer substantial injury. It was also stated that the learned Subordinate Judge having held that the plaintiff' had a cause of action and that there was jurisdiction to hear and decide the plaintiff's suit, had "erred in law in not confirming the order of stay of proceedings before the Election Petitions Commission." Accordingly it was prayed that the order of the learned Subordinate judge should be reversed and at the same time an interim stay order should be issued to the respondent Mian Nur Hussain not to proceed with the case before the Commission. In a separate application invoking the jurisdiction of this Court under section 151, Civil Procedure Code, the petitioner stated that the Commission was taking up the case on the following day and had fixed a further date two days later for dealing with the case, and "if the proceedings are completed there and a report submitted to His Excellency the Governor, the case filed in the lower Court will become infructuous and the petitioner will suffer substantial loss which would be irremediable." It was also stated that the order of the Commission dated 11th August 1448, closing the case of the petitioner was arbitrary and that the interests of justice required that the petitioner should have full facility for adducing evidence as allowed to him by lacy. On a consideration of all the circumstances bearing upon the question in issue, I made the following order :‑
"Let the record be sent for, for a very early date. In the meantime, further proceedings before the Commission are stayed‑temporary injunction to issue."
The "temporary injunction" was intended for the respondent, as prayed by the petitioner, but so far as I can make out none was issued although that is not material. The order restraining further proceedings before the Commission was perfectly clear and in compliance therewith. on the some date viz., the 2nd October a letter was issued from the Deputy Registrar of this Court to the Senior Sub‑Judge, Lahore, directing him to cause further proceedings before the Election Petitions Commission in the above case to be stayed ad interim." On the 4th October 1948, a further application was bled by Mian Sultan Ali Nanghiana in which it Was set out that this Court's order of the 2nd October had been communicated to the Commission through the Senior Sub‑Judge, Lahore, and Mr. Muhammad Saleem, Subordinate Judge, and a copy had also been produced before the Commission by the petitioner himself. At this time, the Commission was engaged in dealing with the petition against Mian Sultan Ali Nanghiana, and counsel for the opposite party viz., Mian Nur Hussain had started his arguments. This had been done in spite of the Commission having received intimation of this Court's stay order through the Senior Sub‑Judge and when the petitioner appeared and produced a certified copy of that order the learned President and Members of the Commission read the order, and satisfied themselves that it was formally in order, but declared that they would not stay the proceedings in obedience to the High Court's order. The petitioner prayed that action in contempt be taken against the members of the Commission. Thereupon, I directed that the Registrar should issue a letter to the President of the Commission "asking him to state whether the temporary injunction issued by this Court on the 2nd October 1948 has reached him and, if it has, whether the proceedings have been stayed as directed". The reference to "temporary injunction" was inapt; it should have read "stay order" but the mis‑description was not productive of any misunderstanding, as will appear from the reply made to the Registrar's letter by the President. This is dated the 4th of October 1948 and states that this Court's letter of the 2nd October 1948 "requesting that further proceedings in the Election Petition case Nur Hussain v. Mian Sultan Ali Nanghiana pending in this Commission may be stayed as directed by the High Court" had been received on the 2nd October, at a time when arguments in the case had already started and were continuing. It was stated that the proceedings had been continued after the receipt of that letter, and a reason for this action was given namely that the Commission was not a Court within the meaning of the Punjab Courts Act but had been constituted under an Order‑in‑Council of His Majesty promulgated in 1936 under section 291 of the Government of India Act, 1935 ; therefore "It was not considered incumbent upon the Commission to stay the proceedings as directed by the High Court". The letter also referred to the injunc tion previously issued to Nur Hussain by the learned Sub‑Judge restraining him from proceeding further with his election petition pending before the commission and the following observation was made with respect to this injunction :‑
"It was apparent to the Commission that the provision of O. XXXIX, r. 1, C. P. C., did not apply to the proceedings before the Commission inasmuch as neither any question of any threat or damage to property nor of any possibility of loss to a creditor was involved and the Commission therefore did not consider it legal or proper to stay the proceedings which had already been pending for over two years."
After hearing arguments by Mr. Abdul Karim for Mian Sultan Ali Nanghiana, and making a summary examination of the facts and law, I came to the conclusion that there was prima facie ground for thinking that the learned President and Members of the Commission by their wilful refusal to obey this Court's order staying proceedings before the Commission, had acted in contempt and had consequently incurred penalties which this Court was empowered to impose in its jurisdiction as a Court of Record and accordingly I directed that notice should issue to the President and Members to show cause why they should not be dealt with for the said contempt in accordance with law. In compliance with this notice, they have made appearance before this Full Bench, constituted for the purpose by my Lord the Chief Justice and through the learned Advocate‑General of the Province, they have attempted to show cause. The petition has been supported by Mr. Fazl‑ul‑Rahman on behalf of Mian Sultan Ali Nanghiana.
Briefly, the arguments presented by Mr. Fazl‑ul‑Rahman were to the following effect. The High Court is constituted by its Letters Patent a Court of Record and has power directly and summarily to punish contempts of its own orders. The Lahore High Court, although it is not one of the Presidency High Courts, nevertheless has power to issue high and prerogative writs, e.g., the writs of certiorari. Even if the latter contention be not accepted the Election Petitions Commission is a Civil Court Subordinate to the High Court in the sense that it deals with matters of a civil nature, and by the ordinary judicial process, inasmuch as the rules by which it is governed required that, so far as may be, it shall follow the procedure laid down in the Civil Procedure Code. In a relevant statute, viz., the Indian Election Offences and Enquiries Act, 1920, by section 5, the Commissioners appointed to hold an enquiry in respect of an election to a Chamber of a Legislature constituted under the Government of India Act, 1935 are vested with the powers of a Court under the Code of Civil Procedure in respect as such matters as enforcing the attendance of witnesses, examining witnesses on oath, granting adjournments and issuing Commissions for the examination of witnesses, and the section goes on to state that such Commissioners "shall be deemed to be a Civil Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898." An explanation to this section provides that the local limits of the Commis sioner's jurisdiction for the purpose of enforcing the attendance of witnesses shall be the limits of the Province in which the election was held, and it becomes plain from this that these limits do not apply to the issue of Commissions for the examination of witnesses. Every judicial tribunal which is required by statute to follow the procedure laid down in the Code of Civil Procedure is necessarily subject to the revisionary jurisdiction of the High Court. The High Courts is also the superior Court within the Province, charged with the duty of setting limits to the jurisdiction of all other judicial tribunals of Courts within the Province, and this imports subordination in the latter tribunal qua the High Court. Further, if it can be shown that over any part of its jurisdiction a tribunal is directly subordinate to the Appellate or Revisional Authority of the High Court then it must be held to be subordinate to the High Court in the respects relevant for the application of section 115, C. P. C., and such subordination is evident from the provision in section 5 of the Elections Offences and Enquiries Act constituting the Commissioners a Civil Court for the purposes of sections 480 & 482 of the Cr. P. C., since their actions under these sections would be subject to revision by the High Court under section 439, Cr.P.C., notwithstanding that such orders are not expressly rendered appealable under section 486, Cr. P. C.
It was then argued that the stay order made by the Court could also be related to section 151, C. P. C. The suit clearly showed a state of urgency, in which unless immediate action was taken, injustice might have been done to the plaintiff which would be irremediable, inasmuch as upon the making of a report by the Commission to the Governor, the latter would be bound to make an order in accordance with the report, and this might involve the plaintiff in loss of his status as an M.L A. and even in loss of civic rights by disqualification for the purposes of voting or standing for election, without his being given a proper opportunity to meet the charges against him. In such a case, the Court of general jurisdiction which was required to decide whether or not the tribunal of limited jurisdiction namely the Commission had acted within its jurisdiction or in excess thereof, must be deemed to possess power, for securing the ends of justice, to stay proceedings in the latter tribunal pending decision of the question, before the Court of general jurisdiction, for otherwise the right possessed by the plaintiff to invoke the jurisdiction of the former Court would be rendered nugatory.
Finally it was urged that an order of the High Court emanating from the highest Court in the jurisdiction, must be obeyed by all other judicial tribunals until it is vacated. The proper course for any tribunal to which such an order is directed is, if it be of the view that the order is irregular or without jurisdiction, in the first instance to submit thereto and thereafter to move the High Court to vacate its order. It can only refuse to obey such an order at its peril.
The learned Advocate‑General in reply referred to the Government of India (Provincial Elections) (Corrupt Practices and Election Peti tions), Order, 1936, which provides for matters connected with elections to the Provincial Legislature, including the "decision of doubts and dis putes as to the validity of an election and disqualification for corrupt practices" and relied principally on paragraph 2 in Part III of this Order which reads as under :‑
"No election shall be called in question except by an election peti tion presented in accordance with the provisions of this Part of this Order.
By paragraph 6 in the same Part, power is given to regulate procedure in respect of election petitions by means of Acts of the Provincial Legis lature and "rules" by which is meant rules made under paragraph 20 of Fifth Schedule to the Government of India Act, 1935 (containing pro visions regarding the composition of Provincial Legislature, paragraph 20 expressly giving power to the Governor to make rules with respect to "the decision of doubts and disputes arising out of or in connection with elections"). The particular rules in question are contained in Chapter III of Part E of the Punjab Legislative Assembly Electoral Rules, 1936, and paragraph 13 of this Chapter is expressed as follows :‑
" Subject to the other provisions of this Chapter every election petition shall be enquired into by the Commissioners as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits Provided that, in recording the evidence of any witness examined by them, the Commissioners may make only a memorandum of it".
Referring to section 151, Civil Procedure Code, the learned Advocate General emphasized that it gave new powers but merely saved all powers inherent in the Court, to make such orders as may be necessary, for the ends of justice " and contended that the expression " justice " must be confined to the kind of justice which the Court making the order was empowered to dispense, and since by law the disposal of election peti tions was expressly entrusted to the exclusive jurisdiction of Election Petitions Commissions, it was not within the kinds of justice which the High Court was empowered to dispense. The learned Advocate‑General next argued that this Court was not empowered to issue an injunction in the case to the commission which was not a party thereto, and relied on the presence in my order of the 2nd October 1948, as well as in the notice issued to the Commission of the word "injunction". He contended that no injunction can issue to a person who is not a party and referred also in this connection to section 56 clauses (a), (b) and (d) of the Specific Relief Act, 1877. The contention that an Election Petitions Commission was in any sense a Court subordinate to the High Court was strongly challenged, and finally it was urged that the order made by this Court staying proceedings before the Commission was an order without jurisdiction, disobedience of which was not punishable as contempt. It was not denied that if anything allegedly done by the Commission was entirely without jurisdiction, the Courts of general jurisdiction would have power to interfere but in the present case, it was contended that it was plain from the terms of the order made by the learned Subordinate Judge that the acts which Mian Sultan Ali Nanghiana had called in question by means of the suit were procedural acts performed in the exercise of discretion vested in the Commission by statute, which were not subject to challenge before a Court of general jurisdiction or before the High Court. It is desirable at the outset to state something of the procedure which the commission is required to follow, and in particular as regards the effective orders which follows upon the conclusion of the enquiry before the Commission. As has been seen already, in dealing with an election petition, the Commissioners are required to comply as closely as is possible with the procedure applicable to the trial of suits under the Civil Procedure Code. In other words, upon receipt of a petition notices issue to the opposite parties, written statements are filed, statements recorded, issues frame, documentary evidence is brought on the record in the appropriate manner and witnesses are summoned and examined. Then, arguments are heard and finally, as laid down in Part III of the Corrupt Practices and Election Petitions Order, the Com mission is required to make a report to the Governor. The operative paragraphs in connection with the report are paragraphs 7 to 10 of Part III aforesaid which are in the following terms :‑
"7. (1) Subject to the provisions of this paragraph, if in the opinion of the Commissioners‑
(a) the election of a returned candidate has been procured or induced, or the result of the election has been materially affected, by any corrupt practice ; or
(b) any corrupt practice specified in Part I of the First Schedule to this Order has been committed in the interests of a returned candi date ; or
(c) the result of the election has been materially affected by the improper acceptance or rejection of any nomination, or by reason of the fact that any person nominated was not qualified or was disqualified for election, or by the improper reception or refusal of a vote, or by the re ception or any vote which is void, or by any non‑compliance with the provisions of the Act or of this Order, or of any Act of the Provincial Legislature or Rules relating to the election, or by any mistake in the use of any prescribed form ; or
(d) the election has not been a free election by reason of the large number of cases in which bribery or undue influence has been exercised or committed, the election of the returned candidate shall be void.
(2) If the Commissioner's report that a returned candidate has been guilty by an agent, other than his election agent of any corrupt practice specified in Part I of the First Schedule to this Order, but further report that the candidate has satisfied them that‑
(a) no corrupt practice was committed at the election by the candidate or his election agent, and the corrupt practices mentioned in the report were committed contrary to the orders, and without the sanction or connivance, of the candidate or his election agent ;
(b) the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election ;
(c) the corrupt practices mentioned in the report were of a trivial and limited character or took the form of customary hospitality which did not affect the result of the election ;and
(d) in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents,
then the Commissioner may find that the election of the candidate is not void.
(3) If a person (not being entitled so to do) votes more than once at the some election, all his votes shall be deemed for the purpose of this paragraph to be void.
8. (1) At the conclusion of the enquiry the Commissioners shall report whether the returned candidate, or any person who has lodged a petition and claimed a seat, has been duly elected and in so reporting shall have regard to the provisions of the last preceding paragraph.
(2) The report shall further include a recommendation by the Commissioners as to the total amount of costs which are payable and the persons by and to whom costs shall be paid.
Any such recommendation may include a recommendation for the payment to the Advocate‑General of the Province or a person acting under his instructions, attending the trial in pursuance of an order of the Commissioners, of costs in respect of that attendance, but shall not include a recommendation for the payment of costs in respect of any other Government expenditure in connection with the inquiry.
(3) The report shall be signed by all the Commissioners and the Commissioners shall forthwith forward their report to the Governor, who on receipt thereof shall issue orders in accordance with the report and publish the report in the Government Gazette of the Province, and the orders of the Governor shall be final.
9. If either in their report or upon any other matter there is a difference of opinion among the Commissioners, the opinion of the majority shall prevail and their report shall be expressed in terms or the views of the majority.
10. Where any charge is made in an election petition of any corrupt practice, the Commissioner shall record in their report‑
(a) a finding whether a corrupt practice has or has not been proved to have been committed by any candidate or his agent, or with the connivance of any candidate or his agent, and the nature of that corrupt practice ; and
(b) the names of all persons, if any, who have been proved at the inquiry to have been guilty of any corrupt practice and the nature of that practice with any such recommendations as the Commissioners may think proper to make for the exemption of any persons from any disqualifications which they may have incurred in this connection under paragraphs two to five of Part IV of this Order
Provided that no person shall be so named in the report unless he has been given a reasonable opportunity of showing cause why his name should not be so recorded."
It will be seen that paragraph 8 requires that the Commissioners shall report whether the returned candidate or the person who has lodged the petition and claimed the seat has been duly elected, and they are also required to express their opinion on the question whether the election of the returned candidate has been procured or the result of the election has been materially affected by any corrupt parctice, or that any corrupt practice has been committed, whether irregularity in accepting or rejecting a nomination paper or a vote or in any other respect has materially affected the result of the election, and whether the election has or has not been a free election by reason of bribery or undue influence practised on a large scale and it will be observed that in order to render the election of the returned candidate void, it is sufficient that the Commissioners have expressed an opinion in the terms of one of the four clauses of sub‑paragraph (1) of paragraph 7. Then, the Commissioners have also to record an opinion as required by paragraph 10 whether any corrupt practice has been committed by or with connivance of a candidate or his agent or by any other persons, and it is also required that before naming any person in the report as being guilty of corrupt practice the Commission shall give him "a reasonable opportunity of showing cause why his name should not be so recorded". The consequence of a person being named for commis sion of a corrupt practice in the Commission's report is disqualification for long periods as provided by Part IV of the same Order. Immediately upon signing the report the Commissions are required to forward it to the Governor, who is placed under duty "on receipt thereof" to "issue orders in accordance with the report and publish the report in the Government Gazette of the Province and the orders of the Governor shall be final." Finally, no dissent on any point among the Commis sioners is to appear in the report for as paragraph 9 lays down, the opinion of the majority shall prevail and the report shall be expressed in terms of the view of the majority.
It will be sufficiently apparent from the foregoing that although the Commission is not empowered to make the final order in respect of an election petition, the opinion which it expresses as regards the validity of the election is in all respects tantamount to a final opinion, which determines the result of the enquiry. When the Commission is of opinion, that certain conditions are satisfied, "the election of the returned candidate shall be void" as provided in paragraph 7 and when the Commission is, of opinion that a certain person has been guilty of a corrupt practice, disqualification i.e., loss of civic rights in a most important respect viz., the power to vote at an election for the Provincial Legislature, follows for a lengthy period unless the Commissioners see fit to recommend exemption or the Governor removes the disqualifica tion. Again, any orders made in consequence of the opinion of the Commission are final, and as provided by paragraph 2 of the same Part of the Corrupt Practices and Election Petitions Order, the making of such an order would effectively debar the Courts from deciding in relation to the validity or otherwise of the election.
Hearing these matters in mind, we may now proceed to consider the terms of the applications which came before me on the 1st October 1948, for revision to the order of Mr. Muhammad Saleem, dated the 29th September 1949. A copy of that order was attached and may with advantage be briefly summarized. It set out that the order related to Mian Sultan Ali Nanghiana's petition for issue of a temporary injunction restraining the defendant Mian Nur Hussain from carrying on proceedings before the Commission. After setting out preliminary facts, it was mentioned that "the Commission has concluded the recording of evidence and have fixed the case for the hearing of arguments." Then, the learned Subordinate judge went on to say that the plaintiff's allegation was that the Commission had "unjustly refused the plaintiff his inherent right to examine Ch. Ram Singh, Senior Superintendent of Police now in India, on Commission car interrogatories and also to produce himself as his own witness." Resting on this the plaintiff had sued for a declaration that "the order of the Commission, dated 11th August 1948, refusing to plaintiff the opportunity for the examination of himself and Ch. Ram Singh as witnesses is without jurisdiction, arbitrary and contrary to law and justice. The defence was that the plaint disclosed no cause of action, that the Court has no jurisdiction and that the plaintiff's proper remedy lay by petition to the Governor. On the merits it was stated that the Commission's order was "perfectly justified as the plaintiff had been guilty of negligence and dilatory tactics," The learned Subordinate Judge first examined the question as to the existence of a cause of action and declared that this objection of the respondent seemed to be "devoid of any force." Remarking that although the order challenged was an order of the Commission, he remarked that the Commission was merely a tribunal, and "if anybody stands to benefit by that order it is the defendant, and it is against him only that the action lies." The question of jurisdiction was separate however from that of the existence of a cause of action and the learned Subordinate judge remarked that as a Court of general jurisdiction, he was empowered to go into the question whether a tribunal of special jurisdiction, such as the Commission had "acted within the four corners of the authority conferred on it in passing any order." Pointing out that the Commission was bound by a statutory rule to follow the procedure laid down for the trial of suits in the Civil Procedure Code, he remarked that if the Commission were to ignore this procedure, they would be guilty of contravening the statutory rule aforesaid, and their orders could be called in question in a Civil Court. The learned Sub‑judge then proceeded to give examples. He remarked that if the Commission had refused to examine a witness who was present and whom a party had cited in his list and wished to produce, they would be acting in clear contradiction of the provision of the Civil Procedure Code. But, in his opinion the question in the suit was not of this type, for neither Ch. Ram Singh nor Mian Sultan Ali Nanghiana was present on the Court premises, when the order was made which was being interpreted as a refusal to examine them. The question before the Commission was firstly whether an adjournment should be granted to enable Mian Sultan Ali Nanghiana to appear as his own witness, he being reported to be ill on the date that the adjournment was sought, and secondly whether a commission should issue for the examination of Ch. Ram Singh who was in India. Remarking that by the Civil Procedure Code both these questions were placed within the discretion of the Court which was trying a suit, the learned Subordinate judge concluded that these matters lay "entirely within the discretion of the Commission" and it was not competent for him to decide whether or not the Commission had exercised its discretion correctly. Such a decision could, in the view of the learned Subordinate judge, be reached only by an Appellate Court. The learned Subordinate judge also suggested, without deciding, that there might be a mode of relief by invoking the power of the Governor to withdraw the petition from the Commission and concluded by saying that the interim injunction order which had been issued could not be confirmed.
The petition whereby revision of this order was sought was expressed in six paragraphs. It was first stated that the lower Court was in error in not confirming the interim "order of stay of proceedings before the Election Petition Commission", when it had held that the plaintiff had a cause of action and the Court had jurisdiction to hear and decide the suit. On the merits, it was stated that the petitioner had an "inherent right to produce his witness Rao Bahadur Ch. Ram Singh, Superintendent of Police, Amritsar, for whose examination all facilities had been afforded by the East Punjab Government and the Commission was bound to examine him, and further that the petitioner himself could have been examined on the same date of hearing as that fixed for the examination of Ch. Ram Singh (This suggests that matters had been taken by the petitioner beyond the stage or asking for the examination of Ch. Ram Singh on Commission in foreign territory). It was then said that the Commission had exercised its discretion "illegally and wrongly" in refusing to adjourn the case in consequence of which the petitioner had sustained "substantial injury" and therefore the lower Court had erred in law in refusing to interfere. and in not confirming the interim injunction. It was prayed that the order of the lower Court should be set aside and the stay order confirmed, and that this Court should issue an interim stay order to the respondent. This petition was supported by an affidavit by Mian Sultan Ali Nanghiana stating that the dates for arguments before the Election Petitions Com mission were the 2nd and 4th October 1948, and adding that "if the respondent is not restrained from continuing the proceedings before the Commission on the 2nd October 1948, and the Commission sends its report to His Excellency the Governor, West Punjab, the suit filed by the petitioner will become infructuous and the plaintiff will be deprived of obtaining justice from a Court of law".
These were all the documents placed before me on the 2nd October 1948, when I. made the order which has been reproduced above. In the course of the hearing of the present petition in contempt, reference was made on several occasions to the plaint filed by Mian Sultan Ali Nanghiana with the object of showing that from the wording of the plaint, excess of authority or in other action without jurisdiction bar the Commission had not been alleged. In this respect, the only material which was placed before me was the order of Mr.. Muhammad Saleem, from which I have reproduced extracts, which clearly go to show that the allegations of the plaintiff as understood by the learned Subordinate judge were that the Commission in making the orders in question had acted without jurisdiction arbitrarily arid contrary to law arid justice. I have had no reason to doubt that this was a correct appreciation of the plaintiff's avermeats, and having now read the plaint. I still remain of the same opinion, although it is necessary to point out that if the question be whether the issue of a stay order by this Court was within the jurisdiction of this Court, the matter would have to be decided in relation to the documents as placed before the Court at the time when the order was made.
I pause here for a brief space to dwell on certain consideration which have nothing to do with the question of jurisdiction in the case, but are of high relevancy to the question of the operation of orders of this Court in general. It is clear that this Court is constituted by clause I of its Letters Patent to be a Court of Record. It is also clear that being a Court constituted by Letters Patent, it is a "Chartered High Court," within the meaning of Part IX and Order XLIX of the C. P. C. There is no other Court or tribunal in the Province to which these descriptions can apply, and it is, therefore, reasonable to claim, in relation to this Court, the superiority which goes with the position of a Court of Record over all persons and jurisdictions within the territory. It is axiomatic that in the delimitation of jurisdictions in the judicial field, nothing but chaos can result if the final decision be left in the hands of more than one authority and this is the true reason why in well‑ordered systems of justice, the power of delimitation of jurisdictions has been entrusted to the superior Courts. In England, where the system of justice is admittedly developed to a very high level, this power is exercised by the Supreme Court, viz., the High Court of judicature, by means of the prerogative writ known as the writ of prohibition. The nature and function of this writ, and the extent to which provision of a similar nature is contained in the laws of Pakistan will be considered presently. Here, however, it is relevant to state that, as a necessary concomitant of the status and authority thus vested in the Superior Courts of Record in England, a presumption attaches to their orders that they are within jurisdiction. As was remarked by Wrottesley h. J. in Rev v. Chancellor of St. Edmundsbury and Ipswich Diocese (LR (1948) 1 KB 195 at p.205.) :‑
"There is another test, well recognised by lawyers by which to distinguish a superior from an inferior Court, namely, whether in its proceedings, and in particular in its judgment, .it must appear that the Court was acting within its jurisdiction. This is the characteristic of an inferior Court, whereas in the proceedings of a superior Court it will be presumed that it acted within its jurisdiction unless the contrary should appear either on the face of the proceedings or aliunde."
By virtue of the superiority of status of such Court, it becomes incumbent on all persons and authorities within the jurisdiction, to whom an order may be addressed from such a Court, to respect that order and submit to it, at least in the first instance, and this is undoub tedly the foundation of the principle which is well‑established in relation to all orders made by the Superior Courts in England, in the nature of injunctions, that the person or authority to whom it is addressed may only disobey it at his or its peril, and that the proper course is to mark submission in the first instance, and then to move the Court issuing the order to have it set aside on the ground of irregularity or otherwise. There is ample authority to be found in the English text books and Law Reports to the effect that an injunction issued from a Superior Court must be respected, on pain of committal for contempt. In Daniell's Chancery Practice, eighth edition, Volume II, the following statements of the settled law on this subject will be found :‑
"(1) An injunction operates from the date of the order; and although it has been irregularly obtained, it is still an order of the Court and must be obeyed until it is discharged." (Page 1419).
"(2) Although the injunction or order is irregular, a party acting in contravention of it will be guilty of contempt. The proper course, where there is an irregularity, is to move at once upon notice that it may be discharged for irregularity," (Page 1422).
"(3) The writ (of prohibition) should be served on the judge of the inferior Court and on the plaintiff proceeding therein, and if the judge or plaintiff should thereafter proceed, it is a con tempt of Court and the writ must be obeyed, until it is set aside although it may have been improperly issued." (Page 1437).
The questions whether the Commission is a Court, and if so whe ther it is a Civil Court, and finally whether, if both these conditions are satisfied, it is a Court Subordinate to this Court, will receive more careful examination in the sequel, but I think it will not be out of place here for me to state that there can be no question but that the Commission cannot claim equality of status with this Court. The latter received from the learned President of the Commission seems to emp hasize the fact that it has been appointed by the Governor under an Order‑in‑Council of His Majesty, but it is evident that this is radically different from an appointment by or creation of His Majesty in person, and it is necessary to emphasize that having regard to the historical development of Courts of law under the British Crown, the Courts which can be regarded as King's Courts, being direct creations of His Majesty and entrusted either in whole or in part with the judicial functions of the sovereign, enjoy an unquestioned superiority over tribunals created by authorities subordinate to His Majesty. I do not propose to make these considerations the deciding factors in this case, but mention them as matters which are strongly relevant to the question of the correct attitude to be adopted by persons and authorities within the territory subject to the jurisdiction of this Court in relation to orders made by this Court. It may of course be that, being but human, this Court may no occasion be led into issuing orders which are defective or irregular, or it may even be, having regard to the wealth of statutes by which the judicial process is in these times encumbered, in excess of jurisdiction and if and when a defect or irregularity or excess of this kind is pointed out, I feel no doubt that this Court will unhesitatingly withdraw its order, and exercise the ample powers which it possesses to remedy any injury that may have been suffered thereby, but notwithstanding these possibilities the obligation of obedience to its orders unless they be discharged, which rests on persons and authorities within this Court's jurisdiction is undeniable, and this Court would itself be failing its duty if in a proper case, where there was a breach of such obligation it failed to exercise its powers to commit the offender so that in the field of judicial administration, proper discipline should be maintained.
I now proceed to examine the question whether this Court had jurisdiction in the case to make the order which has been disobeyed by the Commission. It has already been seen that the view of the learned Subordinate judge was that the plaintiff had made out a cause of action in his plaint. The learned Subordinate judge also clearly expressed the opinion that circumstances could be visualized in which refusal by the Commission to examine a witness‑and this result might have followed from a refusal to grant and adjournment‑would amount to contravention of the clear provisions of C. P. C., and would con sequently attract the jurisdiction of the Civil Court as a Court of general jurisdiction. In other words, the learned Subordinate Judge thought that if there were a clear excess of jurisdiction, the Civil Court would have power to correct the error notwithstanding that the excess had been committed by 'a Court of special jurisdiction, but the order complained of had been made by the Commission under certain legal provisions which allowed for the exercise of discretion on the part of the Commission,' and the learned Subordinate judge was of the opinion that he was not competent to interfere with the exercise of discretion by the Commission, and he accordingly vacated his order whereby an injunction had been issued to Mian Nur Hussain not to proceed with his case. The last mentioned conclusion of the learned Subordinate Judge has been the subject if some criticism before the Full Bench and it is necessary that it should be dealt within some detail. I am conscious that in so doing I may be required to make observations which might have a bearing upon the decision of Mian Sultan Ali Nanghiana's petition, which is still pending in this Court, but in the circumstances it seems to me that this is unavoidable. The case has assumed an aspect far wider in scope than that of the petition, and to some extent, it is necessary that considerations applying exclusively to the proper determination of the case should give way to considera tions affecting the larger question of the powers of this Court and the manner of their exercise in relation to other tribunals within the terri torial jurisdiction. I shall endeavour, however, to restrict any such observations to the minimum, and would like to add by way of caution that nothing which falls from me in this judgment, and which maybe relevant in any way to the merits of the pending petition is to be regarded as being in my way a final expression of opinion, in so far as that petition is affected.
As the outset I might say that neither during the proceedings before me sitting as a Single judge nor at the hearing before the Full Bench, was any reference made to the terms of the order alleged to have been made by the Commission on the 11th August, 1948, and I have not yet seen the text of that order. Consequently, the question of the jurisdiction of the Civil Court in respect of that order falls to be dealt with, conveniently as it happens, upon the basis of what is said concerning that order by the learned Subordinate Judge, and what has been brought out in arguments. Now, while it is clear that even in relation to a Court which is by statute placed in a position of sub ‑ordinance the higher Court will not ordinarily interference with an exercise of discretion, where the relevant statute allows discretion by the lower Court, it is not correct to assume that such interference is not permissible, or will not be made in proper cases. In dealing with orders of subordinate Courts, under section 115, Civil Procedure Code, it has been laid down that High Court will not interfere in revision with an order which it is in the discretion of the lower Court to make, unless the order is not supported by any consideration of justice or by any provision of law ; or unless irreparable injury will ensue to olio of the litigants or there will be failure of justice if the matter is not put right Phamindra v. Pramatha Nath (53 Cal. 748.), Sayyed Sadiq v. Asaf Qadir (34 Cal. W N 578.) and Indobala v. Lakshmi Narain (38 Cal. W N 1146). Leaving on one side for the moment the question whether section 115, Civil Procedure Code, at all comes into play in the present case I think it is relevant to point out that two considerations at least of those mentioned above, might by reasonable thought to be present in this case. These are firstly the danger of irreparable injury and secondly the danger of failure of the justice. The argument put forward by the learned Advocate General that because the doing. of justice in disputes relating to elections to the Provincial Legislature has not been entrusted to the Civil Courts, therefore, Civil Courts are not to be moved by any considerations of justice affecting the trial of such disputes, is obviously wide of the mark. It is one of the duties entrusted to the Courts of general jurisdiction to see, when moved by suit of an aggrieved party, whether any special tribunal to which judicial functions have been entrusted has acted in accordance with substantial justice in the procedure it has adopted. In this connection reference may be made to the case of Smith v. the Queen (L R 1877‑78, 3 A C 614.). The question there was whether a grant of land by the Crown had been duly forfeited. Forfeiture was to be by order of a Commissioner under the Crown Lands Alienation Act. A grant was to be held forfeited if at any time during its currency it was proved to the satisfaction of the Commissioner that the lessee has abandoned his selection and failed in regard to the performance of the conditions of residence during a period of six months," whereupon an order of forfeiture might be made by the Governor. The matter was brought before the Courts in a suit to contest ejectment, and coming eventuality before the Privy Council, their Lordships made it clear that they were not laying down that the Commissioner in con ducting the inquiry preliminary to satisfaction, as aforesaid, was bound by any form of procedure or any technical rules of evidence, "provided the inquiry is conducted according to the requirements of substantial justice." The Commissioner in that case had issued notice to the grantee that evidence had been placed before him to show that he had not complied with the conditions of residence, and he called upon the grantee to show cause why his abandonment should not be reported. On the date fixed, when the grantee appeared by a Solicitor, and having filed a declaration that he had resided as required by the terms of the grant, asked for production of the evidence to which reference had been made in the notice, the Commissioner said that he was not conducting a judicial inquiry, and when the Solicitor said that he could not meet evidence of which he did not know the nature, the Commis sioner replied that he had made the grantee aware in advance that he would have to produce evidence to establish his residence, and went on to say that he could not accept the declaration as sufficient. The Judi cial Committee held that in the circumstances the grantee had not been given an opportunity of being heard such as was necessary for the purposes of the inquiry, which they held was a Judicial inquiry. That was a case in which the Civil Courts were not entrusted with the "justice" to be administered under the statute and nevertheless when the authorities to which the functions had been entrusted, such functions being judicial functions, were found to have failed to conduct the pro ceedings "according to the requirements of substantial justice" the Civil Courts interfered and nullified the order made as the result of the inquiry by the authorities in question. Similarly, in the present case, there is no reason to suppose that because by statute, it has been provided that elections shall not be called in question otherwise than in the manner laid down in the Corrupt Practices and Election Petitions Order, which provides for reference of an election petition to a Com mission, that the Civil Courts have no concern whatsoever with any thing that the Commission may do in the trial of such petitions, but that the Commissions are at liberty to deal with such petitions in any manner they please according to their caprice and unchecked by any superior authority. I entirely agree with the view expressed by the learned Subordinate Judge that where there is contravention of statutory requirements, which are banding on the Commission, and consequently an excess of jurisdiction, the Civil Courts as the Courts of general jurisdiction have full power and authority when properly move to rectify the excess and to remedy the wrong if any. But it seems to me that in relation to the validity of orders made in the exercise of discretion conferred by the statute the learned Subordinate judge in taking the view that such exercise can never amount to excess of jurisdiction has misdirected himself. For it is well known that when by law something is left to be done according to the discretion of the authority legally empowered such discretion must be exercised honestly and in the spirit of the statute, otherwise the act done would not fall within the statute or in other words it would be deemed to have been done in excess of jurisdiction. Discretion must be exercised according to law and not humour, it must not be arbitrary, vague and fanciful, but legal and regular ; it must not be exercised capriciously but on judicial grounds and for substantial reasons. In Rooke's case (77 E. R. page 209) discretion has been defined as "ascience or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable gloses and pre tences and not to do according to their wills and private affections." The reference was to Commissioners of sewers, and it was laid down that notwithstanding that the statute gave them authority to act according to their discretion "yet their proceedings ought to be limited and bound with the rule of reason and law." In Queen v. Bishop of London (L R 1890 ; 25 Q B D 213.). Lord Esher M. R. observed as follows :‑
"Then there is the other branch of the argument, viz., that as to excess of jurisdiction. I think that the Bishop would have exceeded his jurisdiction if he had considered something which was not a circumstance of the case and had acted upon it. That he should have considered it would not I think be enough ; it would have to be shown that he had acted upon it."
The question for determination in that case was whether the Bishop of London in making a certain order under the public Workshop Regula tion Act, 1874, which empowered him to make such an order "after considering the whole circumstances of a case" had acted within his jurisdiction, and it was clearly understood throughout that the matter lay as to the exercise of discretion by the Bishop. The extract from the judgment of the Master of the Rolls reproduced above is authority for the preposition that there can be excess of jurisdiction even in the exercise of discretion, if matters which are not germane to the case are taken into consideration by the authority making the order. In the same case Lopes I. L. expressed himself as follows :‑
"But I am clear that the Legislature never intended to fetter an honest exercise by the Bishop of his discretion, or, so long as the statutory requirements were complied with, to make that reviewable by mandamus which was not reviewable before. If the reason or reasons given by the Bishop was or were irrelevant to the matter in hand, if they amounted to no reason were nugatory or illusory, I doubt not but that a mandamus would go, because the Bishop would not have exercised such a discretion upon the matter as could be considered in point of law a discretion which he was justified in exercising. In point of fact he would have exercised no discretion."
On a similar point in the case of Queen v. The Vestry of St. Paneras (L R 1890, 24 Q B D 371) Lord Esher M. R. in examining the exercise of discretion by the Vestry remarked as follows :‑
"I have no doubt that the Vestry should take his application into their fair consideration, and do what they think fair to the man tinder the circumstances, and if they do this, I have equally no doubt that the Legislature has entrusted the sole discretion to them, and that no mandamus could go to them to alter their decision. But they must fairly consider the application and exercise their discretion on it fairly, and not take into account any reason for their decision which is not a legal one. If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion."
It will be clear from the foregoing authorities that it is not strictly correct to assume that merely because an act of a tribunal or authority is made in the exercise of statutory powers which are expressly made discretionary, the possibility of an excess of jurisdiction in the making of such an order is excluded altogether. Circumstances can be conceived and are exemplified by the authorities cited above, in which the action taken under the statute will be regarded as not falling within the statute and consequently to constitute an excess of jurisdiction. At this stage it will be convenient to examine the statutory provisions in the Civil Procedure Code relating to the grant of adjournments and the issue of commissions. By Order XVII rule 1, it is provided that in the trial of a suit, "the Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit". In the case before the Com mission it seems obvious that time was sought by Mian Sultan Ali Nanghiana, the respondent in the election petition, for the purpose of himself giving evidence as a witness, which was refused. The statute) provides that such time might be granted "if sufficient cause is shown" and as to the sufficiency of the cause, the Commission was undoubtedly, in the first instance, the sole judge. But it is not difficult to imagine circumstances in which refusal to grant time may amount to capricious ness or arbitrariness and this as will appear from the authorities cited above, would be no exercise of the discretion conferred by the statute.
In another view, it might be regarded as action not falling within the statute and consequently illegal, and feel no hesitation in saying that in the case of a Subordinate Court, the High Court would have power under section 115, to interfere with such an order on the ground of illegality in the exercise of jurisdiction. That aspect of the matter will be considered snore fully in the sequel. As regards the issue of Commis sions, reference may be made to order XXVI of the Civil Procedure Code and rule 4 thereof which lays down that "any Court may in any suit issue a commission for the examination of any person resident beyond the local limits of its jurisdiction". Here, there is no reference to sufficient cause" but nevertheless there can be no doubt whatsoever that the discretion which is given to the Court to issue Commissions is to be exercised in accordance with the facts and circumstances of the case, which are advanced in support of the prayer for issue of a Com mission. There is some authority for the view that where a witness is not under the control of the party asking for a Commission and resides beyond the local limits of the Court's jurisdiction, a Commission should issue as a matter of right, unless the Court is satisfied that such issue would be mere abuse of authority; vide Nagan Nath v. Sarathambal (I L R 46 Mad. 574). But other High Courts have held that the grant of such a commission is discretionary and the Courts have to consider, what is the right thing to do on the facts of each case; vide Dhan Bai v. Babli Bai (36 Hom. L R 272). As to the circumstances in which commissions of this kind may be properly issued, reference may with advantage be made to certain decisions of the English Courts. In Castelli v. Groome (1852 L J R (Common Law) 308) it was stated by Lord Campbell, C. J. that "it lies upon the person applying to the Court to show that it would be conducive to the due administration of justice that the Commission should issue", and went on to remark that it would lead to most vextious consequences if constant recourse could be had to this power, and "it would be so in all cases where the authorities wished to avoid the process of examination here". In Armour v. Wolker (L R 1884 25 Ch. D 673) it was laid down by Cotton, L. J. that a commission for examination of witnesses abroad should not issue "unless some reason is shown why they cannot be examined here, nor unless the Court is also satisfied that there are material witnesses abroad whom the party wishes to examine". In Cok v. Alcock (188 LJR (Common Law 489)) the Court of Appeal laid down that it was a matter for the judicial discretion of the judge whether a Commission for exami nation of a witness abroad should issue and such an order would only be made upon reasonable cause being shown, which would depend upon no rule, but upon all the circumstances of the particular case, it being the duty of the judge who grants a commission to see that there is no oppression on the part of the party making the application and that the other party whether plaintiff or defendant will not be prevented from putting his case fairly before the Court at the trial". These observations make it clear that the discretion to be exercised by a Court acting under rule 4 of Order XXVI, Civil Procedure Code is judicial discretion which must be related to the circumstances of the case. As in the case of adjournments, it is not difficult to conceive of an order being made by a Court which, in relation to the circumstances of the case, might be indeed arbitrary or capricious and thus not exercise of discretion under the statute at all. In the present case as I have already pointed out, Mian Sultan Ali Nanghiana appears to have asked in the first instance for a commission to issue for the examination of Ch. Ram Singh at Amritsar, and later to ‑have succeeded in making arrangements for Ch. Ram Singh to give his evidence at Lahore ; if this impression be correct then even as regards Ch. Ram Singh all that was sought was an adjournment to enable him to be brought before the Court. There is, as I have remarked, no material on the record to show by what reason the commission was moved when it refused the prayer for adjournment and issue of a commission on the 11th of August 1948 and even as to the necessity and importance of these witnesses, reliance has to be placed only upon what is contained in the papers before the Court and on the statements of counsel. The exact evidence which Ch. Ram Singh was expected to give is not known but it may be assumed that he w as being called at an officer (Superintendent of Police) of the Sargodha District at the time of the election, to testify in regard to matters connected with, the election. Whether or not his testimony was likely to be of high importance, it is impossible to say, but as to the returned candidate himself, whose election was being called in question, and against whom, as stated by learned counsel charges of corrupt practices had been made, it cannot be gainsaid that his examination was of the highest importance for the due decision of the petition. The penalties which were sought to be applied him included loss of status as a member of the Provincial Legislature, besides loss of civic rights as a voter for a lengthy period, and these were undoubtedly of a very serious nature. I must not be understood to say that by reason of the magnitude of these penalties alone the returned candidate should necessarily have been allowed to appear as his own witness, irrespective of his conduct in the proceedings or other circumstances which could rightly be taken into account by the Commission. I merely wish to emphasize that in support of the order to stay proceedings before the Commission, two factors at any rate could be urged, firstly that it had been alleged in the plaint that the Commission's order refusing an adjournment to Mian Sultan Ali Nanghiana to appear as his own witness was made without jurisdiction (this appears from the order of the learned Subordinate judge under revision) and that the proceedings in the petition were at a stage when the making of a report was practically imminent, and once the Commission had recorded its opinion that a corrupt practice had been committed, the Governor would have no option but to declare the election void and, in relation to the corrupt practices if any, found to have been committed by Mian Sultan Ali Nanghiana, he would immediately become liable to a serious penalty. While on this subject I may recall that when the petition came before me, the arguments in the petition were either about to‑commence or had actually commences. The prayer in relation to the proceedings by the petitioner was that his opponent namely Mian Nur Hussain should be restrained by injunction from proceeding with them and at that stage all he could do in compliance with such an injunction was to direct his counsel to discontinue his arguments. Such a step would, however not necessarily stand in the way of the Commission continuing with the case and deciding it, without hearing arguments by either the petitioner or the respondent. As will appear on a reference to O. XVIII, Civil Pro cedure Code, and rule 2 thereof, the proper procedure is that the party which produces its evidence last is entitled to address the Court generally on the whole case when evidence is concluded and then the opposite party is entitled to reply generally on the whole case. There is clear authority however for the proposition that where an opportunity for argument has been allowed and the party has not availed itself of it, the judgment of the Court made without the benefit of arguments is not a nullity Harji Mal v. Devi Ditta Mal (I L R 4 Lah. 364) and it would, therefore, have been open to the Commission in case Main Nur Hussain s counsel discontinued his arguments, the opposite patty's counsel being naturally reluctant to continue with the case in view of the petition which had been filed in this Court, to proceed to record their report. That the possibility of the Commission acting in this way was not remote is sufficiently to my mind, apparent, from the nature of their reply of the 4th October 1948 to the letter sent by this Court's Registrar to which reference has already been made. The Commission were of the opinion that the injunction previously issued by the learned Subordinate judge to Mian Nur Hussain and separately communicated to the Commission, was ultra vires, and a similar ground would obviously suffice for ignoring any similar injunction issued by this Court. I mention this in order to make in it clear that the need for an order by this Court staying proceed ing before the Commission was not illusory but was a very real need which, if not met, might have resulted in a failure of justice and conse quent irreparable harm to the petitioner.
As a result of the above analysis of the facts and circumstances relating to the order of Commission, dated 11th August 1948' and the suit brought by Mian Sultan Ali Nanghiatza to contest that order, I am clearly of the opinion that not only was there a cause of action on which Mian Sultan Ali Nanghiana's suit was based but also there was sufficient reason for doubting the accuracy of the view taken by the learned Subordinate judge in his order of the 29th September 1945, as regards the existence of powers in himself, as a Court of general juris diction, to interfere with the order made in the exercise of discretion by the Commission, as a Court of special jurisdiction. The question whether or not proceedings before the Commission should be stayed pending the disposal of Mian Sultan Ali Nanghiana's suit depended upon the decision of the question whether the learned Subordinate judge's view mentioned above was correct, and it was evident that time would be necessary for reaching such a decision and further that irreparable harm would result to the plaintiff if, during the pendency of his petition before this Court the Commission had formed its opinion and recorded its report in the election petition. The contention that another remedy was available, viz. to move the Governor to withdraw the petition from the Commission, in order to avoid such harm, need not be seriously con sidered, I feel no doubt that this power was not conferred upon the Governor for any such purpose. Thus, it was essential that those pro ceedings should he stayed, and as to the existence of power in this Court to stay such proceedings, all that need be said is that, in common with all other Civil Courts this Court is invested with power under section 151, Civil Procedure Code to make "such orders as may be necessary for the ends of justice." it is undeniable that where this Court is empowered by law to grant relief; it must also have the power pending decision upon a prayer for such a relief to direct by an interlocutory order that the posi tion as between the parties should not be altered until their respective: rights were finally determined. Such an order of an interlocutory nature would of course require to be made in such a manner as to cause the least injury to all parties, but consideration of the relative advantages and disadvantages to the two parties from the making of this interlocutory order was not possible at the stage at which I issued my stay order, for the simple reason that the other party had not yet, at that stage appeared before me. Moreover, as a Chartered High Court, this High Court has authority to issue a prohibition to any subordinate Court to stop proceedings in a suit pending before it. Reference may be made in this connection to Narain v. Janki Bai (I L R 39 Bom, 604) where it was held by a Full Bench of the Bombay High Court that when sitting as an Appellate Court, that High Court had power to issue a prohibition to a Court in the Mufassil. This makes it clear that the relevant power was not sought to be derived from the ordinary or extraordinary jurisdiction of the Supreme Court to whose power the Presidency High Court of Bombay succeeded upon the passing of the Indian High Court Act in 1861, as this special jurisdiction is confined to the Presidency Town of Bombay exclusively in point of territory. By analogy, I am persuaded that this Court sitting as a Court of Revision and not as an original Court, has power to, issue prohibition in respect of proceedings in subordinate Courts. The reference to section 56 of the Specific Relief Act, by which the issue of injunctions to stay proceed ings in Courts not subordinate to the issuing Court is barred is, in the circumstances, inapt, firstly because the order in question is not in the strict sense an injunction, as it is not addressed to a party, and secondly because it is well settled that the bar does not apply to temporary restraint orders.
This brings me to the consideration of the question whether the Election Petitions Commission is to be regarded as a Court subordinate to this High Court for the purposes of section 115, Civil Procedure Code. If that be so then the issue of a stay order by this Court can be related directly to section 115 and need not be exclusively exercised by this Court as a Court of Revision from the order of the learned Subordinate Judge. In my opinion, all the circumstances which are necessary for regarding the Election Petitions Commission as a Court are clearly to be found. I had occasion in a recent case Dr. Kishan Chand v. Malik Nur Muhammad (P L D 1949 Lah. 30) Civil Revision No. 26 of 1948, decided on 18th August 1948, to examine the conditions which a tribunal must satisfy in order to be a Civil Court subordinate to this Court for the purposes of section 115, Civil Procedure Code. In that case, the tribunals to be dealt with were a Controller and Appellate Authority appointed by the Provincial Government under the Punjab Urban Rent Restriction Act 1947. There the argument to the contrary was that the Controller and the Appellate Authority were to be regarded each as persona designata and not as a Court. After examination of certain authorities viz. Mst. Driji Srimati Goalin (I L R 1941 Pat. 373 (F B)) Mahabaleshawrrapna v. Gopalaswami (A I R 1935 Mad. 673) Para thsarathy Naidu v. Koteswana Rao (A I R 1924 Mad. 561 (F B)) and National. Telephone Co. Ltd. v. Post Master General (1913 A C 546.) I arrived at the conclusion that "by merely declaring or characterising a certain functionary as persona designata the effect cannot be produced of rendering such functionary not a Court, if his functions involve the determination, by reason, of the sanction of the law, and not merely by reason of voluntary submission to such jurisdiction, of justiceable issues relating to civil rights arising between persons subject to the jurisdiction, and if the manner in which he is required or expected to resolve such issues is essentially the manner adopted by a Court i.e. by proceeding upon the claim of one party and reply thereto by the second party, to define the matters in issue between them and deciding those matters on the basis of evidence duly received, and finally that his decisions should be of a definitive nature enforceable at law." It is undeniable that on election petition challenging the election of a member of a Provincial Legislature raises an issue relating to civil rights between persons within the jurisdiction. It is perfectly clear that by the Corrupt Practices and Election Petitions Order 1936, the trial of such issues is entrusted exclusively to an Election Petitions Commission to be constituted by the Governor as required by the Order; the Commission determines these issues not by reason of voluntary submis sion of the parties to its jurisdiction but under the sanction of law. By express provision in a statutory rule, the Commission is required to resolve the issues in the precise manner which a Civil Court has to follow, in the trial of suits, under the Civil Procedure Code. The conclusions reached' by the Commission are definitive inasmuch as although the avoidance or otherwise of the election does not take place by direct of order of the Commission, its opinion as expressed in its report is binding on the Governor who must make an order in accordance therewith, and such an order is by express word in the Order 1936 declared to be final. In the two Madras cases which I have mentioned above the tribunal whose nature came under examination was an Election Commissioner appointed under the Madras Local Boards Act. In the earlier case of 1924 the Full Bench decided that the Election Commissioner was a Court on the short ground that his ordinary capacity was that of District judge or Subordinate judge and that the conferment upon him of the functions of Election Commissioner merely enlarged his jurisdiction as a Civil Court in consequence of which his acts in the capacity of an Election Commissioner were subject to revision by the High Court under section 115, Civil Procedure Code. Following upon this decision the Provincial Government had made a rule laying down that an Election Commissioner exercising 'jurisdiction under the Madras Local Board Act "shall be deemed to exercise such jurisdiction as a persona designata and not in his capacity as a judge or other officer of the Government as the case may be." In the later Madras case of 1935 the question again arose whether such an Election Commissioner was a Court for the purpose of sections 476‑A and 195, Civil Procedure Code and the Division Bench made a full and careful examination of all the circumstances attending the performance by the Election Commissioner of his functions, and came to the following conclusions :‑
"To summaries the effect of these decisions it would seem that we have to look not to the source of a tribunal's authority or to any peculiarity in the method adopted of creating it (though it is undoubtedly a consideration that it derives its powers immediately or immediately from the Crown) but to the general character of its powers and activities. If it has power to regulate legal rights by the delivery of definitive judgments, and to enforce its orders by legal sanctions and if its procedure is judicial in character in such matters as the taking of evidence and the administration of the oath, then it is a Court. Not only do the powers and procedure of an Election Commissioner respond to these tests, but there is do other rest applicable to an undoubted Court which they fail to satisfy."
On the question whether an Election Commissioner was a Civil Court the learned Judges held as follows :‑
"If an Election Commissioner is a Court at all, it would seem indisputable that he must be a Civil Court because he settles disputes which, but for the existence of this special jurisdiction would fall to be decided by the ordinary Civil Courts."
Our own Court has in a very recent case gone even further, and has held that despite the creation of special jurisdictions in respect of the electoral right, the Civil Courts still retain jurisdiction of a residuary nature, exercisable under certain special conditions, (Sat Narain v. Hanuman Pei‑shad A I R 1946 Lah. 85 D B).
In Bihar also it has been held by the Patna High Court in Abdul Razaq v. Kuldeep Rai (214 Ind. Cas. 59) than an election tribunal set up under the Bihar District Board Election Petitions Rules, 1939 is a Court Subordinate to the High Court within the meaning of section 115, Civil Procedure Code. In reaching this conclusion Chatterji and Meredith, JJ., relied on the following circumstances viz., that an Election Commissioner was bound to follow "as nearly as may be the procedure applicable under the Civil. Procedure Code to the trial of suits" and that lie was invested with powers of a Court for certain matters such as enforcing the attendance of witnesses, compelling the production of documents, examining witnesses on oath etc., Chatterji, J: also referred to a rule, in which it was laid down that an Election Commissioner was "to be deemed to be a Civil Court" for the purposes specified in the rule. Here also these conditions are found to be satisfied. The Commission is required to follow the procedure for trial of suits under the Civil Procedure Code as nearly as may be; it is empowered by the Indian Elections Offences and Enquiries Act, 1920 to enforce the attendance of witnesses, compel the production of documents, examine witnesses on oath etc., and moreover this Act also provides that within the meaning of sections 480 and 482, Criminal Procedure Code, the Commissioners "shall be deemed to be‑ a Civil Court." An opposite view has been taken by a Full Bench of the Allahabad High Court in Abdul Rahman v. Abdul Rahman (I L R All. 513.) in relation to an Election Commissioner under the U. P. Municipalities Act. The majority of the judges were of the opinion that such a Commissioner was not a Court, but no grounds were stated for this opinion, it being said that it was not strictly neces sary to decide the point. Speaking with respect, I am of the opinion that the view of the majority of the learned judges of the Allahabad High Court was probable based on insufficient examination of all the relevant circumstances. The learned Advocate‑General also cited a recent decision of this Court Muhammad Ahmad v. The Governor‑General‑in Council (I L R 1946 Lah, 16) where the question before the Full Bench was whether a tribunal constituted under the U. P. Town Improvement Act, 1919 was a Court subordinate to tile. High Court for the purposes of section 115. Civil Procedure Code, The majority of the Full Bench held that such a tribunal was not a Court. The majority judgment by Harries, C. J. contains certain remarks which are opposite for the purpose of settling the indicia of a Court. I reproduced them below :‑
"No exhaustive definition appears ever to have been given to the word "Court". It is pointed out in Halsbury's Law of England that the word "Court" originally meant the King's palace but has subsequently acquired the meaning of (1) a place where justice is administered and (2) the person or persons who administer it. The word is defined in the Indian Evidence Act as including all judges and Magistrates and all persons, except arbitrators, legally authorized to take evidence. As was pointed out in Queen Empress v. Tulja (I L R (1888) 12 Bom. 36.) this definition is by no means exhaustive and is framed only for the purposes of the Act itself.
There can be no doubt that to be a Court, the person or persons who constitute it must be entrusted with judicial functions, i.e., of deciding litigated questions according to law However, by agreement between parties, arbitrators may be called upon to, exercise judicial functions and to decide a dispute according to law. But that would not make the arbitrator a Court. It appears to me hat before a person or persons can be said to constitute a Court, it must be held that they derive their powers from the State and are exercise the judicial powers of the State."
The learned Chief justice then proceeded to remark that in so far as the Tribunal was required to decide the questions submitted to it according to law and follow rules of procedure which by the enactment were not repugnant to the Civil Procedure Code. it might be said that the Tribunal was a Court, but there were other circumstances which inclined him to the opposite view. Firstly although the president of the Tribunal was required to have legal knowledge, the two assessors were not, and one of assessors was to be appointed by a Municipality. Further, payment of salaries to the members of the Tribunal was not to be out of Govern ment funds, but out of the funds of the Improvement Trust, and the law provided that they might be paid a monthly remuneration or by way of fees, or partly in one way and partly in the other. Power was vested in a Chief Commissioner to dismiss any member for incapacity or misbeha viour or other good cause, and a casual vacancy could be filled either by the Chief Commissioner or the Municipality. It was remarked that the mode of appointment, the tenure of office, the manner of payment anal the method of removal suggested that it was never the intention of the Legislature to constitute the Tribunal a Court. Reliance was also placed on the circumstances that awards or orders of the Tribunal for payment of money were to be executed by the Court of Small Causes and finally, reference was made to a Bombay case Hari Pandarang v. Secretary of State for India in Council (ILR (1903) 27 Bom. 424) where a similar Tribunal under the Bombay Improvement Trust Act had been held not to be a Court, and this view had been approved by the Privy Council in a subsequent case. The learned Chief Justice noticed two Calcutta cases in which similar Tribunals under the Calcutta Act had been held to be Courts subordi nate to the High Court for the purpose of section 115, Civil Procedure Code, but for the reasons indicated above he included that in the case before him the Tribunal was not a Court. The minority view was expressed by Abdul Rahman, J. in a lengthy judgment to which it is not necessary to refer. It wall be sufficient to mention that at least four of the reasons which influenced the learned C. J. in reaching the conclusion that the Tribunal was not a Court, viz., the mode of appointment, the tenure of office, the manner of payment and the method of removal are not to be found in the present case. By the Corrupt Practices and Elec tion Petitions Order, the members of the Election Petitions Commission are each required to satisfy the condition of being or having been a judge of a High Court or being eligible for appointment as such under section 220 of the Government of India Act, 1935. They are appointed by the Government, and no limitation is placed upon their tenure of office and no provision is made for their removal. There is nothing to indicate that their salaries are paid from any source except the revenue of the Province. As to the circumstance that any recommendation regarding costs made by an Election Petitions Commission must be incorporated in the order of the Governor made on the Com mission's recommendation and is to be executed by the principal Civil Court of original jurisdiction i.e., the District judge by virtue of section 12 of the Elections Offences and Enquiries Act, 1920, it seems to me that it hardly affects the matter at all Harries, C. J. in the case Muhammad Ahmad v. Governor‑General in Council (I L R (1903) 27 Bom. 424,) mentioned this circumstance as detracting from the contention that the Tribunal under the Town Improvement Act was not a Court. Numerous instances can be cited from the statutes in which the execution oaf orders for costs by one Tribunal is entrusted to another. For example orders made by the Federal Court as to the costs of proceedings are required by section 209, Government of Indian Act, 1935, to be executed by the Court from which the appeal was brought, and orders made by the Privy Council are executed in a similar way by the Subordinate Court of first instance. In a subsequent Full Bench decision of this Court, published as Works Manager Carriage and Wagon Shops Moghalpuara v. Hashmat (I L R (1947) Lah. 1) it was held unanimously that an authority under the Payment of Wages Act, 1936, was a Court subordinate to this Court for the purposes of section 115, Civil Procedure Code, Such an authority is empowered by the Act to take evidence and enforce the attendance of witnesses and the production of documents in the same way as a Civil Court under the Civil Procedure Code and is also deemed to be a Civil Court for certain purposes of the Criminal Procedure Code. By statute, such an authority is required to possess experience as a Civil Judge or stipendiary Magistrate and consequently may be presumed to have legal knowledge. The statute requires that the authority shall bear both sides and make such further enquiry as he thinks fit, before making any order for payment of sums to any employed person. He is to be appointed by the Provincial Government, and any amounts directed to be paid by him are to be recoverable by a Magistrate as fine.
In the course of the arguments reference was also made to a recent decision of a learned Single Judge of the Bombay High Court published as Shripad v. Divatia and others (A I R (1948) Bom. 20). That was a case in which the validity of the appointment of an Election Petitions Commission which was functioning in Bombay was challenged by one of the petitioners whose petitions had been entrusted to this Commission, and the method adopted was prayer to the Bombay High Court for the issue of a writ of certiorari and a writ of prohibition to the Commission. It was contended in answer to the petition that the Commission had been constituted under the Corrupt Practice, and Election Petitions Order, 1936 and must be held to be a "Superior Court" to which no writ of certiorari could issue. Reliance was placed upon the circumstance that persons appointed to be Commissioners should be or have been or should be eligible to be appointed judges of a High Court but to this, Bhagwati, J. replied that notwithstanding this provision, it might well be that none of the persons appointed is a person who is or has been a Judge of the High Court, and that is the case with the Election Petitions Commission in the present case. It was further contended that if they were nod a Superior Court, the Commissioners should be regarded as "a special or independent Tribunal", but this contention was also negatived by the learned Judge who came to the conclusion that the Commission was " a body of persons having legal authority to determine questions affecting rights of subjects and having a duty to act judicially and therefore, persons amenable to the jurisdiction of the High Court which has power to issue the high prerogative writ of certiorari". The learned Judge went on to say that a Commission was only to be regarded as a Court in an extended sense of the term, but speaking with great respect, it seems to me that if the relevant legal provisions were the same for the Election Petitions Commission Bombay as they are in this Province there is no necessity so to extend the meaning of the expression "Court", for the constitution of the Com mission and the procedure which it is required to follow make it clear beyond all doubt that it satisfies all the indicia of a Court, and the mere fact that exclusive jurisdiction is given to the 'Commission to decide certain classes of disputes arising between subjects does not in any way litigate against ‑the acceptability of that conclusion. The Bombay case cannot, however, serve as a precedent, since the power which the learned judge purported to exercise, namely to act by issue of writs under the prerogative is not possessed by this Court, which is not successor to any previous Supreme Court, although it could, in my view, be argued with force that the powers which this High Court possesses under section 115, Civil Procedure Code are fully sufficient to effectuate in a proper case, the same purposes as were sought to be served by the prayer for writs of certiorari and prohibition in the Bombay case.
It remains to consider the question whether, assuming the Commis sion is a Court entrusted with the decision of disputes of a civil nature, it is also a Court subordinate to High Court. In the case Dr. Kishan Chand & Co. v. Malik Nur Muhammad (PLD 1949 Lah. 30) mentioned above, my learned brother Muhammad Sharif, J. has held that a Controller under the Punjab Urban Rent Restriction Act, 1947 " is a Civil Court engaged in the determination of a dispute of a civil nature", and has gone on to remark that " a Civil Court as such is subordinate to the High Court and subject to its revisional jurisdiction under section 115, (Civil Pro cedure Code) or section 44 of the Punjab Courts Act." I have also in that case examined the question of subordination of a Controller to the High Court, and in coming to the conclusion that the Controller was subordinate, I have relied on two principal circumstances viz., firstly that by Notification of the Provincial Government, only Subordinate Judges who were already amenable to the superintendence of the High Court were appointed to be Controllers and that the additional functions so conferred upon them were to be regarded as extension of their ordinary jurisdiction to which incidents attaching to their ordinary jurisdiction including revision by the High Court, would attach, and secondly that even if the Controllers were to be regarded as function aries with special jurisdiction since that jurisdiction was of a strictly limited kind and since it lay within a sphere of the civil jurisdiction, and the statute did not provide that these functionaries should be final judges of the limits of their own jurisdiction the function of decid ing whether in a particular case they have exceeded their jurisdiction must necessarily fall to be performed by the High Court. On the latter point, I placed reliance on the Patna case already cited viz., Abdul Razak v. Kuldep Narain (214 Ind. Cas. 59) and I should like to and add here that a contention that because any excess of jurisdiction by a Court of special jurisdiction can also be corrected by a suit in any Court of general jurisdiction, therefore, the High Court is barred from exercising its revisionary or visitatorial jurisdiction under section 115 cannot be sustained. The latter question has been discussed with great fullness in a Full Bench decision of four Judges of the Bombay High Court in Phiva Nathaji v. Joma Kashinath (I L R 7 Bom. 341) and while the Full Bench did not make a categorical reply to the question, in their statement of the circumstances is which a High Court may act under section 115, Civil Procedure Code, which is set out in seven paragraphs they have said enough to indicate that they did not regard that juris diction as being barred in suitable cases, even where an appeal was provided, or where the particular order of the Subordinate Court was declared bylaw to be final unless set aside. in a formal suit. The learned judges of the Full Bench went so far as to say that " the visitatorial or superintending power of a Supreme Court is so necessary and almost indispensable that it is not to be wholly excluded even by a clause in a Statute withdrawing cases under the Statute from its control", but when the Court was satisfied that there had been misap plication or colourable use of the statute, the case could be regarded as an evasion of perversion of the statute and consequently amenable to the revisional jurisdiction of the High, Court. Therefore, the mere fact that in the present case the aggrieved party preferred in the first instance to move by wad‑ of suit in a Civil Court does not bar the High Court from the exercise of its jurisdiction under section 115, Civil Procedure Code, provided always that the other condition of that section are satisfied and the case is a suitable one for the exercise of this extraordinary power.
The question of subordinate may also be regarded from another point of view, for the expression of which I propose to quote the language of Meredith, J. in the Full Bench case in the Patna High Court published Arjun Rautara v. Krishna Chandra (A I R (1942) Pat. 1 at p. 14).
" The general application of the provisions of the Code of Civil Procedure, regulating as they do the entire proceedings in the Courts to which they apply, appears to me in itself to involve the general superintendence of the High Court, since those rules themselves as contained in Schedule I, Civil Procedure Code, are all subject to being annulled, altered, or added to by the High Court under section 122 of the Code. The whole scheme of that Code indicates that its provisions are intended to regulate the procedure of Courts under the superintendence of the High Court. Surely, therefore, when once the Local Legis lature in constituting special Courts makes the provisions of the Civil Procedure Code generally applicable in the absence of any special provisions to the contrary, it thereby by implica tion indicates that it contemplates these Courts as being among those under the High Court's general superintendence."
The most cursory consideration of the Civil Procedure Code which consists of 158 substantive sections and not less than 51 Orders each including one or more rules, all of which are designed to regulate the procedure of tribunals which are governed by the Civil Procedure Code in almost every aspect of their dealings with cases before them, will show that it ‑is designed to meet the infinite variety of cases and occasions which are likely to arise in the course of proceedings before such tribunals. In a large number of cases, the Courts are required to follow a precise procedure which leaves nothing to their discretion, but in an even larger number of cases, it is not possible to regulate the actions of the Courts with precision, without the danger of in justice to one party or the other and it has, therefore, been found necessary to leave the decision to a considerable extent, within the discretion of the Court. As will be seen from reference to section 104 of the Civil Procedure Code and O. XLIII, which supplements if the number of cases in which the Code permits appeals from procedural orders of Courts is strictly limited. Except for section 115, Civil Pro cedure Code there is no other provision in the Code providing for correction of any procedural orders of Courts from which appeals are not expressly allowed, and the question might be asked, can it have been the intention of the Legislature that such orders by the Subordinate Courts should be in themselves final, and whatever their effect upon the parties or on the cause of justice, should not be liable to revision and necessary correction by any Superior Court I am persuaded that this cannot possibly have been the intention of the Legislature. Notwithstanding that a good many of these orders may be of an interlocutory nature, it is easily possible to see that some of them may have very great importance in relation to the final issue of the case. In Evans v. Baritlum (30), Lord Wright in considering the power of the Court of Appeal to interfere with the discretion of a Court of first instance acting within its statutory jurisdiction stated that it was clear that there should not be interference unless the Court of Appeal was clearly satisfied that the judge of first instance was wrong, and went on to remark as under :‑
"But the Court is not entitled simply to say that if the judge had jurisdiction and had all the facts before him, the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle. The Court must if necessary examined a new the relevant facts and circumstances in order to exercise a discre tion by way of review which may reverse or vary the order. Otherwise in interlocutory matters the judge might be regarded as independent of supervision. Yet an interlocutory order of the judge may often be of decisive importance on the final issue of the case, and one which requires a careful examination by the Court of Appeal---------A Judge's order fixing the date of trial or refusing to grant an adjournment is a typical exercise of purely discretionary powers, and would be interfered with by the Court of Appeal only in exceptional cases, yet it may be reviewed by the Court of Appeal".
It is true that these remarks are made with reference to powers of an Appellate Court but the distinction appears to me only to arise because appeals are permitted by the rules and orders of the English Supreme Court in a far greater number of cases then in Pakistan by the Civil Procedure Code, and I do not think that in regard to the question of interference with the exercise of discretion by Subordinate Courts, the principle stated by the House of Lords in the judgment cited above needs to be varied in its application to the powers of this Court under section 115, Civil Procedure Code. It has decided by a Full Bench of seven judges of this Court in Gurdevi v. Muhammad Bakhsh (I L R (1943) Lah. 257) that the expression "case" as used in section 115, Civil Procedure Code is wide enough to include and interlocutory order which purports to decide any matter in controverse affecting the rights of the parties, with the proviso that the High Court would not interfere unless the decision being one relating to a substantial question in con troversy, would result in a grave wrong or defeat of the law which cannot be prevented otherwise, or if the available remedy is so remote or cumbersome as in the particular circumstances of the case to be of no practical utility.
I am, therefore, fully satisfied that section 115, Civil Procedure Code embodies a very important part of this Court's functions in relation to all Courts and tribunals which are required by law to observe the procedure laid down in the Civil Procedure Code. As has already been seen, the Election Petitions Commission is required by statutory rule to follow that procedure, and it seems to me to be a necessary consequence of that statutory provision that in procedural matters the Election Petitions Commission should be subject to the revisionary jurisdiction of this Court. The learned Advocate General could not cite anything in the Corrupt Practices and Elec tion Petitions Order or in the rules made by the Governor for regulating the trial of election petitions which would have the effect of preventing this direct consequence of the provision that the Commission should follow the Civil Procedure Code. The mere fact that election petitions are exclusively triable by the Commission does not affect this conclusion, for it can never be any part of this Court's intention to interfere with the making of any order by a Court of special jurisdiction, if the grounds on which the order proceeds have been exclusively assigned by law to such tribunal or to interfere by pre- emptory order with the ordinary course of adjudication by such tribunal within its limited jurisdiction except where a grave wrong or defeat of justice is manifest, such as cannot be remedied by the regular procedure, or where there is reason to assume absence of good faith. For instance, whether this Court's jurisdiction is attracted during the pendency, or after the conclusion of proceedings before a special tribunal, in a case of which such tribunal is properly seized, and which falls within its exclusive jurisdiction, this Court can never undertake the decision, directly or indirectly, of any question which lies within the aforesaid exclusive jurisdiction, but nevertheless it may make effective orders to safeguard the interests of justice, e.g., where there has been failure to conduct the proceedings according to the requirements‑ of substantial justice, and equally, I am persuaded that even in relation to interlocutory or procedural orders; there is nothing to prevent this Court from making an effective order, where the conditions which will justify interference are present. I am led to this conclusion not only by general considera tions but also as the result of examining the statutory provision whereby the exclusive jurisdiction of the Commission is assured. This is con tained in a paragraph in the Corrupt Practices and Election Petitions Order which has already been cited. laying down 'that no election shall be called in question except by an election petition', which is required to be referred for trial (unless it is dismissed by the Governor for technical reasons) to an Election Petition Commission, 'as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits.' The rules made by the Governor contain no further provision beyond that in the order which has been referred to above which can, directly or indirectly, have the effect of curtailing the jurisdiction of the Civil Courts. Numerous instances are to be found in the Punjab Statute‑Book where the jurisdiction of the Civil Courts has been expressly and comprehensively excluded so as to save the entire proceedings before the special tribunal created by the statute from interference by the Civil Courts. The Punjab Land Revenue Act, which was enacted as far back as 1887, makes the follow ing provision in section 158:‑
"Except as otherwise provided by this Act‑
(1) a Civil Court shall not have jurisdiction in any matter which the Provincial Government or a Revenue Officer is empowered by this Act to dispose of or take cognisance of the manner in which the Provincial Government or any Revenue Officer exercises any power vested in it or him by or under this Act."
The language employed saves all the proceedings of the specified authorities from being called in question in a Civil Court. In the Colo nisation of Government Lands (Punjab) Act, 1912, similar language is used in section 36 which runs as follows :‑
'A Civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose, and shall not take cognizance of the manner in which the Provincial Govern ment or Collector or any other Revenue Officer exercises any power vested in it or in him by or under this Act.'
Coming to more recent times, sections 22 and 23 of the Punjab Consolidation of Holdings Act of 1936 use slightly different but equally explicit language to express the intention of the Legislature to prevent the Courts from dealing with any matters the decision of which had been entrusted to special authorities under the Act, as well as to save all procedural orders made by such authorities. The relevant portions of these two sections are reproduced below :‑
"22. No Civil Court shall entertain any suit instituted, or applica tion made, to obtain a. decision or order in respect of any matter which the Provincial Government or any officer is, by this Act, empowered to determine, decide or dispose of 23. No suit or other legal proceedings shall be maintained in respect of the exercise of any powers or discretion conferred by this Act--------"
The absence of any provision of this nature from the rules made by; the Governor of the Punjab in respect of the "decision of doubts and disputes arising out of or in connection with the elections when its in‑clusion was the ordinary legislative practice in the Province where com prehensive protection was to be provided for the special jurisdiction as, well as for all the proceedings, of a special tribunal must in my view, be regarded as deliberate, and I, therefore, conclude that there is no statutory bar to the interference of this Court with an interim order of the Commission; in the strictly limited circumstances already indicated.
On the point of subordination, I may note that the expression "subordinate" occurring in section 115, Civil Procedure Code is not limited in its meaning by the provision in section 3 of the same Code, which renders the District Court, the Court of Small Causes and all Courts subordinate to the District Court, subordinate to the High Court, vide Purshottam Janardan v. Mahadu Pandu (I L R 37 Bom. 114), cited with approval by that eminent judge Sir George Rankin in Allen, Bros. & Co. v. Bando & Co. (I L R 1949 Cal. 931). I feel no hesitation in holding that for the purpose of section 115, Civil Procedure Code direct subjection to the authority of this Court in any or all respects is not necessary in relation to the Court whose orders are to be revised but it is sufficient that it is a Court of a civil nature, and inferior in rank.
As a result of this examination of the foundations of this Court's jurisdiction in dealing with such an application as that which was brought before me by Mian Sultan Ali Nanghiana on the 2nd October 1948, I am fully satisfied that in issuing an order staying proceedings before the Commission, I acted in the exercise of jurisdiction properly vesting in me and consequently that the refusal of the Commission to obey this order constitutes contempt. As I have already remarked, obedience to an order issued by this Court is incumbent upon every person and authority within the jurisdiction, and as such orders are to be presumed to be within the jurisdiction of this Court until the contrary is established to the satisfaction of this Court, the duty of every person or authority to whom the order is addressed by this Court is to submit thereto in the first instance and, if such person or authority wishes to challenge the regularity of the order, to move this Court by proper petition. It is to be regretted that in the present case the Com mission saw fit, even after the issue of a latter from this Court's Registrar, to adopt a course of action which easily lends itself to mis construction as defiance of this Court's authority and renders the voila tion of this Court's order conscious and wilful. The learned Advocate‑General in the course of arguments expressed regret that this course of action should have been taken and gave it as his opinion that the Com mission would have been better advised to stay proceedings and to move for cancellation of the said order if so advised, but no expression of apology has come from the members of the Commission, although it appears that proceedings in the petition were stayed on a date subse quent to the 4th October. In these circumstances it is a question for consideration whether or not the members of the Commission should be committed for the contempt which they are clearly guilty of. I have given very careful consideration to this question, and it seems to me that regrettable though the Commission's attitude in the matter may appear from one point of view, it can be said in justification that they were bona fide of the opinion that the order of stay issued to them was one which they were not required to obey, and that they chose to disregard in for the purpose of having it settled to what extent they were bound by such order. It is true that they should have gone about this in a different way, but at the same time, mere lack of courtesy or sovaire faire cannot be the foundation of a committal for contempt if there be circumstances relating to the substantive act which could be urged in mitigation. The Court of Chancery in the case In re Brant (L R 1876; 4 C R D 98.) had before them a sheriff's officer who had proceeded to sell certain property under a writ for debt due under a decree, despite its having been intimated by the debtor's solicitor that he had filed an insolvency petition and despite receipt of a telegram from the Bankruptcy Court that further proceedings under the writ had been restrained. The Court held that the sheriff's officer was in contempt and that his dis obedience was wilful and made with full knowledge but they nevertheless thought that he had no intention to commit contempt and consequently they refused to commit him but merely ordered him to pay the costs of the proceedings. The present case is similar in so far as I am prepared to assume that the members of the Commission had no intention to commit contempt of this Court, notwithstanding that they disobeyed this Court's order wilfully and with full knowledge and I would follow the Court of Chancery in holding that they should not be committed for their proved contempt, but should merely be required to pay the costs of these proceedings to the opposite parties, the costs to be borne by the three member of the Commission in equal proportions.
.‑‑I regret I have to differ from my learned brother for whose legal erudition I have the profoundest respect. Before I state my reasons for the conclusions I have arrived at, it is necessary to refer to the relevant facts.
At the general elections for the Punjab Legislative Assembly held in 1946, Mian Sultan Ali was declared elected from the Shahpur Muhammadan Constituency. This election was called in question by Mian Nur Hussain by an election petition presented to the Governor under the Punjab Legislative Assembly Electoral Rules, 1936. The Governor appointed a Commission to report to him after investigating the allegations in the petition. At the relevant time the Commission consisted of Sheikh Laiq Ali, President, and Sheikh Abdul Rahman and Mr. Jalal Din Qureshi, members.
After the petitioner before the Commission had closed his case, Mian Sultan Ali respondent opened his case and started examining his witnesses. On the last date fixed for his evidence Mian Sultan Ali made an application praying that one of his witnesses, Ch. Ram Singh, who at the time of the election was the District Superintendent of Police at Shahpur but who when the application was made, was serving in the Indian Dominion, should be examined on commission and that the case should be adjourned to some other date to enable Mian Sultan Ali himself to appear as his own witness because on the date of the applica tion he was too ill to appear. This application was rejected by the Commission on 11th August 1948. The order rejecting the application is not before us and we do not know the precise grounds on which it was dismissed. Thereupon Mian Sultan Ali filed a civil suit in the Court of Mr. Muhammad Saleem, a Subordinate Judge at Lahore, alleging that' the Commissioner's order refusing to adjourn the case to enable him to examine himself as his own witness and declining to issue a commission for the examination of Ch. Ram Sing was arbitrary, contrary to law and justice and without jurisdiction. The defendant to the suit was Mian Nur Hussain and the relief asked for was that the Commission's order of 11th August 1948 be declared to be invalid and ineffective. Together with the plaint in the suit an application was presented by the plaintiff praying for a temporary injunction against the defendant restraining him from taking further proceedings before the Commission till the decision of the suit. Mr. Muhammad Saleem issued the temporary injunction but allowed the defendant to show cause. The defendant appeared and showed cause and the temporary injunction was discharged by an order, dated the 29th September, 1948. Against the order dis charging the injunction a revision petition was filed in this Court by Mian Sultan Ali and a temporary injunction of the kind that had been originally issued by Mr. Muhammad Saleem was asked for. This petition came up for hearing before my brother Cornelius who on 2nd October 1948 trade the following order :‑
"Let the record be sent for, for a very early date. In the meantime further proceedings before the Commission are stayed temporary injunction to issue."
The stay order was communicated to the Commission on 2nd October 1948, but the Commissioners refused to stay the proceedings on the ground that they were not a Court and having been appointed under paragraph 4 of Part III of the Government of India (Provincial Election) (Corrupt Practices and Election Petitions) Order, 1936, promulgated by His Majesty‑in‑Council under section 291 of the Government of India Act, 1935, Civil Courts had no jurisdiction to interfere with their proceedings. Mian Sultan Ali then made the present petition for taking proceedings against the President and members of the Commission on the ground that their refusal to obey the order of this Court dated 2nd October 1948, constituted a contempt of this Court. This petition also came up for hearing before my brother Cornelius in the first instance who issued a notice to the respondents to show cause why they should not be committed for contempt and in view of the importance of the question raised he suggested that the matter be heard by a larger Bench. The present Full Bench was, therefore, constituted to consider and determine the question whether the disobedience of this Court's order, dated 2nd October 1948, amounted to contempt of this Court by the President and the Members of the Commission.
It is conceded by the learned counsel for the petitioner here, and it could not be contended otherwise, that if the order which the respondents disobeyed was without jurisdiction, they could not be held to be in contempt. It is true that a presumption attaches to the order of superior Courts that they are with jurisdiction and an ouster of jurisdiction of Civil Courts is not to be readly infered but if, as a matter of construction of the Statute creating a special tribunal, the Civil Court comes to the conclusion that its jurisdiction in the matters entrusted to that tribunal has been ousted by the Legislature, its order interfering with the proceedings of that tribunal where no excess of jurisdiction is found must be held to be without jurisdiction, and if the special tribunal disobeys any such order it commits no contempt because an order without jurisdiction is void and a void order binds no body. However, exalted the Tribunal passing it such order neither creates nor recognises any right or liability and no legal incidents attached to it. It is as if it never was made and the only purpose for which it can be used is to show that such an order was made, should its existence ever become a fact in issue or a relevant fact. I have, therefore, no doubt in my mind that if the order by which the respondents were required to stay the proceedings before them was without jurisdiction, they would not be guilty of contempt for having disobeyed it because the order being a nullity they were not bound by it. There can be no disobedience of a void order, as such orders in the sense of an order determining the parties' rights or liabilities, does not exist in law and unless the order be binding on a party, he is at liberty to ignore or disobey it. However, improper or discourteous the conduct of a party in disobeying a void order, no action for contempt can be founded on its disobedience as the essence of contempt in such cases is the disobedience of an order by which the party disobeying it was bound. The crucial question in this case, therefore, if whether the stay order which the respondents are alleged to have disobeyed was with juris diction.
In considering the question whether the order of the 2nd October was with or without jurisdiction it is important or consider not only the functions of the Election Petitions Commission but also the nature of the right which is entrusted to them for adjudication. That electoral right in Pakistan is a creation of the Statute does not seem to admit of any doubt. Under section 61 of the Government of India Act, 1935, the composition of the Chamber or Chambers of the Legislature of a Province shall be such as is specified in relation to that Province in the 5th Schedule to that Act. That Schedule divides each Province into constituencies and defines the general qualifications of persons who can be chosen to fill seats in a Provincial Legislature. The 6th Schedule to the Act defines the qualifications of persons who can be included in the electoral roll for any constituency. Paragraph 20 of the 5th Schedule empowers the Governor to make rules for carrying into effect the provisions of that Schedule and in particular with respect to :‑
1. The nomination of candidates.
2. The conduct of elections.
3. Corrupt practices and other offences at or in connection with elections.
4. The decision of doubts and disputes arising out of or in con nection with elections.
Section 291 of the Act provides that in so far as provision with respect to the matters mentioned in that section is not made by the Act, His Majesty‑in‑Council may by Order from time to time make provision with respect to those matters or any of them. The matters mentioned in the section inter alia are‑
1. The delimitation of territorial constituencies for the purpose of elections under the Act
2. The qualifications entitling persons to vote in territorial or other constituencies at such elections and the preparation of elec toral rolls ;
3. The qualifications for being elected at such elections as a member of a legislative body;
4. The conduct of elections under the Act and the methods of voting thereat ;
5. Corrupt practices and other offences at or in connection with such elections;
6. The decision of doubts and disputes arising out of or in connec tion with such elections.
In exercise of the powers given by this section His Majesty‑in‑Council has promulgated two Orders called‑The Government of India (Provincial Legislative Assemblies.) Orders, 1936, and the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936. The former names the various constituencies of each Province and the extent of each constituency and also defines the qualification that a person must .possess in order to be included in the electoral roll which the Governor is empowered to cause to be prepared. Under paragraph 2 of Part III of the latter Order no election shall be called in question except by on election petition presented in accordance with the provisions of that Order. Paragraph 3,of that Order specifies the persons who may present an election petition against a returned candidate while paragraph 4 provides that if the petition is in order and is not dismissed by the Governor for non‑compliance with the prescribed requirements he shall appoint as Commissioners for the trial of the petition three persons who are or have been, or are eligible to be appointed judges of a High Court, and shall appoint one of them to be President. Under sub‑paragraph 2 all applications and proceedings in connection with the petition are to be dealt with by and carried on by or before, the Commissioners. The grounds on which an election may be declared void are mentioned in paragraph 7 while paragraph 8 requires that at the conclusion of the enquiry the Commissioners shall report whether the returned candidate or any person who has lodged a petition and claimed a seat has been duly elected. The report has to be forwarded to the Governor who on receipt thereof is required to issue orders in accordance with the, report and such orders are declared to be final. In exercise of the power's conferred on him by paragraph 20 of the 5th Schedule to the Government of India Act, 1935, read with paragraph 26 of Part I of the Government of India (Provincial Legislative Assemblies) Order, 1936, and sub‑paragraph 5 of paragraph 3 Part I and paragraph 6 of Part III of the Government of India (Provincial Election) (Corrupt Practices and Election Petitions) Order, 1936, the Governor has promulgated what are called the Punjab Legislative Assembly Electoral Roll Rules, 1936, which describe at length the procedure for the preparation of electoral rolls and the disposal of objections and claims in connection therewith, the qualifica tions that an elector must possess the procedure for the nomination of candidates and for the taking of the poll, .the manner in which an election petition shall be written and presented and the procedure which the Election Commissioners shall adopt. Under paragraph 12 of Chapter III of Part E of the Rules every election petition, subject to the other provisions of that Chapter, has to be enquired into by. the Commissioners as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure 4908, to the trial of suits.
Electoral right may generally be defined as the right to vote at an election or the right to be elected as a member of a Legislature or the privileges and disabilities attaching to the status of a person when elected as a member. It is quite clear from the several provisions just mentioned that such right under the existing constitution of Pakistanis purely a creation of the Constitution Act. On every aspect of this right there ate elaborate provisions as, .for instance, provisions relating to the manner in and the conditions under which a person may become entitle to vote at an election or offer himself as a candidate at an electric or to the right and privileges which he enjoys when elected as a member. Several functionaries are entrusted with the duty of adjudicat ing on the rights of persons who claim the right to vote or the right to be elected as members, and finally there is the provision that an election shall not be called in question except by an election petition and that all applications in connection with such petition have to be made to the Election Petitions Commissioners, to be nominated by the Governor, who are enjoined to hold an enquiry into the allegations contained in the petition in the same way as if the proceedings were a suit and to submit the result of their enquiry in the form of a report to the Governor whose orders thereon are declared to be final. The question is whether from the tenor of these various provisions it can be interfered with sufficient certainty that all disputes relating to elections were intended by the Legislature to be entrusted for investi gation and determination to the several functionaries mentioned therein to the exclusion of the Civil Courts. The rule is fundamental both here and in England that where a right is created by a statute which also prescribes the manner in which that right may be enforced, the party complaining of, any infringement of such right can only seek such remedy as is provided by that statute. This principle has to be borne in mind in determining the question whether in the present case there has or has not been an ouster of the Civil Court's jurisdic tion. The principle, though recognised much earlier, was formulated about a century ago by Wills, J. in Wolverhctmoton New Water Works Company v. Hawkesford ((1859) 37 LJ 248), in terms which have almost become classical. In that case a company governed by the Company's Clauses Consolidation Act, 8‑9 Vict, c. 16, had sued the defendant who was a subscriber and not a share‑holder for the recovery of some call money. The statute made the company competent to sue the share‑holders for the call money, the common law right of suing the subscribers for such money resting with the covenantees under a subscription contract. It was held that action for recovery of the money instituted by the company could only succeed if the defendant was proved to be a share holder. Wills, J. dealing with the question said:
"There are three classes of cases in which a liability may be estab lished by statute. There is that class where there is liability existing at common law, and which is only re‑enacted by the statute with a special form of remedy there, unless the statute contains words necessarily excluding the common‑law remedy, the plaintiff has his election of proceeding either under the statute of common law. Then there is a second class, which consists of those cases in which a statute has created a liability but has given no special remedy for it ; there the party may adopt an action of debtor other remedy at common law to enforce it. The third class is where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it. Now it appears to me that the present case falls within such third class ; and as with respect to that class it has been always held that the patty must adopt the form of remedy given by the statute ; so I think the company are bound here to follow the form given by this statute which creates the right."
The rule was enunciated by Wills, J. in relation to a liability created by a statute but the position is exactly the same where a new right is created by a statute, the law being settled beyond question that where a special tribunal, out of the ordinary course is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunals jurisdiction to determine those questions is exclusive. This principle has been generally accepted in this country and freely applied to the determination of disputes arising out of elections to District or Municipal Boards and legislative bodies. Reference may in this connection be made to the Municipal Board Bareily v. Abdul Aziz (152 Ind. Cas. 792 (All)), Bhai Shankar v. Municipal Corporation Bombay (I L R 31 Bom. 604.), Joti Parshad y. Amba Parshad (I L R 55 All.406), Nawal Kishore v. Municipal Board (ILR 61 Cal.980.), Meheder Rahman v. Kanti Chandra (169 Ind. Cas. 239 (All).), Ghulam Nizam Din v Akhtar Hussain (ILR 55 All.1008.), Tara Chand v. Abdul Kasim (42 Cal. W 'N 441) and Niaz Ahmad Khan v. Abdul Latif (157 Ind, Cas. 270 (All.).). The position was discussed at considerable length by a Division Bench of this Court (Harries, C. J. and Mahajan J.) in Sat Narain Gurwala v. Hanuman Pershad (A IR 2946 Lah. 85.). In that case the plaintiff's nomination paper was rejected by the scrutiny officer and the election petition filed by the plaintiff before the Deputy Commissioner under the Election Rules was dismissed by the Deputy Commissioner on the ground that the petition was not competent. The plaintiff then filed a civil suit which was met by the plea that because the right to be elected to a Municipal Committee was the creation of a statute it could only be enforced before the special tribunal appointed under that statute and not by action in a Civil Court. The Court of first instance and the District judge on appeal gave effect to this contention of the defendant and dismissed the suit. The same plea was raised before the High Court but it was negatived on the ground that the petition to the Deputy Commissioner was competent and the Deputy Commissioner having rejected the petition on a mistaken notion of the law had refused to function as a special tribunal and that, there fore, the Civil Court's power to entertain the suit was not ousted. Dealing with this aspect of the case Mahajan, J. said:
"It is, however, contended that the jurisdiction of the Civil Court is barred by the necessary implication that arises by the creation of a special jurisdiction under the rules framed under section 240, Punjab Municipal Act. In my view, if the special tribunal constituted by these rules come into existence and they function, in that event, there can be no manner of doubt that the Civil Courts would have no jurisdiction. Their jurisdiction to try any matter of a civil nature would be barred. On the other hand, if the tribunal, though contemplated by the rules and by the Legislature, do not come into existence or having come into existence they refuse to deal with the matter with which they are entrusted, in that even the jurisdiction of a Civil Court which it has under section 9, Civil Procedure Code, is not ousted."
The case in which these observations were made is wholly distinguish able from the present case because here there is no allegation that the special tribunal did not function. The Allahabad High Court has consistently taken the view that in such cases even if the special tribunal is not appointed, or having been appointed does not function, the party aggrieved has no cause of action in a Civil Court. It is not necessary to determine this question because it does not arise in the case but I must confess I feel considerable difficulty in accepting the theory of conditional ouster in such cases, propounded in Sat Narian's case (A IR 2946 Lah. 85.) and some decisions of the Madras & Patna High Courts. Section 9 of the Code of Civil Procedure provides that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The section draws no distinction between a right of a civil nature existing under the common law and a right created by a statute. If the right in dispute is of a civil nature, the Civil Courts have jurisdiction irrespective of the nature of the foundation or history of that right. When a plea of ouster of the Civil Court's jurisdiction is taken, the essential question to determine is whether such jurisdiction is barred expressly or by necessary implication. It is, not contended here that there is any express ouster of the Civil Court's jurisdiction because neither in the Con stitution Act nor in the Orders‑in‑Council or the Electoral Rules is there any provision that Civil Courts will have no jurisdiction to entertain suits relating to an electoral right. The question falling for decision is whether on a true construction of the various provisions contained in the Orders‑in‑Council and the Electoral Rules it can be held that the jurisdiction of Civil Courts is impliedly barred. It is while determining this question that the distinction between a right which is purely the creation of a statutes and a right at common law becomes important because where a civil right did not exist before a statute was passed and was entirely, created by that statute, it is reasonable to infer that the Legislature intended that right to be enforced only in the manner that the statute prescribes. In the present case the right was created by the Constitution Act and the Orders‑in‑Council issued thereunder, which, together with the Electoral Rules promulgated by the Governor in exercise of the authority conferred on him by the Act and the Orders, also contain a complete Code in regard to the manner in which a person may acquire and exercise that right and the remedies available to him in case of infringement of that right. The right, therefore, falls within that class of rights which being a creation of the statute can only be enforced in the manner prescribed by the statute creating them and are excluded from the cognizance Civil Courts. It is this position which was intended to be expressed by the provisions of Part III of the Provincial Elections (Corrupt Practices and Election Petitions) Order to the effect that an election shall not be called in question except by an election petition, that all proceedings and applications in connection with such petition shall be dealt with by and carried on by or before the Commissioners and that the Governor's orders on the report of the Commissioners shall be final. The ouster of Civil Courts' jurisdiction in such cases rests on the construction of the statute creating the right and a special tribunal for its enforcement and if as a matter of construc tion of the relevant statute the Court arrives at the conclusion that the Legislature intended that the right created by the statute should only be exercised or enforced in the manner provided by that statute, then it is somewhat difficult to accept the Madras and Patna view which found favour with the Division Bench in Sat Narian Gurwala v. Hanuman Parshad (A IR 2946 Lah. 85.) that if the special tribunal is not constituted or having been constituted it does not function, the Civil Courts' jurisdic tion to adjudicate on that right is not affected. The new right depending for its creation on the will of the Legislature, the Leg islature could well have refused to create it or having created it, could have subjected it to qualifications and restrictions or defined the conditions under which it could be exercised. The argument for ouster is based in such cases on the presumed intention of the Legislature that the right was intended to be exercised only in the manner prescribed by Act that created it, and if that presumption is correct, the Civil Courts never acquired any jurisdiction to adjudicate on it as the very Act that created it also declared excluded from the Civil Court's cognizance, and the creation being simultaneous, the Civil Courts never had any jurisdiction in respect of it. Either, therefore there is or there is no ouster in such cases, but where there is ouster, it must, on the argument employed, be held to be absolute and not dependent on the functioning of the special tribunal. The theory of conditional ouster is, therefore, not at all applicable to such rights. It is, however, otherwise where a right is not created by a statute but existed before disputes relating to it or to some aspect of it were entrusted by statute to a special tribunal. Such pre‑existing rights having originally been within the cognizance of the Civil Courts, the ouster is dependent on the functioning of the special tribunal, I cannot think of a better case to illustrate this point than the cases in Ganesh Mahadeo v, Secretary of State (I L R 43 Bom. 221) and The Secretary of State v. Mask and Co. (I L R 1940 Mad. 599.) both of which were relied on by Mahajan J. in Sat Narairi s case (AIR 2946 Lad. 65), as a foundation for the argument of conditional ouster. In the first of these cases a Sub‑Inspector of Police, while con ducting a search of the plaintiff's house for a criminal offence, found no incriminating articles but came across silver ingots, which he attached and sent over to a clerk in the Customs Department. The clerk suspected that the silver was imported into British India without payment of duty, made an inquiry in plaintiff's absence and submitted a report to the collector of Customs who, without taking any evidence himself and without hearing the plaintiff, passed an order confiscating the silver under the provisions of section 182 and finding the plaintiff a sum of Rs. 1,000 under section 147 (3) of the Sea Customs Act, 1878. The plaintiff sued to recover the value of the silver confiscated and the amount of the fine levied but the trial Court rejected the claim on the ground that it had no jurisdiction to hear the suit, as the Collector's decision was final under the provisions of section 182 of the Act. On appeal the Bombay High Court held that' the jurisdiction of the Civil Court to hear the suit was not ousted if it appeared that there had been no legal adjudication of the matter by the Collector in accord ance with the provisions of the Sea Customs Act, 1878. In that case the Crown's right to confiscate and fine depended on there being an adjudication on a particular question by a special tribunal. Unless, therefore, the special tribunal functioned, the subject's common law right to retain his property, a matter within the jurisdiction of the Civil Court, remained unaffected, the ouster being dependent on the functioning of the tribunal. Hayward, J. clearly brought out this point when he observed:
"The question whether there has been a legal adjudication in accord ance with the provisions of the Act is not a question excluded from the cognizance of the ordinary Civil Courts. If there has been no legal adjudication, then the order of fine and confiscation was ultra vires of the provisions of the Act and resulted in an ordinary wrong cognizable by the ordinary Civil Courts on the general principles underlying section 9 of the Civil Procedure Code."
The second case is a Privy Council decision, also under the Sea Customs Act. In that case the question was whether a decision by an As sistant Collector on the duty leviable on imported goods was a "decision" within the meaning of section 188 and thus final under section 188 of that Act and not liable to be questioned by the Civil Courts. The Privy Council answered the question in the affirmative and following the observation of Wills J in Wolverhampton New Waterworks Company v. Hawkosfard (141 E R 486) held that the jurisdiction of the Civil Court was barred considering the question of ouster their Lordships considered it to be well‑settled that even if jurisdiction of Civil Courts is expressly or impliedly barred, they have the jurisdiction to examine into case where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. Though these observations are general, it must be borne in mind that they were made in reference to a case where initially the Civil Courts had jurisdiction in the matter which was subsequently taken away from them and entrusted to a special tribunal and they have no application to cases where the right never had been within the cognizance of the Civil Courts. This position has been well stated in Hedden v. Evans (1919 35 T L R 642) where it was laid down that if the rights which a Military Officer or soldier is seeking to enforce are given to him not by the common law but only by Military law, if, for example, they concern only his rank, promotion or emoluments he can seek his remedy in the Military Code alone, and by Sir Lawrence Jenkins C. J. in Bahi Shankar v. Municipal Committee, Bombay (31 Bom. 604) where dealing with rights that are created for the first time by a statute that eminent judge said:
"It is an essential condition of those rights that they should be deter mined in the manner prescribed by the Act to which they owe their existence. In such a case there is no ouster of the jurisdic tion of the ordinary Courts, for they never had any ; there is no change of the old orders of things ; a new order is brought into being."
The restriction that such rights can only be enforced in the manner provided by the statute creating them is a limitation on the nature and extent of the right themselves and rests on the intention of the Legislature that ordinary Courts are not to take cognizance of them. The theory of conditional ouster is based on the assumption that the Legislature creating the right could never intend that the right should come into existence but that there should be no machinery for its enforcement. If the statute contains no provision for the machinery to enforce the right, there is of course no ouster, and Civil Courts under section 9 of the Code of Civil Procedure would in that case undoubtedly have jurisdiction. The implied ouster depends on the intention to be inferred from the fact that the statute does contain a provision for the constitution of a tribunal to which the enforcement of such rights is entrusted. If there be such a provision, that it is wholly immaterial whether the statute itself creates the tribunal or delegates to some other authority the power to constitute it, and that authority does not act or the authority having acted, the tribunal does not act. Such cases definitely fall within the third class of cases mentioned by Willes J. in Wofverhapton New Waterworks Co. v. Hawkesford ((1859) 37 L J 248) and it is not justified by principle or precedent to invent a fourth class to be added to that learned judge's exhaustive classification. The intention of the Legislature being the determining factor, it is impossible to suppose that when it directed another authority to create a special tribunal, it also envisaged and intended to provide for the position created by that authority's disobeying the direction or the tribunal's refusal to function. It may be that in such cases the party seeking to enforce the right is entitled to claim the constitution of the tribunal by petitioning the relevant authority or by instituting, a properly framed action onto object to its improper consti tution or to ask for a declaration that its verdict is a nullity by reason of its having been improperly constituted, exceeding its jurisdiction or acting in an unauthorised manner in the exercise of its jurisdiction, as it is a settled rule that the jurisdiction of a special tribunal may be limited by conditions as to its constitution, as to the persons whom or the offences which it is competent to try, and as to the orders which it is empowered to make or by other conditions which the law makes essential to the validity of its proceedings and orders. As the jurisdiction of the Civil Courts is excluded only to the extent that the power of adjudication is given to the special tribunal, while such Courts cannot assume to themselves the functions of the special tribunal, they would be perfectly competent to entertain and determine all actions the object of which may be to seek the determination of the right in the manner in which the statute intended it to be determined. It is however, unnecessary to perused this matter further and speculate on all possible aspects of the question because it is nobody's case that the tribunal in the present case did not function. In fact the civil suit arose out of an order made by then Commission itself. There is no question of the improper constitution of the tribunal or of its having exceeded its jurisdiction in the sense that it pronounced on a matter which was not within its competency. The tribunal was properly constituted, it did function and it functioned in a matter which had been entrusted to it by the statute. These conditions being satisfied, its decision, right or wrong, is final and cannot be called in question in a Civil Court.
It is true that under the law the commission was bound to observe the rules of Civil Procedure but it is impossible to contend that merely because a Court governed by the rules of Civil Procedure refuses to grant an adjournment or to issue a commission for the examination of a witness in a foreign country, whatever the grounds of such refusal may be, it exceeds the jurisdiction vested in it by law. The matter rested entirely in the discretion of the commission and a mere error, assuming there was one, in the exercise of its discretion would not convert the use of that discretion into a wrong assumption of jurisdiction. The Commissioners were the final judge whether an adjournment should or should not be granted and whether a commission for the examination of Ch. Ram Singh should or should not issue and their judgment, even if exercised perversely or improperly, would not entitle the party aggrieved by the exercise of that discretion to say that the Commis sioners exceeded their jurisdiction. The order actually made, namely, refusal to adjourn the case and to issue the commission, could be made under the Code of Civil Procedure, and there being nothing in the Code of Civil Procedure defining the conditions under which such order could not be made, it cannot be said that the Commission exceeded its jurisdiction. As was held by the Privy Council in Amir Hussain Khan's case, (I L R 11 Cal. 6 (PC)) the mere fact that a Court decides a case wrongly does not mean that the Court had no jurisdiction to decide it in the manner that it did or that it acted illegally in the exercise of its jurisdiction. The observations in Secretary of State v. Mask & Co. (I L R 1940 Mad. 599) that the Civil Courts have jurisdiction to examine into cases where the provisions of an Act have riot been complied with or a statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure do not mean that every error committed by the special tribunal in its procedure would entitle the Civil Court to question its decision. It cannot be said in the present case that the provisions of the statute were not complied with as a refusal to issue a commons to a witness abroad or to adjourn a case cannot be said to be contrary to the statute or the fundamental principles of judicial procedure. If the action of the kind, taken by the commission in this case could be called in question by a Civil Court the position created will be intolerable because every order of the Commission will be liable to be called in question on the ground that it was wrong. The cases cited by my brother to show that exercise of discretion may assume the form of excess of jurisdiction are all distinguishable. Thus in The Queen v. Richard Westbrook, (24 Q B D 371) the Court of Appeal issued a mandamus to a metropolitan vestry to reconsider an application for the grant of a supperannuation allowance which they had decided under the mistaken belief that they had no discretion in the matter. It was, therefore, a case in which the tribunal required by law to exercise its discretion had refused to exercise it and could thus be compelled by the writ of mandamus to exercise it. In The Queen v. The Bishop of London (24 Q B D 213.) mandamus was refused on the ground that the Bishop could not be said to‑have declined to exercise the jurisdiction given to him by section 9 of the Public Worship Regulation Act, 1874 (37 & 38 Vict. c. 85) or exceeded such jurisdiction by considering matters which were not circumstances of the case. This case is an authority only for the propo sition that where a tribunal required by law to take a decision after considering "the whole circumstances of the case" takes into considera tion circumstances which are not circumstances of the case, the decision may be corrected by a prerogative writ. The jurisdiction of the Court of King's Bench Division to control inferior Courts by high prerogative writs is essentially different from the powers of the High Courts in Pakistan to interfere in revision or of the ordinary Civil Courts to question the proceedings or decisions of special tribunals. The mandamus or prohibition cases relied on by my brother or thus wholly distinguish able. I must, therefore, hold that the facts alleged in the plaint, namely, improper refusal to grant an adjournment or to issue a commission to Ch. Ram Singh did not amount to an allegation that the Commissioners were exceeding their jurisdiction or acting contrary to the terms of the statute prescribing the procedure to be followed by them.
The next question is whether the Election Commissioners are a Court subordinate to the Court within the meaning of section 115 of the Code of Civil Procedure and section 44 of the Punjab Courts Act. It is necessary to mention here that when my brother made the stay order of 2nd October 1948, he was not exercising and did not profess to exercise revisional powers in respect of any proceedings before the Commissioners. At that stage he was merely dealing with the application for revision of the order of the learned Subordinate judge who had discharged the temporary injunction which he had previously granted. This, however, does not matter because if I find that an order of the nature issued on 2nd October could be passed in exercise of this Court's revisional powers the respondents would be guilty of contempt in disobeying the order of a superior Court. Under section 115 of the Code of Civil Procedure and section 44 of the Punjab Courts Act the High Court can call for the record of a case decided by a Subordinate Court and make such orders as it thinks fit. Granting that the Election Commissioners constitute a Court, a proposition which itself is not free from doubt, revisional powers can be exercised by this Courts only in respect of cases decided by Courts that are subordinate of it. If I am right in the view that the Election Petitions Commissioners are a special tribunal with exclusive jurisdiction, it would follow that they are not subordinate to the High Court It is not contended that the Commissioners are subject to the appellate or administrative jurisdiction of this Court. On what ground, then, can they be held to be subordinate to this Court Section 3 of the Code of Civil Procedure says that for the purpose of that Code the District Court is subordinate to the High Court and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court. This is only definition of subordination given in the Code and the presumption is that the word "subordinate " in sec tion 115 of the Code is used in the sense in which it is defined in section 3. Section 44 of the Punjab Courts Act also uses the word "subordinate" and the only section of that Act that defines and enumerates Subordinate Civil Courts in section 18 which says that besides the Courts of Small Causes established under the Provincial Small Cause Courts Act, 1887, and the Courts established under any other enactment for the time being in force, there shall be the following clauses of Civil Courts namely :‑
(1) The Court of the District Judge ;
(2) The Court of the Additional Judge ; and
(3) The Court of the Subordinate Judge.
This section cannot be taken to mean that the Courts established under any other enactment for the time being in force are all subordi nate to the High Court. It is, however, true that in several decisions some Courts which are not specifically mentioned either in the Code of Civil Procedure or section 18 of the Punjab Courts Act have been held to be a Subordinate Courts for the purposes of section 115 of the Code of Civil Procedure. I cannot accept the broad and unqualified proposition that once it is held that an officer, authority or functionary is exercising the functions of a Court in relation to rights that may be called "civil" that officer authority or functionary must be held to be subordinate to the High Court. The result of any, such finding would be that all Courts which adjudicate upon the Civil rights of subjects whether in cases between the subjects themselves or between the State and the subject will be subordinate to the High Court and this will bring within the sphere or subordination not only the Revenue Courts which admit tedly decide civil dispute between the parties but also the income‑tax authorities which determine the subject's liability to the State. One clear indication of subordination has always been held to be that the Court whose subordination is in question is subject to the appellate jurisdiction of the High Court. A Court may also be subordinate to the High Court even qua matters which are not subject to the High Court's appellate power if these matters have been entrusted for adjudication to an admittedly Subordinate Court as a Court and not to the Presiding Officer of such Court as a persona designata. In almost all the cases cited by my brother in support of the argument of subordination, the Court whose 'subordination was in question satisfied either one or the other of the two tests just mentioned. These authorities are Civil Revision No. 26 of 1948, Doctor Kishan Chand v. Malik Nur Muhammad (PLD 1949 Lah.30) Mahabaliswarappa v. M. Gopalaswami Mudaliar (A I R 1935 Mad. 673), Kokku Partha Parthasaradhi Naidu Gharu v. Chintlacherya Koteswara Rao Garu (47 Mad. 369.), Abdul Razak v. Kuldip Narain (214 Ind. Cas. 59), Shripal Amrit Danse v. Harsidbhai Divatia (1940 Bom.20.), Arjun Rautara v. Maharaja Krishna Chandra Gajanpati Narayan Deo (21 Pat. (1942) I.), Purshottam Janardhan Chaphekar v. Mahadu Pandu Turmalkar (37 Bom. 114.) and Allan Bros. & Co. v. Bando & Co. (37 Bom. 114.). On examination it will be found that these cases can be divided into three clauses : (1) those in which the special Court was held to be subordinate to the High Court because a limited right of appeal to the High Court existed from the decisions of that Court, (2) where a Court, whose subordination to the High Court could not be doubted, was given some additional jurisdiction, and (3) those in which the High Court interfered with the decisions of the inferior Court under section 107 of the Government of India Act, 1915. To the first category belong the cases in Arjun Rautra v. Maharaja Krishna Chandra Gajepati Narayan Deo (21 Pat. (1942). 1) and Allen Bros. & Co. v. Bandu and Co. (49 Cal. 931). The cases in Y. Mahabaleswarappa v. M. Gopalaswami Mudaliar (1935 Mad. 673,) and Kokku Partharadaradhi Naidu Garu v. Chintlacherun Koteswara Rao Qat a (214 Ind Cas. 59), full under the second category, while Purshottam Jandar dan Chaphekar v. Mahadu Pandu Turmalkar (37 Bom. 114.), belongs to the third catogory. The existence of a right of appeal from the decisions of a Court to a Superior Court is a well recognised test of subordination even qua cases in which no appeal lies and a Court may be held to be subordi nate to another Court in cases in which there is no right of appeal to that Court. It is not contended here, nor could it be urged, that an appeal lies to the High Court from any decision or order of the Election Peti tions Commissioners. The second class of cases fall within the well recognised rule that where the jurisdiction of a Court is enlarged by entrusting for adjudication to it and not to its Presiding Officer as a persona designata certain new matters, the incident of the subordination of that Court to the Superior Court remains unaffected even in respect of such new matters. Almost all the reported cases relating to election disputes in which the High Court interfered in revision or was held competent to issue a prerogative writ, belong to this class. In the present case it is nobody's case that the Election Petitions Commis sioners, before their appointment to their present position, were a Subordinate Court and that their jurisdiction to decide election disputes was merely an addition to their already existing powers. The third category of cases are now absolute in view of the amended section 224 of the Government of India Act which has been substituted for sec tion 107 of the Government of India Act, 1915, and which expressly provides that the administrative functions of the High Court which are the same as the powers of superintendence under the repealed section shall not be construed as giving to the High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision. Even, therefore, if the Election Petitions Commissioners can be held to be an "inferior" Court, which word is perhaps used in section 224 of the Government of India Act, 1935, in contra‑distinction to superior Court or Court of Record, there is no right of appeal from its decisions to the High Court nor has the High Court been invested with any right of revision, the argument based on the High Court powers to interfere under section 107 of the Govern ment of India Act, 1915, being no longer applicable, and it will be begging the question to say that because exhypothesi the Election Petitions Commissioners are an inferior Court, therefore, their decisions are subject to revision by the High Court.
It now remains to notice a recent decision of the Division Bench of this Court in Dr. Kishan Chand v. Malik Nur Muhammad (PLD 1949 Lah. 30) Civil Revision No. 26 of 1948 to which my brother Cornelius was a party. The facts of that case were that in 1941 the Provincial Legislature had passed an Act, X of 1941, which had given to the Subordinate Judges and District judges of this Province an additional jurisdiction in disputes between tenants and landlords. Because both the District judges and the Subordinate judges were admittedly subordinate to the High Court, the High Court had been exercising powers of revision in respect of cases decided by them under the provisions of that Act. This was on the principle that the new Act had merely enlarged the jurisdiction' of existing Courts which were undoubtedly subordinate to the High Court. While this Act was in force the Government of the Province assumed and administration of the Province by a Proclamation issued under section 93 of the Government of India Act, and it was while the proclamation was still in force that the Act of 1941 was repealed and substituted by a new Act, (Act VI of 1947), which after making some amendments in the Act of 1941 and providing for appointment of "Controllers" and "Appellate Authority" by the Provincial Government went on to provide that, "the decision of the Appellate Authority and, subject only to such decision, an order of the Controller shall be final and shall not be liable to be called in question in any Court of law whether in a suit or other proceedings by way of appeal or revision." In exercise of the powers conferred on it the Provincial Government had appointed certain Subordinate judges as Controllers and District judges as Appellate Authorities, and the question raised before the Division Bench was whether the provision of the new Act which took away the revisional jurisdiction of the High Court in suits or proceedings between tenants and landlords before the Controllors or the Appellate Authorities was or was not ultra vires of the Governor by reason of the proviso to subsection (1) of section 93 of the Government of India Act, 1935, that nothing in that subsection shall authorise the Governor to assume to himself any of the power vested in or exercisable by a High Court, or to suspend, either in whole or in part, the operation of any provision of that Act relating to the High Court. It was held by the Division Bench that the impugned legislation because it affected the High Court's power of revision was ultra vires of the Governor, the reason being that the abolition of the power of revision amounted to an assumption by the Governor of the powers of revision which had before the passing of that legislation vested in the High Court. I have some difficulty in. accepting the view that a mere abrogation of the powers of revision of the High Court in effect amounts to an assumption of the High Court's powers by the Governor himself but assuming that that is so the actual decision in that case is clearly distinguishable. My brother Cornelius in his learned judgment in that case adopted very much the same argument as in the present case on the question of subordina tion of Courts and most of the cases cited by him in the present case were also relied upon by him in that case. The other learned Judge, Muhammad Sharif, J., I respectfully venture to suggest, went to for when he laid down the rule that a Civil Court, meaning by such Court any Court which is engaged in the determination of disputes of a civil nature, is, as such, always subordinate to the High Court and subject to its revisional jurisdiction under section 115 or section 44 of the Punjab Courts Act.
Nor can I agree with the view taken in some of the cases e.g., Abdul Rizak v. Kuldip Narain (20) Arjun Rautara v. Maharaja Krishna Chandra Gajapati Narayan Deo (21 Pat. (1942) 1.) and Kokku Parthasaradhi Naidu Garu v. Chintlachevu Koteswara Rao Garu (47 Mad. 369.) that subsection to the High Court, if by subsection is meant subordination, is a necessary and inseparable incident of all tribunals of limited jurisdiction because the existence of the limit pre‑supposes a higher authority to determine and enforce it and an inferior tribunal cannot be permitted to determine the limits of its own jurisdiction or to trespass beyond those limits without some power to check. In Dr. Kishan Chand v. Malik Nur Muhammad (PLD 1949 Lah. 30) Civil Revision No. 26 of 1948 my brother Cornelius supported his argument as to subordination by some observation occurring in the following passage in the judgment of meredith, J. in Abdul Razak v. Kuldip Narain (214 Ind. Cas. 59.) at page 68 :‑
" The question of subordination too' presents no real difficulty. Upon this point there is a significant Full Bench decision of the Madras High Court in Parthasarathi Naidu v. Koteswara Rao Garu (47 Mad. 369.) where a quotation is made from The King v. The Assessment Committee of the Metropolitan Borough of Shoreditch ((1910) 2 K B 859 (880)) where in it was pointed out that subjection to the High Court is a necessary and inseparable incident to all tribunals of limited jurisdiction. The existence of the limit pre‑suposes a higher authority to deter mine and enforce it. An inferior tribunal cannot be permitted to determine the limits of its own jurisdiction or to trespass beyond those limits without some power of check. That would be intoler able. In this country, in the absence of anything to the contrary, it is the High Court to which such a tribunal will be subordinate.
I have myself examined the position at length with regard to sub ordination in Arjan Rautara v. Krishna Chandra Gajapati Narayan Deo (21 Pat. (1942) 1.) and it is unnecessary to repeat here what I said there. There also I referred to the very relevant observations in The King v. The Assessment Committee of the Metropolitan Borough of Shoreditch ((1910) 2 K B 859 (880)). National Telephone Co., Ltd., v. Postmaster General (1913 A C 546.) is another relevant decision in this connection".
The report of the Full Bench in Parthasaradhi Naidu v. Koteswara Rao Garu (47 Mad. 369.), however, contains no reference to the King v. The Assess ment Committee of the Metropolitan Borough of Shoreditch ((1910) 2 K B 859 (880)). The case in Arjan Rautara v. Maharaja Krishna Chandra Gajapati Narayan Deo (21 Pat.(1942) 1.) was distinguishable inasmuch as the Court of the Collector con stituted under the provisions of the Orissa Tenancy Act, 1913, was held to be of a grade inferior to that of a District Court because there were definite provisions in that Act providing for an appeal from the judgment of the Collector to the District Judge, and where one Court is made subject to the appellate jurisdiction of another, the former is obviously thereby made inferior to the latter, and plainly that inferiority must also extend to cases where, by reason of the pettiness of the cause or other wise, no appeal is provided for. The case in the National Telephone Company v. His‑Majesty's Postmaster‑General (1913 A C 546.) was a case of enlarge ment of jurisdiction of a Court subject to the appellate jurisdiction of the Court of Appeal. The facts of that case were that by the Railway and Canal Traffic Act, 1888, the Railway and Canal Commission, which as regards England consisted of one ex‑officio and two appointed Commissioners, was established as a Court of Record, and an appeal lay from the Commission to the Court of Appeal except upon questions of fact and locus standi. By an agreement under seal made in 1905 a telephone company agreed to sell to the Postmaster‑General all the plant in use by the company on December 31, 1911, and any dispute as to the value of the plant was to be referred to the Railway and Canal Commission if they should be authorized to determine it. The Telegraph (Arbitration) Act, 1909, enacted (section 1) that any difference between the Postmaster‑General and any body or person under any agreement relating to telephones should, if the parties agreed, be referred to the Railway and Canal Commission, who were bound to determine it ; and (section 2) that all proceedings relating thereto should be conducted by the Commission in the same manner as any other proceeding was conducted by them under the Railway and Canal Traffic Acts, 1873 and 1888, and that any order of the Commission on any such difference should be enforceable as any other order of the Commission, provided (inter alia) that any such matter of difference might, in certain events, be heard and determined by the two appointed Commissioners. A difference having arisen as to the value of the plant, the Commission, at the request of the parties, fixed and determined the value. It was held by the House of Lords that the reference to the Commission under the Telegraph (Arbitration) Act, 1909, was a reference to them as a Court of Record and not as arbitrators, and that an appeal lay from their decision on a point of law to the Court of Appeal. In the present case I have already pointed out no decision, order or proceeding before the Election Petitions Commissioners was ever subject to an appeal to the High Court. In fact the Commission never existed as a Court and was only constituted for the specific purpose of investigating and reporting on election disputes.
The following passage in the judgment of Farwell, L. J., in The King v. The Assessment Committee of the Metropolitan Borough of Shoreditch (62) :‑
" The existence of the provisional list is a condition precedent to their jurisdiction to hear and determine, and as the claimant is entitled to require them to hear and determine, they cannot refuse to take the steps necessary to give rise to such jurisdiction ; if they do, their refusal may be called in question in the High Court. No tribunal of inferior jurisdiction can by its own decision finally decide on the question of the existence or extent of such jurisdiction; such question is always subject to review by the High Court, which does not permit the inferior tribunal either to usurp a jurisdiction which it does not possess, whether at all or to the extent claimed, or to refuse to exercise a jurisdic tion which it has and ought to exercise. Subjection in this respect to the High Court is a necessary and inseparable incident to all tribunals of limited jurisdiction ; for the existence of the limit necessitates an authority to determine and enforce it ; it is a contradiction in terms to create a tribunal with limited jurisdic tion and unlimited power to determine such limit at its own will and pleasure‑such a tribunal would be autocratic not limited and it is immaterial whether the decision of the inferior tribunal on the question of the existence or non‑existence of its own jurisdiction is founded on law or fact ; a Court with jurisdiction confined to the City of London cannot extend such jurisdiction by finding as a fact that Piccadilly Circus is in the ward of Chepe",
relied on by my brother Cornelius in the present case and by Meredith, J. in Abdul Razak v. Kuldip Narain (56), does not refer to the High Court's power to revise the order of Subordinate Courts but to that Court's power to issue the prerogative writs of mandamus, prohibition and certiorari to inferior Courts. The important words in the passage are "subjection in this respect" and these plainly refer to the High Court's power to determine, whether the inferior tribunal has or has not acted within jurisdiction while considering the question whether mandamus should or should not go. I have already pointed out that unless expressly provided by statute, and such cases though rare in England are abundant in our legislation, that 'a special tribunal will be the judge of its own jurisdiction. Civil Courts are competent and it is for them alone, to determine the question whether a special tribunal has; acted within jurisdiction or exceeded its limits but that does not mean or necessarily imply that the tribunal is subordinate to the High Court within the meaning of section 115 of the Code of Civil Procedure Though that section contemplates some of the well recognised cases where a prerogative writ would issue in England, and the jurisdiction of the High Court in England and that of the High Courts in Pakistan to interfere in revision are analogous, it is mistake to suppose that these two jurisdictions are identical and do not differ in their scope and character and that the High Courts in Pakistan will interfere in revision where a writ would go in England.
The decision in Shripad Amrit Danse. v. Sir Harsiddhbhai Divatia (57) is also distinguishable inasmuch as all that was held in that case was that the Commissioners appointed by the Governor exercising his individual judgment in exercise of the power given to him by para. 4 of Part III of the Government of India (Election Petitions and Corrupt Practices) Order, 1936, were not a superior Court or a special or independent Tribunal within the meaning of that term as explained in Goonesinha v. De Kretser (63) and were thus amenable to the high prerogative writ of certiorari which the Bombay High Court has the power to issue in proper cases. The question raised in that case was whether a writ of certiorari could issue to the Election Petitions Commissioners and this depended upon whether they were or were not an inferior Court because a writ of certiorari can only issue to an inferior Court. The case was dis tinguished from the case in Goonesinha v. O. L. D Kretser (63) where the jurisdiction of the Supreme Court of Ceylon having been enlarged by entrusting to it the decision of disputes connected with elections it was held by the Privy Council that the Court while exercising such powers was a superior Court to which no writ of certiorari could issue and not an inferior Court. It is true that the Bombay case also goes on to hold, without any discussion, that the Election Petitions Commissions do not constitute a special or independent Tribunal who are exempt from the jurisdiction of the High Court to issue writs of prerogative but that part of the decisions, if it is taken to mean that the Election Petitions Com missioners, are a Court subordinate to the High Court‑ within the meaning of section 115 of the Code of Civil Procedure, seems to me to be incorrect, and is opposed to the observations of Lord Coddard in Goonesinha v. De Kretser (A I R (1945) P C 83.) that an Election Judge from whose decision there is no appeal is a special or independent tribunal.
For these reasons I must hold that the Election Petitions Commis sioners are not a Court subordinate to the High Court and are an independent and special Tribunal exercising exclusive jurisdiction in a defined class of cases. The inevitable result of holding the Election Petitions Commissioners as a Court subordinate to the High Court would be that every interim order of theirs and even their final report would be liable to revision on proof that in exercising their jurisdiction they have committed some illegality or have acted with material irregularity, and the High Court will thus have the power of interfering with their proceedings at every stage which was never the intention of the Legislature. And it would be anomalous to hold that though the High Court has the power to interfere with their interim orders it has no such power in respect of their final report because the latter essentially depends upon the proceedings taken before the making of the report and if anyone of these orders could be properly attacked in revision, the basis of the report would be gone, and this would take away all finality from their report.
In my opinion my brother's order of 2nd October 1948, staying proceedings before the respondents being without jurisdiction was void and that being so no contempt of this Court was committed by the res pondents by disobeying it.
‑I concur in the order proposed by my Lord the Acting Chief Justice.
‑The judgment of the majority prevails and the Rule is discharged.
A. H. Rule discharged.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer