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Civil Revision No. 337 of 1984, decided on 2nd August, 1986.

‑‑‑ O. XXXVII, R. 1 ‑Amendments to R. 1 of O. XXXVII, C. P. C.‑History.

---S. 2(4) & O. XXXVII, R. 1‑West Pakistan Civil Courts Ordi nance (II of 1962), Ss. 14 & 16‑Principal Court of original jurisdic tion‑District Court is principal civil Court of original jurisdiction within a district presided over by District Judge or Additional District Judge‑District Court, held, would not include civil Court presided over by a Civil Judge and subordinate to District Court District Court would be competent to try a suit under O. XXXVII. R. 1, C. P. C.‑Civil Court not notified by High Court to try such suits would lack jurisdiction in respect thereof.

---S. 122 & O. XXXVII, R. 1 [as amended by Civil Procedure and Limitation (Amendment) Ordinance (IX of 1961)]‑Law Reforms Ordinance (XII of 1972), S. 2‑Rule, notified by High Court Power of Legislature to amend‑Effect‑Authority of Legislature to amend Civil Procedure Code, 19.)8, held, would include power to amend, even Rules, made by High Court ‑ Application of O. XXXVII, R. 1.. C. P. C. to District Courts revived by Ordinance IX of 1961‑Provisions of O. XXXVII, R. 1, C. P. C. were extend ed to civil Courts as notified by High Court when Ordinance XII of 1972 came into force‑Civil Court not notified by High Court to entertain and try suit under O. XXXVII, R. 1, C. P. C. would lack jurisdiction in respect thereof.

Sardar Muhammad v. Barkat Ali P L D 1979 Lah. 314 rel.

---S. 3‑Civil Procedure Code (V of 1908), O. XXXVII, R. 1 Elimination of cl. (e) to R. I from O. XXXVII, C.P.C. by Ordinance XXI of 1960‑Effect of elimination unnoticed by superior Court Elimination of cl. (e) to R. 1. O. XXXVII, C. P. C. introduced by High Court in extending application thereof to subordinate Judges of Ist Class, having not been brought to notice of superior Court Observation made by superior Court that Senior Civil Judge had jurisdiction to try suit under O. XXXVII, R. 1, C. P. C., held, would be considered as obiter.

---S. 115 & O. XXXVII, R. I ‑Central Laws (Statutes Reforms) Ordinance (XXI of 1960), S. 3‑Revisional jurisdiction, exercise of Provisions of O. XXXVII, R. 1, C. P. C. not applicable to sub ordinate civil Courts‑Subordinate civil Court, held, would have no jurisdiction to entertain or try a suit in respect thereof‑High Court in exercise of revisional jurisdiction, set aside order of civil Court wherein conditional leave to defend suit was granted‑Plaint was ordered to be returned to plaintiff to be presented to Court having jurisdiction in the matter.

Shahzad Jahangir for Petitioner.

Muhammad Arif for Respondent.

Dates of hearing :19th and 24th March, 1986.

This petition seeks revision of the order of the learned Civil Judge, Lahore, dated the 30th January, 1984, granting conditional leave to the petitioner to defend the suit brought by the respondent under Order XXXVII of the Code of Civil Procedure for recovery of Rs. 13,61,060 on the basis of the promissory note which the petitioner was alleged to have executed in favour of the respondent. The petitioner pleaded, inter alia, that the document on which the respondent had based his claim was artificial and fraudulently made. The petitioner admitted before this Court that the document bore his signature which he said had been procured by practising fraud upon him. He asserted that he owed nothing to the respondent. The learned Civil Judge granted him leave to appear and defend the suit on his furnishing bank guarantee of half of the disputed amount and security in respect of the other half.

2. Apart from describing the condition imposed by the learned Civil Judge to be onerous and harsh the petitioner has questioned the jurisdiction of the learned Civil Judge to entertain and try the suit. Only two points have been argued by the learned counsel for the parties: Jurisdiction of the learned Civil Judge to try the suit and propriety of his order granting leave. It may be advantageous to deal with the question of jurisdiction first because if the learned Civil Judge is held to be deprived of jurisdiction it would be least desirable to pre‑empt the right of the Court having the jurisdiction, which may ultimately be seized with the trial of the suit, to decide the question of grant of leave.

3. The decision of the question touching jurisdiction mainly depends upon interpretation of rule 1 of Order XXXVII of the Code of Civil Procedure, 1908. In order to find out as to how rule 1 stands at the moment it may be useful to notice some pertinent amendments to which rule 1 has been subjected. When enacted in 1908, rule 1 was couched in the following words,‑

(1) This order shall apply on to‑

(a) the High Courts of Judicature at Fort William, Madras and Bombay ;

(b) the Chief Court of Lower Burma

(c) the Court of the Judicial Commissioner of Sind : and

(d) any other Court to which sections 532 to 537 of the Code of Civil Procedure, 1882, have been already applied.

4. The High Court of Judicature at Lahore, under the rule‑making power conferred upon it by section 122 of the Code of Civil Procedure, by its Notification No. 225-G, dated the 5th July, 1923, added the following clause (e) to rule 1,‑‑.

"The Courts of the District Judge and Subordinate Judges of the first class of the Delhi Province."

and vide Notification No. 456‑Gaz./XI‑Y‑15, dated the 29th July, 1932, added the following words to clause (e),‑

"and the Courts of the District Judges and Subordinate Judges of the first class in the civil districts of Lahore and Amritsar in the Province of the Punjab "

5. Clause (b) was omitted by the Government of India (Adaptation of Indian Laws) Order, 1937. Rule 1 at the eve of Independence so far) as it was applicable to the Courts subordinate to the High Court of Judicature at Lahore ran as follows,‑

"(1) This order shall apply only to‑

(a) the High Courts of Judicature at Fort William, Madras and Bombay;

(b) the Court of the Judicial Commissioner of Sind ;

(c) any other Court to which sections 532 to 537 of the Code of Civil Procedure, 1881, have been already applied ; and

(d) the Court of the District Judge and Subordinate Judges of the first class of the Delhi Province and the Courts of the District Judges and Subordinate Judges of the first class in the civil districts of Lahore and Amritsar in the Province of the Punjab."

Clause (a) was deleted and the Judicial Commissioner of Sind' was substituted with the Chief Court of Sind' by the Pakistan [Indian In dependence Legal Proceedings)] Order, 1948 (G. G. O. No. 21), which though promulgated on the 15th November, 1948, was deemed to have come into force on the 15th August, 1947.

6. Then came the Central Laws (Statutes Reforms) Ordinance, 196 (XXI of 1960), whose section 3 read with item No. 19 relating to the Cod of Civil Procedure substituted the following rule 1 for the existing rule 1 of Order XXXVII of the Code,‑

"(1) This Order shall apply only to the Bench of the High Court of West Pakistan at Karachi."

7. Section 2(a) of the Civil Procedure and Limitation (Amendment) Ordinance, 1961 (IX of 1961), made the following substitution of rule 1 of Order XXXVII for the existing rule 1,‑

"(1) This order shall apply only to the High Court and to the District Court."

8. The Code of Civil Procedure (Amendment) Ordinance, 1962 (XLIV of 1962), by its section 48 omitted rule 1 of Order XXXVII, Section 2 of the Code of Civil Procedure (Amendment) Act, 1963 (III of 1963), ordained that section 48 in addition to other sections of the Code of Civil Procedure (Amendment) Ordinance, 1962 (XLIV of 1962), shall be omitted and shall be deemed always to have been so omitted. It meant that the amendment brought about in rule 1 by the Civil Procedure and Limitation (Amendment) Ordinance, 1961 (IX of 1961), held the field.

9. By section 2 of the Law Reforms Ordinance, 1972 (XII of 1972), and item (xi) under the Code of Civil Procedure in the schedule for the words "and to the District Court" occurring in rule 1 the words "to the District Court, and to any other civil Court specially notified in this behalf by the High Court" were substituted. With the latest amendment rule 1 reads as under,‑

"This Order shall apply only to the High Court, to the District Court and to any other civil Court specially notified in this behalf by the High Court."

10. There is no dispute that the District Court which, vide. section 2(4) of the Code is the principal civil Court of original jurisdiction' within a district and which, as is apparent from sections 14 and 16 of the Punjab Civil Courts Ordinance, 1962 (lI of 1962), is the Court presided over by the District Judge or the Additional District Judge. it does not include a civil Court presided over by a Civil Judge which is, under section 3 of the Code and section 14 of the Punjab Civil Courts Ordinance, 1962, subordinate to the District Court. There is no quarrel with the jurisdiction of the District Court to try the suit. However, the learned counsel for the petitioner contended that the learned trial Court, which was only a civil Court and not a District Court, had not been specially notified by the High Court for the purpose of rule 1 so as to be invested with the power to take cognizance of the suit instituted under Order XXXVII of the Code and consequently it had no jurisdiction whatever to deal with the respondent's suit.

11. The learned counsel for the respondent banked upon clause (e) added by the High Court to rule 1 by virtue of its rule‑making power adverted to above to canvass in favour of the jurisdiction of the learned trial Court. But this clause alongwith other portion of rule 1 was substituted by the Central Laws (Statutes Reforms) Ordinance, 1960 (XXI of 1960), as noted above, with the following,‑

"I. This Order shall apply only to the Bench of the High Court of West Pakistan at Karachi."

It means that the addition made by this Court to rule 1 vanished leaving, no powers with the Courts enumerated therein to entertain and try the suits under Order XXXVII. The proposition that the authority of the Legislature to amend the Code of Civil Procedure includes the power to amend even the rules made by the High Court is well‑recognized and finds endorsement, among others, by the decision of this Court reported as Sardar Muhammad v. Barkat Ali (P L D 1979 Lah 314). Consequently Order XXXVI1 ceased to apply to the Courts of the District Judge and the Civil Judges in the civil district of Lahore. The application of the order to the District C Court was revived with the enforcement of the Civil Procedure and Limitation (Amendment) Ordinance, 1961 (IX of 1961), and extended to the civil Court specially notified to this behalf. by the High Court when the Law Reforms Ordinance, 1972 (XII of 1972), came into force. It is true that the learned trial Court, which is a civil Court, has not been notified by the High Court for the purpose of application thereto of the provisions of Order XXXVII of the Code. Hence it lacked jurisdiction t try the suit in hand.

12. In the order of this Court dated the 11th March, 1969, disposing of Civil Revision Petitions Nos. 57 and 59 of 1969, and of the Supreme Court of Pakistan, dated the 11th June, 1.969. reported as Messrs Siraj and Company v. Habib Bank Limited, Lahore (1969 S C M R 784), refusing to grant special leave to appeal from the first mentioned order, referred to by both the sides, the question whether the civil Court had no jurisdiction to try suit under Order XXXVII of the Code was not in issue. In the two suits brought by Habib Bank Limited, Lahore, under Order XXXVII of the Code in 1968, the learned District Judge passed orders on the 9th December, 1968, granting conditional permission to the defendants to defend the suits which orders were challenged in revision before this Court. On behalf of the defendants‑petitioners it had been contended that the suit ought to have been filed in the Court of the learned Senior Civil Judge, Lahore, and not in the Court of the learned District Judge, Lahore, because in matter of jurisdiction under section 15 of the Code of Civil Procedure the suit was to be instituted in the Court of the lowest grade competent to try it. In reply the learned counsel for the respondent contended that both the District Judge and the Senior Civil Judge had the jurisdiction in the matter and according to administrative directions of the learned District Judge such suits were filed and heard by him. It was observed that under Order XXXVII, rule 3 [rule 1] of the Code, as amended by this Court, in Lahore suits under Order XXXVII, rule 3 [rule 1] of the Code could be filed both in the Court of the District Judge and in that of the Senior Civil Judge. The Court seems to be under the impression that the amendment introduced by this Court in rule 1, which had actually been abolished by the Central Laws (Statutes Reforms) Ordinance, 1960 (XXI of 1.960). still existed.

13. While disallowing the prayer for special leave to appeal the Supreme Court of Pakistan observed as under,‑

"The learned Chief Justice who dealt with the revision petitions in the High Court found that the plea that the petitioners had hypothecated goods against the sums advanced to them on the basis of the promissory notes was on its face incorrect and that the pleas taken up in defence were male fide.

The other ground that the suit was' not properly instituted in the Court of the District Judge was also ruled out as under the amended rules suits falling under Order XXXVII, C. P. C. in Lahore can be instituted both in the Court of District Judge or the Court of the Senior Civil Judge. The two Courts thus have concurrent jurisdiction which is not affected by the rule laid down in section 15 of the Code that every suit shall be instituted in the Court of the District Judge complained to by it on examining the record.

We concur in the vi‑w which has prevailed in the High Court and see no proper ground to interfere with the discretion exercised by the trial Judge in requiring the petitioners to furnish security as condition for giving them leave to defend the suits.

The prayer for special leave to appeal in both the cases is disallowed and the petitions are dismissed."

14. As submitted earlier the precise point whether Order XXXVII o the Code did not apply to the Civil Courts was not put to issue nor, arguments were addressed thereon. The effect of elimination of clause (e) introduced by this Court in rule 1 extending application of Order XXXVII to the Courts of the Subordinate Judges of First Class of Lahore district by the Central Laws (Statutes Reforms) Ordinance, 1960 (XXI of 19,50), was not brought to the notice of this Court or the Supreme Court. Therefore, the observation that the Senior Civil Judge had jurisdiction to entertain suits under Order XXXVII of the Code may with respect be considered as obiter.

15. From what has been said above it follows that Order XXXVII of the Code did not apply to the learned trial Court of the Civil Judge, Lahore, and consequently it had no jurisdiction to try the suit. The impugned order granting leave to the respondent falls and being without jurisdiction cannot be upheld. The petition is accepted. The plaint of the suit shall, therefore, be returned to the plaintiff‑ respondent to be presented to the Court in which the suit should have been instituted, The parties are left to bear their own costs.

A. A. Revision accepted.

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