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Civil Miscellaneous No. 307/5 of 1958, reference answered on 6th January 1959.

Reference to Full Bench‑Question referred modified by Full Bench to make it more "particular" consistently with particular question of law involved in case.

The question referred by the Division Bench was:

"Whether the President's Laws (Continuance in Force) Order (Post‑Proclamation No. 1 of 1958), has kept alive the jurisdiction of this Court under the provisions of the late Constitution, except in matters provided for in the Order itself "

In the opinion of the‑ Full Bench, the question, to be more "particular", should have been:

"Has the Laws (Continuance in Force) Order, 1958, kept alive the jurisdiction of this Court to certify the fitness of an appeal to the Supreme Court under Article 158 of the Constitution " which was the question actually answered by the Full Bench.

Arts. 2 (1) (2), 4 (I)‑Abrogation of Constitution of Pakistan (1956)‑High Court has no power to issue certificates of fitness of appeal to Supreme' Court under Art. 158, Constitution of Pakistan (1936)‑"Governed" occurring in Art. 2 (I)‑Issuing such certificate no part of "government"‑Civil Procedure Code (V of 1908), Ss. 109, 110‑Constitution of Pakistan (1956), Art. 124.

Raja Said Akbar Khan for Petitioner.

Iftikhar‑ul‑Haq Khan for Respondent.

Dates of hearing : 10th and 17th November 1958.

This is an application by Bakhshi Rustam Ali under Articles 157 and 158 of the late Constitution read with Order XLV, rule 1 and sections 109 and 110 of the Code of Civil Procedure for grant of a certificate to appeal to the Supreme Court of Pakistan from the decision of this Court in, R. F. As. Nos. 174 and 178 of 1955.

2. It is not necessary to recapitulate the facts on which these appeals proceeded, for at present the principal question which falls for determination is whether the jurisdiction of this Court under the late Constitution has survived its abrogation by the Proclamation dated the 7th of October 1958. If Article 158 of the late Constitution is still in existence, the applicant has a right of appeal, for the value of the subject‑matter of the suit in the trial Court as well as on appeal before this Court was more than Rs. 15,000, but if the right of appeal is confined to the provisions of the Code of Civil Procedure, then we may not grant the requisite certificate because the judgment of this Court in R. F. A. No. 174 of 1955, regarding the dismissal of the applicant from service, affirmed the decision of the trial Court and no substantial question of 'law was involved in the decision of the appeal. In support of the plea that the jurisdiction of this Court under Articles 157 and 158 of the late Constitution, notwithstanding its abrogation, continues to vest in it, Raja Said Akbar, learned counsel for the applicant, has relied on the following provisions of the Laws (Continuance in. Force), Order (Post‑Proclamation) No. 1 of 1958 :‑---

"2. (1) Notwithstanding the abrogation of the Constitution of the 23rd March 1956, hereinafter referred to as the late Constitution, by the Proclamation and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution.

"(2) Subject as aforesaid, all Courts in existence immediately before the Proclamation shall continue in being and, subject further to the provisions of this Order, in their powers and jurisdiction."

3. The first provision, that Pakistan shall be governed as nearly as may be in accordance with the late Constitution, appears to have no concern with the jurisdiction and powers of the Courts.

The second provision, that all Courts in existence before the 7th October 1958 shall continue in being in their powers of jurisdiction, however, requires a more careful interpretation.

4. It is true that the jurisdiction of this Court as on the day of the Proclamation, included the jurisdiction conferred on it by the late Constitution, but it is arguable that if the statute which confers any powers or jurisdiction on this Court is repealed or abrogated, jurisdiction under that statute is automatically taken away. For instance, our jurisdiction in income‑tax matters depends on continued existence of the provisions of section 66 of the Income‑tax Act. If the section is repealed, the jurisdiction of this Court in such matters will automatically cease. Similarly, it may be said that on the abrogation of the late Constitution the jurisdiction of this Court under Article 158 has been taken away.

5. As determination of the jurisdiction of this Court after the abrogation of the late Constitution is of general importance, we consider it expedient to refer the following question to a larger Bench for a more authentic decision:‑

Whether the President's Laws (Continuance in Force), Order (Post Proclamation) No. 1 of 1958, has kept alive the jurisdiction of this Court under the provisions of the late Constitution, except in matters provided for in the order itself

The case will be laid before our Lord the Chief Justice for the constitution of the Bench.

.‑The question before the Full Bench is "whether the President's Laws (Continuance in Force) Order (Post‑Proclamation) No. 1 of 1958, has kept alive the jurisdiction of this Court under the provisions of the late Constitution, except in matters provided for in the Order itself."

2. To be more particular, the question should have been‑

Has the Laws (Continuance in Force) Order, 1958, kept alive the jurisdiction of this Court to certify the fitness of an appeal to the Supreme Court under Article 158 of the Constitution

3. The referring Bench had before it a petition for the grant of a certificate to appeal to the Supreme Court in a case where the High Court judgment was one of affirmance. 'In the opinion of the referring Bench, "if Article 158 of the late Constitution is still in existence, the applicant has a right of appeal, for the value of the subject‑matter of the suit in the trial Court as well as on appeal before this Court was more than Rs. 15,000, but if the right of appeal is confined to the provisions of the Code of Civil Procedure, then we may not grant the requisite certificate because the judgment of this Court in R. F. A. No. 174 of 1955, regarding the dismissal of the applicant from service, affirmed the decision of the trial Court and no substantial question of law was involved in the decision of the appeal."

4. The relevant provisions of the Laws (Continuance in Force) Order, 1958, require to be reproduced in some detail in order to appreciate the question in issue.

"Article 2.‑(1) Notwithstanding the abrogation of the Constitution of the 23rd March 196, hereinafter referred to as the late Constitution, by the Proclamation and subject to any order of the President or Regulation made by the Chief Administrator of Martial Law, the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution.

(2) Subject as aforesaid, all Courts in existence immediately before the Proclamation shall continue in being and, subject further to the, provisions of this Order, in their powers and jurisdictions. '

(3) The law declared by the Supreme Court shall be binding on all Courts in Pakistan.

(4) The Supreme Court and the High Courts shall have power to issue the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari.

Article 4.‑(1) Notwithstanding the abrogation of the late Constitution, and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law, all laws, other than the late Constitution, and all Ordinances, Orders‑in‑Council, Orders other than Orders made by the President under the late Constitution, such Orders made by the President under the late Constitution as are set out in the Schedule to this Order, Rules, bye‑laws, Regulations, Notifica tions, and other legal instruments in force in Pakistan or in any part thereof, or having extra‑territorial validity, immediately before the Proclamation, shall, so far as applicable and with such necessary adaptations as the President may see fit to make, continue in force until altered, repealed or amended by com petent authority."

5. The position on the date of the President's Order was that the Constitution stood abrogated. Article 4 said that notwith standing the abrogation of the Constitution, all laws, other than the late Constitution, in force in Pakistan immediately before the Proclamation shall continue in force. The constitution thus remained dead, except that under clause (1) of Article 2, Pakistan was to be "governed" as nearly as may be in accordance with the late Constitution. That the power of the High Court to grant a certificate for appeal to the Supreme Court is no part of govern ment is so obvious a fact that it requires no argument to support it. We are, therefore, left only with clause (2) of Article 2 for ascertaining whether our powers and jurisdictions extend to the power contained in Article 158 of the late Constitution. Under this clause our powers and jurisdictions are made subject to two exceptions: Firstly, clause (2) starts with the words "subject as aforesaid", and it has clearly a reference to the following words in clause (1) : "subject to any order of the President or Regulation made by the Chief Administrator of Martial Law." This exception is, therefore, not relevant to the present context. The second exception is contained in the words "subject further to the provisions of this Order", and since Article 4 of the Order has kept the Constitution dead, it is obvious that Article 158 of the Constitution is also dead and that we have no power to issue a certificate under that Article.

6. It will be noticed that the first four clauses of Article 2 keep alive four distinct matters "notwithstanding the abrogation of the Constitution." The first is that Pakistan shall be governed as nearly as may be in accordance with the late Constitution. The second is that all Courts shall continue in being and shall also continue in their powers and jurisdictions subject to other provisions of the Order. The third is that the law declared by the Supreme Court shall be binding on all Courts. The fourth is that the Supreme Court and the High Courts shall have power to issue certain writs. It is, therefore, obvious that only these matters were intended to be kept alive. Of course, if the jurisdic tion of the Supreme Court had depended entirely on the Con stitution, our angle of vision would have been different, and we would have started with the assumption that other parts of the Presidents' Order are to be read subject to that consideration.

7. It was argued that when the Constitution was abrogated the intention was to abrogate only the fundamental rights and not the rest of the Constitution. This argument is based on the assumption that the fundamental rights alone make the Constitu tion, and it is obviously not well‑founded.

8. Next it was contended that when the Constitution came into force, Articles 157 and 158, being repugnant to sections 109 and 110 of the Code of Civil Procedure, repealed the latter provisions pro tanto and replaced them in effect. On the day of the President's Order, therefore, sections 10 ) and 110 of the Code should be deemed to be in the form of Article 157 and 158 and as the Code of Civil Procedure is one of the Laws which has been continued in being by the President's Orders, Articles 157 and 158 should also be deemed to have been continued in being as part of the Code.

9. In our opinion there is no repugnancy between the relevant provisions of the Code and the late Constitution. Under sections 109 and 110 of the Code, an appeal lies to the Supreme Court from any decree or final order passed by a High Court in the exercise of original civil jurisdiction or on appeal (or from any decree or final order passed by any other Court of final appellate jurisdiction) if the amount or value of the subject‑matter of the suit in the Court of first instance is at least ten thousand rupees and the amount or value of the subject‑matter in dispute on appeal to the Supreme Court is also at least ten thousand rupees, or the decree or final order involves some claim or question to or respecting property of like amount or value. Where, however, the decree or final order appealed from affirms the decision of the Court immediately below, the appeal must, in addition, involve some substantial question of law. Under clause (c) of section 109 there can also be an appeal to the Supreme Court irrespective of the value of the subject‑matter if the case is certified by the High Court to be a fit one for appeal. Article 157 deals with cases which involve a substantial question of law as to the interpreta tion of the Constitution and is not covered by the Code of Civil Procedure. Article 158 provides for appeals to the Supreme Court from any judgment, decree or final order of the High Court in civil proceedings if the amount or value of the subject‑matter of the dispute both in the Court of the first instance and on appeal is not less than fifteen thousand rupees, or if some claim or question respecting property of the like amount or value is involved. It also provides in clause (c) for an appeal irrespective of the value of the subject‑matter if the High Court certifies that the case is a fit one for appeal. This latter provision corresponds to the provision of clause (c) of section 109 of the Code. Thus the difference between the provisions of the Code and the Con stitution is reduced to the fact that while under the Constitution the subject‑matter must be of the value of at least fifteen thousand rupees, under the Code it must be at least ten thousand rupees. Under the Code, however, if the judgment of the High Court is one of affirmance, an appeal will be only if the High Court certifies that a substantial question of law is involved. It should therefore, be possible for a person to invoke the provisions of the Code if the value of the subject‑matter is ten thousand rupees or more, but less than fifteen thousand rupees. But, where the judgment of the High Court is one of affirmance, then although an appeal will not lie under the Code without a certificate that there is a substantial question of law involved, it will lie under the Constitution even without such a certificate, provided the value is fifteen thousand rupees.

10. It will be noticed that Article 224 of the late Con stitution provided in clause (1) that "all laws . . . . in force in Pakistan or in any part thereof . . . . . ., immediately before the Constitution Day, shall, so far as applicable and with the necessary adaptations, continue in force until altered or repealed or amended by the appropriate legislature or other competent authority." The Code of Civil Procedure was, there fore, continued in force, but if it is held that the words "with the necessary adaptations" have the effect of raising the amount of ten thousand rupees mentioned in section 110 of the Code to fifteen thousand rupees mentioned in Article 158 of the Constitution, then, while Articles 158 and 224 last, section 110 of the Code should be read with the necessary adaptations, but when they do not last, section 110 should read in its original form. It is here pertinent to observe that clause (2) of Article 224 contains the necessary machinery "for the purpose of bringing the pro visions of any law in force in Pakistan or any part thereof into accord with the provisions of the Constitution" in the shape of a President's Order, which may "make such adaptations anti modifications in any such law, whether by way of amendment or repeal, as he may deem necessary or expedient, and any order so made shall have effect from such date, whether before or after the date of the making of the Order, as may be specified in the Order." Whether, in the absence of a president's Order under clause (2), the Court may, suo motu, read a law with the necessary adaptation under clause (1), is open to argument, but, in any case, it cannot be said that sections 109 and 110 of the Code were totally replaced by Article 158 of the Constitution. Where the object of the Constitution was to avoid a law, which was inconsistent with the Constitution, that object was expressly stated, as in Article 4, under which any existing law, in so far as it is inconsistent with the fundamental rights, "shall, to the extent of such inconsistency be void."

11. Our answer, therefore, is that the Laws (Continuance in Force) Order, 1958, has not kept alive the jurisdiction of this Court to issue certificates under Article 158 of the late Constitution.

A. H. Reference answered.

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