CIVIL COURTS AND CONSTITUTIONAL ISSUES
Federal Judicial Academy
The preamble to the Code of Civil Procedure (Act V of 1908) shows that this Act was enforced to consolidate and amend the laws relating to a procedure of the Courts of Civil Judicature. Surprisingly definition of court is not provided in this Act. But the term “court” has been used in many sections of the CPC. Section 2 (5) defines a Foreign Court. It says that a Foreign Court means a court situate beyond the limits of Pakistan which has no authority in Pakistan and is not established or constituted by the Federal Government. As regards the local courts one may look into Section 3 which relates to subordination of courts. This provision of law speaks of District Courts, High Court and Civil Courts in addition to Courts of Small Causes. The most important Section in the CPC is Section 9. It is under this Section that a Suit of Civil nature is instituted in a Civil Court. Thus very wide powers have been conferred upon the Civil Courts to try all types of Civil Suits. It is correct that this Section puts an embargo also on the Jurisdiction of the Civil Courts but notwithstanding that the Civil Courts still assume jurisdiction to determine the legality or validity of any order passed by any authority constituted by law. In almost all the enactments the provisions relating to bar of jurisdiction of courts are added but as stated above the powers of the Civil Courts remain unfettered. The question regarding the jurisdiction is decided by the court itself. If it finds that the action challenged before it was ultravires, without jurisdiction or mala-fide it shall not only assume jurisdiction but shall also declare the impugned action to be of no legal effect. If, however, the Civil Court finds that the impugned order was passed in accordance with law and there were no mala-fides involved it will be constrained to hold that it had no jurisdiction in the matter. The Code of Civil Procedure when read together with the Specific Relief Act (No.1 of 1877) gives very extensive powers to the Civil Courts.
2. Part VII of the Constitution of Islamic Republic of Pakistan deals with the Judicature. Article 175 provides that there shall be a Supreme Court of Pakistan; a High Court for each Province and such other courts as may be established by law. Sub-Article 2 reads that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. Since Fundamental Rights have also been guaranteed by the Constitution and the Constitution speaks specifically of Supreme Court and High Courts, therefore, the general belief is that only these Courts are competent to decide all constitutional matters. The lawyers in Pakistan as also the litigants invoke the original jurisdiction of the Supreme Court under Article 184 (3) or the Writ Jurisdiction of the High Courts conferred on them by Article 199 for the redressal of their grievances. I am afraid this interpretation of law is very limited. It certainly deprives the poor litigants living in far-flung areas to get justice. They are given the impression that since their grievances involved interpretation of constitutional provisions, the only remedy available to them was by having recourse to the High Courts or the apex Court. This tendency, in my view, is violative of the provision of law contained in order 27-A of the Code of Civil Procedure. This order was inserted in the Code by the Code of Civil Procedure (Amendment) Act 1942 (23 of 1942). For the sake of convenience, Rules 1 & 2 of this Order are reproduced verbatim:-
1. Notice to the Advocate-General: In any suit in which it appears to the Court that any substantial question as to the interpretation of constitutional law is involved, the Court shall not proceed to determine that question until after notice has been given to the Attorney-General for Pakistan if the question of law concerns the Federal Government and to the Advocate-General of the Province if the question of law concerns a Provincial Government.
2. Court may add Government as Party: The Court may at any stage of the proceedings order that the Federal Government or a Provincial Government shall be added as a defendant in any suit involving any substantial question as to the interpretation of constitutional law if the Attorney-General for Pakistan or the Advocate-General of the Province as the case may be, whether upon receipt of notice under rule 1, or otherwise, applies for such addition and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question of law involved.
3. Rule 1 clearly says that where in a suit any substantial question as to the interpretation of constitutional law is involved a court shall not proceed to determine the question until after notice has been given to the Attorney-General for Pakistan if the question of law concerns the Federal Government and to the Advocate-General of the Province if the question of law concerns a Provincial Government. It means that a constitutional matter can be decided by a court by observing certain formalities i.e. issuance of notices to the Attorney-General or the Advocate-General of the concerned Province as the case may be. Herein the term “court” does not mean Supreme Court or the High Courts only. It is a comprehensive term and includes all courts especially the Civil Courts. Normally Civil Suits are filed in Civil Courts. Whenever the term Civil Suit is used one takes it for granted that it shall be filed in the Civil Court. In fact a Civil Suit has a direct nexus with a Civil Court. It is a well established law that an appeal against a decree, filed in the court of District Judge or in the High Court, is a continuation of the Civil Suit. In appeal the District Judge or the High Court or the apex Court can decree a suit which has earlier been dismissed by a Civil Court. No one can say that in appeal before the High Court or before the apex Court constitutional matters arising out of a Civil Suit can not be resolved. If a particular matter arises out of suit the first forum to resolve it is the Civil Court having original/pecuniary jurisdiction. Liberal Interpretation has to be given to the words “Court” and “Suit” used in Rule 1 reproduced above. The “court” shall mean all the courts including Civil Courts, Courts of District Judges and High Courts and also the Supreme Court of Pakistan. A suit means a Civil Suit. It may include petititons filed in the High Court under Article 199 of the Constitution or in the apex Court under Article 184 (3). In fact word “suit” is very comprehensive. It is also not defined by the Code of Civil Procedure but it definitely means litigation civil in nature. When Rules 1 & 2 of Order 27-A of the CPC are read with this in mind that a Civil Suit is filed in a Civil Court it must also be remembered that the concerned Civil Court has all the powers to decide all the questions raised before it, factual, legal or constitutional. For constitutional matters the only requirement is serving a notice to the Attorney-General for Pakistan when the matters concerns the Federal Government or to the Advocate-General if that matter relates to a Province of which he is the Advocate-General. The Federal Government or the Provincial Government can opt to join the proceedings as a party. After issuing notice under rule 1 or after making the Government, Federal or Provincial, a party the Civil Court can proceed to decide the substantial questions as to the interpretation of constitutional law. The need of the hour is that citizens should not be deprived of their rights on account of lack of financial resources. They can definitely go to the Civil Court at the District Headquarters and can claim relief even if for that relief some constitutional issue is to be decided. The lawyers and advocates practicing law in mofassal can take advantage of the provisions of Order 27-A CPC and in this manner can help the litigants in getting justice at their doorsteps.
4. Under Article 199 of the Constitution the High Court can direct a person to perform a duty which under law he is under an obligation to perform or to refrain him from doing something which he is not permitted by law to do. For the sake of convenience Article 199 (1) is reproduced:-
“199. Jurisdiction of High Court.—(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,–
(a) on the application of any aggrieved party, make an order–
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order—
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II.”
Article 184(3) reads:-
“(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article.”
5. It shall be seen that Sub Article 1 (b) (i) of Article 199 deals with Writs of Habeas Corpus. These powers have now been given to the District & Sessions Judges also. They can exercise the powers within their territorial jurisdiction. The jurisdiction of the High Court, however, extends allover the Province. (Under section 100 of the Code of Criminal Procedure even a First Class Magistrate can issue a warrant for the production of a person alleged to have been wrongfully confined). This Sub-Article relates to criminal matters wherein the allegation is of wrongful confinement. The rest of the Article defines the powers of the High Courts in matters which are mainly civil in nature. It can restrain a person, Federation, Province or a local authority from doing anything not warranted by law. It can also issue a direction to such person, Federation, Province or local authority to do a certain act which by law is required to be done. Any act done or order passed by a person performing functions in connection with the affairs of the Federation, a Province or a local authority can also be declared by the High Court to be without lawful authority and of no legal effect. Under sub Article (b) (ii) the High Court can require a person to show under what authority of law he is holding a particular office. Under Article 184 (3) the Supreme Court can pass an appropriate order if it considers that a question of public importance which relates to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II of the Constitution is involved. In my humble view almost similar relief can also be granted by Civil Courts under sections 42, 54 & 55 of the Specific Relief Act which can be granted by the High Court in exercise of powers conferred on it by Article 199 and by the apex court under Article 184 (3). Sections 42, 54 & 55 of the Specific Relief Act (Act No.1 of 1877) are:-
“42. Discretion of Court as to declaration of status or right. — Any person entitled to any legal character, or to any rights as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and, the plaintiff need not in such suit ask for any further relief.”
“54. Perpetual injunctions when granted: Subject to the other provisions contained in, or referred to by this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication.
When such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II of this Act.
When the defendant invades or threatens to invade the plaintiff’s right to or enjoyment of property, the Court may grant a perpetual injunction in following cases (namely):-
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that pecuniary compensation could not afford adequate relief;
(d) where it is probable that pecuniary compensation cannot be got for the invasion;
(e) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
Explanation. For the purpose of this section a trade-mark is property.
“55. Mandatory Injunction: When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may, in its discretion, grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.
6. In fact the civil courts have granted relief in a large number of cases involving issues of public importance and in the circumstances as described in Article 199. In a Court of Lahore, a civil suit was filed for restraining the defendant from raising construction on a plot which in the master plan, prepared by the LDA (Lahore Development Authority), was shown to be a public park. The defendant had claimed in defense that this plot had been allotted to him by the LDA. It was conceded by LDA that in the master plan, prepared for the locality, the disputed plot was shown as a public park. The civil court decreed the suit. It was held by it that the plaintiff had purchased his plot as it had been represented to him that there shall be a public park in front of his house. According to the judgment the LDA could not resile from the commitment it had made while offering plot to the general public including the plaintiff. In another case the Civil Court in Rawalpindi declared a notification issued by the Central Board of Revenue relating to the imposition of tax on Mercedes cars, purchased from the foreign embassies, to be ultravires, being discriminatory. Many matters relating to construction of mosques and churches have been resolved by the Civil Courts. Section 91 of the Code of Civil Procedure pertains to public nuisances. Under this section two or more persons can institute a suit for getting a public nuisance removed. For that they have to get prior consent in writing of the Advocate-General. However, in a case of special damage no such consent is required. The civil courts are thus fully empowered to ensure that rights guaranteed to people are not violated in any manner. A patient not getting proper treatment from a hospital can sue in a civil court for mandatory injunction to get proper treatment or to claim damages if proper treatment has not been meted out to him due to negligence. The civil courts definitely do not enjoy as many powers as are enjoyed by the High Courts and the Supreme Court but they can grant relief in a large number of cases and that relief shall be similar in nature which a litigant might get from the superior courts. The difference is that a civil court can take cognizance only when an action is brought before it through a civil suit. Whereas the Supreme Court and the High Courts can take Suo Moto notices of matters of public importance. Articles 8 to 28 of the Constitution deal with fundamental rights. Rights like freedom of movement, of assembly, of association, of trade of speech, freedom to profess religion and to manage religious institutions, safeguards to educational institutions in respect of religion, protection of property rights, equality of citizens and non discrimination have been fully protected by the Civil Courts in the past and are being protected even today.
7. As stated above a Civil Court is fully competent to declare an act or order of the Federal Government, or the Provincial Government or a Local Authority to be ultravires, without jurisdiction and of no legal effect. Chapter VI of the Specific Relief Act pertains to declaratory decrees. Section 42 of the Act gives a discretionary power to a Civil Court to declare the status or right of a person and in doing that it can look into the legality or validity of the action or order taken/passed against him by any authority, Provincial or Federal. In a certain way the powers of Civil Court conferred by the Specific Relief Act are co-extensive with the powers of the constitutional courts. A Civil Court can issue a restraining order (Section 54 of the Specific Relief Act). It can also issue a direction in the form of mandatory injunctions (Section 55 of the said Act). The Fundamental Rights guaranteed by the Constitution can be adequately protected by the Civil Courts in exercise of jurisdiction vested in them by the CPC as well as the by the specific Relief Act and other allied laws.
8. The Civil Courts have been established under Article 175 of the Constitution. It is not provided in the Constitution or any other law that a Civil Court cannot entertain and decide a suit involving interpretation of constitutional law. In the absence of clause relating to bar of jurisdiction in the Constitution itself it cannot be said that the Civil Courts are not competent to deicide constitutional issues. The superior courts have also not given any judgment barring the jurisdiction of the Civil Courts to decide questions relating to constitutional law arising out of pending Civil Suits. It is thus mainly for the lawyers to take advantage of law contained in Order 27-A CPC. By doing so they shall not only come to the rescue of the oppressed but shall also ensure reduction in institution of cases before the High Courts and the Supreme Court.
9. There is a chain of authorities wherein it has been held that a Civil Court can declare a statute or an Act of the Parliament to be ultra vires of the Constitution. Such a declaration would be granted only by interpretation of the constitutional provisions. In AIR 1932 Bombay 166 the Plaintiff challenged the vires of a Bill Introduced into the Legislative Assembly at Delhi. It was held that the plaintiff could not challenge merely a Bill which had yet to be converted into an Act of the Parliament. It was further held that the Civil Court could not restrain the Introduction or passage of the Bill. In other words the observation of the court was that once the Bill was passed and attained the status of an Act, its constitutionality could be challenged in a Civil Suit.
10. In AIR 1941 Federal Court 16 the principal question to be decided in the Civil Suit was whether the Regularization of Remission Act, 1938, an Act of the Legislature of United Provinces, was within the competence of the legislature which enacted it. The suit was between Lessors and Thekadars for recovery of rent. It was held that suit involving question of validity of statutes affecting the scope of Executive Authority of the Province was competent but Advocate General was a proper party.
11. In AIR 1953 Assam 162 the view expressed by Bombay High Court (mentioned above) was endorsed. It was held that Court could not interfere with any authority concerned with the making of laws during the formative stage of an enactment. In this case also a constitutional question had arisen with regard to maintainability of a suit in which a Bill was challenged in a Civil Suit at its formative stage. The finding of the court was that at formative stage the vires of the Bill could not be challenged. In other words it was observed by the court that the suit was competent only when the Bill was converted into an Enactment.
12. AIR 1958 Supreme Court 253 relates to a Civil Suit between Syed-e-Na Tahir Saifuddin Sahib Versus State of Bombay. In this suit the preliminary issue was with regard to the vires of the Bombay Prevention of Ex-communication Act No.1942 of 1949. Though the matter was decided on a different point, the maintainability of suit challenging the vires of the aforementioned Act was never disputed.
13. The Pakistani courts have also held in a number of cases that a suit involving interpretation of constitution is maintainable. A Division Bench of the Lahore High Court comprising Hon’ble Mr. Justice Shabir Ahmed and Hon’ble Mr. Justice Anwar-ul-Haq held in PLD 1961 (West Pakistan) Lahore 993 that the courts had vested jurisdiction to determine validity of laws. From a perusal of this judgment it transpires that Mr. SM Trimzi District Judge, Gujranwala had declared the West Pakistan Waqf Property Ordinance 1959 to be invalid. From this judgment it is established that all the courts including Civil Courts have vested jurisdiction to determine the validity of laws and this can be done only by interpretation of the constitution.
14. In PLD 1987 Karachi 225 Hon’ble Mr. Justice Nasir Aslam Zahid was pleased to hold in a Civil Suit between M/s Mirpurkhas Sugar Mills Ltd Versus Consolidated Mills Ltd and three others that challenge to any law on the ground that it was inconsistent with fundamental rights conferred by the constitution could validly be raised in a Civil Suit and such challenge was not confined to be made only in a Constitutional Petition. The Hon’ble Judge has thus laid down the law that constitutional interpretation can be made in Civil Suits also and such interpretation is not restricted to be made only in Constitutional Petitions.
15. In 1974 SCMR 356 the Supreme Court was pleased to declare that jurisdiction of Civil Courts even if barred had the ultimate jurisdiction to examine impugned acts. The Bench giving this judgment was headed by Mr. Justice Hamood-ur-Rahman, the Chief Justice of Pakistan and comprised Hon’ble Mr. Justice Waheed-ud-Din Ahmed and Hon’ble Mr. Justice Muhammad Gul. The judgment was authored by Hon’ble Mr. Justice Muhammad Gul. It was held that Civil Court could declare the impugned act to be illegal or even mala-fide. The Civil Courts thus enjoy ample powers to look into the legality and validity of actions challenged before it. While determining the issues it can also decide constitutional questions if the fate of such issues depend on such questions.
16. In PLD 1997 Karachi 626 the administrative decision was scrutinized on the yardstick of its being consistent or not with the fundamental rights guaranteed by the Constitution. The dispute related to the auction of a plot belonging to the Pakistan Railways. In a suit for Declaration, Injunction and Damages the 6th Senior Civil Judge Karachi South issue a status-quo order. In appeal this order was vacated by the appellate court. The plaintiff filed an appeal in the High Court. Mr. Justice Kamal Mansoor Alam accepted the appeal and set aside the order of the appellate court. It was held by the Hon’ble High Court in PLD 1997, Karachi 627 at page 636 (Arif Builders Vs Government of Pakistan) that:-
“There seems no reason why a Court seized of a cause cannot take into consideration and enforce the fundamental rights embodied in the Constitution, if its contravention is in issue in such proceedings. Quite apart from that, the judicially evolved rule of equality amongst citizens and against arbitrary, discriminatory and whimsical State actions is firmly entrenched and is binding on the Courts by virtue of Articles 189 and 201 of the Constitution”.
17. The above mentioned ruling were discussed by Mr. Justice Atta-ur-Rahman in M/S H.A. Raheem (Pvt) Ltd., Versus Province of Sindh and another (2003 CLC 649). In this case it was maintained by the defendant that validity of laws could not be tested by a Civil Court in a Civil Suit filed under section 9 of CPC. It was a pure and simple Civil Suit file under section 9 CPC. The Hon’ble Judge observed that a Civil Court had jurisdiction to try all suits of Civil Nature and there was no bar either in the CPC or in the Constitution of Pakistan with regard to filing or maintainability of a Civil Suit challenging vires of law. It was further held that challenging the vires of law would be a matter of civil nature which would come squarely within the parameters of Section 9 CPC. It is an admitted position that an Act is passed either by the Parliament or by a Provincial Assembly in exercise of their constitutional powers. Whenever vires of such an Enactment is challenged it would automatically involve a question relating to interpretation of constitution. The civil court shall have to determine as to whether or not the impugned act was ultra vires of the constitution. In this manner powers vest in the Civil Courts to decide constitutional issues on which depend the fate of a suit. All these judgments of the Indian and Pakistani superior courts support my view that the Civil Courts are fully competent to decide Constitutional matters.
18. Ubi jus ibi remedium is a well established maxim of Law. It means that there is no wrong for which there is no remedy. For every wrong there is a remedy. If for any reason an aggrieved person cannot take his grievance to the High Court or Supreme Court he can definitely take it to the Civil Court and get relief. But what is required is commitment and dedication for achieving the goal of justice. The powers conferred on the Civil Courts by Order 27-A are not being invoked. This is the time when grievances are also taken before the Civil Courts requiring resolution of constitutional issues. The lawyers have to play a positive and active role in this regard. The public must also be made aware of their rights.