The High Court has such
jurisdiction as is conferred on them by the Constitution or by law (Art.
175(2) of the 1973 Constitution). Article 199 of the Constitution of 1973
deals with the extra-ordinary jurisdiction of the High Courts. It provides for
the issuing of directions and orders by the High Courts to any person or
authority in the country, prohibiting, commanding, calling in question acts
done or intended to be done by such person or authority, in specified
circumstances. In fact, the jurisdiction to issue these orders is analogous to
the jurisdiction of issuing the well-known prerogative writs, which have not
been mentioned by their traditional names of the writs of mandamus, certiorari,
prohibition, quo warranto and habeas corpus. The system of writs derives its
origin from Common Law, but since 1938, in England the word “writ” has been
replaced by “order” and the same precedent has been followed in the
Constitution of 1973. The effect of omission of the traditional names of the
writs has been calculated to give to the court a wider scope to issue a
particular direction, because the court would not be bound in the issuance of
such direction to restrict itself to the rigid rules applicable to prerogative
writs. The original and appellate jurisdiction of the High Courts provided by
such pre-Constitution laws as the Criminal Procedure Code, 1898, and the Code
of Civil Procedure, 1908 as available to the High Courts before coming into
force of Constitution was continued by the Constitution.
Supervisory Jurisdiction
The High Courts make
rules for the guidance of the lower civil and criminal courts (Art.
202); a High Court can transfer cases from one court to another or
when it thinks fit, may transfer a case for trial even to itself.
Appellate Jurisdiction
Under the Code of
Criminal Procedure, 1898 the High Courts hear appeals against the orders passed
by the Sessions or Additional Sessions Judges. Under the Code of Civil
Procedure, the High Courts hear appeals from the decisions of the subordinate
civil courts and the District Judges' courts. A second appeal under the Code
lies to the High Court on a question of law or on the ground of a substantial
error or defect in procedure in the first appellate court. As an appellate
court, the High Court has the power to determine the case finally, to remand to
frame issues and refer them for trial, to take additional evidence or to
require such evidence to be taken as it may deem fit.
Extraordinary Jurisdiction
Under the 1956
Constitution, the Supreme Court and the High Courts had the power to issue the
prerogative writs of mandamus, habeas corpus, certiorari, prohibition and quo
warranto; the Supreme Court could issue these writs only to protect a
fundamental right, whereas the High Courts could also issue them “for any other
purpose”. The position under the 1962 Constitution was however changed. The
basic content of each form of writ has been set out at length in the
Constitution itself, probably in order to define with certainty the limits
within which the courts could act.
The
Constitution of 1973 followed the scheme of the Constitution of 1962 which gave
Extraordinary Jurisdiction to the High Courts as follows:-
Article
199 Jurisdiction of High Court:-
Subject
to this Constitution, a High Court may, if it is satisfied that no other
adequate remedy is provided by law-
a.
on the application of an 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 1 of
part-II. (2) Subject to the Constitution, the right to move a High Court for
the enforcement of any of the Fundamental Rights conferred by Chapter 1 of part
II shall not be abridged.
It is clear from above,
that without using their technical names, the writs of prohibition and mandamus
were provided by Clause (2) (a) (i), the writ of certiorari by Clause
(2)(a)(ii),. the writ of habeas corpus by Clause (2)(b)(i) and the writ of quo
warranto by Clause (2)(b)(ii) of Article 199. The fact that the writs had not
been mentioned by their technical names, has been interpreted by the courts as
giving wider jurisdiction to the courts and not restricting them to the limited
circumstances in which a particular writ could issue. The wide interpretation
and liberal attitude of the courts in this respect was indicated in a case
where the petition had been drawn up inartistically and ending abruptly without
even a formal prayer; the relief was spelled out by the courts itself by
reading the petition in free and liberal manner. Despite the view of courts
that the new jurisdiction under Art. 199 was significantly different from the
traditional writ jurisdiction, practice has proved that the courts, whenever
called upon to exercise this power, have been dealing with cases as if they
were exercising the well-known writ jurisdiction, partly to maintain the
distinction between different classes of cases and partly to enable them to
apply the general guiding principles for the issuance of writs, which are
fairly settled in relation to each writ. The courts generally follow the well
settled writ procedure with a cosmetic change that writs are now termed as
“orders”. Article-199 .
Order
of Mandamus
An
order of mandamus is a direction issued to any natural person, corporation or
inferior court within the jurisdiction of the High Court requiring them to do
some specific thing therein particularised, and which appertains to their
office of duty. Its object usually is to enforce a plain, positive, specific
and ministerial duty presently existing and imposed by law upon officers when
there is no other adequate and specific legal remedy and without which there
would be a failure of justice. A mandamus could not confer a new authority and
is neither a law nor a source of law. The person claiming a mandamus, in order
to be entitled to receive it must at least have a clear legal right to the
performance by the respondent of the particular duty sought to be enforced and
in the case of a public officer the duty must be one which is clearly defined,
imposed or enjoined by law as a duty resulting from the office. A right found
purely on private contract, however clear it might be, is not enforceable by
mandamus.
Order
of prohibition
The
Article gives to the High Court jurisdiction to issue an order of prohibition
where a Court or Tribunal other than the Supreme Court of Pakistan, the High
Court or a Tribunal established under the law relating to Defence Services acts
in excess of or without jurisdiction. In case of quasi-judicial proceedings generally
an order of prohibition does not issue. It is issued only against a Court or a
judicial body which though may not be called a Court but has been created
specifically under a statute. The office of an order of prohibition is
primarily supervisory having for its object the confinement of courts and
tribunals of peculiar, limited or inferior jurisdiction within their bounds.
Usurpation of power will be restrained by it. Therefore order of prohibition
can issue to an inferior tribunal when it is proceeding with a matter which is
beyond the jurisdiction of that Tribunal.
Order
of certiorari
Order
of certiorari is of two kinds
a.
for removal and adjudication; and
b.
for quashing the proceedings.
Order
will be issued
a.
for correcting errors of jurisdiction as when an
inferior Court or Tribunal acts without jurisdiction or in excess of it or
fails to exercise it; or
b.
When the Court or Tribunal acts illegally in
the exercise of its undoubted jurisdiction, as when it decides without giving
an opportunity to the parties, to be heard, or violates the principles of
natural justice.
An order under this article may be issued only
to a body acting judicially or quasi judicially because Certiorari lies in all
cases where there is a duty to act judicially or where there is a judicial act
or order or when the proceedings are judicial or quasi-judicial.
Quo
Warranto
Quo
warranto is the remedy or proceeding whereby the Court inquires into the
legality of the claim which a party asserts to an office or franchise, and to
oust him from its enjoyment if the claim be not well founded to have the same
forfeited, and to recover it if having once been rightfully possessed and
enjoyed, it has become forfeited for misuser or nonuser. Provided it is a
substantive corporate office of a public nature, and the person proceeded
against is in actual possession and use of the office in question.
Non-availability
to other adequate remedy
The
Court must be satisfied that no other equally efficacious, equally expeditious
and equally inexpensive adequate remedy is provided by law before it issues
order. Any indulgence to the contrary by the High Court would be calculated to
create distrust in statutory tribunals of competent jurisdiction and to cast an
undeserved reflection on their honesty and competency and thus to defeat the
intention of the legislature. Where a petitioner claims protection of a right,
which is entirely the creation of a statute, it is all the more imperative on
him to exhaust the remedies provided by the statute before he comes to the High
Court. The question whether a remedy is adequate or not depends on the facts of
each case. The adequacy of the remedy must be judged in relation to
a.
the nature and extent of the relief to be
obtained by the alternative remedy;
b.
the point of time when the relief will be
available, particularly the conditions relating to the expense and
inconvenience involved in obtaining it.
Ordinarily,
the words ‘alternative remedy’ or ‘other adequate remedy’ were taken to mean an
equally efficacious remedy provided by law. In cases of absence or excess of
jurisdiction an alternative remedy was not considered an adequate remedy for
the reasons that it was necessary to give a quick relief in such cases against
orders which were nullity in the eye of law. Similarly, the question of other
adequate remedy being available is of no consequence for the issue of a writ of
Habeas Corpus where liberty of person is involved. The plea of want of adequate
remedy is not available where the difficulty in pursuing that remedy was
created by the petitioner himself, as for instance, when the petitioner has
been negligent or has made a representation to any authority which had no
jurisdiction to hear it.
Aggrieved
party
Under
the terms of the Constitution the directions and orders of the High Courts
could only be made on the application of an aggrieved party. The aggrieved
party entitled to apply for the issue of an order is a person who has suffered
a legal grievance, a person against whom a decision has been pronounced which
has wrongfully deprived him of something, or wrongfully affected his title to
something; the expression “aggrieved party” does not include a person who is
disappointed of a benefit which he might have received if some other order had
been made. A person cannot be said to be an aggrieved party within the meaning
of Art. 199 of the Constitution, if his rights and interests are not adversely
affected or if he suffers no loss or injury by a particular order. The
“aggrieved party” would include any person who has been hit by an unlawful act.
He is not required to establish that he has been “injured” by violation of
pecuniary or proprietary right vested in him or by contravention of any
franchise that he claims. However, for the issue of an order of quo warranto,
the petitioner need not necessarily be an aggrieved party. The same is the rule
for an order of habeas corpus; it may be filed by any person other than the
person detained.
Res
judicata
Different
pleas cannot be taken at different times, so as to support more than one
petition on the same facts. The general principles of res judicata are based on
the need of giving a finality to judicial decisions. Where, therefore, a Judge
of the High Court has finally decided on the merits the contentions raised in a
previous writ petition, the High Court will not allow the same contentions to
be re-agitated in subsequent litigation. However, in case of a petition for
habeas corpus, the principle of res judicata is not applicable.
Conduct
of the petitioner
A
petitioner must come to the Court with clean hands, that is, he must not
attempt to mislead the court by misrepresentation or suppression of facts in
his petition or supporting affidavit. As the issue of an “Order” is
discretionary, in the exercise of this power the High Court is entitled to take
into consideration the conduct of the petitioner, if it is found that the
petitioner has not come with clean hands, it would disentitle him to a relief
by way of writ, even if he is found on merits to have a good case.
Laches
Delay
in the filing of a petition or Laches has been regarded as a relevant factor in
the exercise of the extraordinary jurisdiction of the court. When a petition
was filed more than three years after the passing of the impugned order, the
delay was held amounting to acquiescence. Where a plea of continuous wrong can
legitimately be urged by the petitioner, the objection to a petition on the
basis of laches cannot be sustained.
Questions
of fact
The
courts are normally reluctant, when hearing petitions, to enquire into
questions of fact, especially when such enquiry was likely to be protracted.
The courts were also normally reluctant to listen to points not mentioned in
the petition or affidavit and raised for the first time at the hearing.
Writs
to superior courts
One superior court cannot issue a “Order” to
another superior court of co-ordinate jurisdiction, nor can such a court issue
an order to itself. The basis of this rule is that orders made under this
Article are issued for the purpose or correction of errors in the exercise of
extraordinary jurisdiction and since superior courts are entitled to credit
from other courts for acting within their own jurisdiction, the question of
issue of a writ to them would not arise. Although a judge of a High Court acting
as a member of Election Commission for the decision of certain election
disputes does not act as a High Court Judge but as persona designate, yet it
was observed by the Supreme Court that issuing an order to such a member would
give rise to an “aspect of ludicrousness” and would be against the “weighty”
consideration of the “necessity of maintaining a high degree of comity among
Judges of superior courts”.
