VIRES OF SECTION 3 OF THE LAW REFORMS ORDINANCE, 1972 REGARDING INTRA COURT APPEAL

By:
FAIZ RASOOL KHAN JALBANI

It is a known maxim that nature makes no vacauum and the law makes nothing purposeless.

I do have right either to agree or not to agree and even to disagree with the maxim ibidem.

Correct. The law makes nothing purposeless. The law always volunteers to shackle itself for sake of remaining within defined limits.

Here, in this essay, I express my own anxiety towards the vires of Section 3 of the Law Reforms Ordinance, 1972 and the scope of Intra Court Appeal provided therein with the assertion that the vires and the purpose of the same still remain undefined.

Admittedly, the right of an Intra Court Appeal cannot be supposed to equate with the right of an ordinary appeal because an appeal against a decision is always preferred to the higher forum; from inferior to the superior.

Whereas when a decision is petitioned against for revisiting the same before the same forum/Court, it may be done not through an appeal but review. The scope of review is not only narrow but is conditioned by certain limitations i.e, arithmetical mistakes in the decision, clerical mistakes in the decision, any error due to oversight or anything uneven because of accidental slip.

When an order/decision is passed under Article 199 of the Constitution of Pakistan, 1973 by a single or more Hon'ble Judges, this obviously is deemed to have been passed by the High Court. Therefore, if the decision passed by a Single Bench is assailed before the same Court, though it be a Division Bench or a Larger Bench constituted by the Hon'ble judges of the High Court, the same Court/High Court, under such circumstances, can not be supposed, stricto senso, to sit as a Court of appeal. It just amounts to reviewing or revisiting the order. The scope of ICA is not wider than that of the review. Reliance in this respect may be placed on 2004 CLC 1104 and 2000 MLD 240, wherein it has been held by the superior Courts that ambit of an Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 is like review petition under order XLVII Rule-1 of the C.P.C. and is meant to correct some error apparent on the face of the record; Intra Court Appeal Bench can not substitute its own viewpoint in place of one given by the Single judge in Chamber under the Constitutional jurisdiction.

Without prejudice to the foregoing submissions, it is supplicated that the validity of Section 3 of Law Reforms Ordinance, 1972 is under doubts.

In the Proviso to section 3 of the Law Reforms Ordinance, 1972 the words "Article 199" were introduced by Act VI of 1975. Admittedly, the power conferred upon Hon'ble High Courts to decide an ICA is statutory in nature while the order/decision passed in a Petition under Article 199 of the Constitution by a Single Bench of Hon'ble High Court is admittedly to be passed while exercising the power which is Constitutional in nature.

Had the legislature intended to provide a right of appeal against an order passed under Article 199 of the Constitution, it would have got the purpose by dint of making amendment in the Constitution!

Therefore, a Division Bench of a High Court can not be supposed to reverse an order passed under Article 199 of the Constitution while exercising its statutory powers. In view of this the scope of Section 3 of the Law Reforms Ordinance, 1972 is limited to that of a review and can not be stretched out to set aside the order passed under Constitutional jurisdiction by the learned Single Judge of a High Court.

Lastly, I clarify that it is my own considered view what is related hereinabove. However, I invite you to apostatize from the practice and procedure prevailing since the enactment of section 3 of the Law Reforms Ordinance, 1972 for if a thing remain under practice for a long span of time, it, per se, does not mean to retain the Constitutionality or the legality.