PREFACE
Preface of a book is usually the last thing to be written, but presumably the first thing to be read. This presumption encourages me to make a few observations regarding the nature of the work in the reader's hands.
2. The judiciary has always been recognized as an independent and distinct organ of the Government, responsible for the administration of justice; and for the effective discharge of this responsibility the superior judiciary has been empowered, from the very beginning, to supervise and control the courts subordinate to it. The power of superintendence and control includes the power to-(a) call for returns; (b) make and issue general rules and prescribe forms for regulating the practice and procedure of such courts; (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such court; and (d) settle tables of fees to be allowed to attorneys and all clerks and officers of such courts. A brief historical background of the investiture of these powers in the High Court makes an interesting reading.
3. The origin of the present judicial set-up in the Punjab dates back to 1849 when the Province was conquered and annexed by the British. Upon annexation, the control of the territory was handed over to a Board of Administration consisting of three Members including a Judicial member responsible for handling judicial matters, in the territory.
4. In 1853 the Board of Administration was abolished and administration of Province was assigned to the Chief Commissioner and two Principal Commissioners, separately appointed for Judicial and Administrative work. The Judicial Commissioner was the final appellate court.
5. On Ist January, 1859, the whole Administration of the Province was entrusted to a Lieutenant-Governor, but the Judicial Commissioner and the Financial Commissioner continued to discharge their duties as before, till the former was replaced by the Chief Court of Punjab.
6. The Civil and Criminal Subordinate Courts were introduced as a regular institution through the Punjab Court Act, 1865, which established seven grades of courts presided over by Tehsildar, Assistant Commissioner with ordinary powers, Assistant Commissioner with special powers, Assistant Commissioner with full powers, Deputy Commissioner, Commissioner and Judicial Commissioner. The subordinate courts exercised various civil and criminal jurisdiction with a Judicial Commissioner as the highest court of appeal in the Province.
7. In 1866, the Chief Court of the Punjab was constituted through the Chief Courts Act 1866 (VI of 1866). The Court consisting of three judges, was the ultimate Court of Appeal from the Civil and Criminal Courts in the Province. The Court was also vested with Extraordinary Original Civil Jurisdiction and Supervisory Jurisdiction over Subordinate Courts. The role of Judicial Commissioner was then taken over by the Chief Court. In 1875 Judicial Assistants and Munsifs were appointed to relieve the Deputy Commissioner and Tehsildar of a large measure of civil judicial work. The Commissioners continued to act as Appellate Courts and Courts of Session for their respective divisions.
8. The Punjab Courts Act XVII of 1877 repealed the Chief Court Act, 1866 and consolidated and re-stated the law, relating to the Chief Court. The Punjab Courts Act, 1877 was repealed and re-enacted by the Punjab Court Act, 1884 (XVIII of 1884), without any significant change regarding the constitution, powers and jurisdiction of the Chief Court. The main reason for the repeal of the Act of 1877 was to reorganize the Civil Courts in the Province. Under the new Act, divisional courts were established for the performance of judicial functions and the Commissioners were relieved of their judicial duties. Subordinate Judges and Munsifs were appointed to discharge purely judicial work.
Further changes in the subordinate judicial set up were brought by the Punjab Courts Act, 1914; whereunder four classes of courts were set up, namely, the Court of District Judge, the Court of Additional Judge, the Court of Subordinate Judge and the Court of Munsif. Later through the Punjab Courts Act, 1918 the Court of Munsif was abolished. In addition to these courts, Courts of Small Causes were established under the Provincial Small Causes Courts Act.
9. The Government of India Act, 1915, consolidated in a large measure the provisions regarding the constitution and powers of the various High Courts in India. Section 113 of the Act authorised the establishment of the High Courts by Letters Patent in any territory in India, and to confer on any High Court so established any such jurisdiction, powers and authority as were vested in or might be conferred on any High Court existing at the commencement of that Act. The Letters Patent establishing the Lahore High Court was granted on 21st March, 1919.
10. The Punjab Courts Act 1918 was replaced by the Punjab Civil Courts Ordinance, 1962 (II of 1962) which introduced minor changes in the law of 1918. The Courts of subordinate Judges were redesignated as Courts of Civil Judges and instead of four classes of courts only three classes of Civil Courts were introduced. The same situation is obtaining in the province at present.
11. From the earliest record available and from cross-references contained on the files of this Court, it appears that the earliest instructions to the subordinate courts were issued by the Judicial Commissioner in his capacity as the highest judicial authority in the Province, as uniform substantive or procedural law was not available in any codified form. The power to issue these instructions was a natural corollary of the subline judicial power vesting in the Judicial Commissioner. The instructions so issued were subsequently regularised by section 75 of the Indian Council's Act 1861. In the years to follow and with the advent of codified law system this power was translated into statute law.
12. The Court of Judicial Commissioner, issued instructions to the Subordinate Courts till the enactment of the first Civil Procedure Code in 1859, and Criminal Procedure Code in 1862. The instructions so issued were reccognised and accepted as rules of Civil and Criminal Procedure in civil and criminal proceedings before the subordinate Courts. After the establishment of the Chief Court, instructions in the form of circulars known as "Book Circulars" were issued by the Court containing rules made under various enactments, namely, the Indian Councils Act of 1861, the Code of Civil Procedure (VIII of 1859) and section 44 of the Punjab Chief Court Act (IV of 1866). The Book Circulars were regularly issued by the Chief Court covering various fields of law. Subsequently these circulars were compiled into four Volumes of the Rules and Orders in the year 1901.
13. The edition of 1901 was revised in 1911 and published in five Volumes; Volume V contained the procedure before the Chief Court only. Section 107 of the Government of India Act, 1915 empowered the Court to make rules for superintendence of the subordinate courts. Another revised edition of the High Court Rules and Orders in six (6) Volumes was published in 1930. Government of India Act 1915 was replaced by the Government of India Act 1935 which conferred similar rule-making power on the High Courts under section 224 of the Act and necessitated further revision of the High Court Rules and Orders and the last revised edition was published in 1942.
14. The succeeding enactments, namely, the Governor General Order 7 (High Court Lahore) Order 1947, the Constitution of 1956 (vide para 5 of the IIIrd Schedule read with Article 177) and the Constitution of 1962 vide Articles 101 and 102 preserved the aforesaid administrative powers of the High Court. Under the present Constitution, the High Court has been empowered to make Rules regulating practice and procedure of the Courts subordinate to it.
15. The High Court Rules and Orders are primarily a collection of such instructions, in summarized form which explain and interpret the laws that are frequently referred to in the Courts of law. They also contain the statutory rules made under different enactments. These Rules have been saved and continued through `saving-clauses' of successive Constitutions (see Article 224 of the Constitution of 1956, Article 225 of the Constitution of 1962 and Article 268(1) of the Constitution of 1973).
16. The Reader may not be misled by the words "procedure" and "practice" as contained in Article 202 so as to construe High Court Rules and Orders as Rules of Procedure only. As mentioned above the compilation is in fact a collection and exposition of all the relevant laws, in a summarized but explanatory form, which are frequently pressed into use in the courts of law. It is by no means a compendium of Civil or Criminal law nor a legal Referencer or a Digest. It can be best described as an "easy to reach" hand-book for the smooth working of the courts. In this sense it is a "teach your self" type of instructions issued in a true Common Law tradition by the High Court discussing all the relevant laws in juxtaposition.
17. The last amended edition of the High Court Rules and Orders was published in 1942. Since then numerous changes have occurred in the field of Constitution and law affecting the accuracy, credibility and utility of the Rules. After the partition, the reference in the Rules to the Indian Law and Indian case-law is erroneous, and to say the least, inordinate. In addition to this, many new laws have been introduced and old ones repealed during this period. The Law Reforms of 1972, the Law Reform Act, 1994 and the Legal Reforms Ordinance, 1996 brought sweeping changes in the field of substantive and procedural law. It is a pity that the High Court Rules and Orders could not be amended in due time to keep pace with the aforementioned changes. Several of the rules contained therein had become obsolete and superfluous but had mixed up with the other rules in such an intricate way that it was not easy to segregate the animate from the dead letter of law. It had therefore, become imperative to get rid of the paralytic limb of law and set apart operative and live Rules. This could provide an opportunity for further developing and pruning of the laws with a view to making them useful according to the needs of the 21st century.
18. After the partition of the subcontinent, revision of High Court Rules and Orders was taken up under the supervision of late Mr. Justice M.R. Kayani and the latest available edition was reprinted in 1958; however the required amendments could not be effected therein.
19. In 1975, Mr. Justice (Retd.) Sardar Muhammad Iqbal, the then Chief Justice of the Lahore High Court initiated the revision of High Court Rules and Orders. Sheikh Amjad Ali and Mr. Munir Ahmad Mughal, the then Additional District and Sessions Judges were appointed and deputed to propose amendments in the Rules. A Committee consisting of Mr. Justice (Retd.) Rustam S. Sidhwa, Mr. Justice (Retd.) Saad Saood Jan and Mr. Justice (late) Ch. Zafarullah Khan embarked on the scrutiny of Volume-V; but for certain reasons the job could not be finalized.
20. This situation urged me to take the initiative and, single handedly I launched exercise of the revision of all the Volumes in 1989. The job was by no means a simple one. It had to be ensured that the latest amendments were incorporated in the Rules and those which had been repealed, be omitted. This required a lot of time and expertise. I was ably assisted in this task by the scholarly participation in the exercise of Mr. Justice (Retd.) Fazal Karim (Volume-III) and Mr. Justice (Retd.) Malik Akhtar Hasan (who associated in the revision of Volumes-I and II). I myself examined and proposed amendments in Volumes I & II (in association with Mr. Justice (Retd.) Malik Akhtar Hasan) and Volumes-IV & V. The proposals were also examined by the Administration Committee and finally approved in the full Court meeting. In the first stage the proposed amendments in Volumes I to III were sent to the Government. A high powered committee consisting of the Law and Parliamentary Affairs, Home, Finance, Services, General Administration & Information and Implementation & Co-ordination Departments was constituted by the Government to scrutinize the amendments proposed by the High Court. Mr. Justice Chaudhary Muhammad Naseem (the then District and Sessions Judge) was nominated to represent the High Court in the meetings of the said Committee. The Committee after numerous meetings and long sessions of deliberations, approved the amendments. The amendments have been finally approved by the Government. I would like to express my sincerest thanks to the aforementioned Hon'ble Judges of the Lahore High Court whose rich experience in the judicial field has provided healthy contribution to these Rules and Orders. I wish to place on record my deep appreciation for the excellent work done by Mr. Ijaz Qutab, O.S.D. (Rules) and Mr. Muhammad Riaz, Deputy Registrar (Rules) and their staff, and the officers and staff of the Computer Cell but for whose sustained and relentless efforts the job could not be accomplished so early.
21. By all standards this was a momentous work. I express my gratitude to Allah Almighty who provided me an opportunity to undertake the project. I would like to add that from the reader's point of view it may not be a fool-proof, properly accomplished work; here and there he may pick up many faults, errors and mistakes which might have escaped notice of the editors. But to err, is human. The invaluable suggestions, proposals and comments of the readers would always be welcome.
Dated. 30.9.1996. (JUSTICE KHALIL UR REHMAN KHAN)
Chief Justice Lahore High Court,
Lahore.
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