BLESSED TEXTILE MILLS & OTHERS VERSUS PAKISTAN &

OTHERS

CASE LAW ON THE POINT THAT

An order of the Division Bench of a High Court, until finally set aside, is
binding on the Single Bench of the same High Court though Leave has
been granted against the order of the Division Bench by the Supreme
Court and operation of the same has been suspended

2008 PTD 89: As per Justice Munir A Sheikh (sitting as Federal Tax
Ombudsman)

9. As far as the judgment of the Lahore High Court in the case of Mayfair Spinning
Mills which is relied upon by the complainant, it is stated that while granting leave to
appeal in that case, the Supreme Court has suspended the operation of that judgment
vide order, dated 29-5-2002 and thus the principle laid down in that judgment is no
longer available for application. It is, therefore, contended that the complaint is
without merit and needs to be dismissed.

10. Responding to the above, the learned A.R. of the complainant has stated that in
spite of the suspension of the judgment of Lahore High Court in the case of Mayfair
Spinning Mills, the principles enunciated therein are still applicable in all cases till
that decision is reversed by the Supreme Court and the stay granted will apply inter
parties only as held in a case decided by the Sindh High Court and reported as PLD
1980 Kar. 492.

11. Replying to the above, the D.R. has stated that under Article 201 of the
Constitution of Islamic Republic of Pakistan, the decision of High Court is binding on
subordinate Courts and since the Federal Tax Ombudsman is not subordinate to the
High Court, therefore, the judgment of Sindh High Court relied upon by the learned
A.R. of the complainant is not binding on the Federal Tax Ombudsman. It is further
contended that under Article 189 of the Constitution, a decision of the Supreme Court
is binding on all Courts in Pakistan and since the operation of the judgment of Lahore
High Court in the case of Messrs. Mayfair Spinning Mills has been suspended by the
Supreme" Court, therefore, even the High Court of Lahore cannot follow the law laid
down in its judgment in view of the suspension thereof. It is contended that if the
judgment of Lahore High Court is followed in spite of its suspension by the Supreme
Court, it will tantamount to violation of the provisions of Article 189 of the
Constitution and would be a contempt of the Supreme Court of Pakistan.

15. It is difficult to agree with the proposition of the respondent that since the
operation of the judgment of Lahore High Court in the case of Messrs Mayfair
.Spinning Mills has been stayed, therefore, the principle laid down therein cannot be
followed in other cases in view of the provisions of Article 189 of the Constitution of
Pakistan. Article 189 read as whole makes it clear that only that decision of the
Supreme Court will be binding which decides a question of law or is based upon a
principle of law or enunciates a principle of law. Thus, the decision should be final and
after that nothing should remain pending before the Supreme Court regarding that
point. None of the conditions enumerated in Article 189 is applicable to the order of
the Supreme Court and thus the order suspending the operation of the judgment of the
Lahore High Court in Mayfair Spinning Mills is not covered by Article 189 of the
Constitution and consequently, is not binding on the Courts in Pakistan except, of
course, on the parties in that case. This being the position, the judgment of the Lahore
High Court in the case of Mayfair Spinning Mills remains in the field so long as it is
not reversed by the Supreme Court and refusal to follow the principle laid down
therein is contrary to law which tantamounts to maladministration

PLD 1975 Lah 65 (Muhammad Siddiq and Javid Iqbal, JJ)

Art. 189-Conditions necessary for making decision of Supreme Court binding on all
Courts and authorities.
There cannot be the slightest doubt that any law declared by the Supreme Court is
binding on all other Courts in Pakistan and all executive and judicial authorities
throughout the country are to act in aid of the Supreme Court. Apart from the
Constitutional obligation imposed upon the Courts even the propriety demands that
the Courts must follow such a law without any hesitation. However; the question
which arises for consideration is whether the order of the Supreme Court suspending
the operation of the impugned. order of the High Court while granting special leave to
appeal, is such a decision which is contemplated under Article 189 of the Constitution.
The binding nature of judicial decisions may be derived either from a Constitutional or
statutory provision or from the conventions which the Courts observe in the
administration of justice.

The expression used earlier under the Government of India Act, 1935, as well as the
Constitution of 1956, was "the law declared" by the Federal Court or Supreme Court.
Under those enactments before a decision of the Supreme Court could acquire a
binding force, it had to be a "Law declared"' by that Court. Thus, it was not every
decision, judgment or order of the Supreme Court which could have the binding force,
but it was only the law .declared which was made binding. There is no doubt that the
law so declared by the Supreme Court or earlier by the Federal Court was to be treated
as the law for the land. In other words, it was not every decision or judgment of the
Supreme Court or Federal Court which can be said as "law declared" but only that
decision where the Supreme Court or the Federal Court deliberately and with the
intention of settling law, pronounces upon a question on principle of law that such
pronouncement will be considered as the "Law declared" by that Court and will be
binding on all Courts in Pakistan. Thus, the expression "law declared" implies that
the point decided by the Supreme Court is a legal one and of such general or public
importance that it will occupy the place of law for the land. It will be the final decision
of the Court on that particular point given after hearing the parties concerned. In
other words, it will be final adjudication of that particular point and so far as that
point is concerned, nothing should remain pending before the Supreme Court after the
declaration of that law.
As regards the provisions contained in Article 189 of the present Constitution and
Article 63 of 1962 Constitution, the expression "any decision" can include all
decisions including interlocutory ones. Yet such a decision has been further qualified
by this Article. This Article read as a whole makes it quite clear that only that decision
of the Supreme Court will be binding which fulfils any of the following conditions :-

(a) it decides a question of law, or

(b) it is based upon a principle of law, or (c) it enunciates a principle of law.

Here the word "decides" or "decision" will necessarily mean final decision after
hearing the parties and perusal of the relevant record. In other words, so far as that
particular point is concerned, the decision should be final and after that nothing
should remain pending before the Supreme Court regarding that point. Similarly, the
expression "question of law" connotes that the point so decided must be a "question of
law". As regards (b) above, it clearly means that if a decision of the Supreme Court is
based upon a principle of law already settled, then that decision will also acquire the
binding force. The last category of such a decision namely, (c) above, is where it
enunciates some principle of law. It means the Supreme Court enunciates not only
some principle but it must relate to law. "Enunciation" also can be when a point is
finally adjudicated upon by the Supreme Court. Applying these conditions to the case
referred to by the Deputy Attorney-General the Court proceeded to observe that the
Supreme Court while granting Special Leave to Appeal in General Abdul Hamid's
case suspended the operation of the impugned order of the High Court meanwhile.
According to the Deputy Attorney-General this order suspending the operation of the
impugned order is binding upon all Courts in Pakistan under Article 189. In other
words, it amounts to law declared which has a binding force. It is an admitted fact that
while granting Special Leave to Appeal, interim relief according to the nature of each
case, can be granted to the petitioner. Sometimes the operation of the impugned order
is stayed, sometimes status quo is granted and sometimes possession of a party is
protected. In other words, some interim relief is granted to the petitioner during the
pendency of his case before the Supreme Court. It is also not denied that after the
grant of Special Leave to Appeal if ultimately the appeal is accepted, that interim relief
merges into the final decision given by the Court. If on the other hand, the appeal is
rejected, then the interim relief granted earlier automatically disappears. The result is
that interim relief given at the time of grant of Special Leave to Appeal, cannot be
termed as final. It can be altered or modified later on. After careful consideration of
Article 189 of the Constitution, it is clear none of the conditions enumerated above is
attracted or applicable to the interim or interlocutory order passed by the Supreme
Court in General Abdul Hamid's case. This order neither decides a question of law,
nor is based upon a principle of law, nor enunciates a principle of law. In this view of
the matter, this order suspending the operation of the impugned order is not covered
by Article 189 of the Constitution and consequently is not binding on the Courts in
Pakistan, except of course on the parties in that case.

2007 CLC 39 (Justice Mian Hamid Farooq sitting as Election

Tribunal)

Now adverting to the leave granting order passed by the Honourable Supreme Court
of Pakistan. The leave was granted only after recording the contentions of the learned
counsel for the petitioners. The said order neither decided a question of law nor is
based upon a principle of law nor enunciates a principle of law. To my mind the said
order although suspended the operation of the orders concerning the petitioner, yet it
does not fall within the scope of Article 189 of the Constitution. It may be noted that a
leave granting order does not necessarily mean that the appeal would ultimately be
accepted and it cannot be ruled out that in the final hearing subsequently the appeal
may be dismissed or leave granting order may be rescinded/withdrawn. Honourable
Supreme Court in a case reported Shipyard K. Damen International v. Karachi
Shipyard and Engineering Works Ltd. PLD 2003 SC 191 has held that "because a
leave granting order passed by Supreme Court does not lay down law to be followed".
In view whereof as the case of Mudassar Qayyum Nahra has not finally been decided
by the Honourable Supreme Court and only the leave was granted, therefore, the
question of law decided by the Full Bench of the Lahore High Court is the "decision"
within the contemplation of Article 201 of the Constitution of Pakistan thus, is
binding on all the Courts subordinate to it.

PLD 1980 Kar 492 (Tanzil ur Rahman J) (Follows PLD 1975 Lah 65)

In reply, Syed Sarfraz Ahmed, the learned Assistant Advocate-General has argued
that the above judgment is not operative, for, it has been stayed by the Supreme Court.
Mr. Nizam Ahmed, the learned Advocate for the plaintiffs, though did not cite any
authority on this point on the day of hearing i.e. 17-4-80 but on 21-4-1980, came to
my chamber and placed his reliance reported in P L D 1974 Kar. 29 and P L D 1975
Lah 65.

14. In the other case of Ghulam Jillanl v. Federal Government (PLD 1975 Lah 65) an
argument was advanced in that case by the Deputy Attorney-General that against
the judgment of the Lahore High Court in General Abdul Hamid's case the
Government had filed a petition for special leave to appeal before the Supreme Court
and that- the Supreme Court while granting special leave to. appeal had also
suspended the operation of the impugned order in .the meanwhile. According to the
Deputy Attorney-General, in that case, the order of the. Supreme Court suspending
the operation of the impugned order -meanwhile was binding upon Lahore High
Court under Article 189 of the Constitution as it amounted to a `law declared' by
that Court. The Division Bench of the Lahore High Court however observed as
follows:--

"Thus, the expression "law declared" implies .that -the point

decided by the Supreme Court -is - a legal one and of such
general or public importance `that it will occupy the place of
law for the land: It will be the final decision of the Court on
that particular point given after hearing the parties concerned.
In other words it will be final adjudication of that particular
point and so far as that point is concerned, nothing should
 remain pending before the Supreme Court after the declaration
of that law."

15. 1 am, therefore, of the view .that even if stay, has been granted by the Supreme
Court, unless the decision of this Court (reported in P L D 1975 Kar. 944) is set aide
by the Supreme- Court, the law laid down therein is binding on me apart from the
fact that the stay granted will apply inter partes in that matter only.