ICA does not Lie Where an Appeal, Review or Revision is Available Against the Original Order, Irrespective Whether it is Available to one of the Parties or both of them.
Proviso to Section 3(2) of the Law Reforms Ordinance, 1972, bars filling an Intra Court Appeal (ICA) against the order of a signal bench where appeal, review or revision, or any kind of remedy is available against the original order to address the issue. The said proviso is reproduced herein below,
“…. Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable, provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order.”
Now the question arises that what if the right of appeal, review or revision is available to one party but not the other party, would the party, which is not left with a remedy against the original order, be eligible to file an ICA or instead it shall also approach the Supreme Court.
Recently, a similar case came up for adjudication before the Supreme Court wherein the petitioner had filed ICA before the HC, stating that the remedy against the original order is available to the respondents, not to the petitioner. Hence, ICA filed by the petitioner is maintainable, but the ICA was dismissed by the HC being not maintainable in accordance with the proviso to section 3(2) of the Ordinance. The petitioner approached the SC and challenged the HC’s order, asserting that the remedy against the original order is not available to the petitioner rather it is available to the respondents. Hence, his ICA may be declared maintainable before the Division Bench of the HC.
The SC analyzed a seminal judgment on this point titled as Mst. Karim Bibi and others v. Hussain Bakhsh and another (PLD 1984 SC 344) and reiterated that the SC has already ruled that the proviso to section 3(2) of the Ordinance is applicable to a case where a remedy of any kind whatsoever is available irrespective of the fact whether it is available to both of the parties or one of the parties.
The Court unequivocally held that the said proviso shall be deemed to be applicable to those cases as well where one of the parties is not available with the remedy against the original order. The courts, while sitting over a judgment in ICA, have not to see whether the party who has filed the ICA was available with a remedy against the original order or not. Instead, the courts have to see whether a remedy against the original order is available or not, if so, the ICA shall not be maintainable even if it has been filed by a party left with no remedy against the original order.
The SC dismissed the CPLA as well. This seems to be strict and literal interpretation of the proviso. However, it is still arguable and debatable whether the law in such a scenario should be interpreted purposively or strictly in accordance with its literal meanings.
