IHC judge defies bench on appeals transfer
Another dispute has erupted in the Islamabad High Court (IHC) as Justice Sardar Ejaz Ishaq has declined to accept the order of a two-judge bench to transfer civil appeals, pending in the high court for adjudication, to the district judiciary, and refusing to transfer the appeals in his docket.
The division bench, comprising Justice Azam Khan and Justice Inam Amin Minhas, had ordered the transfer of 1,594 civil appeals to the district judiciary following the Civil Courts Amendment Act 2025 that redefines the appellate jurisdiction in civil matters.
Justice Ishaq termed the bench's judicial order illegal. "I come to the rather embarrassing conclusion that the decision of the Division Bench in Civil Reference no 1/2025 was coram non judice, per incuriam, and an exercise of administrative authority cloaked as a judicial decision", he said in an order.
Justice Ishaq said that the division bench's order violated the Article 175 (2) of the Constitution. He wondered why it did not occur to the judges of the bench or to the bar representatives that the parties might have to pay additional fees to the lawyers for hearings of appeals in district courts.
"Had the interest of the litigants genuinely mattered to the Office, to the Division Bench, and to the Bars representatives, they could easily have interpreted.
IHC judge defies bench on appeals transfer the amendment prospectively", said the order passed by Justice Ishaq. The judge further said that when the legislatures made such an express command for transfer – coupled with conferral of exclusive jurisdiction then it must be followed, "but when it stops short and simply changes the jurisdictional forum without specifying exclusive jurisdiction to a forum, then it follows inexorably from the presumption that the Legislature is presumed to be aware of all the laws that the Legislature intended to leave it to the Courts to apply the precedent law to decide the fate of pending cases, and the preponderance of precedent", the order said.
"I say with a heavy heart that the Office, my learned brothers, as well as the Bars representatives, have not cared a bit about the plight of the litigants before the High Court, the utter inconvenience they will suffer by a de novo hearing of their appeals by the District Courts, the additional financial burden they will have to bear by paying fresh fees to the counsels for cases that have been, in most part, substantially argued before the High Court and, above all, they did not care in the least about the much higher pendency before the Judges in the District Courts, who also conduct civil and criminal trials, and with unrivalled nonchalance preferred to off-load the High Court's burden on them," it continued.
"I feel sympathy for the Judges in the District Courts, who in all likelihood would wonder why could the eleven Judges of the High Court not girdle their belts to decide 1,594 appeals instead of offloading them to an almost equal number of Additional District Judges who are much, much more burdened with work then we are".
The court also ordered the office to circulate the copy of this order to all the judges for their information and, should any of them agree with me, then for them to consider saying so in a written communique to the Chief Justice".
"Further, the Office will also send a copy of this order to the Islamabad Bar Council and to the two Bar Associations for circulation amongst the members of the Bars", the order said. The hearing of case was adjourned until last week of September.
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