FATEH MUHAMMAD vs KHUSHHAL MUHAMMAD

ORDER

' The petitioner, Fateh Muhammad, filed a suit against the respondent, Khushhal Muhammad, for grant of a perpetual injunction. The counsel appearing on behalf of the respondent confessed judgment whereupon the suit was decreed. Thereafter, the respondent instituted a suit challenging the decree passed in favour of the petitioner on the ground that it was obtained by fraud. The respondent's suit, which was resisted by the petitioner, was still pending that subsection (2) was inserted in section 12 of the Code of Civil Procedure by means of an amendment. That subsection reads as follows :- "Where a person challenges the validity, of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."

' On the coming into force of the above amendment, the petitioner made an application to the Civil Judge, who was seized of the suit, that the suit could not proceed as the relief asked for in the suit could be had by the respondent by making an application under subsection (2) of section 12. His prayer was not granted by the learned trial Court with the result that his application was dismissed.

The petitioner then filed an appeal before an Additional District Judge but in vain. He has, therefore, come up in revision to this Court.

2. Learned counsel for the petitioner contended that although according to the language of subsection (2) its provisions were not retrospective in effect yet they were to operate retroactively.

3. While deciding the case of Adnan Afzal (1) the Supreme Court (1) PLD 1969 SC 187 was pleased to lay down the following principle in the matter of giving effect to procedural statutes :- "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying tbat a change of .Forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice, then the Courts will not even in the case of procedural statute, favour an interpretation giving retrospective, effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively."

' A will be noted that if the suit brought by the respondent is dismissed and he is obliged to file an application under subsection (2) of section 12 the parties would be put to additional bother and expense inasmuch as the exercise which has already been done by them by now, in connection with the suit, will again have to be undertaken by them in relation to the application. I have been informed by the learned counsel that the suit brought by the respondent is now at the stage of evidence. This means that much 'headway has been made in the suit. According to the above- quoted observations of the Supreme Court if the giving of retroactive operation to procedural provisions causes inconvenience then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively".

As explained above, if retroactive effect is given so the amendment made in section 12 of the Code of Civil Procedure by inserting subsection (2), therein it will cause inconvenience to the parties and would also be detrimental to the respondent. Therefore, in view of the principle enunciated by the learned Judges of the Supreme Court. I am not inclined to give retrospective effect to the amendment made in section 12.

5. Learned counsel for the petitioner also cited Ch. Safdar All v. Malik Ikram Elahi and another (1) to contend that retrospective effect was to be given to procedural amendments regardless of the inconvenience which is likely to be caused to the parties. In the case of Ch. Safdar Ali, no observation touching the inconvenience of parties was made nor in that case any party was required to pursue a remedy other than the one which was already being availed of by him at the time of the making of notification in regard to the hearing of election petitions. As observed by the learned Judges of the Supreme Court, the election petition involved in that case was pending {{FOOT NOTE}}

(1) 1969 SCR 166 {{FOOT NOTE}} before the Additional Commissioner who "had jurisdiction to decide the election petition both under the old and the new rules". Ch. Safdar All's case, therefore, does not permit me to overlook the guiding principle enunciated by the Supreme Court in the case of Adnan Afzal which takes care of the inconvenience and interest of the parties in the matter of giving effect to amendments of procedural nature.

6. For reasons stated above, the orders made by the two Courts below do not call for any interference. This revision is, therefore, dismissed in limine.