GHULAM HAIDER Versus RAJ BHARI

This second appeal is directed against the judgment and decree of the learned Additional District Judge, Gujrat, modifying the decree of the trial Court raising the sale price of the suit land from Rs. 7,215.00 to Rs, 12,000.00, in a suit for possession through pre‑emption filed by Ghulam Haider appellant against Mst. Raj Bhari and three other respondents. The appellant died on the 1 st of October 1968. An application for bringing the petitioners on the record as his legal representatives was filed on the 8th of April 1969. The order allowing this application was made subject to all just exceptions. The respondents now object to the continuance of the appeal, the same having abated for the reason that the delay of 98 days or at least of 38 days in filing the application has not been sufficiently explained.

2. Before allowing an application for setting aside the abatement the Court is to investigate whether the applicant was lawfully prevented from making the application for substitu tion within the statutory period and should direct its attention to the question whether the applicant was entitled to the benefit of section 5 of the Limitation Act read with Article 171 and Order XXII, rule 9, C. P. C., because abatement is automatic after ninety days (Article 176 of the Limitation Act) and the appeal or suit is dead unless abatement is set aside within sixty days (Article 171) or a period further extended under section 5 of the Limitation Act. Have the petitioner in this case satisfactorily explained every day of delay prior to the date of actual application? The explanation given is that all the legal representatives were not aware that an appeal has been filed in the High Court; they learnt about the pendency of the appeal two days before the filing of the petition when the respondents spread a rumour in the village that the land in suit has now become theirs; they searched the papers of the deceased and came across a copy of the admitting order of this Court and then without losing any time approached the counsel to file the petition. The respondents have argued that Muhammad Iqbal, elder son of Ghulam Haider deceased, had been pursuing the suit in the lower Court and it is incorrect that the legal representatives had no knowledge of the appeal because the entire family had been living together and every one of them knew about the pendency of litigation. Muhammad Iqbal has put in two affidavits in further elucidation of the application for extension of time for impleading the legal representatives of the deceased saying that his father obtained possession of the land in dispute soon after obtaining the decree in execution thereof, and had been in possession till his death and he had installed a tube‑well in the land in dispute about two years before his death and that since Ghulam Haider was in possession, the deponent of well as the other heirs of the deceased, two of whom are minors and the rest pardahnashin ladies, were under the impression that the litigation was over and the deponent and other heirs were not aware that any appeal was pending at the time of his demise. A counter‑affidavit has been filed by Amanat Ali son of Sultan Ali, respondent No. 5, contesting the position taken by Muhammad Iqbal. It has been deposed in the affidavit that Ghulam Haider deceased obtained a portion of the land in dispute from the respondents‑vendees on lease basis much before the filing of the suit for pre‑emption, as is evident from the Jamabandi for the year 1966‑67 Khasra Girdawari and Mutation No. 1209 filed before this Court by Muhammad Iqbal himself (marked as Exhs. 'A', 'B' and 'C', respectively, with consent of learned counsel for the parties) and he never came in possession as a pre‑emptor; that Ghulam Haider deceased or his successor‑in‑interest never installed any tube‑well in the land in dispute; he however, did install a tube‑well in his own land but not in the disputed land (reference is again made to Exhs. 'A', 'B' and 'C') and that Muhammad Iqbal, who had been prosecuting the suit and the appeal along with his father, fully knew about the pendency of the appeal in this Court.

3. There is no proof on the record that Ghulam Haider deceased had entered into possession of the disputed land in execution of the decree in his favour or that he had actually installed a tube‑well in it. No doubt, two of the petitioners are minors and the six others claim to be pardahnashin ladies, this alone Is not sufficient to absolve them of the responsibility to approach this Court in time for being impleaded, especially when Muhammad Iqbal petitioner is a matriculate and is serving as a Sub‑Inspector in the Co‑operative Department at Jhelum and it has not been convincingly established that he had no knowledge of the pendency of the appeal. In a similar case of possession through pre‑emption, the question of abate ment came un before their Lordships of the Supreme Court in Ruqia Bibi and 5 others v. Jalal Din and 8 others (1971 S C M R 678) and the argument that the legal representatives did not know of the pendency of the litigation in the High Court was repelled, holding that " . . . . . it is difficult to disagree with the High Court that the petitioners, all of whom excepting one are majors, were completely ignorant of the appeal filed . . . . . It seems to be a case of inexplicable negligence, and carelessness in not pursuing the appeal." Following with respect this dictum of their Lordships of the Supreme Court, I hold that it being a case of gross negligence, no indulgence can be shown to the indolent petitioners. Even if the argument that the minors and pardahnashin ladies stand on a different e footing from Muhammad Iqbal petitioner, be accepted, it does not advance the petitioners' case the decree being indivisible, if the appeal is held to have abated qua Muhammad Iqbal, it abates as a whole. Muhammad Shafi v. Allah Din and others (A I R 1934 Lah. 429) is in point.

4. The other argument based on the Law Reforms Ordi nance (XII of 1971,) that the law of abatement has been abolished and, therefore, the Court may proceed with the appeal, notwithstanding the death of the appellant, is equally without merit. Rules 3 and 4, as also rule 9 of Order XXII, C. P. C. have undergone a great change. Even Orders VII and VIM, have been amended. In Order VII, rule 26 has been added making it obligatory for the plaintiff in every suit of the nature referred to in rule 3 of Order XXII, to file a list of legal representatives of the plaintiff. Similarly, in Order VIII, rule 13 has been added under which in every suit of the nature referred to in rule 4 of Order XXII, the written statement is to be accompanied by a statement giving the list of legal representatives of the defendant etc. and then under rule 3, as also rule, 4 of Order XXII, where within the time allowed by law no applica tion is made, the Court has been empowered to proceed with suit and any order made or judgment pronounced in such suit shall, notwithstanding the death of the plaintiff or defendant, have the same force and effect as if it had been made or pronounced before the death takes place. Again in rule 9, the word 'abates' has been omitted and the rule now merely pertains to dismissal of the suit under rule 8 relating to insolvency and assignment etc. and in such a case, no fresh suit shall be brought on the same cause of action. However, it has been provided in sub‑rule (2) of the new rule 9, that a person claiming to be a legal representative of a deceased plaintiff or defendant or the assignee or the receiver in the case of insolve ment, plaintiff may apply to the Court for setting aside the order made or judgment pronounced by it in his absence and if it is proved that he was prevented by any sufficient cause from continuing the suit or defending the suit, as the case may be, the Court shall set aside the order or the judgment upon such terms as to costs, as it thinks fit. In other words, procedure for abatement has almost disappeared.

5. With regard to the effect of an amending Act on pending actions two fundamental principles are to be kept in view. Firstly no statute shall be construed so as to have a retrospective C operation, unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication (The Colonial Sugar Refining Company Limited v. Irving (1905 A C 369) and Delhi Cloth & General Mills Co. Ltd. v. Income‑tax Commis sioner (A I R 1927 P C 242)) and that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary (Lauri v. Renad ((1892) 3 Ch. 402)). Secondly the presumption against retrospective construction has no application to enactments which affect only the procedure and practice of the Court, as no person has a vested right in any course of procedure. For elucidation of this principle I borrow the terse observations of Pollock, C. B. in Wright v. Hale ((1860) 30 L J Ex. 40).

"I have always understood that there is a considerable difference between laws which affect the vested rights and Interests of parties, and those laws which merely affect the proceedings of Court; as, for instance, declaring what shall be deemed good service, what shall be the criterion of the right to costs, how much costs shall be asked, the manner in which witnesses shall be paid, or what witnesses the party shall be entitled to, and so on . . . . . I do not think that a matter of that sort can be called a right, nor do I think the title to costs can be called a right in any sense in which Lord Coke in his Institutes, or my Lord Chief Justice Turo, in the case referred to by Mr. Chambers, has spoken of tights . . . . . ."

In Gardner v. Lucas ((1878) 3 A C 582), the following further rule finds mention at page 603 of the report:

. . . Alterations in the form of procedure are always retrospective, unless there Is some good reason or other why they should not be."

The question came up for consideration before the Calcutta High Court in Goperhwar Pal v. Jiban Chandra Chandra (I L R 41 Cal. 1125) et page 1141 it was observed :

" . . The law as amended may regulate the procedure in suits in which the plaintiff could comply with its provision,. but cannot (in our opinion) govern suits where such compliance was from the first impossible. The effect is to regulate not to, confiscate . . . . . . ."

Under the caption "Statutes Pertaining to Procedure and Legal Remedies. Generally" Crawford in his Treatise on Statutory Construction (1940 Edition), while enunciating the general rule that `legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retroactive operation' further observes at page 582 that "yet a statute which relates to procedure or to legal remedy, if it interferes with vested rights or impairs the obligations of contracts, will be subject to the general rule, already discussed, against retroactive operation"

Maxwell also expresses a similar view at page 219 (11 th Edition) in the following words:-

"But a new procedure would be presumably applicable, where its application would prejudice rights established under the old or would involve a breach of faith between the parties."

Again, the validity or operation of any order validly passed or any act validly done by a Court under the procedural law for the time being in force cannot be affected by the subsequent change in the said law.

In recent years, the aforesaid principles have been repeatedly recognized and applied: State v. Muhammad Jamil (P L D 1965 S C 681), Abdul Basir Bhuiyan v. Begum Asia Rahman (P L D 1968 Dacca 143) and Safdar All v. Ikaram Elahi (1969 S C M R 166).

It was observed in Nabi Bakhsh and another v. Home Secre tary, Government of West Pakistan and 4 others (P L D 1969 S C 599) that "it is not easy to draw a line between substantive or procedural law, but the task is not impossible if the essential difference is kept fin mind". Then a reference has been made to the following passage in Salmond's Jurisprudence (12th Edition) at page 128:

The law of procedure may be defined as that branch of the law which governs the process of litigation . . . . . . All, the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject‑matter.

In Adnan Afzal v. Capt. Sher Afzal (P L D 1969 S C 187), my Lord the Chief Justice of Pakistan, dealing with the subject has enunciated the rule as under :‑

It is obvious that matters relating to 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 a what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it may be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of procedural statute favour an interpretation giving retrospective effect to the statute . . . . .

Bearing these principles in mind and following the dictum of the Supreme Court with respect I find that in the instant case the appeal had admittedly abated after the lapse of ninety days other death of Ghulam Haider, i.e., much before the Law Reform Ordinance (XXI of 1972) came into force. Now till such time the abatement is set aside, the petitioners have no right to‑continue the appeal as legal representatives. The respondents had acquired a corresponding right to defeat the petition, which has been refused on merits. If the alteration in procedure is permitted to be applied retrospectively to this pending petition, it would cause great injustice to the respondents so as to deprive them of the right which had accrued to them before the change came in.

6. For the reasons above, the appeal is declared to have abated. The respondents will have their costs in this Court.

7. The appeal having been declared to have abated, no question of passing an order so as to permit the petitioners to deposit the decretal amount arises because if an action fails what is incidental falls also. Josiam Tiruvengadachariar and another v. Sawmi Iyengar alias Venkatochariar and others (I L R 34 Mad. 76) refers.

K.B. A. Appeal abated.