1996 PLD 1
1. SARDAR SAID MUHAMMAD KHAN, C J.‑‑ As a common question of law arises in both the above entitled appeals, we propose to dispose of the same by this single judgment.
2. The facts giving rise to the present appeals are that the above entitled appeals were pending: one before the District fudge and the other before the Additional District Judge, when these stood transferred to the Shariat Court by virtue of amending provisions of section 21‑A of the Azad Jammu and Kashmir Family Courts Act, 1994 (hereinafter shall be called the Family Courts Act). The Shariat Court dismissed both the appeals on the ground that in view of the provisions contained in section 14 of the Family Courts Act, these appeals were not competent because the matters pertain to the dissolution of marriages; and the scope of appeal in such cases is limited under section 14 of the Family Courts Act.
3. The learned counsel for the appellant, Raja Muhammad Hanif Khan, Advocate has agreed that the Shariat Court, has committed an error in dismissing the appeals because admittedly the above entitled matters were already pending in the ordinary Courts when the Family Courts were established under the Family Courts Act, 1994. Thus, according to the learned counsel for the appellants, in view of the provisions contained in section 56‑C of the Azad Jammu and Kashmir Interim Constitution Act, 1974, and section 6 of the General Clauses Act, the Shariat Court was competent to dispose of the appeals on merits. The learned counsel has argued that it has been specifically laid down in section 56‑C of the Azad Jammu and Kashmir Interim Constitution Act that where a law is repealed or is deemed to have been repealed by virtue of Interim Constitution Act, that shall not affect any legal proceedings, remedy, investigation, right, privilege, obligation, merely because the Act was repealed. The learned counsel further submitted that in view of the provisions contained in section 6(e) of the General Clauses Act, any investigation, legal proceedings or remedy in respect of any right, privilege, obligation, liability, and penalty, etc. will not be affected by the repeal of an Act unless a different intention appears from the repealing statute or the statute which supersedes the previous law and such proceedings may be instituted, continued, or enforced as if the repealing or the law superseding the previous law was not enforced. The learned counsel has contended that enactment of section 21‑A whereby the appeals pending before the District Judge and the High Court stood transferred to the Shariat Court, implies that the Legislature intended that the pending appeals and the suits etc. should be tried and decided according to the relevant provisions contained in the Code of Civil Procedure. The learned counsel has submitted that the impugned judgments of the Shariat Court are violative of the provisions contained in section 6 of the General Clauses Act. He has submitted that the perusal of the Family Courts Act would reveal that the intention of the Legislature was not to curtail the right of appeal in pending appeals because had the Legislature intended so, it would have transferred only those pending appeals to the Shariat Court which were competent under section 14 of the Family Courts Act. The learned counsel has relied upon the following cases:
4. In case reported as Referring Authority v. Sardar Sikandar Hayat Khan PLD 1982 SC (AJ&K) 112, it has been observed that if the law is amended during the pendency of an action, rights of the parties are to be decided according to law which existed at the time of initiation of action and not according to law existing at the time of judgment or order, except that altered law relates to the matters of procedure.
5. In case reported as National Motors Ltd. v. Workmen represented by Ghandhara Industries Employees Union 1987 SCMR 980, the principles governing the institution of appeals in cases of amendment of law were discussed. It was observed that it is well‑settled principle of law that the right of appeal accrues to an aggrieved party in accordance with law existing at the time of order which is sought to be challenged. The judgment of the High Court was set aside observing that in view of the relevant Ordinance, it was not competent.
6. Ch. Muhammad Ibrahim Zia, Advocate, for Mst. Rehmat Jan, respondent, has conceded that the Shariat Court has committed error in holding that the above entitled appeals were incompetent in view of the provisions contained in section 14 of the Family Courts Act. He has maintained that the grounds on which a marriage can be dissolved have been enumerated in the Act known as the Dissolution of Muslim Marriages Act, 1939. The dissolution of a marriage can be sought before a Family Court on those grounds as before; only right of appeal has been curtailed in terms that an appeal against the judgment and decree of dissolution of marriage would be competent only if the case falls within the ambit of provisions contained in section 14(2)(a) of the Family Courts Act and not otherwise. Thus, the learned counsel submitted that the Shariat Court was competent to decide the pending appeals according to law which was in force before the establishment of Family Courts.
7. Sardar Rafique Mahmood Khan, Advocate, appearing on behalf of Mst. Sabiha Khanum, respondent, has controverted the arguments advanced by the learned counsel for the appellants and has argued that the impugned judgments do not call for interference and that the Shariat Court has rightly dismissed the appeals as being incompetent. According to the learned counsel, in view of the provisions contained in section 14 of the Family Courts Act, an appeal before the Shariat Court is only competent if the case falls within the purview of section 14(2)(a). Thus, in case the decree for dissolution is passed on the grounds on which the appeal is not competent to the Shariat Court, such appeal would be incompetent. Thus, according to the learned counsel the above entitled appeals were rightly dismissed by the Shariat Court.
8. We have given our due consideration to the arguments raised at the Bar. The first question which falls for determination is as to whether section 14 of the Family Courts Act `repeals' the provisions of appeals contained in the Civil Procedure Code so far as the Family Courts Act is concerned, it may be stated that it is not necessary for the purpose of section 6 of the General Clauses Act that the repeal of a statute or any provision thereof should have been expressly made; such a repeal can take place by necessary implication. i.e., by subsequent legislation on the same subject which tantamounts to supersede the earlier legislation. If by necessary implication, the earlier statute or any provision thereof is superseded or substituted, the case would be one of `repeal' as envisaged under section 6 of the General Clauses Act. We are fortified in our view in case reported as Fazal Dad v. Khadim Hussain 1995 MLD 1299 wherein it has been held that it is every day occurrence that at times the law maker does not use any specific word while intending to revoke or annul a legal provision but all the same the previous enactment is deemed to have been repealed by necessary implication. Thus, a statute or part of it can be deemed to have been repealed by implication in many eventualities such as that subsequent legislation on the same subject is so worded or inconsistent with the earlier statute that it renders the earlier one ineffective.
9. In case reported as State of Orissa v. M/s. MA. Tulloch & Co. AIR 1964 SC 1284, it has been held that a statute which supersedes the previous law virtually repeals the same. It was further observed that when an enactment supersedes earlier one or puts an end to an earlier state of law, it would tantamount to repeal of earlier statute unless there are indications to the contrary. It has been also observed that if the effect super session of previous enactment is repeal, the provisions contained in section 6 of General Clauses Act would apply even if the word `repeal' has not been expressly used. It follows from what has been stated above that in the instant cases section. 14 of the Family Courts Act would be deemed to have been repealed the provisions regarding the appeal contained in the Code of Civil Procedure, despite the fact that the same have not been repealed expressly.
10. The next question which falls for determination is as to whether the right of appeal is a substantive right or it is merely procedural one. It maybe stated that there is consensus of judicial authorities on the point that right of appeal is a substantive right and it cannot be deemed to have lost, unless and until there are spec provisions to that effect in the repealing law or the law which superseded the previous legislation or it is manifest by necessary implications. A reference may be made to a case reported as Idrees Ahmad v. Haji Fida Ahmad Khan PLD 1985 SC 376, wherein it has been held that the right of appeal given under a repealed enactment is such a right which survives the repeal unless repealing enactment either expressly or by necessary implication curtails it. It has been further observed that all the rights or remedy by way of appeal or otherwise under an enactment stand vested and accrued in the litigating party on the date of commencement of the lis and are not open to challenge unless the repealing enactment either expressly or by necessary implication curtails such rights in any manner.
11. In purshotam Singh v. Narain Singh AIR 1955 Rajasthan 203, it has been observed that if the repealing Act provides a new forum where legal proceedings can be pursued, the proper forum would be as provided by the repealing Act and a party cannot insist that the forum of the repealed Act must continue.
12. In case reported as Bimila Prosad Ray v. State of West Bengal AIR 1951 Cal. 258. It has been held that a right of appeal which is one of methods by which a decision can be challenged is not a procedural right but a substantive right and therefore, an Act purported to take away the right of appeal can have no retrospective effect if it is not clear from the express words of the statute or cannot be inferred from its terms.
13. In Mahabir Sugar Mills Pvt Ltd. v. The Union of India AIR 1975 All. 239, it has been observed that where there is repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow. It has been observed that in case of simple repeal, there would be hardly any room for a view contrary to one contained in section 6 of the General Clauses Act but when repeal is followed by a fresh legislation on the same subject then the provisions of new Act may .be considered for the purposes of determining as to whether a different intention from one contained in section 6 of the General Clauses Act is indicated. The application of the rule incorporated in section 6 be ruled out only if there is intention incompatible with or contrary to the provisions contained in section 6 of the General Clauses Act.
14. In case reported as State of Punjab v. Mohar Singh Pratap Singh AIR 1955 SC 84, it has been observed that in case of simple repeal, there is hardly any room for the argument that section 6 of the General Clauses Act is not applicable to such a case. However, in case where repeal is followed by the fresh legislation on the same subject, the Courts would undoubtedly have to look into the provisions of new Act only for the purposes of determining whether they indicate a different intention. The line of inquiry would be not whether the new Act expressly keeps alive old rights and liabilities, but whether it manifests an intention to destroy the old rights. Thus, section 6 of the General Clauses Act would be applicable despite the new legislation if an intention incompatible with or contrary to the, provisions of section 6 is not manifest.
15. From the authorities reproduced above, the following principles relevant to the present appeals are deducible:‑‑
(a) that in case of repeal, etc. the appeal or other remedy provided in the repealed enactment would not affect the pending cases whether suits or appeals, unless such intention has been clearly expressed or is p present by necessary implication;
(b) that right of appeal is a substantive right and it could only be taken away by specific provision or by any provision which is incompatible with the rule contained in section 6 of the General Clauses Act. Thus, the pending suits or appeals etc. at the time of repeal of relevant statute would not be adversely affected and same would be followed according to the provisions contained in the repealed statute unless, of course, the change is merely of a procedural nature;
(c) that a repeal can take place without a statutory provision to that effect; a `repeal' would be presumed in certain eventualities, such a substitution or super session of previous law or where earlier and subsequent law are so inconsistent that the former is rendered ineffective by latter; and
(d) that change of forum of appeal falls within the ambit of procedural law and one cannot insist to pursue his cause in a particular forum but right of appeal is a substantive right which can be taken away only by specific statutory provisions or by necessary implication."
16. Applying the above criteria to the instant cases, by virtue of section 21‑A of the Family Courts Act, the pending appeals at the time of enforcement of the. Family Courts Act, 1994 would not be affected and the same are to be decided by the Shariat Court under the provisions of the Code of Civil Procedure and the provisions of Dissolution of Muslim Marriages Act, 1939, irrespective of the fact that right of appeal has been curtailed by virtue of section 14 of the Family Courts Act.
17. As is evident from the case‑law cited above, the principle embodied in section 6 of the General Clauses Act that the suits or appeals etc. would be governed and decided according to law which was in force at the time of the institution of the suit, appeal or other cause, unless contrary has been provided either in repealing Act or otherwise or such intention is manifest by necessary implication or change is merely in procedure. In the instant case it is evident from section 21‑A of the Family Courts Act that Legislature never intended that the limited scope of appeal envisaged under section 14(2)(a) of the Family Courts Act shall be applicable to the pending appeals. A perusal of sections 14 and 21‑A of the Family Courts Act would reveal that Legislature did not intend to limit the scope of appeals which were already pending. For the sake of convenience, sections 14 and 21‑A of the Family Courts Act are reproduced below‑
18. " Section 14:
19. Appeals. ‑‑(1) Notwithstanding anything provided in any other law for the time being in force, a decision or a decree passed by a Family Court, shall be appealable to the Azad Jammu and Kashmir Shariat Court only.
(2) No appeal shall lie from a decree passed by a Family Court‑‑‑
(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939;
(b) for dower not exceeding rupees one thousand;
(c) for maintenance of rupees seventy‑five or less per month.
(3) Every appeal under this Act shall be decided by the appellate Court within a period of sixty days, from the date of. representation of appeal.
(4) Subject to the provisions of subsection (5) the order of the Azad Jammu and Kashmir Shariat Court shall be final.
(5) An appeal to the Supreme Court of Azad Jammu and Kashmir from a judgment, decree or order of the Shariat Court shall lie only if the Supreme Court of Azad Jammu and Kashmir being satisfied, that the case involves a substantial question of law of public importance grants leave to appeal."
20. Section 21‑A:
21. "Transfer of pending cases. ‑‑On commencement of this Act.‑‑
(a) all suits and applications pending before any Court regarding any matter which hithertofore are within the jurisdiction of a Family Court, shall stand transferred to the Family Court, concerned and the Family Court shall start proceedings from the stage which the case has reached.
(b) all appeals in respect of any matter falling within the purview of this Act, pending before Additional District Judge or District Judge or High Court, shall stand transferred to Azad Jammu and Kashmir Shariat Court."
22. It follows from above provisions of law that the appeal against the judgment and decree of the suit instituted after the establishment of the Family Courts Act, would be only competent to the Shariat Court if the cases fall within the ambit of section 14 of the Family Courts Act and not otherwise. Had the Legislature intended that section 14 would also be applicable to the pending appeals, it would have, expressed such intention while enacting section 21‑A; and it would have transferred only such appeals which the Shariat Court was competent to hear under section 14 of the Family Courts Act. The very fact that all the pending appeals were transferred to Shariat Court is indicative of the fact that the principles embodied in section 6 of the General Clauses Act was not departed from expressly or impliedly. Therefore, we are unable to subscribe to the contention of the learned counsel for the respondents that in case of dissolution of marriage the Shariat Court is competent to hear pending appeals which fall within the ambit of section 14(2)(a) of the Family Courts Act and same is hereby repelled.
23. We may also observe that so far as the appeals transferred to the Shlariat Court by virtue of section 21‑A, reproduced above, these have to be decided in light of the law which was applicable when the decree or order appealed from was recorded.
24. There is yet another aspect of the case. Under section 21‑A of the Family Courts Act, all the pending suits were transferred for hearing to the Family Courts which were to start the proceedings from the stage at which the same were transferred to them. It may be stated here that earlier, the Family Courts Ordinances were promulgated one after another at the expiry of their statutory life and it was after quite some time that Family Courts Act was passed by the Legislature. Despite the successive Ordinances, the ordinary Courts continued trying the pending suits because despite the promulgation of Ordinances, the Family Courts were not established and were not functioning. The question arises that when the suits were transferred to the Shariat Court under section 21‑A of the Family Courts Act the procedure to be followed would be one provided in Family Courts Act or the one prescribed in the Code of Civil Procedure. The general rule is that the procedural law always operates retrospectively unless it is otherwise provided, i.e., it would also apply to the pending cases. 'A reference may be made to the following authorities in support of the proposition.
25. In case reported as Abrar Hussain Shah v. The State 1992 SCR 294, it has been held that procedural law always operates retrospectively unless contrary intention is expressed.
26. In Messrs Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623, it was held that the Legislature is competent to legislate retrospectively and can retroactively take away even the vested rights.
27. In Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 it was held that if a matter is mere procedural in nature; such matter even if not given retrospective effect specially, would operate retrospectively. It was further opined that it is well settled principle of law that where amendment affects mere procedure and does not extend to take away the substantive rights, it shall come into operation retrospectively. However, in case of substantive right, the statute will operate retrospectively only if it has been given retrospective effect. The change of forum, it was opined, would operate retrospectively.
28. In the light of what has been stated above, we accept both the above entitled appeals, set aside the impugned judgments and decrees of the Shariat Court and remand the same back to the Shariat Court with the direction that the same shall be re‑heard and shall be decided afresh in the light of the above observations.
29. AA./96/SCAJ&K Case remanded.