S.M. JUNAID Versus PRESIDENT OF PAKISTAN

KARAM ELAHEE CHAUHAN,-S. M. Junaid appellant/petitioner filed an application-(being Shariat Petition No. 11 of 1979)-under Article 203-B of the Constitution for a declaration that section 3 of the Limitation Act (IX of 1908) was against the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet. The actual. prayers made in the petition were as follows :-

"It is, therefore, prayed-

(a) to examine and decide the question whether or not the said provision of the said law is repugnant to the Injunctions of Islam;

AND

(b) to declare to the extent to which it is held to be repugnant."

2. The case came up before a Shariat Bench of the Sind High Court, Karachi, who dismissed the same vide its order dated 15-12-1979, on the ground that section 3 of the Limitation Act was a law-(or to be more precise a provision of law-relating to the "procedure of a Court," therefore, it was outside the list of such laws which were examinable by a Shariat Bench/Court under the Article aforesaid. The order of the Bench is a short one and can be reproduced here with convenience. It reads as follows :--

"The prayer in this petition is, that section 3 of the Limitation Act is repugnant to the Injunctions of Islam.

According to Article 203-B of the Constitution, as to be found in the Explanation, protection has been given to certain specified laws for a period of three years.

The law, which has been challenged, relates to the procedure of the Court.

Under the circumstances, the petition does not lie, and stands dismissed in limine."

3. The appellant/petitioner has come up in an appeal against the aforesaid order, under Article 203-C of the Constitution to this Court.

4. Before proceeding further the appellant refers to Article 203-B which reads as follows :-

"203-B. Conferment of jurisdiction on High Court.-(1) A High Court may, on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet, hereafter in this Chapter referred to as the Injunctions of Islam.

Explanation. In this Chapter, "Law" includes any custom or usage having the force of law but does not include the Constitution Muslim Personal Law, any law relating to the procedure of any Court or Tribunal or, until the expiration of three years from the commence­ment of this Chapter, any fiscal law, or any law relating to the collection of taxes and fees or banking or insurance practice and procedure.

5. The appellant then referred to section 3 of the Limitation Act which fur facility and reference is reproduced below;

"(3) Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the First Schedule shall be dismissed, although limitation has not been set up as a defence.

Explanation.-A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer in the case of a pauper, when his application for leave to sue as a pauper is made; and., in the case of a claim against a company which is being wound up by the Court, when the claimant first sends his claim to the official liquidator."

6. The appellant argued that in the Limitation Act there are provisions of the kind of section 3 above reproduced and also provisions, like those contained in Chapter IV headed as "Acquisition of Ownership by Possession" and comprising of section 26 which deals with "Acquisition of Right of Easements" and section 28 which is headed as "Extinguishment of Right to Property". The appellant argued that the Shariat Bench of the High Court has failed to deal with the aforesaid provisions of the Limita­tion Act and has not given any findings thereon with the result that its order being incomplete, the case, according to him, has not been fully dealt with and decided. The contention has no merit. We have quoted above, the prayers made by the appellant in the High Court. He made no prayer' and claimed no relief regarding whole of the Limitation Act or to be more specific about sections 26 and 28 but confined himself merely to section 3In the circumstances the High Court was also justified in confining itself section 3 and the pleadings as now made in the grounds of appeal before us which purport to cover tile whole of the Limitation Act and giving rise to the above types of arguments are beyond the scope of the case filed in the High Court. We hold accordingly and will consequently be confining ourselves to the examination of the validity of section 3 alone.

7. The precise question which is now to be examined is whether the finding of the High Court that section 3 of the Act is a procedural law is correct or not. Before proceeding further we must admit, as has bee held by various jurists on the subject, that it' is not always easy to state with precision the exact nature of the distinction between substantive law and the procedural law. The reasons for this are not far to seek. Generally it is said that substantive law is that which defines the right while procedural law determines the remedies, but this may not be always correct, inasmuch as, there are many rights in wide sense which belong to the sphere of procedure for example, a right of appeal, a right to give evidence on one's own behalf, a right to interrogate the other property, and so on, which are considered as substantive rights. This shows that rules defining the remedies may some time be as much a part of the substantive law as are those which define the right itself. To defined procedure as not concerned with rights but with remedies, therefore, some­times may amount to confound remedy with the process by which it is available. Question in this context arises as to what then is the true, distinction? In our opinion the law of procedure may be defined as that branch of law which governs the process of litigation. It is the law of actions-Jus quod et actious pertenet-using the term action in a wide sense to include all legal proceedings civil and criminal. All the residue is substantive law and relates not to the process of litigation but to it purpose and subject-matter. Substantive law is concerned with the end but procedural law with the means and instruments by which those ends are to be attained. Whether a person has a right to recover certain property is a question of substantive law, for the determination and protection of such right are among the ends of administration of justice, but in what Courts and within what time he should institute proceedings are questions of procedural law, for they relate, merely, to the modes in which the Courts fulfil their functions. These are the broad outlines of some of the principles with reference to which the nature of each law or of a provision of any law should generally he examined, in its own context before holding whether it is a procedural law or a substantive law, taking notice also of such rules of procedure as mentioned earlier which in practical operation are sometimes wholly or substantially equivalent to rules of substantive law, and wherein difference between two branches is merely one of form rather than of substance.

8. Examining the matter in the light of the above discussion, it will be evident, that section 3 of the Limitation Act refers to suits, appeals, and certain applications, mentioned in the First Schedule. A perusal of the Schedule will show that its "First Division" which consists of Articles 1 to 149 deals with suits of various description mentioned in each relevant Article; "Second Division" which consists of Articles 150 to 157 deals with appeals and the "Third Division" comprising of Articles 158 to 183 deals with certain applications of various types. In all these Articles is mentioned) the requisite period of limitation within which the relevant suit, appeal or application can be filed. No Article and as a matter of fact no provision of section 3 of the Act by itself creates any right to file a suit, appeal o application. The right to file the relevant suit, appeal or application, of accrual of the relevant cause of action therefor flows from other provision of various relevant laws of the land and the Limitation Act simply assumes the existence of a cause of action for the same and regulates the period during which they may be institut6d. This will show that section 3 deals only with the procedural aspect of each type of lis, viz., as to within how much period it may be exercised by the person concerned. This type of provision which regulates such period of limitation has always been held to be of a procedural type. In Manoel Francisco Lopez and others v. Lieut. Godolpnin James Burslem, the Officers and Crew of Her Maj ship's VIPER and the Queen ((1843) 4 Moo. 300( PC)), it was held by their Lordships that law of limitation is a matter of procedure. Similarly in Her Highness Ruckmaboys v. Lulloobhoy Mottichund (5 Moo. I A 234 (PC)), it was held that the law of limitation is a law relating to procedure having reference only to lex foci. At page 265, Sir John Jervis said "In truth, it has become almost a maxim in jurisprudence that a law of . . . . ? . limitation which is meant by that denomination is a law relating to procedure having reference only to the lex fori. Again it was held m Hurrinath Chatterji v. Mohunt Mothoor Mohun Goswami ((1893) 20 I A 183), and. reiterated in Lala Khunni Gal v. Kunwar Gobind Krishna Narain and another ((1911) 38 I A 87), that "the intention of the law of limitation is, not to give a right where there is not one, but to interpose a bar after a certain period to suit to enforce an existing right" In Mosque known as Masjid Shahid Ganj and others v. Shiromani Gurdwara Parbankhak Committee, Amritsar and others (A I R 1940 P C 166), it was held that "the rules of limitation which apply to a suit are the rules in force at the date of the institution of the suit, limitation being a matter of procedure."

9. Coming to Pakistani case-law, for view of the Sind High Court see Bank of India Ltd. v. Muhammad Ashraf and others ( P L D 1965 Kar. 69 ), for Lahore High Court see Barnala Commission Shop v. The Income-tax Officer, B-Ward, Lyallpur (P L D 1963 Lab. 311), for Peshawar High Court see Mst. Sardar Begum v. Mst. Sherin Taja ( P L D 1970 Pesh.). The Collector, Mardan and 2 others v. Mst. Taja Bibi and 14 others ( P L D 1972 Pesh. 197 ), and for Quetta view see Dost Muhammad and another V. Rair Satik and another ( P L D 1962 Quetta 82). In .all these cases it has been held that limitation is a matter of procedure. In the face of this copious and consistent enuncia­tion of law on the subject, the view of the High Court to the same effect, does not suffer from any infirmity so as to call for any interference by this Court though here we may make one clarification and that is that three year bar is confined only to any fiscal law or any law relating to the collection of taxes and fees or banking or insurance practice and procedure and not to earlier part of the Explanation of Article 203-B.

(1) (1843) 4 Moo. 300 (P C) (3) (2) 5 Moo. I A 234 (P C) (5) (4) (6) (7) (8) 194 (9) P L D 1972 Pesh. 197(10)

10. The upshot of the above discussion is that since Article 203-B debars a Shariat Bench Court to examine validity of "any law relating t the procedure of any Court or tribunal", therefore, the High Court was justified in holding that section 3 of the Limitation Act being a procedural provision, it was beyond its jurisdiction to examine its validity under the aforesaid provision of the Constitution. The appeal is dismissed with no order as to costs. s. A. H. Appeal dismissed!