MUHAMMAD BASHI Versus MUHAMMAD FIRDAUS

MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal through leave of this Court is directed against the judgment, dated 10‑5‑1986 of the Lahore High Court, whereby a Constitutional Petition filed by the appellants (tenants) arising out of an order of their eviction under the Cantonment Rent Restriction Act, 1963, was dismissed.

2. The application of respondent No. 1 (landlord) for appellants' eviction from a shop filed on 27‑6‑1983 was dismissed by a learned Rent Controller on 18‑7‑1984. Appeal filed against the appellants' before the District Court on 29‑7‑1984 was allowed on 8‑3‑1985 and they were ordered to be evicted on the ground of personal requirement of the landlord. In the meanwhile before the decision of the appeal by the District Court, the forum of appeal against the order of the Rent Controller passed under the Cantonment Rent Restriction Act, was changed and the jurisdiction regarding appeal was conferred or. the High Court by virtue of the substituted section 24 of the Act; through an amending Ordinance, namely, Cantonment Rent Restriction (Amendment) Ordinance (IX of 1985)‑‑Section 8 thereof. This Ordinance came into force on 31st of January, 1985. The appellants then filed a Constitutional Petition before the High Court because no second appeal was competent under the unamended Act. The petition was argued and pressed only on merits. The competency of tte District Court to hear the appeal under section 24 of the Act was admittedly not challenged. A learned Single Judge having considered the arguments then advanced on behalf of the appellants', dismissed the writ petition on merits. They, feeling aggrieved by the judgment of the High Court, preferred a petition for leave to appeal in this Court. It was argued by their learned counsel:‑‑ "that by the Cantonments Rent Restriction (Amendment) Ordinance (IX of 1985) promulgated on 21st January, 1985, section 24 of original Act was substituted and in the substituted provision the order of the Rent Controller was made appealable to the High Court and not to the District Judge, as in the original provision. The contention is that after the aforesaid change in the law, the District Judge had no jurisdiction to determine the appeal, hence the order of the learned Additional District Judge, dated 8‑3‑1985 was a nullity at law. In support of this submission reliance was placed on Adnan Afzal v . Sher Afzal P v D 1969 S C 187. The order passed by the High Court in Writ jurisdiction dismissing the writ petition of the petitioners was also of no avail ...................... "

Leave to appeal was accordingly granted.

3. The learned counsel for the appellants has reiterated the same argument; and, relying on a recent judgment of this Court Bashir v. Wazir Ali (1987 S~ C M R 978) further contended that the change of forum of appeal being a procedural subject, the amendment in section 24 of the Act made by Ordinance IX of 1985 would operate retrospectively. And that being so, the appeal before the District Court had become incompetent on the enforcement of the said Ordinance. Therefore, in this view of the matter the District Court having lost jurisdiction, could not have allowed the respondents' appeal; and, the High Court committed error in not allowing the appellants' writ petition. He also brought to our notice the following cases:‑‑

Sona and another v. The State and others P L D 1970 S C 264; Adnan Afzal v. Capt. Sher Afzal P L D 1969 S C 187; Khushiram Atmaram Jaisinghani and others v. Custodian of Evacuee Property PLD 1965 S C 453; The State v. Maulvi Muhammad Jamil and others PLD 1965 S C 681; Saeed Ahmad v. The State P L D 1964 S C 266; Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner (Pakistan), Lahore and others P L D 1964 S C 829; Abdul Manan v. Haji Karam Ellahi P L D 1971 Quetta 1; Pakistan, through Secretary, Ministry of Refugees & Rehabilitation and another v. Devachand Muljimal and others P L D 1968 Kar. 107; Shuja‑ud‑Din Qureshi v. Mst. Husan Ara Begum P L D 1964 Lah. 292; Nasir Mahmud v. The State P L D 1961 Lah. 285 and Salamat Ali Jafri v. The Province of West Pakistan and two others P L D 1956 Lah. 548.

4. When questioned as to whether any of these cases helps the learned counsel in so far as the question of change of forum of appeal is concerned, he to be fair, candidly stated that he was not sure in that behalf; but he thought, these cases generally deal with the effect of an amendment on a procedural subject.

5. The learned counsel for the respondent has contended that ordinarily unless by words or clear intendment the amendment changing an appeal forum is made to apply retrospectively, it would not affect the pending appeals. That being so the District Court, when deciding the respondent's appeal in this case, had the jurisdiction to do so. He relied or! the following cases: ‑‑

Raja Maula Dad Khan v . West Pakistan Bar Council, Lahore and another P L D 1975 S C 469; Venugopala Reddiar and another v. Krishnaswami Reddiar alias Raja Chidambara Reddiar and another A I R 1943 F C 24; Pakistan, through Secretary, Ministry of Refugees and Rehabilitation and another v. Devachand Muljimal and others P L D 1968 Kar. 107; Small Town Committee, Budhlada v. Firm Bhuria Mal‑Parmeshwari Dass A I R 1953 Punjab 94; Nikka Singh v. The State A I R 1952 Punjab 186 and The Colonial Sugar Refining Company Ltd. v. Irving 1905 A C 369.

According to him the two Punjab cases from Indian Jurisdiction relate to change of forum of appeal and further that the Karachi and the Privy Council cases also dealt with the change of forum.

6. Our research staff also took out the following cases as they have bearing on the subject in issue:‑‑

Khan Muhammad and others v . Ishtiaq Hussain 1987 S C M R 1482; Governor, N.‑W.F:P. and another v. Gul Naras Khan 1987 S C M R 1709; Abdur Rehman v. Mir Ahmad Khan P L D 1983 S C 21; Federation of Pakistan v. Muhammad Siddiq 1980 S C M R 443; Hassan and others v . Fancy Foundation P L D 1975 S C 1; Alifdin v . Shaukat Ali P L D 1969 Pesh. 62 and Idrees Ahmad and others v. Hafiz Fida Ahmad Khan and others P L D 1985 S C 376.

7. Despite hearing the learned counsel for the appellants at considerable length, we have not been able to agree with him. It is not necessary to analyse all the cases cited by him. However, some of them having direct bearing on the subject in issue, would be noticed.

8. The case of Bashir heavily relied upon by the learned counsel for the appellants, in so far as the headnote given in the law report is concerned, only on face tends to support him But on proper analysis, it is of no help to him; nor, it has the effect of changing the law declared by this Court in its other decisions. All are to be read together. In Adnan Afzal's case the Court observed as follows: ‑‑

"The general principle with regard to the interpretation of statutes as laid down in the well‑known case of the Colonial Sugar Refining Company Limited v. Irving 1905 A C 369 is that 'if the matter in question be a matter of procedure only', the provisions would be retrospective. 'On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act', then 'in accordance with a long line of authorities extending from the time of Lord Coke to the present day', the legislation would not operate retrospectively, unless the legislature had either 'by express enactment or by necessary intendment given the legislation retroactive effect."

9. No doubt while dealing with what are matters of procedure, the Court observed that "a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only". But a very important exception regarding both the above‑noted rules was also spelled out as follows:‑‑

"Nevertheless, it must 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 a procedural statute, favour an interpretation giving retrospective effect to the statute."

10. The controversy in Adnan Afzal's case did not relate to the change of forum of "appeal". Had it been so the question of "existing rights" would have been the deciding factor. Instead the relevant provisions of the Family Courts Act particularly those relating to exclusive jurisdiction of the Family Court, were noted in addition to the procedural nature of the law, for giving retrospective effect to them. The question regarding change of "forum of appeal", on the other hand stood resolved in the Colonial Sugar Refining Company's case as follows:‑‑

"It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal" to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well‑known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."

11. This view has been adopted in a large number of cases. In this case there are further two elements. One, that the right of appeal before the District Court remaining in tact, it would still l leave a scope for approach in the High Court through writ jurisdiction. But it is to be emphasized that it is not the determining factor.

Secondly, there is nothing in the amended section 24 of the Cantonments Rent Restriction Act to indicate that the pending appeals were to be affected by the amendment regarding change of forum of appeal. Had it been so, the position would have become different. In the light of the foregoing discussion, this appeal merits to be dismissed.

12. The reliance of the learned counsel on the case of Bashir is of no avail to the appellants. The appeal in that case lay under section 18 of the Punjab Civil Courts Ordinance II of 1962, before the High Court if the value of the suit exceeded Rs.25,000. The amendment of 1986 increased this pecuniary limit to Rs.2,00,000. Notwithstanding that the appellant therein wanted the appeal with lesser value to be heard by the High Court as the right to appeal had accrued earlier than the amendment. The principles laid down in Adnan Afzal's case were brought to the notice of the learned counsel appearing in that case who failed to show that the amendment did not affect his case. The distinguishing features in that case were: the transfer of the appeal by the High Court to the District Court; and, the intendment of the legislature implying the procedure adopted by the High Court. The same question as was involved in the case of Bashir was examined in the case of Khan Muhammad and others. And the aforenoted position was explained.

13. Before parting with this appeal it is clarified that this appeal merited to be dismissed also on the ground that the point not having been urged before the High Court, it could not be said that the High Court committed any error. However, the jurisdictional question has been examined to remove any doubt or uncertainty in that behalf.

14. With these observations this appeal is dismissed with no order as to costs.

M. B.A./M‑352/S Appeal dismissed.