DAD MUHAMMAD Versus ADDITIONAL DISTRICT JUDGE-1

ORDER

SALEEM AKHTAR, J.--- These petitions will be disposed of by this order as the facts and questions of law involved are common. The petitioners seek leave to appeal against the judgment of the learned Judges of the Division Bench of the High Court, whereby Constitution Petition filed by them was dismissed.

2. Abdul Wahid had filed a suit for declaration and permanent injunction against the Quetta Municipal Corporation. It was pleaded that he was tenant of respondent No. 1 in respect of a shop and was regularly paying rent. The Quetta Municipal Corporation (hereinafter referred to as the Corporation) embarked upon a project for constructing a shopping plaza known as Baldia Shopping Complex and all the tenants/allottees were accommodated in the Complex. Thereafter another scheme known as Mini Market Thana Road was also planned for the occupants/allottees of the Corporation. Under an agreement the shops in the Mini Market were allotted to old occupants/allottees. Shop No. 160 in the' Mini Market was allotted to Abdul Wahid by letter dated 8-10-1990. In furtherance of this allotment order, the Corporation was to issue slip for deposit of the amount which the petitioner was required to pay in installments. The petitioner came to know that the Corporation was intending to allot those shops to some other persons and accordingly a suit was filed on 10-10-1990 for declaration that the allotment made to him was legal and refusal to issue deposit slip and the threat to cancel the allotment and re-allot to other persons was illegal and mala fide. The permanent injunction was also sought restraining the Corporation from re-allotting Shop No.160 to someone else. This suit was decreed ex parte on 3-3-1991 but in appeal filed by the Corporation the order was set aside. One Abdul Ham d and others had filed an appeal against the said ex parte order alleging that they had been allotted the shops. Their appeal was also allowed alongwith the appeal filed by the Corporation and they were allowed to be joined as defendants. The petitioner amended the plaint by joining them as defendants. The petitioner filed an application under Order XXIII, Rule 1, C.P.C. for withdrawal of the suit in which it was pleaded that the suit was filed on 11-11-1991 when possession of the shop had not been delivered to the allottees. Now the position was that the plaintiff-petitioner had also deposited money in the Bank. It was further stated that as the cause of -action had now changed, he wanted to withdraw the suit with permission to file fresh suit. The, application was granted by an order passed by the learned Civil Judge on 24-9-1992 in which it was stated that "because the nature of suit has been changed and the plaintiff wants to withdraw it with permission for filing fresh suit, the defendants' counsel has no objection and, therefore, it is accepted". Abdul Hamid, Abdul Hye, Abdul Latif and Abdul Rahim, who were joined as defendants in the amended plaint, filed revision application against the said order. The learned District Judge by judgment dated 8-2-1993 set aside the order dated 24-9-1992 mainly on the ground that opportunity of hearing was not afforded to them. The learned trial Court was, directed to hear the application under Order XXIII, Rule 1, C.P.C. filed by the petitioner-plaintiff and decide after affording an opportunity of being heard to both the-parties. The learned trial Judge again heard the application under Order XXIII, Rule 1 and granted it with permission. to file fresh suit subject to payment of Rs.500 as cost.

3. The petitioner filed a fresh suit seeking declaration that the allotments in respect of shops (Shop No. 159 and 160) were valid and he is the lawful allottee with possession and that the Corporation should issue deposit slips for payment of the dues and that the allotments made in favour of respondents Nos. 5 to 6 be declared as void and illegal and further that the respondents be restrained. from interfering with their possession. However, it seems that in the meantime respondents Nos.5 to 6 had filed revision application against order dated 20 th March, 1993 by which the suit was allowed to be withdrawn with permission to file fresh on payment of cost of Rs.500. The District Judge by judgment dated 17-11-1993 allowed the revision application and the impugned order was set aside. '.The case was remanded to the learned trial Court for decision on merits in accordance with law. . This order was challenged by the petitioner in the High Court by filing a Constitution petition which was dismissed by the impugned judgment.

4. During the pendency of the revision application before the learned District Judge, section 115, C.P.C. was amended and the provisions conferring power on the District Judge to hear the revision application was omitted by Ordinance No.XXXIII of 1993 promulgated on 13th October, 1993. Thereafter it seems that by Civil Laws (Reforms) Ordinance No.VI of 1994 the same provisions were re-promulgated However, subsequently by Act XIV of 1994 the Civil laws (Reforms) Act, 1994 again section 115, C,P.C. was amended and the provisions conferring power on the District Judge to exercise revisional jurisdiction was restored.

5. Section 115 before amendment by Ordinance XXXIII of -1993 reads as follows:--

"115. Revision .--(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:

Provided that, where a person makes an application under this sub-section, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court Provided further that such application shall be made within ninety days of the decision of the subordinate Court.

(2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which. no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.

(3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them. .

(4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court.

6. By Ordinance XXXIII of 1993 promulgated on 13th October, 1993, amendments were made in the following manner:--

"Amendment of section 115, Act V of 1908:

In the said Code, in section 115, subsections (2), (3) and (4) shall be omitted. "

7. Thereafter by Civil- Laws (Reforms) Ordinance (VI of 1994) was promulgated on 13th January, 1994 and the following amendment was made:--

" Amendment of section 115, Act V of 1908 .--In the said Code in section 115, subsections-(2), (3) and (4) shall be omitted:"

8. The Civil Laws (Reforms) Act,. 1994 was promulgated on 31st July, 1994 and the following amendment was made in section _115 in the following .manner:--

Amendment of section 115, Act V of 1908:

(a) in subsection (1), in the second proviso, after the words "subordinate Court", the following shall be added, namely:--

"Which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such application within six months; and

(b) after subsection (1), amended as aforesaid, the following subsections (2),(3) and (4) shall be added, namely:--

"(2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.

(3) If arty application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.

(4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court. "

9. The learned counsel contended that amendment by omission does not amount to repeal and that it will operate retrospectively as it relates to procedure and consequently the District Judge had no jurisdiction to decide the revision application. The High Court by the impugned judgment has taken a contrary view, which is correct. The learned counsel has referred to the meaning of the word "omission" which, according to the Black's Law Dictionary, means erase, remove, strike off. According to the Concise Oxford Dictionary, the word 'omission' means; "leave out, not to insert", and Webster's Dictionary also gives the same meaning and also 'pass over'. The question is whether omission means "repeal" or not. The word "omission" when used in a statute for the purpose of amending an existing law means that part of the statute which has been deleted has been erased and removed from the statute book as if it had never existed before. The amending statute usually use the word "omission" for textual amendment. The word "repeal" also conveys meaning of obliteration of one statute by another statute from - the statute book as if it had never been passed. In my view the words "repeal" or "omission" used in a statue for amending the entire or part of the statute carry the, same effect. The omission of any part of a statute by an amending statute will amount to repeal of that part which has been deleted and omitted. In such a situation section 6 of .the General Clauses Act will be applicable and, therefore; the pending proceeding at the time of such amendment will be decided by the Court where the proceeding was pending. In this, regard, reference can be' made to Fakhro v. Settlement Commissioner (PLD 1979 Karachi 486) and J.K.K. Angappan v. Income Tax Officer (1974) 94 Income Tax Reports 397). The learned counsel for the respondents has also pointed out that by Civil Laws (Reforms) Act, 1994, section 115 was amended- and the District Court has been conferred revisional power of the High Court. Therefore, the District Judge after promulgation of this Act is competent to exercise revisional jurisdiction as provided therein. Therefore on this question leave cannot be granted:

10. The learned counsel then contended that as cost was not accepted by the respondents, the petitioners are competent to object to the filing of the second suit. From, the record it seems that the Civil Judge had passed an order for payment of cost at the time of withdrawal of the suit. On the day when cost was paid, the petitioners were not present and it seems that it was accepted by the Municipal Corporation, Quetta. The question, therefore, arises whether acceptance of cost by one of the defendants would entitle other defendants to object to the filing of the second suit. Leave is granted to consider this question alone and no other question.

A.A./D-117/S Leave granted.