JALAL vs MUHAMMAD SHAFI and another
This petition for leave to appeal arises from a civil dispute where the plaintiff sought a declaration against an order of the High Court. The High Court had earlier disposed of a Regular Second Appeal by recording that, pursuant to section 2-A of the West Pakistan Muslim Personal Law (Shariat) Act, 1962, as inserted by Ordinance XIII of 1983, the impugned judgment and decree had become void, inexecutable, and of no legal effect, and the appeal had abated. The petitioner subsequently sought a review before the High Court, contending that the executability of the decree should not have been decided by the appellate court and raising questions of documentary evidence and the religious status of a party, which the High Court dismissed as an afterthought. The core legal question was whether the High Court was justified in declaring the decree void and abating the appeal under the intervening statutory amendment rather than leaving the question for the executing court. The Supreme Court held that the High Court was perfectly justified in recording the legal consequence of a law enacted during the pendency of the appeal, and consequently dismissed the petition for leave to appeal.
- Whether the High Court can declare a decree void and record the abatement of an appeal under section 2-A of the West Pakistan Muslim Personal Law (Shariat) Act, 1962 during the pendency of proceedings?
- Should the question of the executability of a decree affected by an intervening statutory amendment be left for the executing court to decide?
- Does a change in law enacted during the pendency of an appeal permit the appellate court to record that the impugned decree has become void and of no legal effect?
- Section 2-A, West Pakistan Muslim Personal Law (Shariat) Act 1962
- Ordinance XIII of 1983 West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance 1983
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by the plaintiff in a suit for declaration against the order by the High Court, Civil Miscellaneous Application No,2852/C/1984 in Regular Second Appeal No,265 of 1979, filed by respondents side which had earlier been disposed of with the following operative order-- "It was by the said Ordinance XIII of 1983 West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 that section 2-A was inserted in the West Pakistan Muslim Personal Law (Shariat) Act, 1962. By operation of clause (b) of section 2-A the judgment and decree impugned herein have become void, inexecutable and of no legal effect, and under clause (c) thereof the appeal before me has abated. These facts are hereby recorded."
2. ' The order passed by the High Court on the Civil Miscellaneous Application is reproduced below-- "Before passing judgment dated 9th May, 1984 I had heard learned counsel for the parties at length. Learned counsel for the petitioner, who was respondent in appeal, decided by the aforesaid judgment, raised only one objection, namely, that there was no documentary evidence on the record to show that Bashir had inherited the disputed land under custom before 15th March, 1948 and the same was repelled by me on the basis of the record. It was not urged by him that the question of executability of the decree could not be decided by this Court nor it was pleaded by him that Karam Elahi was a non-Muslim. The assertions made in this behalf are an afterthought and do not call for a review of the said judgment. The C.M. Is, accordingly, dismissed in limine."
3. ' Learned counsel has contended that the High Court was not justified in declaring that the decree in petitioner's favour passed by the First Appellate Court had become void on account of the promulgation of 1983 Punjab Ordinance and further that this question should have been left for the executing Court to decide. We do not agree with him. The learned Judge in the High Court was perfectly justified in recording the fact of a law which was enacted during the pendency of the appeal before the High Court. That being so, no justification has been made out for grant of leave to appeal. This petition, therefore, is dismissed.