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Petitioner: ABUL KALAM VS Respondent: BASHIR AHMAD RANA AND ANOTHER
Court Name: Sindh High Court Judge(s): Ajmal Mian, k.A Ghani Title: ABUL KALAM vs BASHIR AHMAD RANA AND ANOTHER Case No.: High Court Appeal No, 28 of 1981 Date of Judgment:1984-12-12 Reported As: 1984 CLC 2997 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' AIMAL MEAN, J.-This High Court Appeal is directed against the order, dated 22nd February, 1981 passed in Suit No, 601/77 by Saeeduzzaman, J. The relevant facts leading to the filing of the above appeal are that the present appellant had filed the above suit for injunction and for recovery of Rs, 1,15,000. It seems that the above suit was dismissed in default on 5th November, 1979. An application under Order IX, rule 9, C. P. C: was filed on 7th January, 1980 i. e. After the expiry of 30 days limitation period, provided for under Article 163 of the Limitation Act. It is an admitted position that at the time of dismissal of the above suit and at the time of making application for restoration of the suit, section 5 of the Limitation Act was not made applicable inter alia to an application under Order IX, rule 9, C. P. C. However, while the above application was pending Ordinance X of 1980 1. e. The Code of Civil Procedure (Amendment) Ordinance, 1980 (hereinafter referred to as the Ordinance) was put into force, immediately i. e. On 16th March, 1980, when it was gazetted) Section 14 of the Ordinance inter alia incorporated a new sub-rule 3 in Order IX, rule 9, C. P. C. Providing that the provisions of section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to an application under sub-rule 1. It was contended by the learned counsel for the appellant before the learned Single Judge that the benefit of the above new provision could be pressed into service by the appellant. However, the learned Single Judge by his order under appeal has held that the above provision not being retrospective in effect was not applicable to the appellant's application under Order IX, rule 9, filed on 7th January, 1980, and, therefore, dismissed the above application being time-barred. The appellant being aggrieved by the above order has filed the present High Court Appeal. 2. (a) In support of .The above appeal Mr. Ashfaq Hussain learned counsel for the appellant has urged that the Ordinance extending the application of the above section 5 of the Limitation Act to
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an application under Order IX, rule 9, C. P. C. Being procedural law is to be given retrospective effect. On the other hand, it was contended by Mr. Fakhruddin Farooqi, learned counsel for the respondent that on the expiry of 30 days period of limitation for filing an application under Order IX, rule 9, C.P.C. a right in favour of the respondent accrued and, therefore, this right cannot be taken away by making the above provision applicable retrospectively in the absence of an express provision. (b) Mr. Ashfaq Hussain in support of his contentions has referred to Maxwell on the Interpretation of Statutes, 12th Edn., p. 222, Salmond on Jurisprudence 12th Ed. p. 128 the case of Mst. Bohre Bai widow of Khubchand Mahajan v. Ramsundar Prayagdutt Brahamin (I), of K. B. Irani and another v. The Custodian of Evacuee Property, Hyderabad (2), Pappathi Ammal v. Sivagannam Eillai and another (3), the case of The Stale v. Maulvi Muhammad Jamil and others (4), the case of Mst. Kamlabai and others v. Sheo Shankar Dayal and another (5), the case of Adrian Afzal v. Capt. Sher Afzal (6) and the case of Pitam Lal and others v. Kalaram and others (7). On the other hand Mr. Fakhruddin Farooqi, has referred to the case of Muhammad Ishaq v. The State (8), the case of Mst. Fattan Bi and 2 others v. Fateh Muhammad and 6 others (9), the case of Sarkar Butt Roy & Co. v. Shree Bank Ltd. (In Liquidation) (10), the case of National Bank of Pakistan, Hyderabad v. Messrs Hyderabad Tando Fazul Bus Service (11), the case of Messrs Samina Ltd., Karachi v. Federation of Pakistan (12), the case of Haji Ghulam Sarwar v. Daya Ram, (13), the case of Tolomal and 6 others v. Deputy Commissioner and Additional Settlement Commissioner, Khairpur and 3 others (14) and the case of Commissioner of Income-tax. v, Eastern Federal Union Insurance Company (15). #TBS (2) AIR 1952 Hyd. 152 (4) PLD 1965 SC 681 (6) PLD 1969 SC 187 (8) PLD 1956 SC 256 (10) AIR .1960 Cal. 243 (12) PLD 1978 Kar. 818 (14) PLD 1972 Kar. 116 #TBE (1) AIR 1938 Nag. 272 (3) AIR 1954 T C 526 (5) AIR 1958 SC 914 (7) AIR 1931 All. 489 (9) PLD 1974 Lah. 458 (11) 1980 CLC 1146 (13) 1974 SCMR 179 (15) PLD 1982 SC 247 3. It may be advantageous to reproduce hereinbelow the relevant passages from the aforesaid well-known books, Maxwell on the Interpretation of Statutes 12th Ed. p. 222 and Salmond on Jurisprudence 128 12th Ed. (i) "Maxwell. -The presumption against retrospective construction has no application to enactments which affect only the procedure and practice of the Courts. No person has a vested right in any course of procedure, but only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues, and if an Act of Parliament alters that mode of procedure, he can only proceed according to the altered mode. "Alternations in the form of procedure are always retrospective, unless there is some good .Reason or other why they should not be." (ii) "Salmond.-The limitation of actions is the procedural equivalent of the prescription of rights. The former is the operation of time in severing the bond between right and remedy ; the latter is the operation of time in destroying the right. The former leaves an imperfect right subsisting ; the latter leaves no right at all. But save in this respect their practical effect in English domestic law is the same, although their form is different.
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' The normal elements of judicial procedure are five in number, namely, summons, pleading, proof, judgment, and execution. The object of the first is to secure for all parties interested an opportunity of presenting themselves before the Court and making their case heard. Pleading formulates for the use of the Court and of the parties these questions of fact or law which are in issue. Proof is the process by which the parties supply the Court with the data necessary for the decision of those questions. Judgment is this decision itself, while execution, the last step in the proceeding, is the use of physical force in the maintenance of the judgment when voluntary submission is withheld. Of these five elements of judicial procedure one only, namely, proof, is of sufficient theoretical interest to repay such abstract consideration as is here in place. The residue of this chapter, therefore, will be devoted to an analysis of the essential nature of the law of evidence." (iii) As regards the case, reported in AIR 1938 Nag. 272, it may be stated that in the above case a judicial Commissioner of the Nagpur, Chief Court while construing the provisions of Order III, rule 4 (3) and Order IX, rule 13, C. P. C. Held that a suit terminates only by a decree, and that an application for restoration of a suit dismissed for default must be regarded as a proceeding in the suit and, therefore, a pleader is entitled to file an application for restoration of a suit without fresh appointment by the party. (iv) Referring to the case, reported in AIR 1952, Hyd. 152, it may be mentioned that in the above case a Division Bench of the Hyderabad High Court while construing Hyderabad Administration of Evacuee Property Regulations (12 of 1959) section 37, clause 2 held that the above section 37, clause 2 providing two months period for filing an application from the commencement of the 1359 F. Regulation being procedural law shall be applicable retrospectively, even though two months time under the prior regulation had elapsed. (v) Referring to the case, reported in AIR 1954 Tra.-Co. 526, it may be stated that in the above case, the following two questions were referred to a Full Bench by a Division Bench. (1) "Whether it was the Orders and Rules of the Indian Code of Civil Procedure or those of the Travancore Code of Civil Procedure that were in force in the Travancore area of this. State between 1st April, 1951 and 14th May, 1952 ? (2) Whether, in a case in which a suit filed in the Travancore area before 1st April, 1951 is dismissed for default after 1st April, 1951 and an application for restoration of the suit is made after 1st April, 1951 but before 14th May, 1952, the applicant can avail himself of the provision contained in section 5 of the Limitation Act ?." ' In order to appreciate the import of the above two-quoted questions, it may not be out of context to narrate the facts of the above case. The suit was filed on 7th May, 1950, which was dismissed in default on 22nd October, 1951. On 21st December, 1951 the plaintiff applied under Order IX, rule 9, C. P. C. For setting aside the order of dismissal. After that on 2nd February, 1952 an application to execute the delay in filing the above application for restoration was filed. It may be mentioned that when the above suit was filed the Travancore Civil Procedure Code was applicable, in which Order IX, rule 9, C. P. C. Contained a provision to the effect that section 5 of the Travancore Limitation Act could be applied to an application for restoration if the applicant could satisfy the Court that he had sufficient cause for not filing the application in time. The Travancore Civil Procedure Code was replaced by the Indian Civil Procedure Code on 1st April, 1951, which did not contain any provision for making section 5 of Limitation Act applicable to an application under Order IX, rule 9, C.P.C. However, Travancore Cochin High Court in exercise of the Rules-making power made section 5 of the Limitation Act applicable to an application under Order IX, rule 9, C. P. C. Which rule came into force on 14th May, 1952. ' In the above case the trial Court by its order, dated 1st April, 1952, on the basis that Travancore Civil Procedure Code which was in force when the suit was filed restored the suit. Against the above order a revision was filed in the High Court. Thereupon a Division Bench referred to a Full Bench the
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above two quoted questions. The majority judgment of the Full Bench was that neither the Travancore Civil Procedure Code containing the application of section 5 of the Limitation Act nor the Rule framed by the Travancore Cochin High Court, with effect from 14th May, 1952 making section 5 of the Limitation Act applicable to an application under Order XI, rule 9, C. P. C. Could be pressed into service. The majority view in the above case to some extent supports the contention of Mr. Akhlaq. Hussain. But the Court has not adverted to the question, as to whether existing rights can be disturbed by making even a procedural law applicable retrospectively in the absence of an express provision making it applicable retrospectively. (vi) Referring to the case reported in PLD 1965 SC 681, it may be stated that the facts in the above case were that 3 respondents were being tried for offence under section 420, P. P. C. At Dera Ghazi Khan on a complaint lodged by the 4th respondent. Some witnesses were examined in support of the complaint on 16th March, 1964 and 26th April, 1964, the statements of the accused were recorded under section 342, Cr. P. C. The case thereafter was adjourned for arguments. However, on 1st April, 1964 the Code of Criminal Procedure (West Pakistan) (Amendment) Act, 1964 was brought into force, which had done away with the right given by section 256 of the above Code to an accused person to call for further cross-examination of the witnesses earlier examined, after the framing of the charge. A revision petition was filed in the High Court for quashment of the above proceedings inter 'alia on the ground that the accused persons were illegally deprived of their right to recall the witnesses under section 256, Cr. P. C., examined before the framing of the charges. Though the High Court declined to quash the proceedings, but at the same time it was held by it that under section 256 of the Cr. P. C. The accused persons had vested right to recall witnesses after the framing of the charges which could not be taken away by the amending law. The above finding of the High Court was assailed before the Supreme Court of Pakistan in an appeal. In the above context the following observations were made by the Honourable Supreme Court. "The general principle is that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute shows a clear intention to vary such rights. Where the Legislature has made its intention clear that the amending Act should have a retrospective operation, there is no doubt that it must be so construed even thougb the consequences may entail hardship to a party. But even without express words to that effect retrospective effect may be given to an amending law if the new law manifests such a necessary intendment. With regard to procedural laws, says Maxwell at p. 217 of his Book, the general principle seems to be that alterations in procedure are retrospective unless there be some good reason against such a view." (vii) As regards the case of AIR 1952 Born. 365, it will suffice to observe that a Division Bench of the Bombay High Court while construing clause 12 of Letters Patent (Bom.) observed that no party has vested right to a particular procedure or to a particular forum and that it is also a well-settled principle of law that all procedural laws in force must be applied at the date when the suit or proceeding comes on for trial or disposal. The Court is bound to take notice of the change in the law as it was when the suit came up for hearing. It was further observed that if the Court has jurisdiction to try the suit when it came up for disposal, it cannot refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date when it was instituted. (viii) As regards the case of AIR 1958 SC 915, it may be stated that in the above case the Supreme Court of India observed that no person has a vested right in any course of procedure and that he has the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending. It was further observed that if by an Act of the Parliament a mode of procedure is altered, he has no other right than the procedure according to altered mode. In the above case the question before the Supreme Court was, whether newly-enacted section
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342-A, Cr. P. C. Was applicable to pending proceedings. It was held that one of the principles of interpretation is that the words should be construed in such a manner as to avoid conflict and that the proper construction of clause (o) and rest of the wordings of section 116 would be that the provisions of section 4 (w), 207-A, 251-A or 260 of the Code as amended, do not apply or affect any enquiry or trial before the Magistrate whether the recording of evidence had started prior to the date of the commencement of the Amending Act. (ix) Referring to the case reported in PLD 1969 SC 187, it may be mentioned that in the above case the point in issue before the Supreme Court of Pakistan was, whether the pending proceedings under section 488, Cr. P. C. Were affected by the enforcement of the West Pakistan Family Courts Act (XXXV of 1964). It was held that a comparison of the provisions of section 488, Cr. P. C. And of the West Pakistan Family Courts Act, 1964 indicates that the provisions of the latter enactment are of more beneficial nature, which enlarge not only the scope of the inquiry but also gives the Courts powers of given greater relief, with a right of appeal either to the District Court or to the High Court. It was further held that the combined effect of sections 5 and 20 of the Act was to give exclusive jurisdiction to the Family Court without in any way diminishing or curtailing the rights already possessed by a litigant with regard to scheduled matters. It was, therefore, held that the Magistrate, had no longer any jurisdiction either to entertain, hear, or ajudicate upon a matter relating to maintenance. (x) As regard the case reported in AIR 1931 All. 489, it may be stated that a Full Bench of the Allahabad High Court held that the Succession Act, 1925, would be applicable to a will made before coming into force of the above Act in respect of which application for probate was made shortly prior to its coming into force, I as the new Act laid down a rule of procedure and not substantive law and, therefore, the new Act could govern the proceeding. (xi) As regard the case reported in PLD 1956 SC 256 it may be observed that the Supreme Court of Pakistan while construing the provisions of Article 159, clause (a) of the Constitution of Pakistan, 1956, held that the same was not retrospective in effect. It was observed that where a statute affects the substantive right, I the absence of express words or necessary intendment, it is to be construed prospectively and not retrospectively and that the right of appeal is a s sanative right, which could only be conferred or taken away retrospectively y express words or necessary implication. (xii) Referring to the case reported in PLD 1974 Lah. 458, it may be stated that a learned Single Judge of the Lahore High Court while construing the provisions of Punjab Limitation Act by way of gift by a widow having limited interest under the custom, having not been challenged within the limitation period provided by the above Act, cannot be challenged after the repeal of the above period on account of the application of Article 141 of the Limitation Act. (xiii) Referring to the case reported in AIR 1960 Cal. 243, it may be stated that a Division Bench of the Calcutta High Court while construing the provisions of subsection (1) of section 45 of the Banking Companies Act, 1949 as amended by Act 52 of 1953 held that the effect of section 45-0 (1) of extending the period of limitation for filing an application for execution of a decree by a banking company in absence of express words or necessary intendment cannot operate to revive and render the decree effective, which had become time-barred under the previous law, namely, Article 182 (7) of the Limitation Act. (xiv) With reference to the case reported in 1980 CLC 1146, it may be mentioned that question before a learned Single Judge of this Court was whether the amendment brought about by the Law Reforms Ordinance (XII of 1972) in respect of curtailing of limitation period from 12 years to 6 years could be given retrospective effect. It was held by Zaffar Hussain Mirza, J. (as he then was) that amendment curtailing period of limitation cannot be given retrospective effect as to wipe out cause of action accruing prior to the amendment.
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(xv) Referring to the case reported in PLD 1978 Kar. 818, it will suffice to state in the above case one of us (Ajmal Mian, J), held that limitation period for an application under Order IX, rule 13, is thirty days from the date of decree which being the date of judgment and that section 5 was not applicable to such an application at the relevant time. (xvi) As regard the case reported in 1975 SCMR 179 it may be stated that the Supreme Court while construing Article 168 of the Limitation Act held the time for re-admission of an for want of prosecution runs from the date of dismissal and not from the date of knowledge. (xvii) Reverting to the case sported in PLD 1972 Kar. 116, it may be stated that in the above case a learned Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench held that for restoration of a writ petition an application under section 151 could be made and limitation would begin from the date of knowledge and not from the date of dismissal. (xviii) As regard the case reported in PLD 1982 SC 247, it may be stated that the Supreme Court of Pakistan while construing Finance Act, 1957 amending the provision of section 19 of the Business Profits Tax Act, with effect from 4th March, 1957 held that under section 14 of the Business Profits Act relating to the chargeable accounting period ending on 31st December, 1952, having expired on 31st December, 1956, the assessee acquired a right and the assessment of the said period became past and closed transaction and that right could not be taken away by giving retrospective operation to the amending statute or provision extending the period for an assessment and making the assessm ent in question on 31st January, 1958. (xix) In this regard it may also be pertinent to refer to the case of Bank of India v. Muhammad (1) in which a Division Bench of erstwhile High Court of West Pakistan, Karachi Bench made following observations while considering the question of amendment relating to the limitation :- "It is perfectly clear that it is not one of those cases in which the plaintiffs had lost their right to recover the debt from the defendants. At the time of the institution of the suit even under the unamended Act their claim was within time and there is no dispute on that point. The amendment has only enabled them to seek the speedy remedy within a longer period and introduce a change only in procedure. In our opinion with great respect it will be too much to hold that the summary procedure provided by Order XXXVII, C. P. C. Has created any substantive or vested right in favour of the defendants for it is solely for the benefit of the plaintiff. There is not the slightest doubt that the Amending Act has not in any way curtailed any existing right of the defendants. We find no force in defendants counsel's connection that the defendants had unlimited right to defend the claim. It is always subject to procedural law. (1) P D 1965 (W p) Kar. 69 ' In these circumstances the provision of section 6 of the General Clauses Act has no application to the present case. In Soni Ram v. Kanhaiya Lad (40 I A 74) one of the contentions raised before the Privy Council was that the Limitation Act applicable to the case was Act XIV of 1859, and, therefore, the acknowledgments of the existence of certain mortgagee of 1842 which were contained in some deeds executed by Mst. Jamna and Mst. Janki the two Hindu ladies were sufficient to keep the right alive. In this decision their Lordships approved this view of the High Court that the law of limitation is applicable to a suit or proceedings unless there is a distinct provision to the contrary on the following observation :- 'As to that contention it is sufficient for their Lordships to say that they agree with the High Court that Act XIV of 1859, does not apply to this suit and that the Limitation Act which does apply is Act XV of 1877, and further that the acknowledgments which were made by Mst. Jamna and Mst. Janki were not acknowledgments within the meaning of section 19 of Act XV of 1877, made by a person or persons through whom the defendants derived title or liability.' ' It, therefore, appears to us that in a case where the right of the plaintiff to recover that debt had not become barred at the time when the amended Act was enforced, a procedural change in the
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period of limitation prescribed for summary suit cannot be considered to be affecting any vested right so as to attract the principles recognised in section 6 of the General Clauses Act. With great respect in the Bombay case this aspect of the case was not brought to the notice of the learned Judge and we do not consider that that decision has laid down correct law." 4. From the aforesaid two well-known books and from the above-cited and discussed cases the following legal principles are deducible :- (i) That the presumption against retrospective construction has no application to an enactment, which affects only the procedure and practice of the Courts. (ii) That no person has any vested right in any course of procedure but only the right of prosecution of defence in the manner prescribed for the time being by or for the Court in which he sues. (iii) That if the procedure is altered by a competent Legislature a party can only proceed according to the altered mode of procedure. (iv) That the limitation of action Akins to the prescription of rights. The former serves the bond between right and remedy and the latter is the operation of time in destroying the right. (v) A suit terminates upon passing of a decree. (AIR 1938 Nag. 272). (vi) That a Regulation relating to Evacuee Properties may provide a fresh period of limitation for filing an application under certain provisions of the Evacuee Law (AIR 1952 Hyd. 152). (vii) That if section 5 of the Limitation Act is not applicable to an application under Order IX, rule 9, C. P. C. On the date when it comes up for hearing, the…
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