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Petitioner: Kabir Hussain VS Respondent: Arshad Saeed & others
Court Name: Peshawar High Court Judge(s): Wiqar Ahmad Title: Kabir Hussain vs Arshad Saeed & others Case No.: R.F.A. No. 296-A/2020 Date of Judgment:2022-12-05 Reported As: 2022 PHC 646 Result: Accordingly Disposed of
Judgment Judgment WIQAR AHMAD, J. This single judgment is directed to dispose of this Regular First appeal as well as connected Cross Objection, as both arise out of one and same judgment of the learned Civil Judge-VI, Abbottabad dated 29.06.2020, whereby suit of the appellant/plaintiff was disposed of by way of a summary judgment. Appellant has also assailed interim order dated 02.11.2019, earlier passed during pendency of the suit. 2. Appellant and respondents, as per averments of plaint, have entered into an agreement dated 17.08.2015 whereby appellant had to pay price of landed property measuring 40 Kanals 10 Marlas to the respondents at the rate of Rs. 41,00,000/-, which price was also provided to be increased by 15% every year after 14.08.2016. As a result of said agreement between the parties, certain amount was received by the respondents and consequent thereto mutations were also entered and attested. As per appellant, though he was intending to pay remaining sale consideration to the respondents, but they were delaying transfer of ownership of the land as per terms of the agreement, therefore, he brought suit before the learned trial Court. Defendants were summoned who appeared and contested the suit, however, during pendency of earlier suit, parties entered into another agreement dated 22.02.2019 and in the light of said agreement, appellant sought amendment in plaint. Learned trial Court allowed amendment and appellant submitted amended plaint on 05.12.2019. Respondents then filed application before the learned Civil Court for summarily rejecting the paint while appellant filed application for direction to respondents to handover peaceful possession of the land. Learned trial Court, vide order dated 29.06.2020, held that there was no need of recording evidence, as such decided suit in the terms that defendants were directed to
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attest mutation of 01 Kanal and 09 Marlas in favour of petitioner, whereas security of petitioner was forfeited. Feeling aggrieved, parties have filed the appeal as well as cross objection. 3. Arguments heard and record perused. 4. Perusal of record reveals that instant appeal arises out of judgment and decree dated 29.06.2020 passed by the learned Civil Judge-VI, Abbottabad, whereby learned civil Court has partially decreed the suit while on the other hand, same has also been dismissed partially. The following questions emerged for determination in the instant appeal: A. Whether appeal in a suit carrying value of 166 million would be heard by this Court or the Court of District Judge, after changes brought in the forum of appeal by the Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020? B. Whether the instant suit has rightly been disposed of by way of a summary judgment under Order 15-A of the Civil Procedure Code? C. Whether resolution of dispute in the manner provided in the impugned judgment and decree has properly been made, in accordance with law? D. Whether order for deposit of rupees 10 crore, had rightly been made on 02.11.2019 and non- compliance thereof had rendered the suit liable to rejection straightaway? Resolution of Question A. 5. This Court while giving its judgment in the case of "Ameer Zada and others Vs. Mian Zamin Khan and others" reported as 2021 CLC Peshawar 2042, has settled the law relating to effect of Khyber Pakhtunkhwa Civil Procedure Code (Amendment) Act, 2020, on pending appeals in the following words: "As explained earlier, Section 96, C.P.C. provided a right of filing an appeal in case of any final judgment and decree passed by Civil Court before District Judge as well as a right of filing an appeal in case of any final judgment or decree passed by the Court of learned District Judge before High Court. Section 6 inserted through the Amending Ordinance provided pecuniary jurisdiction of the original Courts hearing civil suits as follows; "6. Pecuniary Jurisdiction.--- Save in so far as is other expressly provided, all civil suits shall be filed in the following manner, namely: a) where the amount or value of the subject matter of the suit is below rupees fifty million, the suit shall be filed in the Court of Civil Judge, as may be prescribed by the High Court; and b) where the amount or value of the subject matter of the suit is rupees fifty million or above, the suit shall be filed in the Court of District Judge, as may be prescribed by the High Court." The state of law emerging in respect of forum of appeal as a result of amendment brought in C.P.C. by the Amending Ordinance, may be restated as follows; a) Suits having amount or value of the subject matter of less than rupees fifty million, may be instituted in the Court of Civil Judge having territorial jurisdiction in the matter. In such cases, appeal has been provided to lie before District Judge concerned as per newly substituted Section 96, C.P.C. b) Where amount or value of subject matter of a suit is rupees fifty million or above, suit shall be filed before District Judge having territorial jurisdiction in the matter directly while appeal in such a case would lie before High Court as provided in the newly added Section 96, C.P.C. The question for determination in all these cases has been; I. Whether appeal in all these cases having amount or value of subject matter of more than rupees ten million may be heard by District Judge concerned? 6. There has been no ambiguity regarding the state of law existing in respect of pecuniary limits of jurisdiction for filing appeal as explained in sub paras (a) and (b). The maximum pecuniary limits for District Judge, as an appellate Court in civil cases provided by Section 18 of the West Pakistan Civil Court Ordinance as rupees ten million, may not prevent a District Court from hearing appeals
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of an amount of more than rupees ten million, as provided in newly added Section 6 read with Section 96 C.P.C., for the reason that a non-obstante clause has been put in place in the newly inserted Section 96, C.P.C. by stating "save where otherwise expressly provided in the body of this Code and notwithstanding anything contained in any other law for the time being in force". This non-obstante clause appears to have been knowingly and intentionally introduced, so as to remove doubt, which might have arisen because of a conflict in West Pakistan Civil Courts Ordinance, 1962 and the newly amended provisions of C.P.C. vis--vis the limits of pecuniary jurisdiction of District Judge, for hearing civil appeal. Non-obstante clause is a legislative tool employed to give an over-riding effect to certain provision over contrary provision that may be found in the same enactment or in a different enactment in order to avoid the operation and effect of all contrary provisions. Whenever the legislature uses a non obstante clause, Courts of law have always been taking it as an over-riding factor by giving effect to the laws whose operation is sought to be given precedence over any other provision of law existing to the contrary." At the conclusion of judgment, it was finally held:- "In light of what has been discussed above, the conclusion is inevitable that jurisdiction of District Judge to hear appeals against judgments and decrees of Civil Judges stood vested as a result of promulgation of the Amending Ordinance and the appeals in hand therefore fall within the pecuniary limits of jurisdiction of the District Judge, to hear appeals." 6. In above cited judgment, it was finally concluded that District Court would have a pecuniary jurisdiction, enhanced according to Section 6 of the Amending Act of 2020(i.e. more than ten million), but this appeal having a value of more than 50 million, requires adjudicating upon a new question, so posed. Suit in the case in hand was having a value of rupees 166 million. The learned District Judge was not having jurisdiction of hearing an appeal under the last amendment made in Section 18 of the West Pakistan Civil Courts Ordinance, 1962. Khyber Pakhtunkhwa Civil Court amendment Act, 2017 had the effect of enhancing jurisdiction of District Judge to hear appeals to the extent of 10 million. Under the new dispensation for hearing appeals, it was provided that District Court would have jurisdiction to hear appeals in all orders arising from civil Courts but jurisdiction of civil Court had been curtailed to a pecuniary limit of any amount less than 50 million. In said legal dispensation, the jurisdiction of hearing appeal for a District Court would be deemed to have been enhanced to the extent of any amount less than 50 million. The Legislature has provided in newly amended Section 6 of the Civil Procedure Code that Civil Court would have maximum limit of jurisdiction to try civil suits with value of any amount less than 50 million. By implication, it emerged that a suit with a value of less than 50 million would be instituted before Civil Court and appeal in said case would be heard by District Court. Under the new legal regime, introduced through the amending Act, power of trying suits on original side having value of 50 million or more were given to District Courts and same have been provided to be Courts of institution for such category of suits. Same forum cannot be a forum of institution of suit as well as appeal in same category of suits having value of more than 50 million rupees. Placing such an interpretation on the Act would lead to absurd consequences. Hon'ble Supreme Court in the case of "Oxford University Press Vs. Commissioner of Income-Tax" reported as 2001 PTD 2484,has held that interpretation of a statute which leads to absurd consequences, should be avoided. Similarly, this court in its earlier judgment, given in the case of "Shahzada Colonel Sharif-ud-Din and others Vs. The Settlement Officer District Upper and Lower Chitral and others" reported as 2021 CLC Peshawar 1968, has also concluded that when an interpretation leads to absurd consequences, then same should not be placed upon provision of a statute. 7. One of the issue, that requires clarification in this respect, is that as per Section 6 of the Amending Act of 2020, an appeal lies to the next forum in the civil hierarchy, one step above the original court. Then holding that an appeal against decision of civil court in a suit having value of
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50 million or more may ostensibly seem to be in conflict with said provision. In this respect it requires clarification that newly inserted Section 6 is to be read with newly inserted Section 96. Section 6 provides pecuniary jurisdiction for filing of suits, as explained above. Section 96 starts with the words "Save where otherwise expressly provided in the body of this code" wherefrom we can well gather intention of the legislature that said provision had to be read in conjunction with other provisions contained in the code. Besides, by way of adopting purposive approach, we would also be able to get at the real intention of legislature, by combined reading of newly inserted Section 96, 106 and Section 6 of the Code. While adopting a purposive approach, a little deviation may also be made from the rule of literal construction so as to achieve the object and purposes for which legislature has enacted the law. Such an approach would also help void absurdity which is otherwise likely to occur in interpretation of newly inserted Section 96 as mentioned above. Hon'ble Supreme Court of Pakistan, while giving its judgment in the case of "Dilawar Hussain and others Vs. Province of Sindh and others" reported as PLD 2016 SC 514, has held that while interpreting an amended provision in a statute, the object and purpose of the amendment must necessarily be looked into. Relevant observation in this respect are also reproduced hereunder for ready reference:- "Obviously in such a situation where a section cannot be given its due effect while reading its plain word(s); the cardinal principle of interpretation is to be resorted to which has two intertwined aspects: one, the wording of the statute itself; and second, the purpose of the enactment. Thus the question before us is whether the object and purpose of the amendment (insertion of Section 28- A ibid) in the Act and the intention of the legislature in respect of the amendment should be given precedence or whether the provision should be given effect through a literal construction. Where the language of the section is ambiguous, is the Court barred from examining it in order to discover its true purpose and intent (especially where the provision has been brought into the statute through an amendment)? Construction of Statutes (1940) by Crawford, relied upon by the learned counsel for the appellants in support of a literal interpretation, actually encourages a discernment of the purpose of the statute and the intention of the legislature; the relevant extract reads as follows:- "Since the purpose of construction is to ascertain the legislative intent, this constitutes the major step in the process of interpreting statutes...ascertaining the intention of the legislature forms the very heart of the interpretative process... ... ... ... ... ... ... ... .The first source from which the legislative intent is to be sought is the words of the statute. Then an examination should be made of the context, and the subject matter and purpose of the enactment." Further ahead in said judgment, it was also observed:- "More recently, "The Judge in a Democracy" by Aharon Barak2 sets out the merits of purposive construction which ought to consider the context of the statute as well as principles, values, and the fundamental views of society rather than a literal or textual interpretation of a statute. An analysis of the cases of Syed Shakir Ali Jafri (supra), Ramzan (supra) and Gul Muhammad (supra) does not support any enunciation of law wherefrom it can be said that some bar or fetter has been placed upon the court in interpreting the said provision by seeking out its object and purpose whilst also taking into account its literal meaning. 8. In fact, a purposive approach in interpretation has been approved and employed to achieve the intent of the legislature while interpreting certain provisions of the Constitution in the cases reported as Messrs. Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641), Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another (2012 SCMR 6), Province of Sindh through Chief Secretary and others v. MQM through Deputy Convener and others (PLD 2014 SC 531) and Dr. Raja Aamer Zaman v. Omar Ayub Khan and others (2015 SCMR 1303). In Gadoon Textile Mills (supra) it has been stated:
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"To interpret is to understand. For a purposive construction of the statutory and constitutional provisions, the courts now freely make use of their parliamentary history, policy statements of the movers of the Bills and the concerned ministers in particular. That is interpreting the constitutional provisions in light of the well-known circumstances that produced them. Even in England, the historic rule that the court must not look at the parliamentary history of legislation as an aid to the interpretation of a statute has been recently relaxed in Pepper (Inspector of Taxes) v Hart (1993) 1 ALL ER 42)." Similarly, this Court, while giving its judgment in the case of "Mst. Halima Vsd. The State and another" (Cr. A No. 21-M of 2017), had also relied upon an opinion of Mr. S.M Zafar in adopting a purposive approach for construction of the subject statute, wherein it was observed: Mr. S.M. Zafar while explaining purposive interpretation of a statute had quoted observations of Lord Diplock rendered in the case of "Jones v/s Wrothem Park Settled Estates" [(1979) 1 ER 286, 289] in his book "Understanding Statutes", which parts also merits a reproduction here; "Adopting this new term of purposive construction Lord Diplock said in 1975; "If one looks back to the actual decisions of the House of Lord on question of Statutory construction over the last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions. Lord Diplock had another chance of expressing his views on purposive construction in 1979.I find his enunciation of the term, illuminating which can provide the judiciary with an effective tool for providing substantial justice. He said; "I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purpose of the Act. But in doing so the task on which a court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it." The renowned author had also reproduced a para from Cross on Statutory Interpretation 3rd Edition, for elucidating the concept of purposive approach in the following words; "Cross commented on this new approach as under; "Under the purposive approach, the judge may look beyond the four corners of the statute to find a reason for giving a particular interpretation to its words, and his role is one of active cooperation with the policy of statute." Reliance in this respect may also be placed on judgment of honourable Supreme Court of Pakistan in the case of "Rana Aamer Raza v/s Doctor Minhaj Ahmad Khan" reported as 2012 SCMR 6, and "Market Committee Khudian through its Administrator Vs. Town Committee Khudian through its Chairman" reported as 1992 SCMR 1403. Hon'ble Supreme Court of India while giving its judgment in the case of "State of Madhya Pradesh v. SRP Agarwal (AIR 1979 SC 888), has also held that interpretation of statute should be purpose oriented. 8. The legislature while intending to change forums of suits and appeals (on the basis of their respective pecuniary jurisdictions), has only amended Code of Civil Procedure 1908 by enacting Khyber Pakhtunkhwa, Civil Procedure (Amendment) Act, 2020. No amendments have been brought in the earlier law regulating the subject i.e. West Pakistan Civil Courts Ordinance, 1960, due to which confusion regarding forum of appeals and suits in various categories (pecuniary) of suits and appeals have been arising from time to time. It was for same reason that this Court have earlier rendered judgments in the case of Ameer Zada and Shahzada Col. Sharif (Supra), wherein also besides literal construction, a purposive approach had also been adopted and both the laws were read harmoniously. In the case of Shahzada Col. Sharif (Supra), due to a mistake in para 8 thereof, it was mentioned that as per the last notification issued under Section 18 of the West Pakistan Civil Courts Ordinance, pecuniary limits of District Court's jurisdiction had been enhanced to 10 million, while in fact said enhancement of jurisdiction had been made through Khyber Pakhtunkhwa Civil
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Court (Amendment) Act, 2017, but this mistake would not affect ratio decidendi of the judgment. In para-8 of the judgment, said discussion had been made in respect of one of the reasons but there had been other reasons available for the conclusion drawn in said judgment, which may well be found in rest of the judgment. Even if said reason is deemed or treated to be omitted from the judgment, the interpretation regarding forum of appeal in cases of interlocutory orders, passed during pendency of suits, would remain same for rest of the reasons given in the judgment of Shahzada Col. Sharif (supra). 9. It is, therefore, concluded on combined reading of the above mentioned provisions inserted in CPC by way of Amending Act of 2020 as well as earlier judgments of this Court (given in the case of Ameer Zada as well as case of Shahzada Colonel Sharif-ud -Din "supra") that appeal in those cases, where value of suit in the original forum is less than 50 million, would lie before District Courts having jurisdiction in the matter. Where value of the suit at the original forum is 50 million rupees or more, then appeal would lie before the High Court. Resolution of Questions B & C 10. Perusal of record revealed that petitioner has brought a suit on the basis of original agreement which had been executed between the parties on 17.08.2015. During pendency of suit, parties therein have effected a novation thereto and in this respect they have also scribed a renewed agreement which bore the date of 22.02.2019. Factum of execution of both these agreements have been admitted between the parties. It also needs mention here that these were not simpliciter agreements for sale and purchase of immovable property. Same runs into numerous details but for the sake of present discussion it is briefly stated that petitioner namely Kabir Hussain and the respondent had agreed that the entire area of 40 Kanals-10 Marlas would progressively be sold and payments would be made to the first party, according to the contract. The second party has also been given right to develop the entire area and making plotting therein, but possession of the same was provided to remain with first party. Certain payment had also been admittedly received by the first party, detail of which is available in the agreements. Certain payments were shown received while rest were promised. These agreements had been aiming at providing a mechanism for multilateral transactions wherein property measuring 40 Kanals 10 Marlas was to be sold by first party i.e. respondent herein through petitioner (second party) to other people, in whose favour the second party had made itself bound to enter and attest mutations on receipt of amount, with the rates as specified in the agreements. When the two agreements are read as a whole, the above mentioned mechanism for sale of the property in dispute becomes manifestly clear. Certain part of the property has been transferred and certain part of amount has also been received by the respondents (first party). 11. The suit was proceeding when the learned court passed an interim order dated 02.11.2019, which is also impugned in the instant appeal. Said order, being important, is reported herein for ready reference: "Plaintiff along with counsel present. S.M. Muneer/Nabila Naz, Advocates submitted wakalatnama on behalf of defendants, placed on file. Today the case was fixed for order on application on amendment in plaint. Reply Submitted. Arguments already heard. Today defendant submitted fresh wakalatnama, and both counsels willingly argue the application for amendment in plaint and second application for deposit of Rs. 5 crore filed on 2.09.2019. Counsel for defendant stated at the bar that he has no objection on amendment in his plaint, but as per his commitment on previous date, if today he is willing to deposit Rs.10 crore, then we are willing to perform our part of promise to hand over possession/ mutation. Counsel for plaintiff
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stated at the bar that he is ready to give Rs. 05 Crore today, while for remaining Rs. 05 crore they have two months time i.e. till 30 December, 2019. Keeping in view the above situation and after perusal of record, plaintiff filed the present suit specific performance of contract along possession and perpetual injunction on 25.03.2017. During the proceedings of case compromise efforts were made and their contract was modified. Now plaintiff wants to amend his plaint in that context. As per law Amendment can be allowed at any stage of proceedings if inevitable for the determination of real question in controversy between parties. Law with regard to amendments of pleadings as per order 6 Rule 17 of CPC is reproduced below. The court may at any stage of proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties". A look at the above provision of law would made it clear that amendments in pleadings which are necessary for the determination of real question in controversy between the parties can be allowed at any stage of proceedings. The purpose behind such a vast scope of provision of law is nothing else, but to determine and decide actual and real question in controversy between the parties. So, that dispute between them be decided in one-go and they be saved from further litigation and other legal complications of future. In my own view, amendment of plaint in the instant suit will neither change complexion of suit nor it will introduce new cause of action. Therefore, application for amendment in plaint is accepted. As for as second application is concerned, plaintiff counsel…
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