' SHAH ABDUL RASHID, J.-In these two appeals namely, S. A.
0. No, 63 of 1978 and S.
0. A. No, 81 of 1979, the preliminary question involved relates to the maintainability of second appeal after the amendment carried out by the North-West Frontier Province Urban Rent Restriction (Amendment) Ordinance, 1979 (hereinafter referred to as the amending Ordinance) in the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the principal Ordinance), by substituting altogether new section 15 for the old one in the principal Ordinance.
2. Section 15 of the principal Ordinance before substitution by the amending Ordinance in subsection (4) provided that any party aggrieved by an order passed on appeal by the Appellate Authority may within thirty days from the date of that order, prefer a second appeal to the High Court and the decision of that Court shall be final. After the substitution of new section 15 by the amending Ordinance in the principal Ordinance the right of second appeal was taken away and it is now provided in subsection (7) of section 15 that the order of the Controller, subject to the result of first appeal, if any shall be final and shall not be called in question in any Court including the High Court, by suit, appeal or otherwise. The objection taken in these two appeals by the successful respondents (who in the case of S. A.
0. No, 63 of 1978 are the tenants against whom application for eviction of the property leased to them was rejected by the Rent Controller and the order was confirmed by the Appellate Authority and in S. A.
0. No, 81 of 1979 are the landlord whose prayer for ejectment from a house leased to the appellants was granted and the order was upheld in first appeal) is that after the substitution of section 15 by the amending Ordinance in the principal Ordinance ' the right of second appeal has been taken away by subsection (7) of section 15 and, therefore, this Court cannot entertain these second appeals.
3. The learned counsel appearing for the respondents have argued that subsection (7) of section 15 of the principal Ordinance as it exists now completely bars the High Court from calling in question any order passed by the Appellate Authority and, therefore, not only that the right of appeal has been taken away, all the second appeals pending before it have abated. It is pertinent to note that S. A.
0. No, 63 of 1978 was filed in this Court long before the 3rd day of October 1979, when the amending Ordinance came into force and the order of the Appellate Authority had also been made before that date. On the other hand S. A.
0. No, 81 of 1979 was filed on 11-12-1979 after the substitution of new section 15 by the amending Ordinance and the order of the Appellate Authority was also passed on 17-11-1979 after the amending Ordinance had come into force.
4. The learned counsel appearing for the appellants, on the other hand, has argued that no retrospective effect has been given to section 15 as substituted in the principal Ordinance, and, therefore, it cannot take away the right of second appeal which existed at the time when the applications for ejectment were filed by the landlords in the Court of Rent Controller. It is well settled that a statute relating to matter of procedure operates retrospectively, unless otherwise provided, but that one effecting vested rights or the question of jurisdiction of a Court does not operate retrospectively, and its operation is prospective, unless the contrary is by express provision or by necessary intendment. Now subsection (7) of section 15 as inserted by the amending Ordinance has not been given retrospective effect expressly. The language of that subsection also does not show that the framer of the law intended to give retrospective effect to it. The mere mention in the said subsection that the order of the Controller, subject to decision of first appeal, if any, shall be final, does not by necessary intendment provide that the pending appeals would abate or for that matter the provision shall affect those cases also in which the lis commended prior to the passing of the amending Ordinance.
5. All that has to be seen is whether a right of appeal is a substantive right or it is a matter of mere procedure. If there was any doubt the controversy was set at rest first of all by the Privy Council in the case of Colonial Sugar Refining Company Ltd. v. Irving (1). In that case Lord Macnaghten observed as follows :- "As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question he a matter of procedure only, the petition is well-founded. 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, it was conceded that in accordance with a long line of authorities extending from the time of Lord Code to the present day, the appellant would be entitled to succeed.
' The Judiciary Act is not retrosepective by express enactment or by necessary intendment. And therefore the only question is, was an appeal to His Majesty-in-Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of any 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 the one regulating the procedure."
6. The reasoning of the Judicial Committee in the aforesaid case is a conclusive authority to show that right of appeal is not a matter of procedure, and that the right to enter the superior Court is for the present purpose deemed to arise to a litigant before any decision has been given by the inferior Court. We see no point to resist the conclusion that the right of appeal being substantive, it arises from the date of the institution of the suit. Courts have learned very strongly against applying a new Act to a pending action when the language of the statute does not compel them to do so. It is well recongnized principle of interpretation of statutes that as far as possible a law is to be interpreted in such a way that it does not affect a vested right adversely particularly when such a right is being litigated.
7. A similar question had come up before the Supreme Court in the case of Hassan and others v.
Fancy Foundation (1). In that case the question of the application of clause (vi) of subsection (2) of section 13 of the principal Ordinance was under examination. Previously a landlord who intended to demolish the building for constructing a new building on the same site could, after obtaining necessary sanction from the Municipal authorities for such construction, sue the tenant for ejectment. This clause was amended to provide that the eviction would be ordered if the building or rented land is "reasonably and in good faith" required by the landlord for reconstruction or erection of the building. It was held by the Supreme Court as follows:- "It is well-established principle, that in general, when substantive 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."
' Although the above case does not relate to the jurisdiction of the Court when a right of appeal is taken away; nevertheless the principle laid down therein is clear enough to reach the conclusion that all substantive rights including a right of appeal cannot be taken away except by giving the amending la retrospective effect or by enacting it in such a way that by necessary intendment it operator retrospectively. A similar question had come up before the (1) 1905 A C 369 (All.)(2) PLD 1975 SC 1Supreme Court of India in the case of Garikapati Veeraya v. N. Subbiah Choudhry and others (1), and it was held as follows:- "The right of appeal is not a mere matter of procedure but is a substantive right."
' The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
' The right of appeal is a vested right and as such a right to enter the superior Court accrues to the litigant and exists as on and from the date the is commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
' This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."
8. On the above proposition there are several authorities but it is not necessary to encumber this order by referring to them. The rules of interpretation as enunciated in the cases referred to above without any doubt lay down the principle that a right of appeal is a substantive right and it cannot be taken away except by express provision or necessary intendment. In the present case neither new section 15 has been given retrospective effect expressly nor there is anything therein to indicate that the framers of law intended to take away the right of appeal retrospectively. We are, therefore, firmly of the view that the right of second appeal would be available to all those parties who had a right of appeal when the application for ejectment was first brought before the Rent Controller. Both these appeals, having arisen out of actions brought prior to the enactment of the amending Ordinance are competent and maintainable. These matters should now go to the respective Benches for disposal on their own merits.
(1) PLD 1957 SC (Ind.) 448