1. 'SARDAR MUHAMMAD NAWAZ KHAN, C.J.--- The background of the present litigation is that a declaratory suit seeking cancellation of a sale-deed dated 26-3-1995 regarding the property in dispute was filed by the respondents herein, in the Court of Sub-Judge, Muzaffarabad. During the pendency of the suit the parties entered into compromise consequently, they recorded their statements on 15-6-1996. However, before decree could be passed, on the basis of compromise deed, an application by the appellant herein was submitted in the trial Court on 22-6-1996 alleging that fraud had been committed on him and thus, he sought that compromise deed be annulled and no decree should be passed on the basis of the same. The appellant while submitting his application for annulling the compromise deed alleged that in fact property in dispute was purchased by him for a consideration of Rs,10,00,000 but in the sale-deed the consideration was mentioned only to the tune of Rs,5,00,000. The remaining amount was to be paid by him at the time of transfer of the possession of the house to him. It was further alleged that subsequently, he went abroad and sent Rs,5,00,000 which was received by the respondents herein, as outstanding consideration of sale. At the time of compromise, according to the appellant, it was agreed that the aforesaid amount, Rs,5,00,000, would be returned to the respondents after filing of said compromise but subsequently, they refused to pay back the said part of consideration to him. The learned Sub-Judge, after taking objections from the respondents herein, instead of passing a decree on the basis of compromise framed issued on the basis of said application. The respondents feeling aggrieved by the order of the learned Sub-Judge went in appeal before the learned District Judge with no success. A revision petition was filed in the High Court, which also failed consequently, the respondents filed an appeal before the Supreme Court. The apex Court accepted their appeal with the observation that the trial Court after recording a compromise was bound to pass a decree in view of compromise as envisaged under Order XXIII, rule 3 of C.P.C. While the controversy was pending in the superior Court, the appellant herein filed a declaratory suit with prayer for possession of the suit-land in the trial Court. The suit was pending when verdict of the apex Court, dated 30-11-1998 came against him consequently, he amended the plaint. His earlier suit is found to have been instituted before the verdict of the Supreme Court, dated 30-111999. The learned trial Court after taking written statement by the respondents herein framed the relevant issues and heard the arguments on Issues Nos.2 and 5. After hearing the arguments on the aforesaid issues the learned trial Judge rejected the plaint in view of section 12 subsection (2) of C.P.C., hence this appeal.
2. ' The learned counsel for the appellant while assailing the impugned judgment and decree contended that the amendment in section 12 of C.P.C. Was adapted in Azad Kashmir on 5-3-2003, therefore, it could not be allowed to hit the case of the appellant because the said amendment operated prospectively and the learned District Judge (trial Court) wrongly rejected the suit by the appellant and it was on account of misconception adopt the provision of law resorted to by the learned Judge.
3. 'Conversely, the learned counsel for the respondents submitted that the suit by the appellant was rightly rejected because under the amended law the suit was not competent and it was hit by the operation of amended law in the shape of subsection (2) Of section 12 of C.P.C. His case was that the, amendment in section 12, C.P.C. Was effective retrospectively and the learned Judge committed no illegality while rejecting the plaint. He further submitted that even otherwise the suit by the plaintiff/appellant was hit by mischief of Order II, rule 2, C.P.C.
4. ' I have heard the learned counsel for the parties and perused the record carefully. While dealing with the objection with regard to operation of Order II, rule 2, C.P.C. In the instant case it may be observed that it is nothing but a fallacy. The learned counsel perhaps failed to look into the record.
5. The record would show that the previous suit was filed by the respondents herein and no previous suit is found to have been instituted by the appellant herein. He filed present suit, though it was amended after verdict of the Supreme Court. Therefore, the question whether the plaintiff/appellant intentionally abandoned or relinquished a part of claim does not arise here. The said provision could come into play only if the plaintiff/appellant is found to have filed a previous suit in which he intentionally relinquished or abandoned any part of the claim pleaded in the present suit.
6. ' The next question is that whether the learned trial Judge while rejecting the plaint acted in accordance with law. To resolve this controversy it may be observed that the present suit is found to have been instituted before the adaption of amended law like section 12(2), C.P.C. In Azad Kashmir. The original suit was instituted in the year 1999 and it was amended in the year 2000 whereas the amended law has been adopted in Azad Kashmir in the year 2003. Therefore, the question arises as to whether the amendment in section 12, Cr.P.C. Which was adopted in Azad Kashmir after institution of the suit by the plaintiff/ appellant, can be given retrospective effect. This proposition came before Lahore High Court in Fateh Muhammad's case 1981 CLC 1130 and it was held that the said amendment could not be given retrospective effect when it causes inconvenience to the parties and is detrimental to the plaintiff. The learned counsel for the respondents contended that the amendment in shape of section 12(2), C.P.C. Being a procedural matter shall operate retrospectively. Before reaching any conclusion, it would be appropriate to attend the question that what are matters of procedure. This question is found to have been attended by Supreme Court of Pakistan in Adnan Afzal's case PLD 1969 SC 187 in which the following observation has been made:--- "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus, a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice, then the Courts will not even in the case of procedural statute, favour an interpretation giving retrospective effect to the State. On the other hand, if the new procedural statute is of such a character that its retroactive application will promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statute retroactively."
7. ' On the basis of aforesaid observation of the Supreme Court the learned Judge of Lahore High Court in Fateh Muhammad's case 1981 CLC 1130 held as under:--- "It will be noted that if the suit brought by the respondent is dismissed and he is obliged to file an application under subsection (2) of section 12 the parties would be put to additional bother and expense inasmuch as the exercise which has already been done by them by now, in connection with the suit, will again have to be undertaken by them in relation to the application. I have been informed by the learned counsel that the suit brought by the respondent is now at the stage of evidence. This means that much headway has been made in the suit. According to the above quoted observations of the Supreme Court if the giving of retroactive operation to procedural provisions causes inconvenience then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively.
8. As explained above, if retroactive effect is given so the amendment made in section 12 of the Code of Civil Procedure by inserting subsection (2) therein it will cause inconvenience to the parties and would also be detrimental to the respondent. Therefore, in view of the principle enunciated by the learned Judges of the Supreme Court. I am not inclined to give retrospective effect to the amendment made in section 12."
9. ' The above cited law would show that the amendment in section 12, C.P.C. Providing a remedy to challenge a decree or order passed on the basis of fraud and misrepresentation, has no retrospective effect and it applies from the date of its coming into force. The suits filed before the date of amendment or date of adaption in Azad Kashmir are not hit by this amendment. Reference may also be had to 1981 CLC 1248.
10. ' There is yet another aspect of the case. As stated earlier, the present suit has been filed before the adaption of the said amendment in Azad Kashmir; therefore, apart from the fact that this amendment cannot be allowed to act retrospectively, it cannot be allowed to hit the present suit.
11. The reason being that firstly this amendment is substantive piece of law and secondly, all laws, rules and regulations are meant for the advancement of justice and not to suppress the remedy.
12. The Court always lean in favour of adjudication on merit rather than resorting to technicalities.
13. Before the said amendment a suit, for cancellation of a decree, order or proceedings based on fraud or misrepresentation was permissible under law and it was a right of the appellant to file a civil suit in Civil Court to redress his grievance and it could continue as such. However, later on, the remedy in shape of section 12(2), C.P.C. Has been provided through amendment. So, when the suit was pending before the learned trial Judge prior to the amendment, it could even be treated as application under section 12(2), C.P.C. In order to meet the ends of justice. It was unjustified under law to throw the plaintiff/appellant's case out of the Court merely on the basis of a technicality. The procedure while entertaining an application under section 12(2) is the same as provided for trial of a suit, therefore, the rejection of the suit merely on the basis that the word "plaint" has been mentioned in place of application is in no way justified under law nor it was in the interest of justice to reject the plaint by the plaintiff/appellant. The trial Court could convert/treat the plaint into application and decide the same on merit in order to fulfil the requirement of law and justice but unfortunately the learned trial Judge due to a wrong conception about the legal position rejected the plaint which has resulted into this appeal. Reference may also be had to 1992 SCM R 1744.
14. ' The conclusion therefore, is that the plaintiff/appellant's suit is competent to be decided on its merits. The appeal is allowed resultantly, the impugned judgment and decree is set aside. The case is remanded to the trial Court to decide it on merits.