This petition calls in question the judgment and the decree dated 23rd February, 1981 whereby the learned Additional District Judge, Multan set aside in appeal the judgment and decree of the trial Court dated 16th February, 1978 and decreed the respondent's suit for pre-emption on payment of Rs. 1,20,000 by a specified date.
2. The sale of the land in dispute said to have been made by Mst. Saeeda Begum to the petitioners Daraz Ali and Zafar Ali was pre-empted by the respondent Nathu Khan on the ground of his being a co-sharer in the khata and an owner of the estate. The sale was made ostensibly for a sum of Rs.
1,20,000 but according to the pre-emptor nothing more than Rs. 58,000 was fixed in good faith or actually paid. Valuation of the suit was separately fixed at 10 times of the land revenue purposes of court-fee jurisdiction amounting to Rs. 611.10 acid Rs. 183.3.30 respectively, and court-fee of Rs. 79 was paid on the suit.
3. Various objections particularly to the valuation of the suit, limitation and superior right were raised in the written statement and as many as nine issues were framed. The trial Court found that the valuation of the suit should have been calculated according to 10 times the land revenue which, as observed by the learned Court, included the rates and cesses and amounted to Rs. 115.00 instead of Rs. 61.11 as fixed in the suit. Having allowed no extension of time for making up the deficiency in court-fee, the suit was treated to be barred by time as being undervalued. Issues Nos.
1 and 2 were thus decided against the respon--dent pre-emptor and his plaint was rejected. It happened that in view of the enforcement of the Punjab Finance Act (XIV of 1974) the respondent, who was an appellant calculated the valuation of the appeal for purposes of court-fee at Rs.
49,485.90 and paid court-fee of Rs. 3,712.50. By his order dated 30th September, 1978 the learned District Judge found that the valuation of the appeal being more than Rs. 25,000 was beyond his jurisdiction. He, therefore, returned the appeal for being presented to the proper Court. The appeal was taken to Lahore and filed in the High Court on 2nd October, 1978 with an application under section 5 and 14 of the Limitation Act (IX of 1908) for condonation of delay, if any. The appeal remained pending in the High Court as R. F. A. No. 248 of 1978 for some time when by virtue of section 2 of the Punjab Civil Court (Amend--ment) Ordinance (XX of 1978) the pecuniary jurisdiction of the, learned District Judge was enhanced from twenty-five thousand to fifty thousand, and the appeal was again ordered to be assigned to the learned Additional District Judge, who interpreted differently the word "Land Revenue" as defined by Section 4 (14) of the West Pakistan Land Revenue Act (XVII of 1967) and formed the view that valuation of the suit for purpose of court-fee as well as of jurisdiction was correct. He held that the jurisdictional value of the appeal did not change with the value for court-fee and the appeal, therefore, initially filed before him was within limitation: He, therefore, decreed the suit on payment of Rs. 1,20,000 to be made within one month.
4. It was contended that the Amending Ordinance XX of 1978 having no retrospective operation over the pending actions did not empower the High Court by its administrative order to change the forum and assign the regular appeal (R.F.A. No. 248 of 1978) pending before it to the Additional District Judge and confer jurisdiction on him to hear it. Learned counsel argued that the appeal would be deemed to be still pending in the High Court and it required to be disposed of by the High Court alone. In support of this submission he relied on Yusuf All v. Muhammad laved lqbal Cheema and others (PLD 1975 Lah. 1339) which lays down that if according to the law in force at the time when the action was started in the Court of first instance the ultimate decision of such Court was appealable, the right to prefer or prosecute an appeal therefrom is not affected by subsequent change of the law abolishing the appeal or modify--ing 1st forum unless it is so provided expressly in the amending statute or follows by necessary implication from its terms. It is held is Raja Mauls Dad Khan v. West Pakistan Bar Council, Lahore and another (PLD 1975 SC 469) that a vested right of getting his case decided by the High Court having one accrued to a litigant cannot be taken away except by conferment of retrospectively on a subsequent law by express provision or necessary intendment. It is observed that the well known decision of the Privy Council in the case of Colonial Sugar Refining Co. Ltd. v. Irving (L R 1905 A C 369) is the basic authority in support of the principle. The same view is taken by the Supreme Court in Sutlej Cotton Mills Ltd. y. Industrial Court (PLD 1966 SC 472) Learned counsel contended on the basis of Salahud Din, etc. v. Malik Muhammad Ibrahim (1979 CLC 895) that the right of appeal is a substantive right and could not be taken away except with a clear intention on the part of the legislature. In a Full Bench case namely, Kirpa Singh v, Ajaipal Singh and others (AIR 1928 Lab. 626) it is laid down that the right of appeal is not a mere matter of procedure but is a vested right which inheres in a party from the commencement of the action in the Court of first instance. If according to the law in force at the time when the action was started in the Court of first instance the ultimate decision of such Court was appealable, the right to prefer or prosecute an appeal therefrom is not affected by a subsequent change of the law abolishing the appeal or modifying its forum unless it is so provided expressly in the amending statute or follows by necessary implication from its terms. By this argument the learned counsel wants to emphasize that the Regular First Appeal (No. 248 of 1978) was awaiting decision when by virtue of the Punjab Civil Court (Amendment) Ordinance, 1978 the pecuniary jurisdiction of the District Judge was enhanced to Rs. 50,000. Feeling that the District Judge/ Additional District Judge was competent to hear the appeal, the same was transferred by the High Court to the learned Additional District Judge. It was, therefore, objected to that the amending statute did not have the effect of conferring jurisdiction on the District Judge to hear the appeal which before coming into force of the statute he did not have. It was, therefore, contended that statute should have been interpreted so as to respect the vested rights and it could not be so construed as to have the effect of modifying the forum of the appeal.
5. The argument has no force. As a matter of fact the Ordinance did not modify the forum, nor did it take away from any of the parties the right of appeal. The law simply conferred on the District Judge pecuniary jurisdiction more than he already had, and the High Court while transferring its case to the Court of the District Judge did not change the forum under the amending Ordinance, but had simply transferred it in the exercise of its powers conferred by the Civil Procedure Code.
Learned counsel for the respondent has viewed the assignment of the case to the Additional District Judge as a procedural act and relied on Messrs Eastern Industrial Agencies v. Sir. E. H. After and Sons Ltd. (5) to assert that amendment in the procedural law generally takes effect retrospectively , as no one can claim a vested right in matter of procedure and such amendments also apply to the pending cases before the Court or the Tribunal. It is settled that as a general rule when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights, The question, therefore, that arises for consideration is as to what are matter of procedure. It is my authoritatively laid down in Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187) that 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. With reference to Crawford it is observed that question relating to jurisdiction over a cause of action, venue, parties, pleading and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdic--tion over certain causes - of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospec--tive being a matter of procedure only. It is further held 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 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 appli--cation will tend to promote justice without any consequential embarrass--ment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes< retrospectively. It is observed with reference to the provisions of sections 5 and 20 of the newly enforced West Pakistan Family Court Act (XXV of 1964) that the combined effect of the said sections is clearly to give exclusive jurisdiction to the Family Courts without, in any way, dismissing or curtailing the rights already possessed by a litigant with regard to the scheduled matters.
Looking at the provi--sions as a whole it is. Therefore, clear that all that the Family Courts Act has done is that it has changed the forum, altered the method of trial and empowered the Court to grant better remedies. It has thus, in every sense of the term, brought about only procedural changes and not affected by substantive right. According to the general rule of inter pretation, therefore, a procedural statute is to be given retroactive effect unless the law contains a contrary indication. Now coming to the instant case the pecuniary jurisdiction of the learned District Judge/ Additional District Judge was by virtue of section 2 of the Punjab Civil Courts (Amendment)
Ordinance, 1978, enhance to Rs. 50,000. The provision reads as below :-
2. Amendment in section 18 of Ordinance II of 1962.--In the Punjab Civil Courts Ordinance, 1962, in section 18, in sub--section (1), in clause (a), for the words "twenty-five", the word "fifty" shall substituted.
This substitution As it is, does not have the effect of diminishing or curtailing the rights already possessed by the parties `With regard to the appeal. It has at the most enlarged the powers of the District Judge to hear appeals, up to the value of Rs. 50,000, instead of Rs. 25,000. Such an amendment in letter and spirit was nothing but procedural in nature- and could well be used retrospectively. It is, therefore, not correct to say that the appeal which was at the time o promulgation of the Ordinance, pending in the High Court was not rightly transferred to the learned District Judge and then was not validly assigned further to the learned Additional District Judge.
6, It was next contended that the deficiency of court-fee, having not been made up within limitation, had rendered the appeal as time. Barred, and it remained barred by time when it was ordered to be retur--ned and presented in the High Court and then transferred to the District Judge. It happened that the suit was filed on payment of Rs. 79 as court-fee because its valuation for court-fee was fixed at Rs. 611 According to 10 times the land revenue and for jurisdiction at Rs.
1,833.30 according to 30 times the land revenue. Since the suit was dismissed and value of the appeal was only Rs. 1,833.30 the appeal was riled before the learned District Judge on 14th March, 1978. However under the Finance Act, 1973 the value of the appeal for purposes of court-fee was fixed at Rs: 49,485.90 according to the 15 times of the net profits cal--culated on the basis of the year 1972-73 next before the institution of the snit and court-fee of Rs. 3,712.50 was paid at the time of filing the appeal. Taking the said value to be also the value for purposes of jurisdiction the learned District Judge by his order dated 30th September, 1978 considered that the appeal exceeded his pecuniary jurisdiction and therefore, returned it to be presented to the proper Court.
Pre-emptor took the appeal and filed it in the High Court on 2nd October, 1978 as an R.F.A. No. 248 of 1978 with an application under sections 5 and 14 of the Limitation Act for condonation of delay. It was argued that the appeal before the High Court was barred by limitation as having not been properly stamped in time. It was further objected to that court-fee was computed on the basis of 5 times of the net profits for the year 1972-73, whereas it should have been calculated according to the net profits of the year 1977-78, the next year before the institution of the appeal which were Rs.
2,39,262. When asked, the learned counsel stated that the said calculation was worked out in accordance with the Dhal Hachh (EKh: P 2). In this respect reliance was placed on Abdul Rehmun v.
Kartem Bakhsh (PLD 1981 Lah. 206) and Akbur Ali and others v. Ehsan Elahi (PLD 1980 Lah. 206) where it was held that the appeal was to be valued according to the provisions of law in operation at the time of its presentation and the original value put in the plaint under the repealed enactment was to be disregarded. The contention is again misconceived and does not practi-- cally apply to the facts and circumstances of the instant case. 'To states precisely, the Dhal Bachh does not represent the exact `land revenue as defined by Section 4 (14) of the Land Revenue Act, 1967 but includes other rates, taxes and cesses also. "Land Revenue" means land-revenue assessed or assessable under the Act, or under any other law for the time being in force relating to land revenue, and includes any rates value of land due to irrigation. It means, therefore, that other dues such as rates cesses and taxes are not, part of the land revenue, but are in--cluded in the Dhal Bachh, if payable. The land-revenue, on the basis of which court-fee had to be calculated on plaint was which found mention in column No. 9 of the Jamabandi. According to section 8 (a) (M) of the Punjab Finance Act. 1973 the valuation for, court-- fee to suits for possession of the land, where net profits have arisen from such land during the year next before the date of presentation of the plaint would be fifteen times such net profits. It is therefore, indi--cated expressly that calculation of act profits would relate to the year preceding the suit and not the appeal, and. No error was thus committed to that behalf if the net profits were worked out according to the year 1972-73 preceding the year of institution of the suit.
7. It needs be further pointed out that the Finance Act simply amended the valuation for court-fee but the one for purposes of juris--diction being unaltered would remain the same and that value being Rs. 1,833.30 was always within the jurisdiction of the learned District Judge and thus- return, of the appeal at one occasion was unnecessary and uncalled for. The transfer of the appeal by the High Court was a mere formality and did not affect the right of any of the parties. That being the position, the appeal could not be said to be pending in a wrong Court and its limitation would not be affected, and the same continued pending before the learned District Judge.
8. It is however not correct to say that limitation of the suit would start from 8th May, 1972 when the mutation of sale was entered and the statements of the parties confirming the completion of sale, payment of price and delivery of possession were recorded. 1t goes without saying that there is no cogent evidence in support of the alleged posses--sion, and without that the time shall start from the date of attestation of mutation which is 27th May, 1972. That being the position the suit instituted on 25th May, 1973 was well within time. For the foregoing reasons there is do force! In the petition and the same is dismissed with costs throughout.