CONSOLIDA TED JUDGMENT WIQAR AHMAD, J.---This single judgment is directed to determine a preliminary question regarding forum of appeal, framed vide order dated 20.11.2020 in the instant appeal as well as in R.F.A No. 392-M/2020, R.F.A No.396-M/2020, R.F.A No.412-M/2020 and R.F.A No.423-M / 2020. All these appeals were fixed in limine, whose facts need not be reproduced for the instant determination except value of the suit in which the respective impugned judgments have been passed. Same are explained below; i. In R.F.A No. 391-M/2020 titled Amir Zada and 2 others v. Mian Zamin Khan, the impugned judgment has been passed by Court of learned Civil Judge-IV Dir. Lower at Timergara on 21.07.2020 in a suit having pecuniary value of Rs.12,300,000/-. ii. In R.F.A No. 392-M/2020 titled Alam Khan and 2 others v. Mian Zamin Khan, the impugned judgment has been passed by Court of learned Civil Judge-IV` Dir Lower at Timergara on 21.07.2020 in a suit having pecuniary value of Rs.12,300,000/-. iii. In R.F.A No. 396-M/2020 titled Zian-ul-Abideen v. Government of Khyber Pakhtunkhwa and 3 others, the impugned judgment has been passed by Court of learned Civil Judge-V , Swat on 29.02.2020 in a suit having pecuniary value of Rs.25,479,880/- iv. In R.F.A No. 412-M/2020 titled Muhammad Iqbal v. Muhammad Alam and 6 others , the impugned judgment has been passed by Court of learned Civil Judge-VII, Buner on 04.09.2020 in a suit having pecuniary value of Rs.12,000,000/- v. In R.F.A No. 423-M/2020 titled Farooq v. The Askari Bank Limited and another , the impugned judgment has been passed by Court of learned Civil Judge-III, Swat on 11.09.2020 in a suit having pecuniary value of Rs.
27,000,000/- vi. In R.F.A No. 493-M/2020 titled Rahmat Khan v. Liaqat Ali and 3 others, the impugned judgment has been passed by Court of learned Civil Judge-II, Buner at Daggar on 24.09.2018 in a suit having pecuniary value of Rs.
11,000,000/-.
2. Pecuniary limits of jurisdiction of District Judge of a District in Khyber Pakhtunkhwa was enhanced to ten million for hearing appeals arising out of judgments of Civil Courts by amendment made in Section 18 of the West Pakistan Civil Courts Ordinance, 1962 vide Section 2 of the Khyber Pakhtunkhwa Civil Courts (Amendment) Act, 2017. Appeals over and above said amount lie before the High Court in this Province. The situation got changed with promulgation of the Khyber Pakhtunk hwa Code of Civil Procedure (Amendme nt) Ordinance, 2020 (hereinafter referred to as the 'Amending Ordinance' ), wherein Section 96 was substituted as follows; "96. Appeal from final judgment and decree.---- 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, an appeal shall lie to the District Court from the final judgment and decree passed by the Civil Court, while an appeal shall lie to the High Court from the final judgment and decree of the District Court while exercising original jurisdiction on any question of law or fact erroneously determined by the original Court and the Appellate Court shall decide the appeal within six months, after completion of service of summons."
3. Section 3 of the Amending Ordinance has also substituted Section 6 of Code of Civil Procedure, 1908 (hereinafter referred to as 'C.P.C.') and the newly substituted Section provided that suits having a value of less than rupees fifty million as subject matter , shall be filed in the Court of Civil Judge concerned, while a suit carrying a value of rupees fifty million or above, shall be filed before the Court of District Judge concerned. The newly inserted Section 96 appeared producing an effect that against any final judgment and decree passed by a civil Court, right of filing an appeal has been provided before District Judge concerned and therefore jurisdiction of the latter stood enhanced to any amount less than rupees fifty million (albeit indirectly). The matter requires determination at this stage so as to save time of the parties in the instant appeal and to clarify the situation for filing further appeals.
Resultantly , the question for determination was framed vide order dated 20.11.2020 in the instant case (R.F.A No. 391-M/ 2020) and assistance of learned counsel for the appellant, learned Asst: A.G as well as learned amicus curiae namely Mr. Abdul Halim Khan, Advocate of this Court was asked for. Other R.F.As Nos. 392, 396, 412, 423 and 493-M of 2020 were also fixed for determination of the forum of appeal in those cases.
4. I have heard arguments of learned counsel for the appellants in all the conn ected appeals, learned amicus curiae namely Mr . Abdul Halim Khan, Advocate as well as learned Assistant Advocate General.
5. 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: 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 amend ment 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 of an amount of D 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 E 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 . In the case of Sardar Ahmad Siyal and others v. National Accountability Bureau through Chairman and 4 others reported as 2004 SCMR 265, Hon'ble apex Court had explained the ef fect of occurrence of a non-obstante clause in a statute in the following words; "We have examined the provisions of clause (a) of section 16-A of the Ordinance' reproduced hereinabove, which clearly tends to show that notwithstanding anything contained in any other law for the time being in force, the Chairman, National Accountability Bureau may apply to any Court of law or Tribunal for transfer of the case involving a scheduled offence pending before such Court or Tribunal and, on receipt of such application, such Court or Tribunal shall transfer the said case to any Court established under the Ordinance. It would appear that the object of the special law is to expedite the disposal of cases involving corruption, corrupt practices, misuse , of power misappropriation of property and matters connected thereto under the Ordinance and to avoid procedural delays and technicalities. The language of the provision unequivocally reflects the intention of the Legislature that the provision is self-contained and self-executory leaving no option for the Court before whom cases involving scheduled offences are pending but to transfer the same. It is rather imperative to accede to such request unless it can be shown to the satisfaction of the Court that the offence against the accused does not fall amongst the offences included in the Schedule. On no other ground can a. Court turn down a request for, transfer of a pending case to Accountability Court on an application made by the Chairman, National Accountability Bureau under the Ordinance. This being the position in law, and the object of the Legislature, we are not impressed by the submission that the transferor Court in all fairness and reasonableness ought to have given notice of transfer to the petitioners. It may, however , be observed that it is not the requirement of law under the Ordinance that such order can be passed only after notice to the accused. Intention of the Legislature is rather patently clear and certain from, the non obstante clause at the commencement of the provision. In fact the provision has the overriding effect over general law ."
A similar explanation of the effect of a non-obstante clause may also be found in the case of Dr. Mobashir Hassan and others v. Federation of Pakistan and others reported as PLD 2010 Supreme Court 265, as well as the case of Abid Mahmood v. Government of Pakis tan through Secretary Establishment Division, Islamabad and 241 others reported as 1996 PLC (C. S.) 1061 .
7. Procedural laws normally have a retrospective effect, unless provided otherwise by express words or necessary intendment. "The presumption against retrospective construction" as explained in Maxwell on the Interpretation of Statutes Twelfth Edition by P. St. J. Langa n, "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. Alterations in the form of procedure are always retrospective; unless there is some good reason or other why they should not be."
8. While giving the above reproduced opinion an instance of the case of Boodle v. Davis (1853) has also been quoted in said treatise, wherein the provision of section 128 of the Common Law Procedure Act, 1852, that the plaintif f might issue execution within six years from the recovery of a judgment without revival of the judgment, had been held to apply to 'a judgment singed more than a year and a day before that act was passed. It was further held in said judgment that same could not be treated under the previous state of the law without revival. Hon'ble Supreme Court of Pakistan in the case of Malik Gul Hasan & Co. and 5 others v. Allied Bank of Pakistan reported as 1996 SCMR 237 after an extensive survey of the existin g case law of retrospective operation of procedural statutes, had held; "7. It is well-settled principle of interpretation of statute that where a statute affects a substantive right, it operates prospectively unless "by express enactment or necessary indentment" retrospective operation has been given. (Muhammad Ishaq v. State PLD 1956 SC (Pak.) 256 and State v. Muhammad Jamil, PLD 1965 SC 681). This principle was affirmed in Abdul Rehman v. Settlement Commissioner (PLD 1966 SC 362). However statute, which is procedural in nature, operates retrospectively unless it affects an existing right on the date of promulgation or causes injustice or prejudice to a substantive right. In Adrian Afzal v.
Capt. Sher Afzal (PLD 1969 SC 187 ). same principle was re-affirmed and it was observed:- "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 retrospectively . 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 case process any existing rights are affected or the giving of retroactive operation cause 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 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 ."
The same view was expressed in Ch. Safdar All v. Malik Ikram Elahi and another (1969 SCMR 166) and Muhammad Abdullah v. Imdad Ali (1972 SCMR 173), which was followed in Bashir .v. Wazir Ali (1987 SCMR 978), Mst. Nighat Yasmin v. N.B. of Pak. (PLD 1988 SC 391) and Yusuf Ali Khan v. Hongkong and Shan ghai Banking Corporation, Karachi (1994 SCMR 1007 ).
From the principle enunciated in these judgments it emerges that statute providing change of forum pecuniary or otherwise is procedural in nature and has retrospective effect unless contrary is provided expressly or impliedly or it affects the existing right or causes injustice or prejudice."
Change of forum during pendency of appeal has also been taken effect as evident from judgment in the case of Bashir v. Wazir Ali reported as 1987 SCMR 978, wherein the Hon'ble Supreme Court of Pakistan on the face of almost similar facts, had held as follows; Before us the learned counsel for the appellant raised the same objection as before the High Court. It was, however , pointed out to him that the relevant provision of the amending Act V of 1986 had merely changed the forum in which the appear was to be heard and did not affect any vested right of appeal and that, as held by this Court in Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187, such amendments are merely procedural in nature and are, therefore, operative retrospectively .
9. Mr. Abdul Halim Khan, learned amicus curiae has also produced copy of judgment in the case of Maulvi Aziz-ur- Rehman v. Ahmad Khan and others (Civil Appeal No. 1400 of 1996) for bolstering his submission that a procedural law had always been given a retrospective effect. In said case, the Principal Bench of this Court had been seized with an appeal having value of Rs. 1,40,000/-. Suit in said case had been dismissed by learned Senior Civil Judge, Swat on 09.04.1985. Pecuniary jurisdiction of District Court to entertain appeal had earlier been up to Rs. 50,000/-, which had subsequently been enhanced to Rs. 500,000/- on 06.08.1995. Said Amending Act enhancing pecuniary limits of jurisdiction had also been extended to Provincially Administered Tribal Areas under the repealed Article 247 of the Constitution of Islamic Republic of Pakistan, 1973. This Court had decided the case on merits on 12.06.1996. Hon'ble Suprem e Court of Pakistan set aside judgment of this Court and remanded the case back to the Court of learned District Judge, Swat for deciding the same a fresh by giving retroactive effect to the amendments. Whatever changes have therefore been brought through the Amending Ordinance will have to be given a retrospective ef fect.
10. 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. Office is therefore directed to transmit all the connected appeals separately to the respective District Judges for deciding the same according to law. The appeals shall be deemed to have been filed before the Court of learned District Judge concerned on the date when such appeals have been first filed before this Court. The District Judge concerned may hear appeal himself, or may entrust it to any other competent Court for deciding the same according to law . Respective appellants shall appear before said Court on 15.12.2020.