This judgment is directed to dispose of the essential issue regarding the effect of amendment in Section 6 of the Code of Civil Procedure, 1908 ("CPC") through Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020 on the matter already pending before the Civil Court where the value of suit/subject matter is more than 50 million rupees.
2. This Appeal has been filed under Section 96 read with Section 104, CPC.
3. Background of the case is that plaintiffs/respondents namely Khizar Hayat and 06 others filed a civil suit on 29.07.2016 in the Court of Senior Civil Judge, Peshawar against the defendants/appellants and others seeking a decree for declaration/permanent injunction, possession of immovable property through partition and cancellation of a partnership deed dated 17.04.2007. The essential dispute is amongst the family relating to the suit property.
4. The plaintiffs/respondents valued the suit for the purpose of Court fee and jurisdiction as above Rs 100 million.
The said suit is being contested by the present appellants and the parties are yet to produce their respective evidence in support of their contested claims. During pendency of suit, the learned trial Court through impugned order dated 23.09.2021 allowed application of the plaintiffs/respondents for temporary injunction and appointment of receiver.
5. M/s. Fazal Karim & Mian Hikmatullah Jan, Advocates, learned counsels representing the appellants have argued the trial Court lacked the jurisdiction to have passed the impugned order of appointing receiver. The learned counsels have contended that through Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2019 .("Act, 2019"), which was repealed and then re- enacted through Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020 ("Act, 2020") have made drastic amendment in respect of pecuniary jurisdiction of the Civil Courts as well as District Courts by amending Section 6 of the CPC through Section. 3 of the Act, 2020. The learned counsels have maintained that since Section 6 of the CPC was amended, thereby, conferring jurisdiction on the Court of District Judge where the value of the subject-matter of the suit is Rupees Fifty million or above and the jurisdiction where the value of the subject-matter for the purpose of suit is below Rs. Fifty millions lies in the Court of Civil Judge, therefore, this amendment. relates to a change in forum, hence, it is procedural in nature and will have retrospective effect on all pending proceedings. After the said amendment through Act, 2020, the Civil Court seized of the matter where admittedly the value of the suit is more than 100 million has become functus officio, therefore, any order passed by the Civil Court after the Act, 2020 is corum- non-jadice.
6. On the other hand, M/s. Barkatullah Khan & Waqas-ur-Rehman, Advocates, the learned counsels representing the respondents have argued that amendment in any law in terms of Section 4 of West Pakistan General Clauses Act, 1956 is always prospective; thus, the said amendment brought through Act, 2020 has no retrospective application; hence, the impugned order was passed by the learned trial Court is in accordance with law. The learned counsels have also attacked the maintainability of this Appeal by arguing that no prior notice envisaged by Order-XLIII of the CPC was given to the respondents, therefore, this Appeal is not maintainable. The learned AAG has also supported the arguments of learned counsels for the respondents and argued that the new law, which was promulgated through Act, 2020 has no retrospective application and has referred to the saving clause of both the Amending Acts whereby all the pending matters were protected.
7. Arguments heard and record perused.
8. Admittedly, the suit was filed by the plaintiffs-respondents before the learned. Senior Civil Judge, Peshawar on 29.07.2016 and at the relevant time of initiation of lis, there was no dispute among the parties regarding the pecuniary jurisdiction of the Court of Senior Civil Judge/Civil Judge. However, in order to effectively understand the amendments firstly introduced through Act of 2019, which was later substituted and re-enacted by Act of 2020. It would be expedient to trace/reproduce the provisions of relevant law as was applicable at the time of institution of the suit relating to the pecuniary jurisdiction of Civil Courts viz-a-viz the District Judge.
9. The matter relating to filing of the suit, determination of territorial limits of the Civil Court, receiving evidence, filing of appeal etc. are provided under, CPC. The pecuniary limits/jurisdiction of the Civil Court viz-a-viz the Appellate Court were/are governed under the West Pakistan Civil Court Ordinance, 1962 ("Ordinance, 1962"). At this juncture, it is expedient to reproduce the relevant provisions of CPC as well as Ordinance, 1962 which pertain to the present controversy: The Code of Civil Procedure, 1908 (unamended)
6. Pecuniary jurisdiction. Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject- matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.
96. Appeal from original decree.--(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with consent of parties.
106. What Courts to hear appeals.--Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.
The West Pakistan Civil Courts Ordinance, 1962
3. Classes of Courts.--Besides the Court of Small Causes established under the Provincial Small Causes Courts Act, 1887 (IX of 1887) and the Courts established under any other enactment for the time being in force, there shall be the following classes of Civil Courts, namely.
(a) the Court of the District Judge;
(b) the Court of the Additional District Judge; and
(c) the Court of the Civil Judge.
7. Original jurisdiction of District Judges in suits.--Except as otherwise provided by any enactment for the time being in force, the Court of the District Judge shall have jurisdiction in original civil suits without limits as regards the value.
9. Pecuniary limits of jurisdiction of Civil Judges.--The jurisdiction to be exercised in original civil suits as regards the value by any person appointed to be a Civil Judge shall be determined by the High Court either by including him in a class or otherwise as it thinks fit.
17. Appeals from District Judges or Additional District Judges.--(1) Save as otherwise provided by any enactment for the time being in force, an appeal from a decree or order of a District Judge or Additional District Judge exercising original jurisdiction shall lie to the High Court.
(2) Any appeal shall not lie to the High Court from a decree or order of an Additional District Judge in any case in which, if the decree or order has been made by the District Judge, an appeal would lie to that Court.
18. Appeals from Civil Judges.--(1) Save as aforesaid, an appeal from a decree or order of a Civil Judge shall lie:-
(a) to the High Court if the value of the original suit in which the decree or order was made exceeds ten million rupees; and
(b) to the District Judge in any other case.
(1A) Subject to the provisions of Section 102 of the Code of Civil Procedure, 1908, no second appeal shall lie in any other suit when the amount or value of he subject-matter of the original suit does not exceed five hundred thousand rupees.
(2) Where the function of receiving any appeal which lies to the District Judge under the last preceding sub-sections has been assigned to, an Additional District Judge, the appeal may be preferred to the Additional District Judge.
(3) The High Court may, 'by notification, direct that appeals lying to the District Judge from all or any of the decrees or orders passed in any original suit by any Civil Judge shall be referred to such other Civil Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly, and the Court of such Civil Judge shall be deemed to be a District Court for the purpose of all appeals so preferred.
10. Under Section 9 of the Ordinance, 1962, the pecuniary jurisdiction of the Civil Judges were to be determined by the High Court and according to certain Notifications, the Court of Civil Judges 1st Class were/are enjoying unlimited pecuniary jurisdiction. Similarly, under Section 96 of the CPC all decrees by the Civil Judge or District Judge were appealable before the next higher forum, however, the forum of appeal relating to the pecuniary jurisdiction was to be determined under Section 18 of the Ordinance, 1962. The legislature through enactment of The Khyber Pakhtunkhwa Civil Courts (Amendment) Act, 2017 (Act XVIII of 2017) amended Section 18 of the Ordinance 1962 and envisaged that an appeal against any decree or order of the Civil Judge where the value for the purpose of jurisdiction is/was more than ten million rupees would lie to this Court under Section 96 of the CPC whereas the appeal where the value for the purpose of jurisdiction determined less than ten million rupees would at the relevant time lie before the District Judge. Similarly in view of un-amended Section 106 of the CPC even an appeal against interlocutory order (allowed under Section 104 read with Order-XLIII of the CPC) would also lie to the High Court against any order of the Civil Judge where the value for the purpose of jurisdiction was determined/fixed ten million rupees or more. For that reason, probably this Appeal is filed under un-amended Section 106 of the CPC, however, it has been incorrectly mentioned in the memo of appeal as well as in the opening sheet as an appeal under Section 96 read with Section 104 of the CPC.
11. In order to further appreciate the issue at hand it would also be pertinent to dilate upon the relevant amendments through the Act, 2020. For reference purposes the same are reproduced as:
8. Substitution of Section 6 of the Act No. vs. of 1908.--In the said Act, for Section 6, the following shall be substituted, namely: "6. Pecuniary jurisdiction.--Save in so far as is otherwise 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".
11. Substitution of Section 96 of the Act No. vs. of 1908. In the said Act, for Section 96, the following shall be substituted, namely: "96. Appeal from final judgment or 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 like 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".
13. Amendment of Section 106 of the Act No. vs. of 1908.--In the said Act, for Section 106, the following shall be substituted, namely: "106. What Courts to hear appeals.--Appeals against order, passed under this Code, shall lie to the Court, directly from its subordinate Court exercising original jurisdiction adjudicating the suit, in the prescribed manner".
19. Repeal and Saving.--(1) The Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2019 (Khyber Pakhtunkhwa Act No. XL of 2019) is hereby repealed and shall be deemed to have never existed on the statute book.
(2) Notwithstanding the repeal of the above said Act, all suits, applications or appeals instituted and any other proceedings commenced, initiated or continued under the repealed Act, till the commencement of the Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020, shall be deemed to have been validly instituted, commenced, initiated or continued under the Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020.
12. The aforesaid provisions were initially inserted in, CPC through Act 2019, however, later, various Bar Associations raised voices against the said amendments, therefore, the Act 2019 was repealed and was re-enacted through Act 2020. The Act, 2020, for the first time, had provided a pecuniary jurisdiction of the Civil Judge as well as District Judge to receive and entertain suits by amending, CPC, Prior to the Act of 2020 the pecuniary jurisdiction of the Court were being regulated by the Ordinance of 1962. Under the Ordinance of 1962 the respective High Courts through notifications were to fix the pecuniary jurisdiction of the civil Courts whereas the Court of District judge was having unlimited pecuniary jurisdiction. According to the new legal dispensation, the Civil Judge has the jurisdiction to entertain a suit where the value of the subject-matter of the suit is below Rs. fifty million whereas if the amount or value of the subject-matter of the suit is Rs. fifty million or above, the suit is to be adjudged by District Judge ( Section 6 of the CPC). If Section 9 of the Ordinance, 1962 and Section 3 of the Act, 2020 (whereby Section 6 of the CPC has been amended) is perused then there is even a difference in the language regarding the value for the purpose of jurisdiction. Under Section 9 of the Ordinance, 1962, it is the value of the suit which was the determining factor for assuming the jurisdiction by a Civil Court whereas under new amendment it is the value of the subject-matter in the suit which would determine the jurisdiction of the Court.
The value of the subject-matter and the value of the suit are two different concepts. The value of the suit obviously refers to the suit for the purpose of jurisdiction as determined under the Suit Valuation Act. 1887 by the plaintiff himself whereas the value of the subject-matter relates to the exact or probable amount of the subject-matter. However, since in the present case, it appears that the value of the subject-matter is moveable and immoveable property having value of the subject matter more than Rs. 100 million, therefore, in this judgment, this Court will not render any finding on the said issue as the same has no material bearing on the present case and thus this issue is left to be decided in some other appropriate case.
13. Similarly, through Act, 2020, a non-obstante- clause was inserted in Section 96 of the CPC which clearly envisages that a final judgment/decree of the District Judge would be appealable before the High Court whereas final judgment/decree of the Civil Court will be appealable before the District Judge irrespective of the pecuniary jurisdiction as determined by Section 18 of the Ordinance, 1962. Non-obstante clause is inserted in order to uphold the enforceability of the provision of law over any other provision i.e. contradictory to it. This clause is used to clarify the intention of legislature in cases where two provisions appear contradictory and the provisions starting with non-obstante clause will have overriding effect on any other provision to the contrary in the same Statute or in any other Statute. The effect of non-obstante clause has been elaborately dealt with by the Apex Court in the cases of Sardar Ahmad Siyal and others vs. National Accountability Bureau through Chairman and 4 others (2004 SCMR 265) and Dr. Mobashir Hassan and others vs. Federation of Pakistan and others (PLD 2010 SC 265).
14. Moving on to the crucial issue which is raised in this appeal by the appellants. It is the contention of the appellants that since amendment made in Section 6 of the CPC through Section 3 of Act, 2020 relates to a forum, therefore, it has retrospective effect whereas it is the case of respondents that since all the proceedings which were pending before the Civil Court were protected through saving clause provided under Section 19 of Act, 2020, therefore, this amendment is not applicable to the present case. The law is by now settled that all laws are prospective in nature law unless provided otherwise by the lawmakers. The exception to the said rule is the amendment in procedural law, which may operate retrospectively for the obvious reasons the no person has a vested right in any procedural law. The question of applicability of law with retrospective effect has been dealt with by this Court in the case of Gul Hassan and Co. vs. Allied Bank of Pakistan (1996 SCMR 237) wherein after examining plethora of case law, Mr. Justice Saleem Akhtar, as he then was, observed 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 effects the existing rights or causes injustice or prejudice. The relevant para from the said judgment is reproduced herein below: "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 indictment" retrospective operation has been given. (Muhammad Ishaq vs. 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 the substantive right. In Adnan 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 chance 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 of 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".
Similar law has also been laid down in Ch. Safdar Ali 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 Shanghai Banking Corporation, Karachi (1994 SCMR 1007).
From the principle enunciated in aforesaid judgments it emerges that statute providing change of forum pecuniary or otherwise is procedural in nature has retrospective effect unless contrary is provided expressly or impliedly or it affects the existing right or causes injustice or prejudice".
Muhammad Shabbir and another vs. Quaid-e-Azam University through Vice-Chancellor, Islamabad and others (2022 SCMR 487).
15. Similarly, in the case of Bashir vs. Wazir Ali (1987 SCR 978), the Apex Court has held that the change of forum during the pendency of appeal would operate retrospectively in the following words: "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 appeal was to be heard and did not affect any vested right of appeal and that, as held by this Court in Adnan Afzal vs. Capt. Sher Afzal PLD 1969 SC 187, such amendments are merely procedural in nature and are, therefore, operative retrospectively".
Thus, I have no doubt in my mind that amendment through Section 3 of the Act, 2020, whereby Section 6 of the CPC was substituted, whereby the pecuniary jurisdiction of Civil Court viz-e-viz the District Judge has been determined has a retrospective effect and the requirement of law is that any matter which was pending before the Civil Court where the value of the subject-matter of the suit is more than rupees fifty million it should be transferred to the respective District Judge, who has the pecuniary jurisdiction under Section 6(b) of the Act, 2020.
16. Moving on further to the assertions of the learned AAG to the provision of Section 19 of the Act, 2020, according to which, it is held that notwithstanding the repeal of the Act, 2019, all suits, applications or appeals instituted and any other proceedings commenced, initiated or continued under the repealed Act till the commencement of the Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020 shall be deemed to have been validly instituted, commenced, initiated or continued under the Act, 2020. This provision, in my humble understanding, only protect and save the initiation of lis during the particular period or which was initiated prior to the Act, 2019, however, it does not in clear words protect the continuity of lis in the forum i.e. the Court of Civil Judge or District Judge to receive and entertain a suit regarding the value as provided under the substituted Section 6 of the CPC. Albeit Section 19 of Act, 2020 does not give any clear impression that the amendment regarding the jurisdiction of the Civil Judge viz-a-viz District Judge are prospective in nature and this Court see no absurdity in the clear language of Section 3 of Act, 2020, substituting Section 6 of the CPC and Section 19 of the Act, 2020 regarding the jurisdiction of the respective Courts. This issue has effectively been resolved by this Court in the cases of Shahzada Colonel Sharifuddin and others vs. The Settlement Officer District Upper and Lower Chitral and others (2021 CLC 1968) and Amir Zada and others vs. Mian Zamin Khan and others (2021 CLC 2042).
17. Thus, this Court in view of the above, holds that the amendment introduced through Section 3 of Act, 2020 whereby the pecuniary jurisdiction of Civil Judge viz-a-viz District Judge have been determined has the effect on all pending suits which should be transferred by the respective Civil Judges seized of the matter to the competent Court under Section 6(b) of the CPC (as substituted).
Maintainability of this Appeal.
18. As stated in preceding paragraph that the Statute amending a forum for institution of appeal or that of the Appellate Court during pendency of the lis will obviously have retrospective effect unless otherwise provided by the subsequent/amending Act. This appeal too has essentially been filed under Section 106 of the CPC which has been amended through Act, 2020. Prior to the said amendment, the appeal against any interim order passed by a Civil Judge where the value for the purpose of jurisdiction was fixed or determined more than rupees ten million would also lie to the High Court in view of the un-amended Section 106 of the CPC read with Section 18 of the Ordinance, 1962. However, by amending Section 106 of the CPC through Act, 2020, now any order passed by a Civil Judge during the pendency of the proceedings, is appealable before the District Judge and not before this Court. Since this amendment has also retrospective effect as it has changed the forum of appeal; therefore, this Court too has no jurisdiction to entertain this appeal.
Accordingly, the office is directed to transmit this appeal to the learned District Judge for adjudication in accordance with law. The parties are directed to appear before the learned District Judge, Peshawar on 28.12.2022.
Before parting with this judgment, it is hereby observed, that this issue relating to the pecuniary jurisdiction of the Civil Court pursuant to the Act of 2020 has been elaborately dealt with by this Court in the cases of Shahzada Colonel Sharifuddin and others vs. The Settlement Officer District Upper and Lower Chitral and others (2021 CLC 1968) and Amir Zada and others vs. Mian Zamin Khan and others (2021 CLC 2042), however, probably the Civil Courts have not been apprised of this legal dispensation, therefore, the aforesaid findings regarding interpretation of substituted Section 6 of, CPC is obiter and accordingly the Registrar of this Court is directed to circulate this judgment as well as the judgment passed by this Court (supra) to all District Judges of the Province for doing the needful.