' NAZIR AHMAD BHATT1, J.-By this revision petition under section 115 of the Code of Civil Procedure Mrs. Yasmeen Nighat and another have challenged the order, dated 10-12-1983 of the Senior Civil Judge, Peshawar, whereby he had transferred to the Court of Special Judge, Banking Companies the suit of the respondent, .National Bank of Pakistan, for recovery of Rs, 89,698.77.
2. The facts giving rise to the present litigation are that the petitioners herein had obtained the suit amount as loan from the respondent herein; which they did not return within the period of limitation and hence the respondent-Bank was compelled to file a suit for recovery of the same.
Under the provisions of caluse (a) of subsection (2) of section 6 of the Banking Companies (Recovery of Loans) Ordinance, 1979 such a suit was to be instituted in the civil Court. The respondent-Bank, therefore, instituted the said suit in the Court of Senior Civil Judge, Peshawar. The suit was still pending when the aforesaid Ordinance was amended by the Banking Companies (Recovery of Loans) Amendment Ordinance, 1983, whereby the aforesaid clause of subsection (2) of section 6 was deleted/hand the suit became triable by the Special Court constituted under the Ordinance. Taking advantage of this situation, the learned Senior Civil Judge, by the impugned order, transferred the suit to the Court of Special Judge, Banking Companies for trial, which order has been challenged by the petitioners herein on the ground that the amendment made by the Amending Ordinance is not retrospective in effect.
3. For the proper appreciation of the factual, and legal position of the case it is necessary to throw some light on the forum created and the purport of the 19,9 Ordinance. In order to provide for a summary procedure for recovery of loans of Banking Companies, the President promulgated Ordinance No, XXIII of 1978 on 29th May, 1978, known as the Banking Companies (Recovery of Loans)
Ordinance, 1978. This Ordinance was repealed and re-enacted on 27th March, 1979, by Ordinance No, XIX of 109 known as the Banking Companies (Recovery of Loans) Ordinance, 1979. The scheme of the Ordinance is that a Special Court was constituted for exercising jurisdiction in respect of a claim filed by a Bankii g Company in respect of, or arising out of, a loan (section 6). However, according to the provisions of caluse (a) of subsection (2) of section 6 of the 1979 Ordinance the Special Court could not have jurisdiction in a case in which the outstanding amount of the loan did not exceed one lac rupees. Consequently, such suits of the valuati n of less than rupees one lac were to be tried by the civil Courts, and in pursuance thereof the present suit was filed by the National Bank of Pakistan against the petitioners herein in the Court of Senior Civil Judge, Peshawar. The suit was pending adjudication when the 1979 Ordinance was amended by Ordinance II of 1983 promulgated on 30th of January, 1983 and known as Banking Companies (Recovery of Loans) (Amendment) Ordinance, 1983. According to the provisions of section 5 of this Ordinance clause (a) of subsection (2) of section 6 was omitted, the effect of which was to do away with the forum of the civil Courts. By another amendment vide section 2 of this Ordinance, clause (f) of section 2 of the Principal Ordinance was also substituted and the Special Court, as so substituted, means in respect of a case in which the outstanding amount of the loan does not exceed one million rupees, a person who is or has been a District Judge or an Additional District Judge and is appointed by the Federal Government, by notification i, the official Gazette, to be a Special Court; and in respect of any other cast, the High Court in the exe case of original civil jurisdiction. It shall thus be seen that by omission of clause (a) of subsection (2) of section 6 and by substitution of clause (f) of section 2 of the principal Ordinance, the jurisdiction of the civil Courts to entertain suits regarding loans of Banking Companies by or against the said Companies was ousted and two Special Courts were constituted, one consisting of the District Judge or the Additional District Judge in respect of loans not exceeding one million rupees and the other consisting of the High Court in respect of any other case.
4. Mr. Hidayatullah Khan, the learned counsel for the petitioners has attacked the impugned order on the ground that the amendment carried out in the principal Ordinance by the amending Ordinance is not retrospective in nature and the suits which were pending adjudication in the civil Courts on the date of the promulgation of the latter Ordinance shall continue to be tried by the said Courts. As the point involved in the matter pertained to interpretation of statutes, and was of sufficient importance, we had given notice to the learned Deputy Attorney-General and the learned Advocate-General, N.-W. F. P. To assist us in the matter. We have heard at length the learned counsel for the parties and the learned Deputy Attorney-General and the learned Advocate-General.
5. The learned Deputy Attorney-General also pointed out that certain provisions of the amending Ordinance were made to take effect at once whereas certain provisions thereof were made to take effect from a retrospective date as pointed out by the learned counsel for the petitioners and he was of the opinion that the amending Ordinance in so far as it related to the ouster of the jurisdiction of civil Courts was not retrospective in nature. On the contrary the learned Advocate- General N.-W. F. P. Was of the opinion that the amending Ordinance had done away with the forum of the civil Courts and they had ceased to exercise jurisdiction even in cases pending before them and thus the amending Ordinance had a retrospective effect.
6. The learned counsel for the petitioners has contended; firstly, that if the intention of the amending Ordinance was to have a retrospective operation, such a fact woula haVe been incorporated in subsection (2) of section 1 thereof which shows that the Ordinance shall come into force at once; secondly, that section 8 of the amending Ordinance provided for the transfer of the case about which the jurisdiction of the Special Court had been taken away by the substituted clause (f) of section 2 of the principal Ordinance, to the Special Court which had jurisdiction as a result of the said substitution and no such .Provision had been made in respect of transfer of cases pending before the Civil Courts.
7. In so -far as the first point is concerned, the contention of Mr. Hidayatullah was that the provisions contained in clause (a) of section 5 of the amending Ordinance were made to operate with a retrospective effect specifically and read with subsection (2) of section 1 which was not retrospective. This showed. The intention of the law-maker that all the provisions of the amending Ordinance were not retrospective in nature. He contended that in view Of the provisions contained in section 6 of the General Clauses Act, 1897 the suits pending in the civil Courts on the date of promulgation of the amending Ordinance are to continue to be tried by the civil Courts. In support of this contention the learned counsel has relied upon the case of Saeed Ahmad'v. The State (1).
However, the perusal of the last paragraph at page 289 of this judgment will show that the learned Judges of the Supreme Court were of the view that when rights once vest in parties they are not affected by any legislation that has merely prospective effect and this is the position so far as substantive rights are concerned, but so far as the procedural provisions are concerned, sometimes the jurisdiction of a Court to pass a particular kind of order may be taken away by a new Act so that it can henceforth pass no order of that kind even in a pending proceeding. Mr. Hidayatullah has also brought to our notice the case of Malik Mir Hassan and another v. The State
(2) wherein it was held that if a law is changed during pendency of action, rights of parties, unless declared otherwise by new law, to be decided according to law existing when action begun. It was further held in this judgment that:- "If the law is changed, during the pendency of an action, the principle that governs the situation would be that the rights of the parties are to be decided according to the law as it existea when the action had begun, unless the new law shows a clear intention either by express words or by necessary intendment to very such rights."
' In another case Adnan Afzal v. The State (3) it was observed that:- "The general principle with regard to the interpretation of statutes is that 'if the matter in question be a matter of procedure only', the provisions would be retrospective. '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', then 'in accordance with a long line of authorities extending from the time of Lord Coke to the present day', the legislation would not operate retrospectively, unless the Legislature had either `by express enactment or by necessary intendment' given the legislation retroactive effect."
' Again in Pir Bakhsh and another v. The State (4) it was held that changes brought about in procedural law by amendment can affect pending cases provided new procedure does not, in its application, work to prejudice accrued rights under old procedure. The lenrned counsel for the petitioners, has also drawn our attention to the case of Shiba Kali Kumar and others v. Chunl.Lal Chatterfee (5) wherein it was held that it is a well-established principle of law that retrospective effect ought not to be given to a statute unless an intention to that effect is expressed in plain and unambiguous language.
8. The minute perusal of the authorities cited by the learned counsel for the petitioners would show that they are unanimous on one point that if some rights have accrued to a party under a law which is subsequently amended or if substantive rights of parties are concerned, the amendment made in the {{FOOT NOTE}}
(1) PLD 1964 SC 266 (2) PLD 1969 Lah. 786 PLD 1969 SC 187 (4) PLD 1965 (W.P.) Lah. 308
(4) A 1 R 1927 Cal. 748 {{FOOT NOTE}} ' existing law or the enforcement of a new case will not affect such rights and the effect of such an amendment would be generally prospective. However, no such interpretation is forthcoming in the case of amendment of a procedural law only. The unanimous opinion of the superior Courts in regard to an amendment in procedure is that it is retrospective in effect.
9. In so far as the application of section 6 of the General Clauses Act is concerned, we seek guidance from the words of Kaikaus, J. In the case of Muhammad Bashir v. Province of West Pakistan (1) that section 6 only saves rights created and liabilities incurred on account of a Statute that has been repealed, but no person has any vested right in any procedure and procedural provisions do not create rights or liabilities referred to in this section. It shall, therefore, be seen that if any amendment is made in the procedural provisions of law, such amendment shall operate with a retrospective effect.
10, We have also given a serious thought to the second contention o the learned counsel for the petitioners and we are of the firm opinion that the provisions of section 8 of the amending Ordinance were made as no Special Court consisting of the High Court existed before the said amendment and it was necessary to disclose a forum where cases about which the jurisdiction of the existing special Court had ceased were to be transferred and heard, whereas there was no need to make any such provisions with regard to the cases which were pending adjudication in the civil Courts prior to the amendment because when the amendment came a Special Court consisting of the District Judge or the Additional District Judge was in existence and such cases automatically stood transferred to the said Special Court. This matter can also be looked from another angle. With the omission of clause (a) of subsection (2) of section 6 of the 1979 Ordinance, the forum D of the civil Courts for the trial of such cases ceased to exist and it would be preposterous to think that the suits pending in the civil Courts could still be tried by them even when they had ceased to exercise jurisdiction in respect of these cases.
11. We, therefore, do not find any illegality in the impugned order of the learned Senior Civil Judge, Peshawar and would maintain it by dismissing this revision petition with no order as to costs. {{FOOT NOTE}}
(1) PLD 1958 Lah. 853 {{FOOT NOTE}}