' Suit No, 409/1 of 1978, was instituted on 18-12.1978, by Muhammad Sarwar (respondent) in the Court of Additional Civil Judge, Abbottabad against the defendants (who are petitioners in this revision), seeking a declaration that be is owner in possession of the land described in the suit and the decree in suit No, 90/1 decided on 25-6-1978, was the result of collusion and fraud and thus ineffective against his rights. It was alleged by the plaintiff that he had purchased the land in suit for Ks. 10,000 vide Mutation No, 1146 which could not be attested due to the death of the vendor.
Defendant No, 2 in the case instituted a suit for the cancellation of the said mutation which was dismissed on 12-3-1977. Defendant No, 2 then filed another suit which was dismissed as withdrawn thus confirming the title to the suit land in favour of defendant No,
1. Later on Mst. Nurun Nisa (defendant) had filed another suit No, 90/1 in which fraudulently a consent decree was passed in 11 favour regarding the suit land. The plaintiff wanted a declaration that the aforesaid decree was ineffective against his rights. Mst. Nur-un-Niasa and others petitioners submitted their written statement and a number of issues were framed. Issue No, 7 was to the effect that "whether the plaintiff is owner in possession of the suit property and the decree and the judgment in suit No, 90/1 titled Mst. Nur-un-Nisa v. Abdul Ghafoor etc. Dated 25-6.1978 by the Court of Additional Civil Judge, Abbottabad, is fraudulent, collusive and as such ineffective on the rights of the plaintiffs and defendants 3 to 8. The parties produced their respective evidence and the case was heard on merits. During the arguments before the trial Court the question was raised that by virtue of the amendment in section 12, C. P. C., a decree obtained on the basis of fraud etc. Could not be challenged in a civil suit and an application to that effect was to be filed under section 12(2) C. P. C.
By the aggrieved party, Regarding the merits the trial Court found that the plaintiff had failed to prove his case. In regard to the legal objection it was held that the suit was incompetent under section 12(2), C. P. C. Taking this view of the matter the plaintiff's suit was dismissed.
2. However, the appeal filed by Muhammad Sarwar (Plaintiff) before the District Judge, Abbottabad was accepted on 24-5-1983 and the case was remanded for disposal in accordance with law after hearing the parties afresh. The learned District Judge came to the conclusion that the amendment of section 12, C. P. C. By Ordinance X of 1980 could not be given retrospective effect and thus it would not affect the pending suits and, therefore, the finding of the trial Court as to the competency of the suit was erroneous.
3. The learned counsel contends that the amendment of section 12, C. P. C., by Ordinance X of 1980 promulgated on 26-3-1980, being procedural in nature would take retrospective effect. Therefore, it is contended that the pending suits would be affected which would stand abated and the aggrieved party could seek his remedy by moving an application under section 12(2), C. P. C. The learned counsel relied on the case of Adrian Afzal (1) wherein it was observed that:- "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 statutes.
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 statutes retroactively". {{FOOT NOTE}}
(I) PLD 1969 SC 187 {{FOOT NOTE}} ' It may be noted that in the cited case it was observed by the Hon'ble Supreme Court that 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 statute. In the circumstances of the present case it is obvious that by giving retrospective effect to the amendment made in section 12, C. P. C., the parties will be put to inconvenience since the evidence of the parties had already been concluded in the suit and if a direction is issued to the plaintiff for moving a fresh application under section 12(2), C. P. C. Seeking the same relief, the parties would be put to the expense and inconvenience of another round of litigation. In Fateh Muhammad v.
Khushhal Muhammad (1) the contention of the petitioner was repelled that retrospective effect was to be given to procedural amendment regardless of the inconvenience which is likely to be caused to the parties. In that case reliance was placed on Ch. Safdar Ali v. Malik Ikram Elahi and another (2), by the learned counsel in support of his contention. But the Court found that no observations touching the inconvenience of parties was made nor in that case any party was required to pursue the remedy other than the one which was already being availed of by him at the time of the making of notification in regard to the hearing of Election petitions. Therefore, it was concluded that Ch. Safdar Ali's case did not permit to overlook the guiding principle enunciated by the Supreme Court in the case of Adnan Afzal which takes care of the inconvenience and interest of the parties in the matter of giving effect to amendment of procedural nature.
4. The learned counsel then referred to Abdur Rauf and others v. Abdur Rahim Khan (3) and contended that the amendment made in section 12, C.P.C. By Ordinance X of 1980, being of procedural in nature, was held to have retrospective operation. In the cited case the application under section 12(2), C. P. C., challenging the decree on the ground of collusion and fraud was submitted after the amending Ordinance X of 1980 had come into force and, therefore, the remedy of moving an application under section 12(2), C. P. C., being available the aggrieved party could not have instituted the suit. Admittedly, no suit was pending in that case when subsection (2) was inserted in section 12, C. P. C. In the case in hand the suit in question was instituted on 18-2-1978, much before the amendment of section (12), C. P. C. By the aforesaid Ordinance, in which the decree in suit No, 90/1 was challenged on the ground of collusion and fraud. Therefore, the amendment of section 12(2), A C. P. C., having been brought about during the pendency of the suit would have no application. It is obvious that if the suit is dismissed and the plaintiff is directed to seek his remedy by filing an application under section 12(2), C. P. C., the same would result in unnecessary expense and inconvenience to both the parties.
5. In this view of the matter, no fault can be found with the finding arrived at by the learned District Judge, This revision is accordingly dismissed in limine. {{FOOT NOTE}}
(1) 1981 C C 1130 (2) 1969 SCM R 166 {{FOOT NOTE}}