' This second appeal has been filed under section 15(6) of the Punjab Urban Rent Restriction Ordinance, 1959 against the order dated 19th June, 1990 passed by an Additional District Judge at Lahore upholding the order of ejectment passed by the learned Rent Controller on 24th of February, 1988 and dismissing the first appeal filed by the appellant.
2. On 3rd of June, 1984 an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 was filed by the respondent against the appellants seeking their eviction from a shop situate at Shahrah-e-Quaid-e-Azam, Lahore on the ground that the appellants defaulted in payment of rent from February to May, 1984. The petition was allowed by the Rent Controller on 24th February, 1988. The appellants challenged this order by filing an appeal on 22nd of March, 1988 which was however dismissed on 19th June, 1990 by an Additional District Judge at Lahore. The present appeal which is directed against the orders of Additional District Judge and the Rent Controller was filed in this Court on 11th August, 1990.
3. Before the appeal could be argued on merits, a preliminary objection was raised by Mr. Ali Sibtain Fazli and Mr. Tariq Qazi, Advocates appearing on behalf of the respondent as to the maintainability of the appeal on the premises that at the time when the ejectment petition was instituted or the first appeal was filed, there was no provision for filing a second appeal before this Court and, as the right was conferred only on 6th of June, 1990 when the Punjab Ordinance, XIII of 1990 was promulgated, no second appeal could be filed in the present case. It was explained that the right of appeal inheres in a party at the commencement of the lis and any subsequent change whether abridging or enlarging such a right cannot be retrospectively applied to the case pending at the time when the amendment is brought about unless by an express provision in the statute.
The following judgments were cited in support of this proposition:- ' Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners PLD 1081 SC 553, Governor N.-W.F.P. And another v. Gul Naras Khan 1987 SCMR 1709, Idrees Ahmad and others v. Hafiz Fida Ahmad Khan, and 4 others PLD 1985'SC 376, Hassan and others v. Fancy Foundation PLD 1975 SC 1, Juma Khan v. Gul Ferosha PLD 1972 Peshawar 1, Mst. Nazir Begum and others v. Mst.
Qamarunnissa and others 1982 CLC 2271, Examiner of Local Fund Accounts, Madras v.
C.Subramania Mudaliar and others AIR (30) 1943 Madras 208 (1), Thota Surayya v. Inspector Municipal Councils and others AIR (931) 1944 Madras 148) and Ratansi v. Jay Singh AIR 1954 Nag.
348.
4. The learned counsel appearing on behalf of the appellants while controverting the arguments of the learned counsel for the respondent has argued that the amendment brought about by the Punjab Ordinance XIII of 1990 was procedural in nature and as such has retrospective operation.
The learned counsel has placed reliance upon the judgments of the Supreme Court in Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187, Muhammad Bashir and 2 others v. Muhammad Firdaus and another PLD 1988 SC 232, Bashir v. Wazir Ali 1987 SCMR 978 and Dawood and 3 others v. Jamilur Rahman PLD 1985 Quetta 29.
5. The Punjab Urban Rent Restriction Ordinance, 1959 in its original form provided by section 15(5) a right of second appeal before the High Court against the order passed by the appellate authority.
However, by the amendment brought about by the Punjab Urban Rent Restriction (Amendment)
Ordinance (IX of 1979), section 15 as a whole was substituted and right of filing of second appeal before this Court was taken away. This right has now been revived to a limited extent by the Punjab Urban Rent Restriction (Amendment) Ordinance XIII of 1990 by adding subsection (6) in the following terms:- "In case of a non-residential building, a person aggrieved by an order passed on appeal by the appellate authority may, within 30 days from the date of the said order, prefer an appeal in writing to the High Court."
6. In this background, the dispute which arises is as to whether the right of second appeal conferred by the Punjab Ordinance XIII of 1990 is available in cases where the ejectment petition had been filed or decided by the Rent Controller prior to the introduction of subsection (6) of section 15.
7. The first thing which may immediately be noted is that there is no express provision dealing with this aspect in the amending Ordinance itself. The intention of the Legislature has, therefore, to be discovered through a process of interpretation.
8. It is a well-established principle that a right of appeal is not a natural or inherent right attached to the lis but must be expressly conferred by the statute or the rules having force of law. It is a substantive right and not a matter of mere procedure. There can be no cavil and is not even canvassed by the learned counsel for the appellant that a right of appeal which is available at the time of commencement of a lis cannot be taken away except by express language. Consequently, even if the law by which an appeal is provided is after the commencement of a cause repealed, the right to file the appeal survives the repeal. The question which however, arises is as to whether the contrary and converse is also true i.e, if no right of appeal, is available at the time of commencement of the lis, can the subsequent change in law providing for an appeal be made applicable to pending matters also. After having considered the rival contentions of the learned counsel for the parties, the answer to this question has to be in the negative.
9. In Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners PLD 1981 SC 553 it was observed that the position in law is well settled that the right of appeal is not a matter of procedure but it is a substantive right; and that the commencement of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties concerned till the rest of the career of the suit; and that these rights can be taken away only by a subsequent enactment provided it so provides expressly or by necessary intendment and not otherwise. The judgment of the Privy Council in Colonial. Sugar Refining Company Limited v. Irving (1905 Appeal Cases 369) particularly the observations "In either case there is an interference with the existing right contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested" were cited with approval. After referring to Sutlej Cotton Mills Limited v. Industrial Court PLD 1966 SC 472, it was observed that this proposition of law has now been firmly deep rooted in our legal system.
10. In Idrees Ahmad and others v. Hafiz Fida Ahmad Khan and 4 others PLD 1985 SC 376 the question which came up before the Supreme Court for consideration was as to whether the right of second appeal vesting in the parties under the West Pakistan Urban Rent Restriction Ordinance, 1959, stood destroyed by the repeal of that Ordinance in its application to the Province of Sindh by promulgation of the Sindh Rented Premises Ordinance, 1979. It was held that:- "The proposition that all the rights to remedy by way of appeals or otherwise under an enactment stand vested and accrued in the litigating parties on the date of the commencement of the lis is, therefore, not open to challenge, unless of course the repealing enactment, either expressly or by necessary implication, curtails such rights in any manner."
' To the same effect is the authority of the Supreme Court in Hassan and others v. Fancy Foundation (PLD 1975 SC 1) wherein the Supreme Court ruled that:- "It is well-established principle, that in general, when substantive law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights."
' In Mst. Nazir Begum and others v. Mst. Qamarunnissa and others 1982 CLC 2271 it was held that "the right to file an appeal which includes second appeal, is a vested right governed by law in force at the time of initiation of the action unless amending law expresses the same otherwise."
11. The principles on which these cases proceeded were that the appeal which includes second appeal, is the continuation of the original lis and the right to file an appeal which is substantive right has to be determined with reference to the law as prevailing at the time when the cause was instituted in the original Court.
12. Although all these cases deal with the situation where the right of appeal was available at the time of commencement of the lis and it sought to be taken away subsequently, yet the principles as culled out above are equally applicable to those cases where no right of appeal is available at the time of commencement of the cause but had been conferred subsequently. It cannot be doubted that the general law is that the rights of the parties are to be determined in accordance with the law applicable at the time of filing of the suit. An exception is however, made in the matters of procedure. As nobody has a vested right in procedure a procedural change brought about has to be held to be retrospective. The position however is different in cases involving substantive rights of the parties, and appeal is certainly one of such rights. There is thus no warrant for assumption that the change in law relating to appeals would apply to the cases where the ejectment petition has been instituted before the amended Ordinance came into force. The observations of the Supreme Court in Fancy Foundation's case supra to the effect that the rights of the parties arc to be decided according to law as it existed when the action was begun fully support this view,
13. The case may also be examined from another angle. A party to an action has a right under the law to treat the judgment of the ultimate Court under the law/statute to the final and conclusive.
Any law which intends to interfere with this finality cannot be held to be retrospective. In Delhi Cloth and General Mills Co., Ltd. v. Income-tax Commissioner, Delhi and another (AIR 1927 Privy Council 242), the Privy Council was called upon to decide whether the amendment brought about the Income Tax Act, 1918 by the Indian Income Tax (Amendment) Act, 1926 could be applied to the cases initiated under the old law. While rendering the answer in the negative, it was observed by the Privy Council that:- "The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the Colonial Sugar Refining Co. v. Irving (1905) AC 369, where it is in effect laid down that, while provisions of 'a statute dealing merely with matters of procedure may properly, unless that construction be textually attributed to them, provisions. Which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied restrospectively, would deprive of their existing finality orders, which, when the statute came into force. Were, final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders final at the date when it came into force it must be clearly so provided. Their Lordships cannot find in the section even an indication to that effect."
Applying this principle to the case in hand, it will be seen that at the time when the ejectment petition or even the first appeal was filed, the respondent had a right to treat the order to be passed in appeal as final and not subject to any further scrutiny in the appellate jurisdiction of any Court. To hold that the amending Ordinance is applicable to the present case would tantamount to destroying that right. The following observations of a Division Bench of the Madras High Court in Examiner of Local Fund Accounts, Madras v. C. Subramania Mudaliar and others AIR (30) 1943 Madras 208(1) may also be reproduced with advantage:- "There is a preliminary objection to the maintainability of these appeal, based upon the fact that when the applications were filed in 1938 no right of appeal existed. This objection is supported by the Full Bench judgment in 52 Mad.
361."
' The judgment of Nagpur High Court in Sitao Jholia Dhimar and others v. Emperor (AIR'(30) 1943 Nagpur 36) also supports this view. At page 66 of the report the learned Chief Justice observed that:-- "It cannot be disputed that in civil cases to deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him at the time of the institution of that action is to deprive him of a valuable right which cannot be taken away without a clear intention in the Act which purports to take it away or without an express provision in that regard: vide (1905 AC 369). The same principle operating in a contrary direction appears in the Privy Council decision in 9 Lah. 284, and when a civil action has begun a litigant in that action is entitled to substantive rights such as the right of appeal as existed at the time the action was brought, and those rights cannot be altered to his detriment during the pendency of the litigation which includes an appeal to the highest tribunal available; heather can there be alteration in his favour, when finality has once been reached, by any subsequent legislation."
14. The question as to what is the effect of law providing for an appeal passed subsequently to the initiation of the case before the first Court, was directly in issue in the following cases wherein it was held that the amendment was not applicable in such cases and no appeal was maintainable even though at the time when the order was passed there was a provision for appeal:- (i) Examiner of Local Fund Accounts, Madras v. C. Subramania Mudaliar and others AIR (30) 1943 Madras 208 (1),
(ii) Thota Surayya v. Inspector Municipal Councils and Local Board, Madras and others AIR (31) 1944 Madras 148, wherein it was held that an appeal did not lie even though at the time when the order was passed there was a provision for appeal, (iii) Sitao Jholia Dhimar and others v. Emperor AIR
(30) Nagpur 36, (iv) Ratansi v. Jay Singh AIR 1954 Nagpur 348.
15. Reliance of the learned counsel for the respondent on Adnan Afzal's case is of no avail as the principle laid down in that case has no applicability here inasmuch as the dispute in that cited precedent was regarding change of forum which was held to be a matter of procedure to be governed by the new law i.e, West Pakistan Family Courts Act, 1964. It may also be stated that Adnan Afzal's case itself was examined and explained by the Supreme Court itself in its subsequent judgment in Muhammad Bashir and 2 others v. Muhammad Firdaus and another (PLD 1988 SC 232) wherein the Cantonments Rent Restriction (Amendment) Ordinance, 1985 providing for change of forum of appeal from the Court of District Judge to the High Court was held not to apply retrospectively as it tended to interfere with the substantive rights of the parties. Bashir v. Wazir Ali 1987 SCMR 978 was again a case relating to change of forum and has no applicability here. In Fazal Din and others v. Additional District Judge and another 1983 CLC 1901 it was held that as the amending law was explanatory of existing law it was retrospective. This principle has no application to the present case. The other judgment cited by the learned counsel in Dawood and 3 others v. Jamilur Rahman PLD 1985 Quetta 29 is equally inapplicable. Similarly the judgment in Governor N.-W.F.P. And another v. Gul Naras Khan 1987 SCMR 1709 has no relevance as in that what fell for interpretation was the non-abstante clause.
From the above discussion it becomes obvious that the Punjab Urban Rent Restriction (Amendment) Ordinance XIII of 1990 has no application to those cases where the ejectment petition had been initiated before this amending Ordinance was promulgated. That being so the appeal filed before this Court is clearly not maintainable.
' As a result of what has been stated above the appeal fails and is missed leaving the parties to bear their own costs.