1. IFTIKHAR MUHAMMAD CH., J.---By this common judgment, we have proposed to dispose of C.Ps.
2. Nos. 535 and 536 of 1993, as identical question of law, i.e.: "Whether amendment introduced in section 115, C.P.C. By means of section 10 of the Civil Laws (Reforms) Ordinance, 1993 (Ordinance XXXIII) enacted on 13th October, 1993 will operate retrospectively or otherwise?Is involved in these Constitutional petitions.
3. Since a legal question requires determination, therefore, detailed marshalling of the facts in both the cases is not necessary, except briefly noting that petitioners filed suits for declaration and permanent injunction against Quetta Municipal Corporation and the unofficial respondents. On 24th September, 1992, petitioners sought withdrawal of the suits, with permission to file fresh one.
4. The applications were allowed by the Trial Court and in pursuance of the same, fresh plaints were filed. The unofficial respondents feeling aggrieved from the orders preferred Revisions which were allowed by the District-Judge, Quetta, whereby cases were sent back to the Trial Court for re- consideration of the applications to withdraw the suits. On remand, the Trial Court vide order dated 20th March, 1993, again accorded the permission as it was prayed for subject to payment of cost of Rs.500.00. As such respondents Nos. 3 to 6 preferred Revision Petitions on 26th April, 1993, which were allowed on 17th November, 1993, vide impugned orders.
5. It is also stated by the petitioners that during pendency of Revisions, fresh suits on making payment of the cost to the respondents, were also filed.
6. In these Constitutional petitions, orders of the Revisional Court, mentioned hereinabove, have been assailed. On the ground that the District Judge had no jurisdiction to pass the impugned order as on 13-10-1993 as section 115, C.P.C. Was amended by section 10 of the Civil Laws (Reforms)
7. Ordinance, 1993 whereby subsections (2), (3) and (4) were omitted and due to this change, except the High Court, no other Court had Revisional powers, and in such view of the matter, the learned District Judge, should have stayed his hands off.
8. It would not be out of context to note that originally revisional jurisdiction under section 115, C.P.C., was available to the High Court, but later on in 1972, during the process of reforming the laws in the Country subsections (2), (3) and (4) were added whereby District' Courts were authorised to also exercise the revisional powers conferred on the High Court under subsection (1) of section 115, C.P.C. .
9. Mr. Muhammad Aslam Chishti, learned counsel for petitioners contended that the Civil Laws (Reforms) Ordinance, 1993, has introduced amendments in the procedural law and the perusal of the Ordinance,. Indicated the legislative intent of enforcing them retrospectively. Therefore, on 17th November, 1993, when the impugned orders were passed, the District Judge had lost his revisional jurisdiction. To strengthen his view point he referred to interpretation of Statutes by N.S. Bindra and reports made in PLD 1969 SC 187,1969 SCM R 166, AIR 1931 Allahabad 635 and AIR 1970 SC 1636.
10. On the other hand, Messrs K.N. Kohli and Shakeel Ahmad, Advocates on behalf of private respondents and Municipal Corporation, respectively, contended that on thorough scrutiny of the Ordinance, legislative intent. Is very much clear, i.e. Pending proceedings would be dealt in accordance with the law, which was applicable at the time when revisional jurisdiction of the District Judge, under section 115(2), C.P.C. Was invoked. They further emphasised that according to section 6 of the General Clauses Act, the repeal of a statute would not affect the privilege which has been conferred upon a party by the repealed law. Since filing of a revision is not a substantive right but a privilege therefore, District Judge before whom proceedings were instituted was competent to dispose them of finally, notwithstanding the fact whether its jurisdiction has been taken away pending proceedings. They placed reliance on PLD 1975 SC 1, PLD 1975 Lahore 334 and PLD 1985 SC 376.
11. On 22nd March, 1994 notice was issued to Advocate-General Balochistan, in order to ascertain, whether Ordinance (XXXIII of 1993), has been laid before the Parliament or before Provincial Assembly, as it being a matter at Serial No. 3 of the concurrent list of the Constitution, and if it is not so, then what would `be the effect of the Ordinance, due to its expiry, by the efflux of time. On next date of hearing petitioners' counsel informed that the Ordinance has been re-enacted on 13th January, 1994. Although in pursuance of the notice, the Assistant Advocate-General appeared but he did not address the Court probably in view of above explained position.
12. We have heard the learned counsel for parties at length and have also gone through the law relied upon by the parties' counsel.
13. It is to be seen that generally under the Civil Administration of Justice, there are two categories of the Laws, one which deals with substantive rights and the second which regulates the procedure of the Forums, Courts, Tribunals., responsible to determine the disputes between the parties. There is also no cavil with the competency of legislature to repeal, amend or omit any statutory provisions both substantive or procedural in nature, during pendency of an action. The Courts seized with the matter however enjoys jurisdiction to explore the intent of the law givers, to ascertain whether the statute has been repealed/amended or omitted retrospectively or prospectively, subject to following recognized principles of interpretation of statutes.
14. In this context, the foremost principle is, that to achieve the object, the statute must be read as a whole by giving to its words and parts an ordinary, natural and recognized meanings to obviate repugnancy or inconsistency. Keeping in view the purpose for which, it has been promulgated.
15. Applying the test on Civil Laws (Reforms) Ordinance, 1993, one can visualize that it was considered expedient by the Promulgators to amend certain civil Laws by introducing important reforms for expeditious disposal of civil cases. The Ordinance was enforced at once i.e. On 13th October, 1993.
16. Its thorough examination reveals that to fulfil the intention of the law-givers, different sections, orders/rules of the Code of Civil Procedure were amended and no--where it has been provided that it shall operate retrospectively.
17. Now turning to the arguments of petitioners' counsel that substantive vested rights of the respondents have not been taken away by omitting subsections (2), (3) and (4) of section 115, C.P.C. Therefore, irrespective to the inconvenience which they would have suffered, the District Judge, had no lawful authority to proceed with the matter. According to him, there are instances where the legislation in its wisdom has denied even the right of statutory appeal and the Courts without considering that. Valuable vested/substantive rights of the parties are involved terminated the proceedings. Mr. Muhammad Aslam Chishti, also stated that in Adnan Afzal's case (PLD 1969 SC 187) it has been laid down by the Hon'ble Supreme Court that an amendment/repeal of a procedural law without affecting any substantive right, may in the absence of contrary legislative intent, apply to pending proceedings.
18. It may be seen that as per the facts of this case, application under section 488, Cr.P.C. Was pending before the Magistrate, when in the meanwhile a new law i.e. Family Courts Act, 1964 was promulgated, according to which, Family Court was vested with the jurisdiction to adjudicate upon the matters relating to maintenance etc. The Hon'ble Supreme Court while examining the proposition came to the conclusion that the Family Courts Act has not taken away the remedy to claim the maintenance, but has only altered the forum for the recovery of same and in this background, it was held that the promulgation of Family Courts Act, had also affected the pending proceedings before the Magistrate. In our opinion there is clear distinction in the case in hand and the reported judgment, namely the Hon'ble Supreme Court on examining the Family Courts Act concluded that it is the legislative intent that the Act should take effect retrospectively without violating the substantive right of a party to claim maintenance whereas in the case in hand, apparently there is no indication in, the Ordinance XXXIII of 1993, that it will take effect retrospectively and if it would have so the respondent, who filed revision would have left with no forum to avail a privilege, conferred upon by the law.
19. In the case of Chaudhry Safdar .Ali v. Malik Akram Elahi and others (1969 SCM R 166) the Hon'ble Supreme Court attended the proposition, where too, a procedural change was made in the Rules concerning filing of Election Petitions against the Election of Chairman of Local Body, whereby no vested right or privilege was taken away by the repealing Rule, except changing the forum. Thus in our opinion, this judgment is also distinguishable from the case in hand.
20. Similarly in AIR 1932 Allahabad 635, the Allahabad High Court decided that procedural change will not create a substantive right.
21. Likewise an identical question was considered in the case of Nani Gopal Mitra v. State of Bihar (AIR 1970 SC 1636) wherein, it was also held that repealing law will not effect to the transaction, which has already been completed. For reference, relevant para. Therefrom is reproduced below:-- "It is therefore clear that as general rule the amended law relating to procedure operates retrospectively. But there is another equally important principle viz. That a statute should not be so construed as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the amending Act came into force (See In re: A Debtor, 1936 Ch. 237 and In re: Vernazza 1960 AC 965) of the General Clauses Act, which is to the following effect: (6)Effect of repeal.-- Where (b)
22. (c)
23. (6)The effect of the application of this principle is that pending cases, although instituted under the old Act but still pending, are governed by the new procedure under the amended law, but whatever procedure was correctly, adopted and concluded under the old law cannot be opened again for the purpose of applying the new procedure. In the present case, the trial of the appellant was taken up by the Special Judge, Santhal Parganas, when section 5 (3) of the Act was still operative. The conviction of the appellant was pronounced on March 31, 1962 by the Special Judge Santhal Parganas, long before the amending Act was promulgated. It is not hence possible to accept the argument of the appellant that the conviction pronounced by the Special Judge, Santhal Parganas, has become illegal or in any way defective in law because of the amendment to the procedural law made on December 18, 1964. In our opinion the High Court was right in invoking the presumption under section 5(3) of the Act even though it was repealed on December 18, 1964, by the amending Act. We accordingly reject the argument of the appellant on this aspect of the case."
24. At this juncture it becomes necessary to ascertain whether filing of a revision petition under the Code of Civil Procedure does create a vested right in favour of a party, particularly in the cases where a non-appealable order has, been. Challenged. In this behalf in the case of Mrs. Perveen v.
25. K.H. Muhammad Asghar PLD 1975 Lahore 334 it was held that `Revision' is really a matter between the higher and the lower Courts. Since the party can move the higher Court in exercise of revisional jurisdiction. I will prefer to call it a privilege rather than a right! Agreeing with this dictum it is held that a Revision Petition under section 115, C.P.C. Does not create a vested right in favour of aggrieved party. But it being a privilege can be availed, for the redress of grievances, subject to limitation laid down by the section itself.
26. Section 6 of the General Clauses Act provides that repeal of a Statute would not inter alia affect a privilege, therefore, it is held that in such situation, in absence of legislative intent, to give retrospective effect to the Repealing law, the pending proceedings shall be governed under the law prevailing at the time, when action commenced. In this context reference with benefit can be made to PLD 1975 SC 1, 1982 SCM R 965 and PLD 1985 SC 376. For sake of guidance, relevant para. From the last quoted report, is reproduced hereinbelow:-- .
27. "5.The general rule as to the effect of repeal of a statute, was postulated as early as 1829 by Lord Tenterden thus: "When an Act of Parliament is repealed it must be considered (except as to transactions past and closed) as if it had never existed ....The effect of repealing a Statute is to obliterate it as completely from the record of Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was -an existing law." This rule came to be statutorily recognized in section 38(2) of the Interpretation Act, 1889. In the law of our country analogous provisions to that effect exists in section 6 of the General Clauses Act, 1897. The effect of repealing an Act passed after these statutes of general application is now governed by the saving provisions of these statutes. Thus by the force of clauses (c) and (e) of section 6 of the General Clauses Act, unless a different intention appears from the repealing enactment, the repeal ipso facto will not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; effect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing enactment had not been passed. On the question whether a right of appeal given under the repealed enactment is such a right which survives the repeal, we have the leading judgment from the English jurisdiction in The Colonial Sugar Refining Company Limited v. Irving (1905) AC 369. In this case although the right of appeal from the Supreme Court of Queensland to his Majesty in Council given by the repealed law, had been taken away by the repealing enactment, which provided only an appeal from the Supreme Court of Queensland to the High Court of Australia, yet the Act not being retrospective the Privy Council ruled that a right of appeal to the King in Council in a suit pending when the (repealing) Act was passed and decided by the Supreme Court afterwards was not taken away. The principles enunciated in this case have held the field in this Country and have been consistently followed by this Court. In a recent pronouncement of this Court Pakistan International Airlines Corporation v. Pak Saaf Dry Cleaners PLD 1981 SC 553 reference was made to the cases of this Court in which these principles laid down by the Privy Council were approved and it was observed that `this proposition of law has now been firmly deep --rooted in our legal system." 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."
28. In view of the above discussion, we are inclined to hold that Civil Laws (Reforms) Ordinance, 1993 (Ordinance XXXIII of 1993) would not operate retrospectively and the pending matters shall be disposed of in accordance with the provisions of Civil Procedure Code, applicable at the time when the proceedings were instituted and the learned District Judge, vide impugned orders has rightly exercised the jurisdiction in passing the impugned orders.
29. On merits, the petitioners' counsel contended that respondents were stopped to challenge the impugned orders before the Revisional Court because they had accepted the same, as on the presentation of fresh suits, the cost of rupees five hundred was received by them and denial to this effect has not been made by filling counter-affidavits to the petitions, wherein, this fact has been categorically mentioned. The learned counsel for respondents disputed this fact.
30. To resolve the controversy petitioner's counsel was asked to produce the order-sheet maintained by the lower Court, indicating that amount of cost has been received by any one of the respondents, but he failed to do so.
31. Thus in absence of convincing material the factual controversy in exercise of jurisdiction under Article 199 of the Constitution, cannot be settled.
32. For the foregoing reasons, the petitions are dismissed, leaving the parties to bear their own costs.
33. This constitutes the reasoning of our short order dated 9th May, 1994,