MALIK MUHAMMAD QAYYUM, J.- The only question requiring adjudication in this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is as to whether remedy provided by Section 12(2) of CPC can be availed of in respect of decrees passed by the Courts prior to enactment of Section 12(2) by the Civil Procedure Code (Amendment Ordinance) 1982.
2. The dispute arises out of a suit for possession through pre-emption filed by respondent No.4 against the petitioner and respondents No.3 to 8 which was decreed by the Civil Judge, Talagang on 6.11.1976. Subsequently on 28.6.1978 this decree was challenged by the petitioner by filing a suit which was dismissed on 26th November, 1979. Feeling aggrieved, the petitioner went in appeal before the District Court. But on 3rd June, the suit as well as the appeal were withdrawn by the petitioner with permission to file a fresh suit. It was on 6th July, 1981 that the second suit was instituted by the petitioner which a gain was withdrawn on 25th April, 1982 by stating that he would like to avail of the remedy provided by Section 12(2) of CPC.
3. He consequently filed an application for setting aside the decree under this provision which, was contested by respondent No.3, inter alia, on the plea that Section 12 (2) was not applicable as the decree in question had been passed prior to its enactment. The learned Civil Judge framed a preliminary issue in the following terms on 8th Junuary, 1984:- "Whether the provisions of Section 12(2) CPC have not retrospective effect and the impunged decree cannot be challenged under these provisions."
This issue was decided in favour of the petitioner, Respondent No.3 challenged that order by filing a revision before the District Court which was accepted on 6th November, 1984 and it was held that the application under Section 12(2) was not maintainable. The petitioner thereupon filed an application seeking review of the judgment of the Additional District Judge which was rejected on 7.10..1986. In this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has challenged the judgment of the Additional District Judge dated; 6th November, 1984 and the order dated 7th October, 1986 refusing to review the earlier judgment.
4. Learned counsel for the petitioner has contended that as amendment in Section 12 (2) was procedural in nature, it was retrospectively applicable even too of those decrees .Which had been passed before its enactment. He has relied upon Ch. Jalal Din Vs. Mst. Asghari Begum and others (1984 SCMR 586).
5. On the other hand, learned counsel for respondents has argued that amendment brought about by Section 12(2) of CPC was not procedural but was substantive in nature and has no retrospective application. He has contended that no application lies under the said provisions in cases where decrees had been passed before coming into force the amendment.
6. There is no dispute as regards the facts of the case. The decree which was sought to be set aside by filing the application under Section 12(2) of CPC was passed by the Civil Judge on 6th November, 1976. At that time a separate suit challenging the decree, on the ground of fraud, collusion and lack of jurisdiction was maintainable. However, Section 12 of CPC was amended and sub-section (2) which was added by Ordinance X of 1990 came into force on 26th March, 1990.
7. The answer to the question as to whether the remedy provided by Section 12(2) can be availed of in respect of judgments, decrees and orders which had been passed before 1980 depends upon the true interpretation of the nature of this provision. Generally speaking, all laws apply prospectively, subject, however, to the exception that laws affecting procedure only are presumed to be retrospective. Sometimes, it is difficult to distinguish between the laws which affect substantive and vested rights from those which are purely procedural. The following observation of Supreme Court of Pakistan in Adnan Afzal Vs. Capt. Sher Afzal (PLD 1969 SC 187) provides some was guidelines in determining this controversy:- "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 on 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 cause inconvenience or injustice then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to 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 Court would favourably incline towards giving effect to such procedural statutes retroactively."
8. From the above pronouncement, it is clear that the matters relating to remedy and jurisdiction are usually considered to be procedural in character, for they do not affect the rights of the parties.
However, as has been ruled by Supreme Court in the aforesaid judgment, if retroactive operation of even a procedural statute causes inconvenience or injustice then he Court will not favour an interpretation giving retrospective effect to the statute.
9. As already observed, prior to enactment of Section 12(2) of CPC 1908, a decree on the ground of fraud and lack of jurisdiction could be challenged by filing a separate suit which was a cumbersome and time-consuming procedure. In order to provide a more efficacious and speedy remedy, the legislature enacted Section 12 (2) of CPC which provided for an application for setting aside decree before the same Court instead of filing a separate suit which was barred. This provision is salutary and beneficial in character and was intended to shorten the litigation by providing a remedy which was more expedient than that of filing of a suit. It does not take away or any of the vested rights of the parties but it has the effect of substituting one remedy for another. In Government of Sindh and another Vs. Ch. Fazal Muhammad and another (PLD 1991 SC 197), it was observed that intention of the legislature in amending Section 12 by adding sub-section (2) was to provide a substitute for the suits against the judgments, decrees and orders obtained by fraud.
This brings into bold relief the true nature of the remedy provided by Section 12 (2). It is, therefore, difficult to agree with the learned counsel for the respondents that Section 12 (2) does not apply to decrees passed before its enactment. This view finds support from the judgment of Peshawar High Court in Abdur Rauf and Others Vs. Abdur Rahim Khan, (PLD 1982 Peshawar 172).
10. Now the cases cited by the learned counsel for the respondents may be examined. In Fateh Muhammad Vs. Khushhal Muhammad (1981 CLC 1130), the suit challenging decree already stood decided before the insertion of Section 12 (2) and in that context, it was held that Section 12(2) could not be retrospectively applied so as to set at naught decree already passed. Similarly, the cases of Mst. Noor-un-Nisa and another Vs. Muhammad Sarwar & 6 others (PLD 1984 Peshawar 25) and Muhammad Siddique and 2 others Vs. Malik Allah Ditta (PLD 1981 Lahore 318) are also distinguishable inasmuch as in those cases at the time of enactment of Section 12 (2) the suits flied by the plaintiffs were already pending. On the strength of observations in Adnan Afzal's case, it was held that Section 12 (2) of CPC was not applicable to pending suits as the dismissal of these suits would result in great hardships to the plaintiffs. No such question, however, arises in the present case as the petitioner withdrew the suit which he filed with a view to avail of the remedy under Section 12 (2) of CPC. In these circumstances, the Additional District Judge was not correct in holding that the application under Section 12 (2) filed by the petitioner was not maintainable.
As a result of what has been stated above, this petition is allowed; judgment of the Additional District Judge dated 7.10.1986 is declared to be without lawful authority and of no legal effect with the result that the application filed by the respondents under Section 12 (2) shall be deemed to be pending before the trial Court and shall be decided afresh.
No order as to costs.