ABDUL KARIM KHAN KUNDI, C.J: -Section 18 of the Civil Courts Ordinance, 1962 as it stood before amendment provided for appeal from a decree or order of a Civil Judge to the District Judge in any other case and to the High Court in case the value in original suit exceeds fifty thousand rupees.
Accordingly regular first appeals against the judgments and decrees of the Civil Judges and the first appeals against the orders of the Civil Judges in the suits of the value exceeding fifty thousand rupees were filed in the High Court that pending those matters amendment was made by Ordinance No. VII of 1994 substituting the words "fifty thousand" by the words "five hundred thousand" and as such the jurisdictional value of the Court of District Judge in such appeals against decrees and orders was enhanced up to five hundred thousand rupees while the jurisdiction of the High Court in such appeals was confined to cases of the value exceeding five hundred thousand rupees. There has thus arisen a question if the change in forum vis-a-vis appeals in cases of the value up to five hundred thousand rupees pending in the High Court was a procedural amendment to be given effect retrospectively and whether procedure, practice and the propriety would demand the continuation of the nearing of those appeals by the High Court or that the same to be transferred to the Court of respective District Judges for decision.
2. The case of Colonial Sugar Refining Company Limited v. Irving (AC 1905) is the first case having laid down a general principle with regard to the interpretation of statute on the subject of change in forum by the amendment in the law whether to have prospective or retrospective effect. The facts of Colonial Sugar Refining case were that the Collector of Customs for Queens-land required the Sugar Company to pay a certain amount of excise duty, the Company disputed the claim and after depositing the amount brought an action against the Collector in the Supreme Court which decided the case against the Company that against the judgment of the Supreme Court the Sugar Company applied to the Court of His Majesty in Council for leave to appeal which was granted and pending appeal the Judiciary Act, 1903 was enforced whereunder the jurisdiction of the High Court in certain specified matters was made exclusive of the jurisdiction of the several Courts of the State and a restriction was imposed that every decision of a Court of State from which at the establishment of the Commonwealth an appeal lay to the Queens-in-Council shall then be final and conclusive except so far as an appeal may be brought to the High Court. The Collector of Customs had asked His Majesty-in-Council-for the dismissal of the appeal on the ground that the right of appeal to His Majesty-in-Council has been taken away by the Judiciary Act, 1903 and the only appeal from a decision of the Supreme Court of Queens-land was to lie to the High Court of Australia. In the said context it was held that the appeal to His Majesty-in-Council was a right vested in the appellant at the date of the passing of the Judiciary Act and it was not a mere matter of procedure. It was. Further observed that to deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure and their Lordships were to see no difference in principle between abolishing an appeal altogether or transferring the appeal to a new tribunal because in either case there is an interference with existing rights.
3. "Adnan Afzal v. Sher Afzal" (PLD 1969 SC 187) dealt with the subject of retrospectivity of legislation and laid down a rule that if the matter in question be a matter of procedure only the provisions would be retrospective. This general principle was borrowed from Sugar Company's case with further reference that if it would be more than a matter of procedure, that is, if it touches all the rights in existence at the passing of the Act the legislation would not operate retrospectively unless the legislature had either by express enactment or by necessary intendment given the legislation a retroactive effect. In Adrian Afzal's case reference was also made to "Joseph Suche & Co. Limited (1875) 1 Ch. D. 48" in which it was observed that as a general rule when the legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It was observed that the enactments must merely affect procedure and should not extend to rights of action to affect existing rights.
Matters of procedure were said to be relating to the remedy, the mode of trial, the manner of taking evidence and forms of action. Crawford was also referred to state that questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence all pertain to procedure. It was held that a change of forum by a law is retrospective being a matter of procedure only. It was pointed out that if in the process any existing rights are affected ox that giving of retrospective operation to a statute cause inconvenience or injustice, then the Courts will not even in the case of procedural statute favour an interpretation giving prospective effect thereto. In the said context it was also held that if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassm ent or detriment to any of the parties concerned the Courts would favourably incline towards giving effect to such procedural statutes retroactively. In the facts of the case the question was if the West Pakistan Family Courts Act, 1964 affected the jurisdiction of Magistrates under section 488, Cr.P.C. And that the provisions of the Act were not to affect pending proceedings commenced before the Act came into force. After comparison of the provisions of section 488, Cr.P.C. And the West Pakistan Family Courts Act it was found that the latter provisions were of more beneficial nature enlarging the scope of enquiry and also vesting the Court with powers of giving greater relief in a right of appeal either to the District Court or the High Court and as such the change in forum from the Court of a Magistrate to the Family Court was found to have, no doubt, altered the method of trial but towards a betterment and that it empowered the Court to grant better remedies. Accordingly it was held that the West Pakistan Family Courts Act, 1964 had superseded the provisions of section 488, Cr.P.C. In the change of forum and that the Magistrates stood divested of jurisdiction to entertain, hear or adjudicate upon matters relating to maintenance.
4. The Colonial Sugar Refining Company's case once again came up for detailed scrutiny and discussion in "Muhammad Bashir v. Muhammad Firdaus" (PLD 1988 SC 232). In the said case the ejectment petition of the landlord from a shop situate in cantonment limits was dismissed by the Rent Controller which was, however, set aside and ejectment order was granted by the appellate authority in the District Judge that in the meanwhile before the decision of the appeal by the District Court the forum of appeal against the order of Rent Controller was changed and the jurisdiction regarding appeal was conferred on the High Court. Tenant filed a Constitutional petition before the High Court and the petition was argued and pressed only on merits and was ultimately dismissed. The competency of the District Court as an appellate authority was not challenged in the High Court. Tenant preferred a petition for leave to appeal in the Supreme Court which was converted into appeal and was dismissed on merits, however, the question of the continuation of the jurisdiction of the District Court as appellate authority after the amendment in the Cantonments Rent Restriction Act was examined and with reference to the Colonial Sugar Refining case it was held that the right of appeal before the District Court shall remain intact since it would still have a scope for approach to the High Court through writ jurisdiction and secondly that amended section 24 of the Act did not indicate that the pending appeals were to be affected by the amendment regarding change of forum of appeal.
5. On the subject point there are other relevant judgments published in 1987 SCM R 978 (Bashir v.
Wazir A.I) and 1987 SCM R 1482 (Khan Muhammad and others v. Ishtiaq Hussain) and in the said two judgments the provisions of section 18 of the Civil Courts Ordinance, 1962 were interpreted and it was held that by mere making change in the pecuniary jurisdiction there has been made an indirect change in the forum in which the appeal shall lie and that the same did not amount to affecting any vested right of appeal and accordingly the amendment was held to be procedural in nature to be given effect retrospectively. In the first referred authority regular first appeals filed in the High Court in the cases of jurisdictional value exceeding Rs.50,000 up to Rs.2,00,000 were transferred to the District Courts on account of the amendment in section 18 by Punjab Ordinance No. XX of 1978 that the Supreme Court approved the action and held that the Amending Act had merely changed the forum in which the appeal was to be heard and did not affect any vested right and so in the second authority the Supreme Court approved the transfer of cases to the District Courts also with reference to section 24 of the Civil Procedure Code expressly empowering the High Court to transfer a case pending before it for disposal to any Court subordinate to it and competent to dispose of the case, also observing that at the time of the transferring of the case the Court of District Judge was the competent Court and the High Court had also the express powers to transfer the cases.
6. Now the N.-W.F.P. Civil Courts (Second Amendment) Ordinance, 1994 raising the appellate jurisdiction of the Court of District Judge up to five hundred thousand rupees vis-a-vis appeals against the judgments, decrees or orders of the Court of Civil Judge is hereby examined on the touchstone of the principles and rules of interpretation of the case-law cited above to the extent of the change of forum by a law that pending appeals in the High Court as against the decrees and orders of the Civil Judges up to the value of five hundred thousand rupees should be transferred to the Court of District Judge or to be kept pending in the High Court. Section 18 expressly provides for that the appeal against the decree or order of a Civil Judge shall in the first instance lie to the District Judge and only if the value of the original suit exceeds five hundred thousand rupees the appeal shall lie to the High Court. The Amending Ordinance shall stand to incorporate in section 18 of the parent Ordinance as to form its part. Reference is made to section 28(3) of the parent Ordinance wherein it is provided that on the commencement of the Ordinance if any suit or appeal is pending in the High Court or any other Civil Court which under the Ordinance is to be tried or heard by some other Court such suit or appeal shall stand transferred to the Court competent under the Ordinance to try or hear the same. The Amending Ordinance has made the Court of a District Judge the competent Court to hear appeals against the orders or decrees up to the value of five hundred thousand rupees and as such these appeals shall be transferred to the Court competent under the Ordinance, that is, the Court of District Judge to try or hear the cases. We have found that Courts of District judges are undoubtedly the competent Courts with jurisdiction at the time. High Court has further the power under section 24, C.P.C. Read with section 28 of the Civil Courts Ordinance to transfer these cases to a Court of competent jurisdiction and the process shall facilitate the ends of justice and to be a source of convenience to the parties because on acceptance or dismissal of the appeals by the District Courts the aggrieved party shall have a further right of second appeal or revision in the High Court. In the context reference is made to sections 100 and 102, C.P.C. Providing for a second appeal to the High Court in cases where the amount or value of the subject-matter exceeds two hundred fifty thousand rupees and as such if the first appeals in cases of the value of two hundred fifty thousand rupees up to five hundred thousand rupees are heard in the High Court the aggrieved party shall be deprived of a statutory right of second appeal in this way. Besides as for first appeal is concerned section 96, C.P.C. Has not specked a forum in a District Court or High Court and it is section 18 of the Civil Courts Ordinance, 1962 that vests the forum in a District Court up to the value of five hundred thousand rupees and beyond that in the High Court. Besides the revisional jurisdiction of the High Court under section 115, C.P.C. Shall also be available to the aggrieved party in cases of appeals heard by the Court of District Judge in a value of the subject-matter less than two hundred fifty thousand rupees. As earlier pointed out there has been a practice in vogue in the past as approved by the Supreme Court in judgments 1987 SCMR 97-S (Bashir v. Wazir A.I) and 1987 SCM R 1482 (Khan Muhammad and others v. Ishtiaq Hussain) that on raising the pecuniary jurisdiction of the District Courts by amendment in section 18 of the Civil Courts Ordinance, the appeals pending in the High Court of the pecuniary jurisdiction of the District Court have been transferred to the latter Courts.
7. In view of the above we would order the transfer of all first appeals against decrees or orders of the Civil Judges up to the value of five hundred thousand rupees to the Courts of District Judges concerned with direction to dispose of the cases on priority basis.