SARDAR SAID MUHMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court dated 17-10-1996, whereby the appeal filed by Mst. Sakina Bibi, respondent, was accepted and the case of pre---emption instituted by her was held within time.
2. The brief facts of the case are that a sale-deed was executed on 12-10-1991 which was pre- empted by instituting the suit on the basis of right of prior purchase on 12-10-1992. An amendment was brought in the relevant law on 29-6-1992 whereby the limitation for filing a suit of pre-emption was reduced from one year to four months. An application was preferred by the defendant in the trial Court that the suit is time-barred and, thus should be dismissed. The trial Court, after hearing the parties, dismissed the suit as being time-barred; the appeal to the District Judge also failed.
However, on appeal to the High Court by the pre-emptor, it was held that as at the time of execution of the sale-deed the period of limitation for filing the suit of pre-emption was one year, the amendment, whereby the period of limitation for filing suit of pre-emption was reduced to four months, would not affect the rights of respondent-pre-emptor.
3. It has been argued by Mr. Liaquat A.I Khan, Advocate, the learned counsel for the appellant, that it is well-settled principle of law that procedural law operates retrospectively even if such law does not specifically envisage so. He has contended that as the law of limitation falls within the ambit of procedural law, it would operate retrospectively and, thus, the suit filed by the respondent was clearly time-barred. He has argued that the High Court committed error in holding that pre- emption suit filed by the plaintiff-respondent would be governed by the period of limitation as it existed before the amendment. The learned counsel has relied upon following authorities in support of his contentions:-- PLD 1965 Karachi 69), it has been held that generally law of limitation operates retrospectively even if cause of action arose before coming into force of new statute of limitation.
However, if the effect of such retrospectivity tantamount to taking away of substantive rights of a citizen, it would not be given retrospective effect. After exhaustively dealing with the case-law on the point, it was observed as under;-- "It, therefore, appears to us that in a case where the right of the plaintiff to recover that debt had not become barred at the time when the amended Act was enforced, a procedural change in the period of limitation prescribed for summary suit cannot be considered to be affecting any vested right so as to attract the principles recognised in section 6 of the General Clauses Act. With great respect in the Bombay case this aspect of the case was not brought to the notice of the learned Judge and we do not consider that that decision has laid down correct law. "
PLD 1962 Quetta 82), it has been observed that when Limitation Act prescribes the period of limitation for the institution of a particular suit, it does not create any right in favour of any person or define or create causes of action but only limits period for enforcing a right. Therefore, the period of limitation would be applicable which is enforced on the date on which the suit or proceedings are instituted notwithstanding the fact that the cause of action arose before such Act came into force. Therefore, despite the fact that law of limitation was not applicable under partly repealed '
Dastur-ul-Amal Diwani, Kalat', the application for the restoration of appeal dismissed in default was rightly dismissed as being time--barred by virtue subsequent state of law.
"Considering these authorities, it is clear that as a rule statutes of limitation being procedural laws must be given a retrospective effect in the sense that they must be applied to all suits filed after they came into force. This general rule has got to be read with one important qualification, and that is that if the statute of limitation, if given a retrospective effect, destroys a causes of action which was vested in a party or makes it impossible for that party for the exercise of his vested right of action, then the Courts would not give retrospective effect to the statute of limitation. The reason for this qualification is that it would inflict such hardship and such injustice on parties that the Courts would hesitate to attribute to the Legislature an intention to do something which was obviously wrong. Applying this principle to the facts of this case. Act 12 of 1938 was published in the Gazette on 27th May, 1938, and S.1 provided that it shall come into force on such date as the Provincial Government may be notification in the official Gazette appoints and the date appointed by the Provincial Government was 1st July, 1938. So there was an interval between 27th May, 1938, and 1st July, 1938, during which, if I might so put it, the operation of the Act was suspended and the necessary intimation was given by the Legislature to the public that the Act would come into force on 1st July, 1938, and that if they were not vigilant about their rights, they would be deprived of them. It is true that it was not open to the respondents immediately to go to Court on the Act being published in the Government Gazette of 27th May, 1938, because under section 26-E a notice of thirty days had to be given to the District School Board. But even if such a notice had been given and the necessary period had expired, still a few days would have been left to the respondents to file the necessary suits. It may be that the period is extremely short, but I cannot possibly hold that the respondents were deprived of an opportunity of exercising their right of action which had vested in them. However, short the period the respondents had their right after giving the necessary statutory notice to commence their action against the District School Board. However, reluctantly. I must come to the conclusion that Mr. Coyajee's contention must prevail and that the respondents' claim except for a period of six months prior to the filing of tote suit and for injunction is barred by limitation."
PLD 1981 SC 12) (Shariat Appellate Bench), dealing with certain provisions of Limitation Act as to whether they are repugnant to the injunctions of Islam, observed that section 3 of the Limitation Act does not itself create any right to file suit, appeal or application and, thus, it is of procedural nature and the Shariat Court was not competent to deal with it.
4. Ch. Muhammad Sharif Tariq, Advocate, the learned counsel for the respondent, strenuously controverted the arguments advanced by the learned counsel for the appellant. He has contended that the proposition that a statute of limitation would not be given retrospective effect if it takes away the existing right of a party is well-settled and even the authorities relied upon by the learned counsel for the appellant do not make exception to it, rather they support it. He has cited following authorities in support of his contention:-- "(12) On a survey of the authorities referred to above, I am of the view that it is not always true to say that the law of limitation is only a law of procedure and does not bar the remedy altogether so as to destroy the right. It is a well-settled proposition of law that the new law of limitation would not revive a barred right. Similarly, it may be taken to be equally well-settled that the new law of limitation cannot be construed retrospectively so as to destroy altogether the remedy of litigant to enforce his right in a Court of law. The law may be taken to be more accurately stated in the following passage in Corpus Juris----quoted in the 'Interpretation of Statutes' by Bindra-- I 961, Third Edition, on page 586: 'While it has been said that statutes relating to remedies or procedure may be given a retrospective operation, a more accurate statement of the principle intended is that, unless expressly prohibited by statute, and in the absence of directions to the contrary, or unless in doing so some contract obligation is violated or some vested right divested, statutes merely affecting the remedy or law of procedure apply to actions, thereafter, whether the right of action accrued before or after the change in the law. The Legislature has full control over the mode, time, and manner of prosecuting suits, and whenever, upon consideration of an entire statute relating to those matters, it appears to have been the legislative intent to make it retroactive, it will be given this effect ....'
To this I may further add that in case the remedy to enforce a vested right is altogether barred on the date when the new law comes into force without providing any breathing time to a litigant, that remedy must continue to be governed by the old law of limitation. I may, however point out that the Legislature has full power to make a law retrospective so as to destroy a right or a remedy altogether but this must be expressly laid down or this result must flow by necessary implication. A Court of law is not justified in drawing such inference merely from the fact that the new enactment deals mainly with procedure."
PLD 1962 Karachi 889), it has been held that where the statute affects existing rights, its provisions should not be given retrospective effect, unless a clear intention is expressed to that effect. Thus, it was observed that Article 98 of the Constitution of Pakistan (1962) cannot be interpreted as having retrospective effect and applicable to the writ petitions which were pending before the enforcement of the Constitution.
5. We have given our due consideration to the arguments raised at the Bar. There is no quarrel with the proposition that the law of limitation is a procedural law and generally it is given retrospective effect even if it is not so provided by the statute itself. However, there is one exception to it; if such retrospectivity takes away, destroys or nullifies the vested rights of a litigant, the old law of limitation would govern the matter and new statute or provision of law introduced by an amendment or otherwise, would not affect the vested rights of a litigant. Even, the authorities relied upon by the learned counsel for the appellant support the aforesaid view. A reference may also be made to a case reported as Joshi Maganlal Kunverji v. Thacker Mulji Budha (AIR 1951 Kutch 15).
While dealing with the proposition, it has been observed as under:-- "(4) --------------------------------------- Identical view was taken in a Full Bench case reported as Jethmal v. Ambsingh (AIR 1955 Rajasthan 97).
6. It follows from what has been stated above that in the instant case if the amended period of limitation, i.e. Four months is given retrospective effect, the suit of the plaintiff-respondent would be hopelessly time-barred and would amount to destroy her vested rights. Therefore, there is no force in the contention of the learned counsel for the appellant that the High Court committed any error in passing the impugned judgment.
Consequently, the appeal filed by the appellant, herein, is hereby dismissed with no order as to the costs.