HAMID ALI MIRZA, J.- This civil petition for leave to appeal is directed against the judgment dated 9.6.2000 passed by a learned single Judge of the Lahore High Court, whereby Civil Revision No. 295 of 2000 preferred by the petitioners was dismissed in limine.
2. The brief facts of the case are that the respondents filed Suit No. 194-of 1993 for declaration and injunction against the petitioners/judgment- debtors, which suit was decreed in favour of respondents on 29.3.1995 by the Civil Judge, 1st Class, Rawalpindi. Against the said judgment and decree, Appeal No. 141 of 1995 (Civil Aviation Authority v. Izhar Ahmed and others) was preferred by the petitioners on 7.5.1995, but the same was dismissed on 16.5.1998 as abated on insertion of Section 2A in the Service Tribunals Act, 1973, as per notification dated 10th June, 1997. The petitioners, thereafter, preferred Appeal No. 510(R) of 1998 on 30.6.1998 under Section 6 read with Section 2A Of the Service Tribunals Act, 1973 for setting aside/declaring the judgment and decree dated 29.3.1995 passed by the Civil Judge, First Class, Rawalpindi as null and void, which was dismissed in limine on 27.8.1998. The respondents/decree-holders filed execution application on 7.2.1999. The petitioners filed objections through Nasrullah Khan, Airport Manager, CAA, on 8.4.1999.
The executing Court, after hearing the parties, over-ruled the objections and allowed the execution application on 15.9.1999. The petitioners preferred Civil Appeal No. 31 of 1999 against the order dated 15.9.1999 passed by the executing Court, rejecting the objections of the petitioners/judgment- debtors, which appeal was also dismissed on 29.4.2000. By the Additional District Judge, Rawalpindi. Against the order dated 29.4.2000 passed by Additional District Judge in Appeal No. 31 of 1999 in the execution proceedings, Civil Revision No. 295/2000 was filed, which was dismissed in limine on 9.6.2000 by the learned Judge in Chambers as per impugned judgment, hence this petition for leave to appeal.
3. We have heard the learned counsel for the parties and perused the record.
4. The only contention of the learned counsel for the petitioners is that the High Court has erred in over-looking the fact that appeal No* 141 of 1995 having abated as per order dated 16.5.1998 by operation of law, the execution application had become infructuous as there was no decree for execution requiring order on the. Execution application when the appeal being in continuation of the suit, consequently the judgment of this Court reported as M/s. Sui Southern Gas Company Limited v. Khawaja Muhammad Munir and another (2000 SCM R 702) + (2000 KLR SC (Pak) 335) relied upon by the Courts below was not relevant in controversy between the parties in the instant case. He further contended that because Appeal No. 141 of 1995 tiled by the petitioners had abated, the decree dated 23.9.1995 passed in Suit No. 14 of 1993 by the Civil Judge, First Class, Rawalpindi in favour of the respondents became ineffective and invalid. He has placed reliance upon F.A. Khan v.
Government of Pakistan (PLD 1964 SC 520), Wajid Ali v. Syed Sajid Ali (1985 SCMR 401), Allaf Din v.
Mst. Parveen Akhtar (PLD 1970 SC 75), Muzafar Ali v. Muhammad Shaft (PLD 1981 SC 94), Commissioner of Income Tax v. M/s. Farrukh Chemical Industries (1992 SCMR 532), Glaxco Laboratories Limited v. Inspecting Assistant Commissioner of Income Tax (PLD 1992 SC 549) and Zahiruddin v. Anjuman-e-Himayat-e-Islam (1989 M LD 480) in support of his contention.
5. The learned counsel for the respondents has submitted that in view of Section 2A of the Service Tribunals Act, 1973 only the proceedings of Appeal No. 141 of 1995 abated, leaving intact the decree passed by the Civil Judge. He further submitted that in case the decree passed by the Civil Judge on 23.9.1995 was to become ineffective on insertion of Section 2A in the Service Tribunals Act, 1973, then why the petitioners preferred Appeal No. 510(R) of 1998 before the Federal Service Tribunal. He also referred to the provisions of Rules 5 and 8 of Order 41 of the Code of Civil Procedure contending that when mere filing of an appeal cannot operate as stay, then how insertion of Section 2-A in Service Tribunals Act, 1973 would make the decree passed in favour of respondents ineffective and invalid.
6. Section 2-A of Service Tribunals Act, 1973 was inserted as per notification dated 10th June, 1997, which runs as follows:- "2-A. Service under certain Corporations, etc. To be Service of Pakistan.-- Service under any authority, corporation, body or organization established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purpose of this Act."
Article 212(2) of the Constitution of Islamic Republic of Pakistan runs as "212(2) Notwithstanding anything hereinbefore contained, where any Administrative or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may pending before such other Court immediately before the establishment of the Administrative. Court or Tribunal, other than an appeal pending before the Supreme Court, shall abate on such establishment."
Section 6 of the Service Tribunals Act, 1973 reads as under:- "6. Abatement of suits and other proceedings.- All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith: Provided that any party to such a suit, appeal or application may, within ninety days of the establishment of the appropriate Tribunal, prefer an appeal to it in respect of any such matter which is in issue in such suit, appeal or application."
On perusal of record it would appear that only proceedings which were pending on 10.6.1997 i.e. The date when Section 2A was inserted was an Appeal No. 141 of 1995 filed by the petitioners/judgment- debtors passed in Suit No. 14/1993, therefore, same was disposed of as having abated hence decree which was in favour of the respondents/employees passed before the crucial date, i.e. 10th June, 1997, having been passed by competent Court only remained in the field. Learned counsel for the petitioner has failed to point out any provisions of law that on abatement of appeal by operation of law, decree passed before the target date, i.e. 10.6.1997, would also stand quashed or nullified. Mere filing of Appeal No. 141 of 1995 would not make the decree of the trial Court appealed against as ineffective and invalid. The decree passed by the Civil Judge on 23.9.1995 before the date when provision of Section 2A was inserted would hold the field and the only appeal proceedings would abate. The appeal abated by virtue of insertion of Section 2-A in the Service Tribunals Act, 1973, as the matter came within the purview of-the Service Tribunal and the party to such suit, appeal or application was permitted to prefer an appeal in respect of such matter within 90 days before the appropriate Tribunal. In the instant case, admittedly, the petitioners were aggrieved by the decree passed by the Civil Judge, First Class, consequently, they appealed before the District Court. Which appeal, on insertion of Section 2-A, abated, therefore, the petitioners being a party to the appeal were to prefer an appeal in terms of Section 6 of the said Act, which in fact they did. There is nothing in the above reproduced provisions of law whereunder it could be said that the decree passed prior to the target date would also be nullified.
The word "abate" has been defined in Black's Law Dictionary, with Edition, at page 4, column 1:- "To thrown down, to beat down, destroy, quash. To do away with or nullify or lessen or diminish. To bring entirely down or demolish, to put an end to, to do away with, to nullify, to make void."
The Oxford English Dictionary, Volume I, at page 9, defines the word "abatement"
"To beat down, demolish, destroy, to put down put an end to, do away with, To be at an end, to become null or void, To bring down, lower, depress. To fall, be dejected, humbled, to bring down in size, amount, value, force, to beat back the edge or point of anything, to turn the edge, to lessen or lower in force or intensity...."
From the above definitions, it cannot be inferred that the word "abate" has been used in Section 6 of the Service Tribunals Act, 1973 with the object of nullifying the effect of the decree or orders even passed prior to the insertion of Section 2-A in the Act.
7.. This Court in The State v. Dosso (PLD 1958 SC 533) at page 542-A has observed:- "that since Article 5 of the late Constitution itself had now disappeared from the new legal order, the Frontier Crimes Regulation (III of 1901) by reason of Article IV of the Laws (Continuance in Force)
Order, 1958 was still in force and all proceedings in cases in which the validity of that Regulation had been called in question having abated, the convictions recorded and the references made to the Council of Elders were good."
At pages 556 and 557 of the judgment it has been observed:- "The particular words whose effect is to be judged are the words at the very end of sub-section (7) proving that "all applications and proceedings in respect of any writ which is not so provided for shall abate forthwith". It is necessary for the the purpose of this judgment to ascertain which is meant by the expression "abate" in this sentence and further what "applications and proceedings" are to suffer abatement.
"The expressions "abate" and "abatement' do not appear to be capable of being defined generally with any exactness! They are used in a number of legal contexts, and their effect in each case may be gauged with precision, either from the context or from the terms of the relevant statute. The incidents of abatement vary from law to law. In several forms of law, one prominent feature of abatement is that the proceedings may be revived upon the happening of certain events, and the performance of certain conditions, so that it might be thought that in stich case, abatement is not a final conclusion but has the effect of keeping the matter in a state of suspense, pending certain developments. It seems scarcely possible to apply that conception of abatement to the provision hereunder examination. Every circumstance combines to create the impression that the provision is for an immediate and peremptory cessation, beyond hope of recall. It is for that reason all the.
More necessary that it should be ascertained with precision, what applications and proceedings are intended by this Order to suffer immediate and final cessation.
"Abatement is ordinarily a concept of the, procedural law. It takes effect frequently upon a proceeding becoming defective by the death or loss of capacity of any of die parties to a cause or matter. It may be based upon a defect of form, i.e. The plea may be raised on account of an informality or it may be founded upon a change or transfer of interest. The common cases of abatement in the Civil Law arise upon the death or bankruptcy of the party, or upon the devolution of the estate in dispute. In all these cases, there is provision for substitution of parties and for the proceedings to continue thereafter. In the law of election petitions, a petition abates upon the death of a sole or the last surviving petitioner, but it may be revived by a competent person entitled to pursue it. In affiliation proceedings, i.e. Proceedings commenced by a mother to obtain maintenance for an illegitimate child from the putative father, it has been held that the proceedings abate upon the death of the mother, because only the mother is competent to commence them and equally they abate upon the death of the putative father. In these cases, the abatement is final. Proceedings in lunacy are abated by the death of the patient, and the remain so until a personal representative has been duly constituted, when they may be revived.
"These are the familiar cases in which the law provides for abatement, but it is clear also that abatement may take place by operation of law. The last sentence in sub-section (7) of Section 2 of the Order of the 10th October, 1958, is clearly such a law. It remains to consider what particular applications and proceedings are liable to abatement by the operation of this law. The proceedings with which we are concerned, namely, the convictions obtained in the two cases here under consideration, derive their force and owe their validity to the Constitution of 1956, and their validity would ordinarily fall to be judged against the provisions of that Constitution. The Order of the 10th October, 1958 does not explicitly have any retrospective operation, and one would therefore hesitate, on the strength of a possible interpretation of the Order to declare the invalidity of anything done or suffered so long as the Constitution of 1958 was in force and operation. On the other hand, should the implication be clear, the Order of the 10th October, 1958, must necessarily prevail over anything appearing in the Constitution of 1956 or anything seeming to have validity only reference to the provisions of that Constitution."
It would appear that by majority judgment this Court held that the writs issued by the Lahore High Court, holding the Frontier Crimes Regulation to be invalid on the ground that it contravened Article 5 of the late Constitution and all such proceedings, in view of Article IV of the Laws (Continuance in Force) Order, 1958, abated. However, the convictions recorded and the references made were held to be good. But by minority judgment it was observed as page 561 as follows :-- "For these reasons, I am unable to hold beyond doubt that the concluding words of sub-section (7) of Section 2 of the Order of the 10th October, 1958, have the effect of bringing to an abrupt end the proceedings in the petitions before the High Courts commenced by the convicted persons in the two cases here under consideration. I do not therefore consider that it is open to me to reverse the judgment of the High Court in these two cases and to recall the writs issued by them unless I am satisfied that the view of the High Court on the point of repugnancy to Article 5 of the Constitution of 1956 is not tenable."
However, in accordance with the majority judgment of this Court in cited case (supra) the proceedings for-writs in the said cases pending were held to have abated in view of the provisions contained in Article IV of the Laws (Continuance in Force) Order, 1958, but so far the order, decision/conviction passed and recorded were held to be good. In the instant case also only appeal pending abated and the decree passed prior to the target date, i.e. 10.6.1997, cannot be said to have abated because of the promulgation and insertion of Section 2-A to the Service Tribunals Act, 1973.
8. This Court in Sui Southern Gas Company Ltd. v. Muhammad Munir (2000 SGMR 702 at 705) + (2000 KLR SC (Pak) 335) has observed:- "It will, at once be seen that on the date of the promulgation and insertion of Section 2-A viz. 10.6.19^7 no proceedings, either explicitly or implicitly, falling within the jurisdiction of the Service Tribunal were pending. This arose because the employee of the present petitioners had already retired from service had filed, and what is more, obtained a decree for money before the crucial date, when the said section was brought on the statue book. The above decree, as pointed out by the High Court, had also in due course, attained finality. Mere filing or continuation of execution proceedings qua such a decree, a past and closed transaction, did not constitute any pending proceedings, which would, in the normal course* abate, pursuant to the mandate in Article 212(2) of the Constitution, aforementioned. The word "proceedings" in Article 212(2), plainly, means and implies proceedings in a pending Us and, obviously, not an independent proceeding, after final disposal, such as an execution application. The two learned Civil Courts, therefore, were clearly acting beyond jurisdiction when they found the said execution proceedings to have abated tin consequence of the referred Constitutional provision. In these circumstances, the High Court was clearly right in holding the impugned orders of such Civil Courts to be without jurisdiction.
Extending relief in the exercise of the High Court's own Constitutional jurisdiction, which in the foregoing background stood fully attracted, was also, eminently, a judicious use of discretion."
9. In Federation of Pakistan v. Muhammad Siddiq, Dilhar Khan v. Pakistan through Director General Civil Aviation (Civil Appeal No. 55/1997) (PLD 1981 SC 249), appellant, had joined service in the Department of Civil Aviation in. 1964 and was dismissed on 2.8.1969, consequently he filed suit challenging his dismissal, which suit was decreed on 3.6.1970. He was again proceeded against and was removed from service on 22.12.1970. He again filed suit which was decreed on 13.2.1972. The Director General Civil Aviation filed appeal before the District Court, which it was held on 18.12.1973, had abated on promulgation of the Act. The Government filed appeal before the Service Tribunal which was allowed by it and order of the appellant was maintained. The appellant then challenged the decision of Service Tribunal before this Court. This Court at page 260 of the cited judgment has observed :-- "In Civil Appeal No. 55 of 1973, the Tribunal, on an objection raised by the present appellant held that the appeal of the department before the District Court abated on creation of the Tribunal, whereupon an appeal was tiled before the Tribunal, which was competent. This is in accord with the view we have taken. There is no force in the said appeal and it is accordingly dismissed."
10. Reference may also be made to a decision of this Court reported as Sardar Ali v. Muhammad All (PLD 1988 SC 287 at page 344) wherein this Court has observed: "We have, in the opening part of this judgment, noted that the1 special character of the provisions in Chapter 3-A of the Constitution with particular reference to the effect of the examination of laws thereunder, on the pending proceedings. As already stated, looked at from all conclusion that the framers of the Constitution did not at all intend that the continuance of the proceedings during , the pendency of the said examination of laws, would become a futile exercise. It involved immense the and expense of the litigant public. The results were intended to be preserved. We have also held as a corollary to the foregoing1 finding that mere pendency Of a proceeding would not clothe the party concerned with any right. But, if a pre-emption decree has, in the meanwhile, been passed in his favour before the 31st July, 1986, this would create a right in his favour as it was envisaged by the Constitutional provisions. This Court has already clearly held in the well-known case of Fauji Foundation that it is better to discover the intention of the framers of the Constitution from the Constitution itself. We having done this exercise in an elaborate analysis of the relevant provisions in the opening Dart of this judgment and do not need any further aid to principles. That being so, those arguments which seek to nullify the pre-emption decrees passed before 31.7.1986 and effect thereof, on the basis of the case-law on certain principles regarding repeal etc. Are of no avail. This however, would not mean that we have in any way overruled any judgment cited at the Bar in this behalf; because, the ratio of this judgment is mainly based on the construction of the relevant provisions of the Constitution as also some principles of Islamic law and jurisprudence.
This observation would, however, not apply to those judgments of the High Court, which have not correctly decided the legal points involved in this matter."
From the above observations of this Court, it could conveniently be inferred that if the decree would have been nullified by virtue of abatement of the proceedings, this Court would not have observed that the appeals before Service Tribunal were competent and maintainable in terms of Section 6 of the Service Tribunals Act, 1973 but could have said that as the decree stood nullified because of abatement of appeals therefore the appeals before the Court became infructuous/incompetent but it was not held so. It may further be observed that unless the judgment and decree is either set aside or reversed by the next higher Court or is so declared to be nullity by operation of law, the decree cannot be said to have been made ineffective, inoperative and in-executable when the decree-holder had acquired vested rights which could not be taken away subsequently because of abatement of pending proceedings. So far the facts of the cases cited by the learned counsel for the petitioners, same are quite different and distinguishable to the controversy in the instant matter, consequently of no assistance to the petitioners case.
11. In view of the aforesaid reasonings, we find that the contention of the learned counsel for the petitioners has no merit and substance, consequently leave to appeal is refused and the petition is dismissed.