This revision petition is directed against the judgment and decree passed by the learned Additional District Judge/Izaft Zilla Qazi, Dir, dated 1-8-1996 whereby he while setting aside the judgment and decree, dated 27-9-1995 passed by Civil Judge/Illaqa Qazi, Timergarh, accepted the appeal filed by the plaintiffs-respondents and remanded the case hack to the trial Court for decision afresh in accordance with the Provincially Administered Tribal Areas (Nifaz-e-Nizam-e- Shariah) Regulation, 1994 (N.-W.F.P. Regulation No.II of 1994) in the light of the observations made in his judgment.
2. Brief facts giving rise to the revision petition in hand are that Nauroz and others, plaintiffs- respondents instituted a suit against Ghulam Rahim and others, defendants-petitioners for seeking declaration, permanent injunction and for the recovery of Rs.20,000 fully described in the heading of the plaint. The suit was resisted by defendants Nos. 1 to 6, 12 to 20 by filing their separate written statements. In view of the pleadings of the parties as many as 12 issues including the relief were framed. The parties produced their evidence in support of their respective claims. At the close of the evidence, the learned trial Judge after hearing the arguments of the learned counsels for the parties, dismissed the suit of the plaintiffs-respondents vide his judgment and decree, dated 27-9- 1995. Feeling aggrieved from the said judgment and decree, the plaintiffs-respondents preferred an appeal before the Additional District Judge/Izafi Zila Qazi, Dir who vide his judgment and decree, dated 1-8-1996 accepted the same and remanded the case back to the trial Court for decision afresh in accordance with the W.F.P. Regulation Nos.II of 1994 and in the light of the observation As him in his judgment.
3. Learned counsel for the defendants/petitioners vehemently argued that the learned Appellate Court has misconceived and misinterpreted the law in the field, thus, fallen into error and committed a material irregularity by remanding the case back to the trial Court on the technical grounds; that the case/suit was instituted initially in the Civil Court under PATA Regulation Nos.I and II of 1975 and was as such tried till the promulgation of N.-W.F.P. Regulation No.II of 1994, which was enforced subsequently and in the circumstances it is an illegality on the part of the Appellate Court to remand the same for retrial under Regulation No.II of 1994. He further added that the plaintiffs- respondents had not raised this objection before the trial Court or any such ground in the memorandum of appeal, hence the point which has not been agitated by the opposite party before the trial Court or Court of appeal could have not been taken into account of his own by the Appellate Court; that the suit was dismissed by the trial Court on merits in view of the solid material and tangible evidence on record; lastly prayed that since the remanding of the case is not justified and lawful, therefore, the impugned judgment and decree by the Appellate Court may be set aside and that of the trial Court be restored.
4. On the other hand, learned counsel for a plaintiffs-respondents while defending the impugned judgment and decree of the Appellate Court first raised the preliminary objection that this revision petition does not lie, as the petitioners had not impleaded the parties fully described in the heading of the plaint, under the law the parties which are arrayed in the plaint have to be impleaded in such hierarchy nor had filed a representative petition, as such the petition is liable to be dismissed on this score alone. He further argued that the suit was under trial before the Senior Civil Judge when during the pendency of the suit Regulation No.II of 1994 came into being so the same Judicial Officer was notified as Qazi on 21-12-1994 under the new Regulation No.11 of 1994, therefore, in the prevailing situation it was incumbent upon the trial Court to ado t the new procedure on the introduction of preceding law.
5. Section 5(2) of the Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation 1994 provides that Courts/Judicial 0ffcct--- v Nile conducting, the criminal/civil cases shall exercise and perform powers, functions and duties as assigned or imposed on respective Courts/Judicial Officers in N.W.F.P. Any law for the time being in force. Under section 7 the Court may refer any matter to one or more mediate: with the mutual consent of the parties for its resolution in accordance with Shariah. The proceedings in relation to criminal/civil cases had to be regulated in accordance with the procedural law applicable in N.-W.F.P. i.e. Criminal Procedure Code and Civil Procedure Code respectively under the P.A.T.A. (Nifaz-e-Nizam-e-Shariat) .
Regulation, 1994. N.-W. F. P. Regulation No.1 of 1975 and N.-W.F.P. Regulation No.II of 1975 were repealed with effect from 12th day of February, 1994 under section 11 of the N.-W.F.P. Regulation No.II of 1994 which is reproduced as under-- "11. Reveal.--- (1) The Provincially Administered Tribal Areas Criminal Law (Special Provisions)
Regulation, 1975 (N.-W.F.P. Regulation II of 1975) and the Provincially Administered Tribal Areas Civil Procedure (Special Provision) Regulation, 1975 (N.-W.F.P. Regulation II of 1975), are hereby repealed, and shall be deemed is have been repealed with effect from the 12th day of February, 1994.
(2) Notwithstanding the repeal of laws under subsection (1) of this section or cessation of any law, instrument, custom or usage under section 4, the repeal or cessation, as the case may be, shall not--
(a) revive anything not in force or existing at the time at which the repeal or cessation takes effect;
(b) affect the previous- operation of the law, instrument, custom or usage or anything duly done or suffered thereunder;
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law, instrument, custom or usage.
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law, instrument, custom or usage; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privileges, obligation, liability, penalty, forfeiture or punishment and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment tray be imposed, , as if the law, instrument, custom or usage had not been repealed or ceased to have effect, as the case tray be."
6. In case Abdul Samad and others v. Painda Muhammad and others reported as PLD 1997 Pesh. 35, the Full Bench of this Court held as under:--- "The formulated point No. l is answered to the effect that appeals or petitions pending under the repealed PATA N.-W.F.P. Regulation I of 1975 and PATA N.-W.F.P. Regulation II of 1975 will be heard and decided by the forums under the said .Regulation II notwithstanding the repeal of the Regulation by N.-W.F.P. Regulation No.11 of 1994 and would not stand transferred to the Courts established under N.-W.F.P. Regulation II of 1994. The answer to point No.2 is that the Courts established under N.-W.F.P. Regulation II of 1994 including the District and Sessions Judges would be competent to hear appeals against the judgments of Deputy Commissioners passed under PATA N.-W.F.P. Regulation I of 1975 and PATA N.-W.F.P. Regulation II of 1975. Consequently, the pending cases before the trial forums under the DATA N.-W.F.P. Regulation I of 1975 and PATA Regulation II of 1975 are to be transferred to the appropriate Courts of ordinary jurisdiction, civil and criminal, for trial of the cases and judgments thereupon under the law and procedure applicable to the cases under N.-W.F.P. Regulation II of 1994. The reference of the learned Additional District Judge under section 113 of C.P.C. Is also answered accordingly. "
7. A perusal of the record would show that the suit was pending before the trial Court when the N.- W.F,P. Regulation No.11 of 1994 has come into force with effect from 12th day of February, 1994. The case was transferred to the Court of Illaqa/Tehsil Qazi vide order-sheet, dated 21-12-1994_ therefore, it was the bounden duty of the Illaqa Qazi to adopt the new procedure i.e. N.W.F.P.
Regulation No.11 of 1994 in order to proceed further in the matter or would have sought the consent of the parties as to whether they adopt the evidence .And proceedings already taken under the repealed law but on contrary he never did so nor cared of it because of which the manner and method of trial 'is effected, specially mediation process etc. In. View of section 7 of the N.-W.F.P.
Regulation No.II of 1994.
8. As regards the reason advanced by the learned counsel for ;he petitioners that since at the time of the institution of the suit in question, the N.-W.F.P. Regulation II of 1994 was not in the field and after the repeal and coming into force the said Regulation, the trial of the suit is not effected and shall continue and be dealt with under PATA Regulations Nos.1 and II of 1975, is misconceived and against the said principle of law and procedure and also-the authority of this Court referred above.
9. Since all the parties sued in representative capacity in the lower Court were not sued in this revision petition, the petitioners were, however, required to move application under Order I, Rule 8 of the Civil Procedure Code for permission to sue and pursue the petition in a representative capacity.
10. As a sequel to my above discussion I am of the firm opinion that the trial Court has not properly appreciated the delicacy in view of N.-W.F.P. Regulation No.11 of 1994, therefore, the decision of the Appellate Court is perfectly in order and in consonance with the spirit/theme of the N.-W.F.P.
Regulation II of 1994 and it has rightly remanded the case back to the trial Court for decision afresh in accordance with the N.-W.F.P. Regulation II or' 1994, thus, the judgment and decree of the learned Appellate Court impugned herein is maintained.
Consequently this revision petition is dismissed, with no order as to costs.