' KHAWAJA MUHAMMAD SAEED, J.---This appeal, with the leave of the Court is directed against the judgment and decree passed on 25-5-2000 by the High Court, whereby, the judgment and decree recorded in favour of the appellant by District Judge, Bhimber, were reversed and suit filed by the appellant was dismissed.
2. The dispute between the parties relates to land bearing Survey No, 318, Khata No, 277, Khewat No, 15 situate at village Chani Raiki. Appellant Muhammad Sarwar brought a suit in the Court of Additional District Judge, Bhimber on 29-5-1993 in which he contended that respondent, herein, borrowed a sum of rupees 1,13,000 from him and executed a receipt in his favour. In the receipt a stipulation was mentioned by the parties with mutual agreement that the defendant-respondent shall return the borrowed amount to the appellant up to 15-10-1989. In case he failed to return the amount up to aforementioned date, then he shall execute a sale deed in favour of appellant. He further contended that in the light of this agreement the defendant-respondent handed over the possession of the suit land to him. According to plaintiff-appellant the respondent failed to return to him the borrowed amount up to 15-10-1989 and despite his demand, has refused to transfer the suit land to him in the light of the agreed terms of the receipt. He, in the light of these facts, requested for direction to defendant-respondent to execute sale-deed of the suit land in his favour alternatively he requested for a declaration that he be declared owner of the land.
3. The defendant-respondent filed his written statement on 6-4-1995 in which he challenged the maintainability of the suit on three preliminary objections. Firstly that the suit is barred by limitation, secondly that in the present form it is not maintainable and thirdly, that the plaintiff-appellant has got no cause of action. In. Para. 3 of the written statement he admitted that a sum of rupees 1,13,000 was advanced to him as loan by the plaintiff-appellant. He also admitted that he executed a receipt in favour of the plaintiff-appellant in which it is mentioned that he shall return the borrowed amount to the plaintiff-appellant up to 15-10-1989. However, according to him, he tried his best to return the amount to plaintiff-appellant before 15-10-1989 who out of this amount received rupees 25,000 on one date and thereafter refused to receive the remaining amount from him. During the pendency of the suit he-moved an application before the Court seeking amendment in the written statement. Application was allowed and on 9-1-1998 he filed amended written statement in which he took this ground, that a few days back he paid Rs, 75,000 to plaintiff- appellant.
4. The trial Court after the conclusion of the trial decreed the suit of the plaintiff-appellant. This decree was assailed in appeal before the High Court on 25-9-1999. The learned Judge allowed the appeal on two grounds: Firstly, that the suit filed by appellant was barred by limitation and secondly, that the plaintiff-appellant failed to appear as witness in support of his case that no amount was ever offered by defendant-respondent to him on or before 15-10-1989 as such he was not entitled to claim decree of land through specific performance of contract. This judgment has been assailed before us through instant appeal.
5. Khawaja Ali Muhammad, the learned counsel for the appellant, argued that receipt was executed in favour of his client on 15-8-1989, whereas, suit for specific performance of contract was tiled by his client on 29-5-1993. His client had still limitation when Article 113 of the Limitation Act was amended and instead of three years, limitation of 6 years was substituted in this Article for filing a suit of specific performance of the contract. This amendment was made applicable from the date of promulgation of the amended law which was 8-10-1989. The benefit of this Article therefore automatically became available to his client. He relied on two reported cases titled Allah Ditta and another v. Jamna Das and others AIR 1929 Lahore 679 and Sakhi Muhammad Khan and others v. Maiz Ali Khan AIR 1923 Lahore 604 in support of his contention.
6. We have gone through the reports of these authorities. These cases have got nothing common with the facts of the present case, these, therefore need not be discussed in this judgment. The learned counsel for the appellant further argued that created rights and liabilities incurred on account of a statute are saved by section 6 of the General Clauses Act despite repeal of such statute but section 6 of the General Clause Act is not attracted when any provision of a statute is amended. According to him in the present case as Article 113 has been amended, therefore any right accrued to the opposite-party is not saved by section 6 of the General Clauses Act.
7. On the other hand Ch. Muhammad Sharif Tariq the learned counsel for the respondents, argued that judgment recorded by the trial Court in favour of plaintiff-appellant was against law and facts, therefore, the learned Judge in the High Court has rightly vacated these findings. According to him the period for bringing the suit of specific performance in the present case shall commence from 15-10-1989 as respondent had promised to repay the borrowed amount to the plaintiff-appellant up to this date, otherwise, he had given an undertaking that he will execute a sale-deed in favour of the plaintiff-appellant. At the time of execution of the receipt the plaintiff-appellant had also taken the possession of the suit land from defendant-respondent. Therefore according to the learned counsel the date for specific performance of contract shall commence in this case from 15-10-1989 and the law which shall govern the subject shall be Article 113, before its amendment as cause of action to plaintiff-respondent had accrued on the date when transfer of land was denied by defendant-respondent on 15-10-1989. The period of limitation being three years, the suit having been filed beyond this period was rightly dismissed by the learned Judge of the High Court. He also contended that plaintiff-respondent has got no cause of action because not only in the written statement his client had specifically pleaded that he tried his best to return the borrowed amount before 15-10-1989 and that defendant-appellant refused to accept the payments and pressed for the execution of sale-deed of the suit land in his favour. He further argued that his client appeared before the Court as witness and supported his case that he tried to return the borrowed amount to the plaintiff-respondent but he refused to accept the same. The plaintiff-appellant failed to appear before the Court to rebut his evidence, therefore, the conclusion which in these circumstances can be drawn is that he had no moral courage to deny the true facts. The learned counsel for the respondent relied on the case reported as Fazal Dad v. Mst. Sakina Bibi and another '1997 M LD 2861 in this case after discussing 'number of authorities it was laid down that amendment made in law of limitation would not revive a barred right and further that it is equally well-settled that a new law of limitation cannot be construed retrospectively so as to destroy some vested right.
8. We have heard the learned counsel for the parties and gone through the record of the case. The question which needs resolution is related to period of limitation. The suit in the present case was filed by the plaintiff-appellant after three years and five months. No separate application was filed or any ground was taken by him in the plaint seeking condonation of delay. At the time when in lieu of Rs,1,13,000 a receipt was executed by defendant-respondent in favour of appellant, the limitation for bringing suit for specific performance of contract under Article 113 of the Limitation Act was 3 years. An amendment was affected on 8-10-1989. According to this amendment the period for bringing such suit was increased from 3 years to 6 years.
9. The distinction which the learned counsel for the appellant created is not of much importance.
Repeal of a law, or amendment carried in a law, is taken almost in the same sense so far as the application of section 6 of the General Clauses Act is concerned. In Saeed Ahmed v. The State (PLD 1964 SC 266) the question arose whether there is any difference between repeal of a law, and amendment. It was resolved by the eminent Judge B.Z. Kaikaus, as follows:-- "It will be observed that in accordance with this section all rights, liabilities, etc. Continue in spite of repeal and all proceedings can be taken and continued which could have been taken or continued if the repealing Act did not come into force. When I asked learned counsel for the appellant what he had to say in reply to this section his only answer was that this section applies to a repeal and not to an amendment and before us there is a case of an amendment. Every amendment contains repeal for the law in the form in which it stood previously disappears and a new law comes into force. There is no difference at all between a case where the Legislature says that a particular section will stand amended in a particular way and a case where it says that the section stands repealed and its place will be taken by a new section, if the new section is the same as the amended section. Whenever there is an amendment the Legislature could very well have said that the previous provision would be omitted and the provision as amended would be inserted. There is no reason for giving any different effect to these two methods which achieve the same result. At the same time there is no difference in principle between repeal and amendment and if in the case of a total repeal a proceeding can be continued as if there was no repeal why should the proceeding not be continued in the case of an amended provision?"
' Hamood-ur-Rehman another learned Judge of the Bench, as he then was, also endorsed this view, by observing that the guilt had to be determined according to the state of the law prevailing at the time when offence was committed.
10. In this case many authorities, on the subject from Indian jurisdiction have been discussed. From the reading of this authority it becomes clear that in essence there is no distinction between repealing laws and laws which merely profess to amend. If the amendment of the existing law is small, the act professes to amend, if it is extensive it repeals the law and re-enacts it. There is no reason for giving different effect to repeal and amendment.
11. In the present case, Article 113 of the Limitation Act has been amended by substituting 6 years instead of 3 years so far the period for bringing suit of specific performance is concerned. It is within the competence of the legislative body to amend or repeal any law, as no law by itself is secured from repeal or amendment. It is admitted position in the present case that the amendment in Article 113 of the Limitation Act was made on 8-10-1989. It did not render previous provision of Limitation Act void from the date of its inception.
12. According to learned Judge in the High Court this Article as it was before its amendment shall apply in the present case, because amendment is not given retrospective effect. Prima facie such amendment shall be effective for future transaction and not past ones. The receipt Exh. PA, dated 15-8-1989 had created certain rights in favour of the parties. Admittedly the defendant-respondent failed to repay the amount borrowed by him within the time limit fixed by the parties. Through this document substantive right had accrued to the plaintiff-appellant and remedy to claim decree of land through specific performance of contract was available to him for this purpose. The limitation provided in Article 113 before amendment was available to him for this purpose. He was not justified in law in tiling suit after 3 years as the new law of limitation cannot be construed retrospectively in this case, because that would destroy right which has vested to defendant-respondent by lapse of time as remedy under law against him had become time-barred.
' In case reported as Idrees Ahmad and 4 others v. Hatiz Fida Ahmad Khan PLD 1985 SC 376, the proceedings for the ejectment were pending before the First Appellate Authority (District Judge) when law was repealed and a fresh Ordinance was promulgated in which only one appeal before the District Judge, as Appellate Authority, was provided. The aggrieved parties filed second appeal before the High Court under the provisions of old law. These appeals were allowed by the High Court. "With the permission of the Court right of appeal was availed before the Supreme Court of Pakistan on the ground that as previous law had been repealed, therefore, the parties aggrieved by the order of the First Appellate Authority were not justified in law to avail right of second appeal under repealed law before the High Court. The learned Supreme Court resolved the proposition by holding that unless a different intention appears from the repealing enactment, the repeal ipso facto will not affect any right, privilege, obligation or liability acquired, accrued or incurred under repealed enactment and finally these appeals were rejected and it was held that the dispute between the parties was rightly resolved under old law.
' In Fazal Dad v. Mst. Sakina Bibi 1997 M LD 2861 identical question came under consideration before this Court. Under the previous law the limitation for enforcing right of pre-emption was one year.
That provision was amended and instead of one year the limitation for enforcing pre-emptive right was fixed as 4 months. The suit in this case was tiled within a year by the preemptor. An objection was taken by the vendee that prior to the filing of the suit by the pre-emptor the law was amended.
Under amended law a period of only 4 months was available to the pre-emptor to enforce his right of pre-emption against him. This objection was turned down by all the Courts. Finally this question came under consideration before this Court in appeal filed by the vendee. After taking into account number of authorities for and against on the subject it was laid down that amendment carried in the law of limitation would not bar the right which had accrued to pre-emptor at the time of the sale. It was also laid down that the amendment carried in the law in the same way would not revive barred right.
13. The right to bring the suit for specific performance of contract in the present case was available to the plaintiff-appellant up to 15-10-1992. After this date his claim had become barred by limitation. He therefore was not justified in law to enforce the same under the pretext of the amended law. The interpretation which learned counsel for the appellant seeks from us in this regard would destroy the vested right of the defendant-respondent which is not permissible under law.
14. The defendant-respondent has pleaded in the written statement that he tried to repay the amount before 15-10-1989, however, the amount was not accepted by the appellant as he demanded from him the execution of a sale-deed of the suit land in his favour. He in his evidence has stated that on one date he paid rupees 25,000 and later on he paid rupees 75,000 to the appellant. The matter need not be resolved by us because admittedly in this case Rs,1,13,000 was not returned to the appellant up to 15-10-1989. The plaintiff, therefore, was justified to ask for the execution of sale-deed of the suit land in his favour. However, he filed his suit after prescribed period of limitation, therefore, the same was rightly dismissed by the learned Judge in the High Court. Whether any amount has been paid to the plaintiff-appellant or not is a question which in the light of the above-referred finding need not be resolved by us in this appeal.
' This appeal having no merit, is dismissed. However, due to peculiar facts of the case it is not felt expedient to award cost to the defendant-plaintiff.