The petitioners appeal against the judgment and decree dated 22-7-1987 passed by Civil Judge, Sialkot, was dismissed by Additional District Judge, Sialkot, on 24-4-1995, on the ground that during the pendency of the petitioners' suit. sub-section (2) of section 12. C.P.C. was added by. Ordinance
(X) of 1980 and thus the separate suit was not competent. Hence this revision petition.
2. The relevant facts are that petitioners and their predecessor instituted a suit on 28-3-1977 challenging the Civil Court decrees dated 18-11-1976 and 28-2-1977 on the basis of fraud and misrepresentation. The suit was resisted by the respondents. The learned trial Court after framing the necessary issues and after recording the evidence produced by the parties; dismissed the suit on merits on 22-7-1987. The petitioners appeal, as mentioned above, was dismissed by the Additional District Judge, Sialkot, on 24-4-1995, on the ground that after the insertion of Section 12(2), C.P.C., the suit was no more competent and the learned Appellate Court did not go into the merits of the petitioners' case.
3. I have heard the learned counsel for - the parties and have also seen the record, the copy of which has also been placed on the record of this petition.
4. The suit was instituted by the petitioners on 28-3-1977 and at that time, the suit was admittedly competent. On 26-3-1980, sub-section (2) of section C.P.C. was added by Ordinance (X) of 1980. which reads as under (2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud. misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
The amendment is procedural in nature and normally such statutes are given retrospective effect.
However; while deciding the case of Adnan Afzal v: Capt. Sher Afzal (PLD 1969 SC 187). the Honourable Supreme Court was pleased to lay down the following principle in the matter of giving effect to procedural statutes: The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that the questions relating to jurisdiction over a cause of action. venue, parties pleadings and rules and evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a' change of forum by a law is retrospectively being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retrospective operation cause in convenience or injustice, then the Courts will not even in the case of procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively. "
5. In the present case, if section 12(2), C.P.C. is made applicable to the petitioners' case, through retroactive operation, it will certainly cause inconvenience ' to the petitioners as the whole of the lengthy process gone through by the parties through the regular trial in the suit would be gone into all over again by the same Court, resulting in the further expense and delay in the decision and in such a situation, keeping in view the above guidelines provided by the Honourable Supreme Court, the Courts are not to give retrospective effect to the procedural statute. It may be mentioned again that section 12(2), C.P.C. was added during the pendency of the petitioners' suit and the learned 'trial Court could, at that ,time, have treated the petitioners' suit as an application under section 12(2), C.P.C. and could have continued with the same in the normal manner without causing any inconvenience or delay but the learned trial Court did not opt for it and continued with the suit as a suit and decided the same on merits and in such a situation, the learned Appellate Court ought to have decided the appeal on merits, instead of holding the petitioner's suit as incompetent. In Noor- ul-Amin and another v. Muhammad Hashim and 27 others (1992 SCMR 1744), the Honourable Supreme Court held that mere fact that the plaint in the suit was described as a plaint and was registered as plaint could not deprive the Court of its jurisdiction to decide it as an application under section 12(2), C.P.C., if otherwise such jurisdiction was available to the Court under the law and no prejudice could be caused to the respondents by treating the plaint as an application under section 12(2), C.P.C. It was further held that procedural law are meant for advancing the cause of justice and cannot be made a vehicle of oppression to suppress the remed is and that the Courts always lean in favour of adjudication on merit rather than stifling - proceedings on technicalities. In Fateh Muhammad v. Ithushhal Muhammad (1981 CLC 1130), a learned Single Judge of this Court refused to interfere in his, revisional jurisdiction, with the orders passed by the Courts below whereby the respondent's application that the suit could not proceed as the relief asked for in the suit could be had by making an application under sub-section (2) of section 12, C.P.C. was dismissed and his appeal was also dismissed by the Additional District Judge. Similarly in Muhammad' Siddique and 2 others v. Malik Allah Ditta (PLD 1981 Lahore 318), during the pendency of the appeal, section 12 of Code of Civil Procedure was amended and subsection (2) was added in that section and the petitioners made'an application to the learned Additional District Judge that since the appeal brought by them was the continuation of the suit instituted by the respondent, his suit was hit by that amendment and the petitioners prayed for the dismissal of the suit brought by the respondent, the learned Additional District Judge dismissed the petitioners' application holding that the suit was instituted and decided prior to the amendment and the amendment was not to be given retrospective effect. The petitioner's revision petition was dismissed in limine by learned Single Judge of this Court holding, inter alia, that if the respondent's suit is dismissed, as desired by the petitioners, the respondent would have to make an application for setting aside the decree in dispute (in the present case, the petitioners, if unsuccessful, will have to make such an application) and the same will have to be heard and decided by the Court which had passed that decree, thus he as well as the petitioners would have to undertake the same exercise which they have already done (as in the present case) in connection with the suit brought by the respondent. It was further held that "this would, obviously, not only delay final adjudication of the matter in dispute but would also put the parties to unnecessary inconvenience and expense".
6. Guided by the law discussed above, I am of the view that the learned Appellate Court misapplied the law and illegally held that after the insertion of section 12(2), C.P.C., the petitioners suit was not competent and illegally dismissed the petitioners' appeal on this technicality instead of deciding the same on merits as the same would put the parties to unnecessary inconvenience and expense and would further delay the decision of the controversy.
7. In view of the above mentioned, the revision petition is allowed, the judgment and decree dated 24-4-1995 passed by Additional District Judge, Sialkot, is set aside and the case is remanded back to the learned District Judge. Sialkot, for a fresh decision of the petitioners' appeal on merits. The parties are, however, left to bear their own costs.