The judgment dated 7-11-1998 of the learned Additional District Judge, Gujranwala, has been assailed in this writ petition which arises out of the following circumstances.
2. On 7-4-1997 the petitioner filed an ejectment suit against respondent No. 2 from a shop before the Civil Court at Ferozewala. The property was then situated in a rural area. The grounds urged to seek ejectment of respondent No.2 were default from December to March and personal need. The suit was preceded by notice dated 13-3-1997.
Respondent No.2 contested the said suit. The tenancy and receipt of notice was admitted but the allegation of default was denied and it was averred that he had offered the rent for December, 1996 to the petitioner who had refused to receive it. The ground of personal need was also disputed.
3. The case was fixed for arguments when respondent No.2 moved an application that since December, 1997 Town Committee, Ferozewala has been constituted in which the shop in dispute falls with the result that the Punjab Urban Rent Restriction Ordinance, 1959 became applicable and, therefore, the suit was liable to be dismissed. This application was dismissed by the learned Civil Judge, on 21-7-1998. Respondent No.2 filed a revision petition which was allowed vide judgment dated 7-11-1998 impugned in this petition. The learned Additional District Judge was of the view that with the inclusion of the disputed shop in the urban area, the learned Rent Controller had exclusive jurisdiction to direct ejectment of respondent No.2. Judgment of this Court in Riaz-u--l- Hassan v. Hadayat Ullah (PLD 1975 Lahore 841) was relied upon.
4. It may be noted that vide Notification No.SOV(LG)5-15/95 (SKP), dated 13-12-1997 Town Committee, Ferozewala was constituted. The said notification was assailed in W.P. No.20725 of 1998 before this Court, which was allowed vide judgment dated 11-12-1998. Against the said judgment I.C.A. No.1411 of 1998 is pending before this Court.
5. On 13-11-2000, the learned counsel for the parties were directed to find out the fate of the aforesaid I.C.A. On 24-1-2001 and 31-7-2001 I was informed that the aforesaid I.C. A. Has not been decided. On 23-10-2001, the learned counsel for the petitioner submitted that this petition could be decided without waiting for the decision of aforesaid I.C.A. As according to him although the notification dated 13-12-1997 has been struck down yet it did not operate retrospectively to oust the jurisdiction of the Civil Court. Accordingly, in the presence of the learned counsel for the parties, the case was ordered to be listed for hearing. On 22-5-2002, the learned counsel for respondent No.2 did not enter appearance and the case was adjourned to provide him an opportunity to present his view-point. Again on 11-6-2002, the learned counsel was not in attendance and in view of the importance of the question involved in this case, it was again adjourned.
6. Even today the learned counsel for respondent No.2 is riot in attendance although his name has correctly been printed in the cause list. It is an ejectment matter and since this writ petition is pending before this Court since 3-2-1999, 1 proceeded to hear the case for its decision.
7. The contention of the learned counsel for the petitioner is two-fold. Firstly, that the notification dated 13-12-1997 has been struck down and secondly in any case, it was not retrospective to take away the jurisdiction of the Civil Court which existed at the time of initiation of the lis. About the judgment in Riaz-ul-Hassan (supra) his contention is that the rule laid down was not attracted in view of the fact that it affected the jurisdiction of the learned Rent Controller i.e. a tribunal of special jurisdiction.
8. The submissions made by the learned counsel for the petitioner have been considered. Even if the notification is maintained, the effect thereof would be that from the date of the aforesaid notification the Rent Ordinance became applicable to the property in dispute. The first question which attracted my attention was whether the Rent Ordinance applied retrospectively so as to take away the jurisdiction of the Civil Courts in pending suits. The jurisdiction of a Civil Court in the matters covered by the Rent Ordinance is not expressly barred but is impliedly barred by virtue of section 13 of the said Ordinance which provides that a tenant shall not be ejected except in accordance with the provisions of the said section.
9. The question of transfer of jurisdiction from one forum to another and the effect thereof has often been debated before the superior Courts. Broadly the consensus has been that change of forum pertains to the domain of procedure and a procedural law is retroactive in operation unless by express letter or necessary intendment a contrary intention is expressed in the said law. On the first sight it looked as if the judgment of the learned Additional District Judge, was in accordance with law and is supported by the judgment of this Court in Riaz-ul-Hassan's case. However, on deeper examination of the issue I am of the view that if on the date of institution of the suit, the Civil Court had the jurisdiction, then unless expressly ousted, the Civil Court, will continue to have the jurisdiction. I have examined the Rent Ordinance but could not notice that there was any provision in the said Ordinance whereby a pending case of ejectment stood transferred to the Rent Controller. It may also be observed that change of forum where proceedings earlier taken are continued and transfer of jurisdiction which may have the effect of nullifying the proceedings pending before the competent forum have to be clearly distinguished. In case of change of forum without nullifying the proceedings already taken the principle that procedural law applies with retrospective effect may be accepted as a rule, because it does not cause prejudice to any party.
However, retroactive application of a procedural law which has the effect of destroying the proceedings taken by a competent forum has to be differently viewed because of its inherent vice to put the parties to another round of litigation before a new forum. All possible efforts are to be made that an interpretation which promotes public good is to be preferred so as to avoid an evil consequence. Multiplicity of litigation is undoubtedly a vice which is not in public good. With reference to this case it may be observed, that from the order of the learned trial Court it appears that the proceedings had concluded and the case was fixed for arguments when respondent No.2 sought rejection of the plaint on the ground of applicability of the Rent Ordinance. The effect of the order passed by the revisional Court is that proceedings taken before the Civil Court stand nullified and the petitioner will have to initiate proceedings before the learned Rent Controller afresh.
10. The judgment in the case of Riaz-ul---Hassan relied upon by the learned revisional Court has been examined by me. In the said case, the learned Rent Controller was seized of an ejectment petition in the area which was urban. During the pendency of the said petition, the Governor of West Pakistan declared area as rural. The learned Rent Controller dismissed the ejectment petition of the landlord on the ground that the jurisdiction of the Rent Controller stood ousted. This order was interfered with by learned First Appellate Court on the basis of the observations in E.M.D. v. Mir Zaman (PLD 1960 Karachi 962). This Court came to the conclusion that the order passed by the learned Rent Controller was in accordance with law. It was observed that doctrine that the state of things existing at the time of institution of the suit is sufficient to determine the jurisdiction had no application where question is one of the jurisdiction over the subject-matter. Such jurisdiction must exist throughout the proceedings. It may be observed that in the said case jurisdiction of the learned Rent Controller stood ousted. Jurisdiction on a Special Tribunal is conferred by a statute and could be taken away by a statute but the Civil Courts are Courts of plenary jurisdiction and if on the date cognizance of a suit is taken with jurisdiction, it could only be taken away by express letter of law or clear intendment. Therefore, section 13 impliedly ousting the jurisdiction of the Civil Court in this case could not be applied with retrospective effect so as to undo the proceedings lawfully taken by the learned Civil Court.
11. The question came under consideration in Kailashnath Gurtu v. Harishehandra and another (AIR 1953 MB 13). In the said case suit for determination of fair rent was filed before the Civil Court under an existing law which was substitutes by another law under which such a suit was nut maintainable before the Civil Court. The learned Civil Court returned the plaint for presentation before the proper Court and the said order was concurred by the learned First Appellate Court. The Madhya Bharat High Court reversed the said orders with the observation that the relevant provisions of the latter legislation did not take away the jurisdiction of the Civil Court in a case filed before the commencement of the said Act. The judgment was based on the rule laid down in C.P.
Benergy v. B.S. Irani (AIR 1949 Bombay 182) which in turn was based on Venugopala v. Krishna Sawami (AIR 1943 FC 24) and the observations made by the learned Bombay High Court were as follows:-- "These observations of the Federal Court are enough to show that when an action has been rightly instituted in a Court which had jurisdiction to entertain it, would require strong and distinct word to defeat such vested right which has accrued to the litigant."
On the basis of the judgments of the Federal Court and the Bombay High Court, the Madhya Bharat High Court made the following observations:-- "(8) There is nothing in section 23 to show that the right to continue an action which has been rightly commenced has been taken away. Section 10 imposes two restrictions, one is that after the Act becomes operative suit for the decision of the fair rent shall, be instituted in no other Court except that of the Rent Controller, second is that no decree passed after this Act comes into force, can be executed if it is contrary to or inconsistent with any decision regarding rent given under this Act. These restrictions do not take away the jurisdiction of the Civil Court to try a suit filed before the commencement of the Act. In both these sections, I find no strong and distinct words to defeat the vested right of the litigant to continue his action which has been rightly commenced; nor do I find anything in these sections which would induce me to hold that the Legislature impliedly intended to take away the jurisdiction of the Civil Court in such matters.
12. The issue came up before this Court in National Bank of Pakistan v. Taj Muhammad (PLD 1984 Lahore 417). In the said case a suit filed before the Civil Court by the Bank was decreed ex pane on 29-6-1982. Having failed to get the ex pane decree set aside the defendant filed an appeal which was accepted and the case was remanded. After remand, the learned Civil Judge referred the case to the District Judge for disposal under the impression that District Court, Gujranwala alone had the jurisdiction in the matter on account of amendment made in the Banking Companies (Recovery of Loans) Ordinance (No. XIX), 1979 by Ordinance II of 1983. The learned Additional District Judge, dismissed the application for setting aside the ex parte decree, but modified the decree on the statement of the defendant in the suit by permitting him to repay the loan in 12 instalments and also remitted interest. The said judgment was assailed before this Court and the question before this Court was whether the learned Additional District Judge, had the jurisdiction in the matter. A Division Bench of this Court found that according to the position at the time of promulgation of Ordinance No. XIX of 1979 suits for bank loans--- for a sum of Rs.1 lac or less were entertainable by a Civil Court of competent' jurisdiction and appeals against their decree lay to the learned District Court or this Court depending on the jurisdictional value of the suit. However, under Ordinance II of 1983 all suits for recovery of bank loans of any amount could be heard by the learned District Judge/Additional District Judge notified as a Special Court. This Court held that the Civil Judge should have disposed of the matter to whom the case was remanded by the learned District Judge. While deciding the said case this Court was of the view that the amendment made in Ordinance XIX of, 1979 by Ordinance II of 1983 regarding the change of forum could not be applied with retrospective effect and the following observations were recorded:-- "The case in hand was, however, a pending case and it is to be examined whether the said amendment in law was retrospective in nature and affected the said pending case or not.
Normally procedural amendments including those purporting to transfer jurisdiction over certain causes of action operate retroactively but when fine new forum makes the remedy provided inconvenient, the Courts are not inclined to treat the procedural amendment to be retrospective in effect. Reference in this connection is invited to Adrian Afzal v. Captain Sher Afzal (1), wherein it was observed by the Supreme Court that if giving of retroactive operation to procedural provisions causes inconvenience, then Courts will not even in the case of a procedural statute favour an interpretation giving retrospective effect to the statute."
13. The question was also considered by a Division Bench of-this Court in Muhammad Ali v. The State (PLD 1980. Lahore 195) in which it was observed that a procedural change brought about by new law is to be treated as retrospective. However, a case in which even procedural change in forum affects the existing rights of the parties, retrospective operation cannot be construed. In reaching this conclusion the following observations in Alaf Din v. Shaukat Ali (PLD 1969 Peshawar 62) were relied upon:--- "Whenever the change of forum is in addition to dealing with purely procedure, and it also affects the existing rights of the parties, as to the continuance or culmination of certain proceedings in the existing forums the change of forum may not be retrospective unless it is made retrospective by clear words used or clear intendment shown in the amending (underlining is mine) Act. For example, where the remedies, available in the earlier forum or, against the decisions of the earlier forum, are more substantial or are more in number than the remedies provided in or against the decisions of the new forum, the change of forum would affect the rights of the parties. Therefore, the change of forum in such a situation, will not only be mere procedural matter but something more than that, and thus will not be retrospective."
14. The question also came up before the Honourable Supreme Court in Muhammad Bashir and 2 others v. Muhammad Firdous and another (PLD 1988 SC 232). In the said case ejectment petition filed by the landlord was dismissed by the learned Rent Controller on 18-7-1984. The appeal filed by the landlord before the District Court was allowed on 8-3-1995. However, before the decision of the appeal, the forum of appeal against the order passed by the Cantonment Rent Controller was changed and appeal lay before this Court by virtue of an amendment in the Cantonments Rent Restriction Act. The tenant filed a writ petition which was dismissed on merits. It was argued before the Honourable Supreme Court that the learner District Judge, had no jurisdiction in the matter because of the change of the forum of appeal. The argument was repelled and the observations of the Court in Adnan Afzal's case (PLD 1969 SC 187) were reiterated:-- "Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute."
15. Although the case of Muhammad Bashir supra related to right of appeal, but right to sue, although inchoate, is a valuable right and, therefore, the provisions of section 13 of the Rent Ordinance giving f exclusive jurisdiction to the learned Rent Controller could not be applied retrospectively because it would result in manifest inconvenience, injustice and bring about multiplicity of litigation.
16. For what has been stated above, this writ petition is allowed, the impugned order 7-11-1998 of the learned Additional, District Judge is declared as without lawful authority with the result that the suit filed by the petitioner before the Civil Court shall be deemed to be pending to be decided in accordance with law. No order as to costs.