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Regular Second Appeal No. 131 of 1965/(BWP), decided on 12th April 1966.

S. 9‑Jurisdiction of Civil Courts‑Extends to all suits of civil nature unless taken away by Legislature in unmistakable language‑Punjab Land Revenue Act (XVII of 1887), S. 158 read with S. 78‑Ousts jurisdiction of Civil Courts in regard to cases clearly covered by precise terms thereof‑Amount recoverable as arrears of land revenue‑Civil suit to contest liability barred unless such amount is paid under protest.

Under section 9 of the Code of Civil Procedure the Courts have the jurisdiction to try all suits of civil nature except suits of which their cognizance is either expressly or impliedly barred. The Civil Courts, have, therefore, jurisdiction under section 9 to try all suits of civil nature and their jurisdiction in any particular matter cannot be regarded as ousted unless the Legislature has in unmistakable language taken away that jurisdiction. The jurisdiction of Civil Courts is ousted under section 158 of the Punjab Land Revenue Act, 1887 in regard to such cases as are clearly covered by the precise terms of this section. They cannot determine the liability of any person to pay any amount which he is required to pay under the Land Revenue Act. It is also not competent to the Civil Courts to adjudicate on the amount which is to be recovered as arrears of land revenue under the said Act. It is clear from section 78 of the Act that in a case where an amount is recoverable as arrears of land revenue, the defaulter cannot dispute in a Civil Court his liability to pay that amount unless he first pays the amount under a protest in writing that the amount is not recoverable from him. Thus a civil suit to contest one's liability to pay the amount which is to be recovered as arrears of land revenue is barred until the amount claimed is paid under protest.

‑Ordinance, coming into force before commencing day, an existing law within meaning of Art. 225(7), Constitution of Pakistan (1962) ‑ Such laws continue in force until altered, repealed, or amended by appropriate Legislature‑Constitution of Pakistan (1962), Art. 225(7).

The West Pakistan Government Dues. Recovery Ordinance of 1962 was not made under Article 79 of the Constitution. It had come into force on the 25th of May 1962, which is a date prior to the commencing day, i.e., the 8th of June 1962. This Ordinance is an existing law within the meaning of clause (7) of Article 225 of the Constitution; and all existing laws under clause (1) of the aforesaid Article continue in force until altered, repealed or amended by the appropriate Legislature.

‑Statute taking away or affecting vested right, imposing new disability or conferring new right--- Not to be construed to have retrospective operation unless its language plainly requires such construction‑Enactments dealing with procedure are always retrospective and apply to proceedings already commenced.

It is a well established principle of law that no statute shall be construed so as to have a retrospective, operation unless its language is such as plainly to require such a construction. This principle, however, applies only to cases where a statute takes away or affects vested rights, imposes a new disability or confers a new right. In all such cases the Act is presumed not to have retrospective operation. Enactments dealing with pro cedure are always retrospective in the sense that their provisions will apply to proceedings already commenced at the time of their enactment.

Welby v. Parker (1916) 2 Ch. 1 and Banwari Gope and others v. Emperor A I R 1943 Pat. 18 ref.

‑Does not determine form of litigation but provides special procedure for recovery of Government dues- Ordinance clearly procedural and retrospective in operation- Enforcement of right by suit or resort to Collector for recovery of dues‑Matters of procedure in which none has a vested right.

The West Pakistan Government Dues Recovery Ordinance, 1962, does not determine the form of litigation but only provides the special procedure for the recovery of the Government dues. The Ordinance being clearly procedural in nature has, therefore, according to the well recognized principle of the interpretation of statutes, a retrospective operation.

Where it was argued that at the time the appellant incurred liability, it could be enforced only by way of a suit, and the Ordinance by providing a summary procedure, has adversely affected the interests of the appellant inasmuch as he has been deprived of a right to contest his liability until he paid the amount:

Held, whether a person enforces his right by way of a suit, or resorts to the Collector for recovering the dues as arrears of land revenue, the matter remains as one of procedure and no one has a vested interest in the procedure.

S. 4 read with S. 78 ‑ Suit under S. 4 not competent where Collector can recover arrears of land revenue from person living or having property in his district‑Person not liable to pay can, however, press into service provision of S. 78 for recovery of amount.

Where the argument was that if a Collector can recover the arrears of land revenue from a person living in his district or has property which is situate in that district, the suit under section 4 is not competent:

Held, that the correctness of the contention cannot be disputed. It, however, does not mean that if in cases where section 4 does not apply, a person cannot institute a suit for recovering the amount which he was not liable to pay. In that case, the provisions of section 78 of the Land Revenue Act can be pressed into service.

Sh. Abdul Hafeez for Appellant.

Aslam Riaz Husain A. A.‑G. for Respondent.

Noor Muhammad appellant was agent of the Government of West Pakistan. His duty was to sell seed and manure under the control of the Agriculture Department. He had entered into an agreement with the Government on the 13th of February 1962. For performing the functions under this agreement he was to be paid by the Government commission at the rate of three annas per maund for wheat seed, three annas per maund for cotton seed, three annas per maund for other seeds and three annas per bag for manure sold by him. He was under an obligation to deposit the sale‑proceeds in the Government Treasury or Bank as directed by the Seed Depot Officer. He could not, on account of the commission, claim any lien on the sale‑proceeds. Under paragraph 17 of the agreement, if any question, difference or objection arose connected with the rights, duties and liabilities of either party, it had to be referred for arbitration to the Director of Agriculture, West Pakistan, or any officer, nominated by him in this behalf and the decision given by him was to be final; but no reference could be made after the expiry of one month from the date of the expiry of the agreement. It was, however, not stated in the agreement as to when it was to expire.

2. The defendant‑respondent issued a notice to the plaintiff to pay Rs. 17,000.00 which was due from him on account of the sale price. The plaintiff instituted a suit on the 13th of November 1963, for a declaration that no amount was due from him and that the defendant be restrained from recovering Rs. 17,000.00 from him. The defendant before filing the written statement took a preliminary objection under section 34 of the Arbitration Act on the 23rd of January 1964 and alleged that an arbitration agreement existed between the parties and the suit, therefore, was not competent. Before this issue could be decided, the defendant took another objection that the suit was barred under sections 78 and 158 of the Land Revenue Act. The objection was upheld by the learned Senior Civil Judge, Bahawalpur, by his order dated the 28th of September 1964, and he dismissed the suit. The appeal preferred by the plaintiff was also dismissed by the District Judge, Bahawalpur, by his order dated the 8th of August 1965. The appellant has come up in second appeal.

3. The respondent Government has taken steps under the West Pakistan Government Dues Recovery Ordinance, 1962, to recover the amount due from the plaintiff as arrears of land Revenue. It is provided in section 3, "Government may, by notification, declare that any dues or class of dues recoverable by Government shall be recoverable from the defaulters as if such dues were arrears of land revenue" and under clause (2) "on the publication of a notification under subsection (1) any such dues shall be recoverable under the Revenue Recoveries Act, 1890 (Act I of 1890) as arrears of land revenue." The Government issued under section 3 a notification on the 16th of November 1962, declaring that the dues recoverable by the Agriculture Department of the Government could be recovered from the defaulters as arrears of land revenue. Defaulter is defined in clause (a) of section 2 to mean, "a person from whom any dues are recoverable by Government, and includes a person who is responsible as surety for the payment of any such dues". In section 5 of the said Act it is provided that "where any sum is recoverable as an arrear of land‑revenue by any public officer other than a Collector or by any local authority, the Collector of the district in which the office of that officer or authority is situate shall, on the request of the officer or authority, proceed to recover the sum as if it were an arrear of land‑revenue which has accrued in his own district". Thus on a request being made by the Agriculture Department, the Collector is bound to proceed under the Land Revenue Act for the recovery of the said amount.

4. Under section 78 of the Land Revenue Act, proceedings are taken under the Act for the recovery of an arrear. The person against whom the proceedings are taken may, if he denies his liability for the arrears or any part thereof, and pays the same under protest made in writing at the time of payment and signed by him or his agent, institute a suit under clause (2) of the section, in a Civil Court for the recovery of the amount so paid. Under section 158, a Civil Court has not the jurisdiction in any matter which a Revenue Officer is empowered by the Act to dispose of or to take cognizance of the manner in which any Revenue Officer exercises any power vested in him by or under the Act and in particular the jurisdiction of the Civil Court has been barred in matters, namely, the amount or the liability of any person to pay.

5. Under section 9 of the Code of Civil Procedure the Courts have the jurisdiction to try all suits of civil nature except suits of which their cognizance is either expressly or impliedly barred. The Civil Courts, have therefore, jurisdiction under section 9 to try all suits of civil nature and their jurisdiction in any particular matter cannot be regarded as ousted unless the Legislature has in unmistakable language taken away that jurisdiction. The jurisdiction of Civil Court is ousted under section 158 in regard to such cases as are clearly covered by the precise terms of this section. They cannot determine the liability of any person to pay any amount which he is required to pay under the Land Revenue Act. It is also not competent to the Civil Courts to adjudicate on the amount which is, to be recovered as arrears of land‑revenue under the said Act. The provision contained in section 158 is subject to the other provisions of the Act. In section 78 of the Land Revenue Act, it is provided that a person who denies his liability for the arrears or any part thereof may, if he pays that amount under protest made in writing at the time of payment, institute a suit in the Civil Court for the recovery of the amount so paid. It is; therefore, clear that in a case where an amount is recoverable as arrears of land revenue, the defaulter cannot dispute in a Civil Court his liability to pay that amount unless he first pays the amount under a protest in writing that the amount is not recoverable from him. Thus a civil suit to contest one's liability to pay the amount which is to be recovered as arrears of land revenue is barred until the amount claimed is paid under protest. In this view of the matter, the suit of the plaintiff is clearly barred. He can, however, pay the amount and then file a suit for the recovery of the same.

6. It was, however, argued by the learned counsel for the app‑.pant that no action could be taken under the West Pakistan Government Recovery Dues Ordinance because the Ordinance was not placed before the Assembly of the Province as required under Article 79 of the Constitution, of the Islamic Republic of Pakistan 1962.

Article 79 reads as:‑----

"79. (1) If, at a time when the Assembly of a Province stands dissolved or is not in session, the Governor of the Province is satisfied that circumstances exists which render immediate legislation necessary, he may, subject to this Article, make and promulgate such Ordinance as the circumstances appear to him to require, and any such Ordinance shall, subject to this Article, have the same force of law as an Act of the Provincial Legislature.

(2) An Ordinance made and promulgated under this Article shall, as soon as is practicable, be laid before the Assembly of the Province.

(3) If, before the expiration of the prescribed period, the Assembly of the Province, by resolution, approves of the Ordinance, the Ordinance shall be deemed to have become an Act of the Provincial Legislature, but if, before the expiration of that period, the Assembly of the Province, by resolution, disapproves of the Ordinance, it shall cease to have effect, and shall be deemed to have been repealed, upon the passing of the resolution.

(4) If the Assembly of the Province has not approved or has not disapproved of the Ordinance, and it has not been repealed by the Governor, before the expiration of the prescribed period, it shall cease to have effect, and shall be deemed to have been repealed, upon the expiration of that period.

(5) The power of the Governor of a Province to make laws by the making and promulgation of Ordinances under this Article extends only to the making of laws within the legislative competence of the Legislature of the Province.

(6) In this Article, the prescribed period', in relation to an Ordinance, means‑

(a) the period ending forty‑two days after the first meeting of the Assembly of the Province following the promulgation of the Ordinance; or

(b) the period ending one hundred and eighty days after the promulgation of the Ordinance, whichever is the shorter."

Obviously Article 79 applies only to the Ordinances which are made under the Constitution. In clause (2) it is provided that Ordinances made under Article 79 shall be laid before the Assembly of Province. West Pakistan Government Dues Recovery Ordinance (Ordinance XII) of 1962 was not made under Article 79 of the Constitution. It had come into force on the 25th of May 1962, which is a date prior to the commencing day, i.e., the 8th of June 1962. This Ordinance is an existing law within the meaning of clause (7) of Article 225 of the Constitution, and all existing laws under clause (1) of thel aforesaid Article continue in force until altered, repealed or amended by the appropriate Legislature. The contention raise td in this behalf is, therefore, devoid of force.

7. It was next contended that when the plaintiff entered into an agreement with the Government, there was no provision for the recovery of dues as arrears of land revenue and the Ordinance, therefore, could not have a retrospective effect. It is a well established principle of law that no statute shall be construed so as to have a retrospective operation unless its language is such as plainly to require such a construction. This principle, however, applies only to cases where a statute takes away or affects vested rights, imposes a new disability or confers a new 1c right. In all such cases the Act is presumed not to have retrospective operation. Enactments dealing with procedure are always retrospective in the sense that their provisions will apply to proceedings already commenced at the time of their enactment. This was the view taken in Welby v. Parker ((1916) 2 Ch. 1) where at page 5 it was held that as the Act did not take away any rights, but merely suspended a particular form of remedy, it related to a matter of procedure and, therefore, might operate retrospectively. The same view was taken by the Full Bench in Banwari Gope and others v. Emperor (A I R 1943 Pat. 18) where at page 20 it was held:‑-

"The question as to how far a statute which repeals or alters the old law can be given retrospective operation has been discussed in numerous cases and I will state here very briefly some of the principles which may be taken to have been well settled in those cases. These are (1) upon the presumption that the Legislature does not intend to enact what is unjust, every statute which takes away or impairs a vested right acquired under the existing law or creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions or considerations already passed must be presumed to be intended not to have retrospective operation; (2) if there are words in the enactment which either expressly state or necessarily imply that the statute is to be given retrospective operation, then the Act should have retrospective operation even though the consequences may appear unjust and hard; (3) a statute is not to be construed to have greater retrospective operation than its language renders necessary and (4) as no person has a vested right in any course of procedure, alterations in procedure are to be retrospective, unless there is some good reason against it."

8. The Ordinance does not in any way affect the right or liability of any person. The rights of the parties are preserved and it only provides a procedure for the Government to enforce its right to recover the amount due from a defaulter. It is well settled that no litigant has a vested right in any particular form or procedure. It may be noted that the West Pakistan Government Dues Recovery Ordinance, 1962, does not determine the form of litigation but only provides the special procedure for the recovery of the Government dues. The Ordinance being clearly procedural in nature has, therefore, according to the well recognized principle of the interpretation of statute, a retrospective operation. The contention raised by the appellant in this behalf is untenable.

9. It may be noted that the plaintiff appellant instituted the suit after the Ordinance came into force. His case is obviously not that the promulgation of the Ordinance does not affect the pending litigation. This question does, however, arise in some other case. In view of the fact that the Ordinance is retros pective in operation, its provisions, by all means, will affect a pending litigation, and a suit cannot continue unless the amount is paid. The defaulter or the plaintiff may make the payment under protest, and then instead of filing a fresh suit may continue with the one which was earlier instituted. The Court in such a case may adjourn the case giving the plaintiff‑defaulter a facility to pay the amount to the Collector failing which the suit has to he dismissed as not competent in law.

10. The learned counsel for the appellant next argued that at the time the appellant incurred liability, it could be enforced only by way of a suit, and the Ordinance by providing a summary procedure, has adversely affected the interests of the appellant inasmuch as he has been deprived of aright to contest his liability until he paid the amount. Whether a person enforces his right by way of a suit, or resorts to the Collector for recovering the dues as arrears of land revenue, the matter remains as one of procedure and no one has a vested interest in the procedure.

11. I may also note another argument which was advanced in this case. The dues under Ordinance XII of 1962 are recoverable under the Revenue Recovery Act, 1890. Section 4 of the Act reads as:‑--

(1) When proceedings are taken against a person under the last foregoing section for the recovery of an amount stated in a certificate, that person may, if he denies his liability to pay the amount or any part thereof and pays the same under protest made in writing at the time of payment and signed by him or his agent, institute a suit for the payment of the amount or the part thereof so paid.

(2) A suit under subsection (1) must be instituted in a Civil Court having jurisdiction in the local area in which the office of the Collector who made the certificate is situate, and the suit shall be determined in accordance with the law in force at the place where the arrear accrued or the liability for the payment of the sum arose.

(3) In the suit the plaintiff may, notwithstanding anything in the last foregoing section, but subject to the law in force at the place aforesaid, give evidence with respect to any matter stated in the certificate.

(4) This section shall apply if under this Act as in force as part of the law of India or Burma, or under any other similar Act forming part of the law of India or Burma proceedings are taken against a person in India or Burma as the case may be, for the recovery of an amount stated in a certificate made by a Collector in Pakistan."

This provision, however, applies only in a case where proceedings are taken against a person under section 3. Section 3 of the Act deals with the recovery of public demands by enforcement of process in districts other than those in which they are payable. Based on these provisions, it was argued on behalf of the appellants that a suit under clause (1) of section 4 can be instituted only in a case where the Collector is not able to recover the amount from the defaulter in his own district and has to send to the other district, where the defaulter resides or has the property, a certificate stating the name of the defaulter and the amount payable by him. The precise argument was that if a Collector can recover the arrears of land revenue from a person living in his district or has property which is situate in that district, the suit under section 4 is not competent. The correctness of the contention cannot be disputed. It, however, does not mean that if in cases where section 4 does not apply, a person cannot institute a suit for recovering the amount which he was not liable to pay. In that case, the provisions of section 78 of the Land Revenue Act can be pressed into service. There was no need to incorporate those provisions in the Revenue Recovery Act of 1890 because under section 5 where any sum is recoverable as an arrear of land revenue, the Collector has to proceed to recover the same as if it were an arrear of land revenue which has accrued in his own district. That being the case when the Collector can proceed under section 78 of the Land Revenue Act to recover the amount as arrears of Land Revenue there was no need to provide for the same in this Act. Since in the Land Revenue Act, there was no provision for sending by the Collector a certificate to the other district, a specific provision was made in section 3 of the Act of 1890 and that also necessitated for providing a remedy to the person who disputed his liability to pay the amount which was sought to be recovered as arrears of land revenue.

12. In the view of the matter I take, the Civil Courts have no jurisdiction to entertain the suit till such time as the plaintiff pays the amount which is claimed from him as arrears of land revenue and states clearly in writing that he does so under protest. The appeal has no merit and is accordingly dismissed. There shall be no order as to costs.

S. A. H./S. Q. Appeal dismissed.

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