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Civil Second Appeal No. 505 of 1966, decided on 22nd May 1967.

S. 3, read with subsections (31, (4) added to S. 4, Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) by Amendment Ordinance of 1964‑Object of S. 3‑Added S. 4 (3), not rendered retrospective by S. 3.

S. 25‑Bar to jurisdiction of Civil Courts- Section 25 does not bar jurisdiction of such Courts in respect of question whether any property is attached to a charitable trust in regard to a point of time prior to insertion of subsections (3) and (4) S. 4, by Displaced Persons Laws Amendment Ordinance (XIII of 1964).

, O. VII r. 11-- Rejection of plaint‑Court bound to reject plaint if any of four defects mentioned in r. 11 comes to its notice, irrespective of whether such a plea has been raised or not in written statement.

, S. 4(3), (4)‑‑Question of reference to Chief Settlement Commissioner of dispute as to whether a property is attached to a charitable trust‑Fact that Chief Settlement Com missioner has been apart to a suit in respect of such property, no ground for holding that reference cannot be made in terms of S. 4 (3), (4)‑[Ata Ullah Malik v. Custodian, Evacuee Property P L D 1964 S C 236 ref.].

‑Amending provision, when, and when not, retrospective‑Generally prospective, unless expressly stated to be otherwise‑Procedural, is retrospective‑Provision procedural, but at same time dealing with vested rights prospective- Change of forum is retrospective, but not so, if change touches existing right or deals simultaneously with procedure‑Limitation, ordinarily matter of procedure‑Right to sue not a procedural matter.

An amendment is generally prospective, unless the Legislature has expressly made it otherwise. One of the exceptions to it is that an amendment is generally retrospective if it is procedural. An exception to the latter proposition is that it is prospective if it deals with or affects not only procedure but also vested rights. For example, the law of limitation is ordinarily procedural ; therefore, its amendment is ordinarily retrospective ; but if it were to interfere with or impair or imperil a vested right, it would be prospective. The right to sue is not a procedural matter; therefore, it cannot ordinarily be taken away after it has accrued to a plaintiff.

A provision creating or establishing a forum for getting redress is a procedural matter ; therefore, its change is retrospective. But it is not retrospective if such an amendment touches the existing right or deals simultaneously with procedure.

Bank of India Ltd. v. Muhammad Ashraf P L D 1965 Kar. 69; Henshall v. Porter (1923) 2 K B 193 ; Paiada Khan v. Akram and others P L D 1951 Pesh. 49 ; Purshotam Singh v. Narain Singh A I R 1955 Raj. 203 ; Colonial Sugar Refining Company Ltd. v. Irving (1905) A C 369' and In re : Hale's Patent (1920) 2 Ch. 377 ref.

; S. 4(3), (4)‑‑Added subsections (3) & (4), not retrospective‑Amendment is not purely procedural, but affected vested rights in circumstances of case.

S. M. Hasan for Appellants.

Nathulal for Respondent No. 1.

Kamal Mansoor Alam for Respondent No. 4.

Date of hearing ; 16th May 1967.

This Second Appeal is directed against the judgment of an Additional District Judge of Karachi, dated the 18th of July 1966, by which he accepted the appeal of Devachand Muljimal, who is respondent No. 1 in these proceedings, and setting aside the order of the trial Court, dated the 1st of March 1966, remanded the case to be proceeded with from the stage at which the order of the trial Court was made.

2. The facts which form the background of this case, briefly stated, are that Mst. Salima Faruqui applied for the allotment of a house in which she was living, and which was evacuee property. The application was partly rejected. She went in review, which was granted and a P. T. O. was issued to her. Thereafter; she gave a notice to respondent No. 1 to pay rent for the part of the building which was occupied by him. He took the stand that the property belonged to a trust, and made an application to the Deputy Settlement Commissioner for getting the order that was made in review to be again reviewed on the ground that it was made without notice to him. That application was rejected. He, therefore, appealed to the Additional Settlement and Rehabilita tion Commissioner who also rejected the appeal on the ground that there was no evidence to establish that the property was a trust. He, therefore, went in revision which was also rejected. Then he filed a writ petition which was rejected on the ground that a second revision or possibly a suit were adequate alternative remedies available is him. He accordingly applied, for revision to the Chief Settlement Commissioner who granted interim stay but subsequently vacated it. To question that order Devachand Muljimal filed another writ petition which was dismissed by the High Court on the ground that the dispute had been already adjudicated upon. He, therefore, appealed to the Supreme Court and was successful to the extent that the Supreme Court stayed further action in the matter by the Settlement Authorities, and gave permission to the appellant to file a civil suit within a month's time. The order was made on the 19th of November 1963.

3. In pursuance of the above order Devachand filed a civil suit at Karachi bearing No. 185 of 1963 for declaration that the property in suit belonged to the religious and charitable trust of Chuttomal Jethanand and for injunction restraining the defendants from interfering with it. Originally, the suit was filed against Mst. Salima Faruqui only, but later on Pakistan, the Chief Settlement and Rehabilitation Commissioner, the Chief Adminis trator Auqaf and the Divisional Evacuee Trust Committee, Karachi, were also impleaded as defendants. Three defendants bad filed written statements in time and two had not. Those two were Pakistan and the Chief Settlement Commissioner, and were debarred from doing so. They came in revision to this Court, against that order in which it was decided that they could adopt the written statements which were already filed and could participate in further proceedings. The date of that order is the 8th of November 1965.

4. In the meantime the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was amended by the Displaced Persons Laws Amendment Ordinance, 1964, which was promul gated on the 28th of December 1964. The amendment introduced subsections (3) and (4) in section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The new sub-sections are as follows:‑---

"(3) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be referred to the Chief Settlement Commissioner whose decision thereon shall be final and shall not, except as provided in subsection (4) be called in question in any Court:

Provided that no order under this subsection shall be passed without giving the persons interested a reasonable opportunity being heard,

(4) Any person aggrieved by an order under subsection (3) may, within thirty days of this order, prefer an appeal to the High Court."

On the basis of the above amendment an application was made, on behalf of Pakistan and the Chief Settlement Commissioner, in the trial Court in February 1966, containing a prayer that the suit be dismissed under Order VII, rule 11(d), C. P. C. The application was contested by the Devachand, but was accepted by the trial Court, vide its order dated the 1st of March 1966. Devachand went in appeal which was accepted by an Additional District Judge, Karachi, as mentioned above, on the 18th of July 1966. Pakistan and the Chief Settlement Commissioner have come in Second Appeal against that order to this Court.

5. Counsel for the appellants and for Respondent No. 4 have advanced the following four arguments in support of this appeal:

Firstly, that section 3 of the Displaced Persons Laws Amend ment Ordinance, 1964 makes the newly‑inserted subsections (3) and (4) in section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, restrospective.

Secondly, that the amendments contained in subsections (3) and (4) of section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, are merely procedural; therefore, they are restrospective.

Thirdly, that subsections (3) and (4) of section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 transfer the power to decide the question as to whether an evacuee property is attached to a charitable, religious or educational trust or institution or not exclusively to the Chief Settlement Commissioner, therefore, the civil Courts have no longer any jurisdiction to try the suit for the determination of those questions.

Fourthly, that section 25 of the Displaced Persons (Compensa tion and Rehabilitation) Act, 1958 bars the jurisdiction of ordinary Courts.

In support of the above contentions, counsel have referred to Purshotam Singh v. Narain Singh (A I R 1955 Raj. 203), Abdul Karim v. The Slate (P L D 1959 Lah. 883) and Bank of India Ltd. v. Muhammad Ashraf (P L D 1965 Kar. 69).

6. In reply to the above contentions, Mr. Nathulal, counsel for Devachand Muljimal, respondent No. 1, has advanced the following arguments:

Firstly, the application which was made by the present appellants to the trial Court under Order VI1, rule 11, C. P. C. was not competent because they had been debarred from filing their own written statements which, in other words, according to counsel, meant that they could not raise any objections in the suit excepting those which were contained in the written statements that were filed by the other three defendants.

Secondly, the amendments contained in subsections (3) and (4) of section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 195, are not m: rely procedural but affect the rights of the plaintiff‑respondent.

Thirdly, the Chief Settlement Commissioner being a party to the suit and to the earlier proceedings is not a position to become the Judge in the dispute; to give him that position would amount to violating the principles of natural justice.

In support of the above contentions Mr. Nathulal cited: Colonial Sugar Refining Company . v. Irving (1905 A C 369), Hale's Paten, In re ((1920) 2 Ch. 377), Henshall v. Porter ((1923) 2 K B 193) and E. Al. Dean v. Mir Zaman (P L D 1960 Kar. 962).

7. The contention as to whether subsections (3) and (4) of section 4 of the Displaced Persons (Compensation and Rehabili tation) Act 1958 are retrospective or prospective have been argued seriously. The other contentions can be disposed of shortly.

8. The first contention in support of the appeal is founded on the following section:‑

"3. Validation.‑Anything done, action taken, order passed, rule made or notification issued, or purporting to have been done, taken, passed, made or issued under any of the aforesaid Acts [specified in the Schedule---‑the Registration of Claims (Displaced Persons) Act, 1956 and the Displaced Persons (Compensation and Rehabilitation) Act, 1958], before the promulgation of this Ordinance, shall be deemed to have been done, taken, passed, made or issued under such Act as amended by this Ordinance, and shall have and shall be deemed always to have had effect accordingly."

The above provision means that whatever has been done under the unamended Acts before the promulgation of the amending Ordinance is to be taken to have been done under the amended Acts. The object of the provision appears to be that nothing done and no action taken or order passed or rule made or notifica tion issued before the amendment under the unamended Acts should be open to question by reason of the fact only that it was not done, taken, passed, made of issued in accordance with the amended Acts. In this provision there is nothing to support the contention that the section makes the newly‑inserted sub‑sections (3) and (4) in section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, retrospective.

9. The fourth contention in support of the appeal was that section 25 of the Displaced Persons (Compensation and Rehabili tation) Act, 1958 bars the jurisdiction of ordinary Courts. The section runs as follows:‑---

"Save as otherwise provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Central Government or an officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act."

The above provision was used to advance the argument that, after the insertion of subsections (3) and (A) in section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the bar to the jurisdiction of civil Courts operates with reference to the newly‑conferred jurisdiction of the Chief Settlement Com missioner to decide whether an evacuee property is attached to a charitable, religious or educational trust or institution or not. The new jurisdiction being the exclusive jurisdiction of the Chief Settlement Commissioner, the jurisdiction of the civil Courts should be considered to have been ousted in respect of the question as to whether an evacuee property is attached to a charitable, religious or educational trust or institution or not. The contention, no doubt, is correct from the point of time at which subsections (3) and (4) came into force, but has nothing in a it to indicate that the jurisdiction of the civil Courts was ousted before the amendment. The point of dispute in these proceedings is not the ouster of jurisdiction after the amendment, but with regard to the retrospective effect of the amendment.

10. The first contention of Mr. Nathulal that the appellants were net entitled to apply to the trial Court under Order VII, rule 11, C. P. C. for the rejection of the plaint, also appears to be misconceived, because the plea that the plaint should be rejected for one of the four defects specified in the said rule is not dependent on the contents of written statements. It is true that such a plea is ordinarily to be found in written statements, and it is artistic, orderly and proper that it should be so raised but it is incumbent on the Court to reject a plaint if any of the four defects comes to its notice. For example, if the plea of limitation is not raised in the written statement but is raised by an applica tion, it will not be rejected merely because of its omission in the written statement.

11. The third contention of Mr. Nathulal that a reference cannot be made to the Chief Settlement Commissioner in terms of the newly‑inserted subsection (3) because the Chief Settlement Commissioner has been a party to these disputes and is a party to the suit, is founded on the presumption that a provision of law is bad and cannot be enforced because it violates a natural principle of justice. Such a presumption is legally incorrect, and is not sound in view of the nature of the present dispute because the Chief Settlement Commissioner acts in these matters as an officer, and not in his personal capacity. Moreover, he is in a better position than others to form a correct opinion as to whether an evacuee property is attached to a charitable, religious or educational trust or institution or not. The provision has been made in a special law which requires especial legislative consideration. The Custodian was also authorised to decide questions relating to properties which vested in him, and in which he was officially interested, but it was found that his power to adjudicate disputes did not affect the validity of that law. See Ata Ullah Malik v. Custodian, Evacuee Properly (P L D 1964 S C 236).

12. Coming now to the important question as to whether the newly‑inserted subsections (3) and (4) in section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 are retrospective or prospective, one can at once recognise the proposition of law that an amendment is generally prospective, unless the Legislature has expressly made it otherwise. One of the exceptions to it is that an amendment is generally retrospective if it is procedural. An exception to the latter proposition is that it is prospective if it deals with or affects not only procedure but also vested rights. For example the law of limitation is ordinarily procedural; therefore, its amendment is ordinarily retrospective; but if it were to interfere with or impair or imperil a vested right, it would be prospective. See Bank of India Ltd. v. Muhammad Ashraf. The right to sue is not a procedural matter; there fore, it cannot ordinarily be taken away after it has accrued to a plaintiff. See for instance, Henshall v. Porter.

13. A provision creating or establishing a forum for getting redress is a procedural matter ; therefore, its change is retrospec tive. See Painda Khan v. Akram and others (P L D 1951 Pesh. 49) and Purshotam Singh v. Narain Singh. But it is not retrospective if such an amendment touches the existing right or deals simultaneously with procedure. In the Colonial Sugar Refining Company Ltd. v. Irving leave to appeal to the Privy Council had been granted in a case from Australia. Subsequently, the law of Australia was amended providing appeals to the High Court of that country only. An application was, therefore, made by the Commonwealth Collector of Customs for 6eensland, who was the respondent, that the appeal be dismissed in view of the change of the forum. Their Lordships of the Privy Council dismissed that applications as follows:‑--

"As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal."

In re: Hale's Patent an application was pending before the Treasury under section 29 of the Patents and Designs Act, 1907 for the determination of the question as to whether the Government should be deemed to have used certain patented inventions of the applicant or not; the Treasury was not willing to admit that he had valid patents or that the patents had been infringed; in, therefore, according to established practice, the application was not dealt with by the Treasury. The applicant .had no other remedy with the result that his claim was likely to be lost. In the meantime Patents and Designs Act, 1919 was enacted and came into force on April 23, 1920. Section 8 of it substituted "the Court" for the Treasury as the tribunal. A question arose as to whether the change was applicable to the user of patented inven tions prior to April 23, 1920, or from and after that time. It was found that the alternation of law dealt with both rights and procedure; therefore, the conclusion was:

"No doubt the general law is that, while rights are not statutorily altered retrospectively, procedure is, apart from indications to the contrary, altered retrospectively; but where rights and procedure are dealt with together in the way in which section 8 of the Act of 1919 deals with them, the intention of the Legislature would seem fairly clear‑namely, that the old rights are still to be determined by the old tribunal under the Act of 1907, and that only the new rights under the substituted section are to be dealt with by the tribunal thereby substituted for the Treasury."

14. In this case the introduction of subsections (3) and (4) in section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 not only affects a change in the forum but also impairs the vested right of Devachand Muljimal, respondent No. 1 in at least three respects. In the first place, the inquiry that is made in a suit is, by reason of being thorough and attuned to fullest regard for individualistic claims, of a superior quality than that which is made in a departmental reference. Secondly, the remedy afforded by a suit provides at least two appeals whereas the appeal provided by the amendment from the conclusion of the Chief Settlement Commissioner is only one and la that too limited by the same difference in its scope as there is difference between a suit and a reference. Thirdly, for the very reason that a departmental inquiry is more suited to the outlook and objects of the department it is less suited to the goal of a private claimant Thus, viewed against the background of the circumstances of this case, the amendment is not purely procedural and does adversely affect vested rights of respondent No. 1. It follows therefore that it cannot be applied retrospectively so as to defeat the pending suit of respondent No. 1.

15. In conclusion the appeal is dismissed but no order is made as to costs.

A. H . Appeal dismissed.

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