Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Civil Revision No. 120 of 1958, Reference answered on 26th March 1962.
S. 34-Revision -Filed before coming into force of West Pakistan Civil Courts Ordinance (II of 1962)-To be heard as "Revision" under Regulation after repeal of Regulation by Ordinance (II of 1962)-West Pakistan Civil Courts Ordinance (II of 1962), S. 28 (S)-West Pakistan General Clauses Act (VI of 1956), S. 4.
Held, that petitions for revision instituted under section 34 of the N.-W. F. P. Courts Regulation, 1931 before West Pakistan Civil Courts Ordinance II of 1962 came into force should be heard according to the provisions of the Regulation.
-The general rule is that an enactment operates from the date of its commencement unless it is made retrospective either expressly or by necessary intendment. Sub section (5) of section 28 of the Ordinance saves a "proceeding commenced" under any of the provisions of the repealed enact ments "if not inconsistent with the provisions of this Ordinance .. and such proceeding shall, so far as may be, be deemed to have been . . . . . commenced . . . . . under this Ordinance". Since there is nothing in the Ordinance to indicate that revisions filed under the old laws should be treated as though they bad been filed under the Code of Civil Procedure, there is apparently nothing in it which is inconsistent with the continu ance of the old proceedings, where it was intended that pending proceedings which had, under the old laws, been instituted in the proper Courts should be treated as though they had been Instituted under the new law, an express provision was made as in section 28, subsection (3), by which the pending appeals in the High Court stood automatically transferred to the Court of the District Judge.
The continuance of a pending proceeding would be incon sistent with the provisions of the new Ordinance if there had been something in the language of the Ordinance which. forbade its continuance, whether expressly or impliedly.
It would be proper, however, to exclude section 4 of the West Pakistan General Clauses Act, 1956 because that section applies only where a different intention does not appear in the repealing enactment, and an express provision as to the effect of repeal having been made in subsection (5) of section 28 of the Ordinance, it should be presumed that whatever was left out of section 4 of the West Pakistan General Clauses Act was not intended to be saved.
A proceeding which was instituted validly under a law will continue on the repeal of that law unless the repealing Act expressed a different intention.
Gondicalo Hypolito Constancio Noronha v. Damji Devil P L D 1954 P C 22 ref.
- Sections 31 and 34 of the N.-W. F. P. Courts Regulation, 1931 are contrary to the spirit of the Ordinance, which obviously aims at introducing uniformity throughout the Province. On the other hand I respectfully agree that if only the specific provisions of the Ordinance are to be looked to and bearing in mind the fact that the Regulation specifically excluded the opera tion of section 115, C. P. C., the view expressed by the learned Chief Justice must prevail.
Sh. Allah Bakhsh and Abdul Latif Khan for Petitioner.
Muhammad Ismail Ghaznavi for Respondents.
Date of hearing : 12th February 1962.
---(22nd February 1962). Mst. Maqbul Jan and her son Ajaib Gul sued Pir Bakhsh and five others for possession by partition, of (A) 95/ 144 share of house No. 2917-18. and two shops Nos. 2919 and 2920, situate in Mohallah Kamach Pazan and (B) of 23/72 share of a shop with balakhana and a dohr bearing Municipal No. 2911, situate in Bazar Tingaran, Peshawar City. This suit was ultimately decided by Mirza Abdullah Jan by his judgment dated 17th of October 1955, whereby the plaintiffs were granted preliminary decree for possession by partition of 95/144 share in the property described in Part A', and their claim with respect to the property mentioned in part B' was dismissed. Pir Bakhsh, one of the defendants appealed against this judgment and decree in the Court of the District Judge, Peshawar, and there too he met with no better fate and the appeal was dismissed with costs by the judgment dated the 5th of March 1958. Pir Bakhsh instituted Revision Petition No. 120 of 1958 in this Court on the 24th April 1958. In appeal, as well as in revision petition, Pir Bakhsh defendant assailed the judgments and decrees of the Courts below with respect to house No. 2917, alleging it to be a separate house which he and Karim 13akhsh and Ahmad Bakhsh (defendants Nos. 2 and 3) who are his full brothers, inherited from his maternal grandmother and therefore were its exclusive owners and the plaintiffs had no share in it. The revision petition as usual was instituted under the provisions of section 34 of the N.-W. F. P. Courts Regulation I of 1931. This was placed before me for hearing on the 25th of January 1962. Sh. Allah Bakhsh, counsel for the petitioner, applied that by the promulgation of the West Pakistan Civil Courts Ordinance II of 1962, the N.-W. F. P. Courts Regulation I of 1931 stands repealed, and if it is held that no revision petition is competent under section 115, C. P. C., the only remedy available to the petitioner, under the circumstances, would be to challenge the decrees of the lower Courts in second appeal under section 100, C. P. C. He, therefore, prayed that this revision petition be treated as a second appeal.
2. I have heard Sh. Allah Bakhsh, Advocate for the petitioner: and Mr. M. I. Ghaznavi, counsel for the contesting respondents, and I find that a number of important questions of law are involved in this revision. If Ordinance II of 1962 is found to have repealed the N: W. F. P. Courts Regulation with retrospective effect, viz., the revision petition filed under section 34 of Regulation I of 1931 would not be treated as having been filed under the said Regulation, then it will be considered to have been filed under the Code of Civil Procedure. I would have decided this point myself had I not been faced with a Division Bench judgment of this Court passed in Civil Revision No. 170 of 1959 decided on the 23rd of January 1962. In this case the same point was raised and the Division Bench of this Court found that Regulation I of 1931, which enabled this Court to interfere in cases where an important question of law or custom requiring further consideration was involved, has been repealed by Ordinance 11 of 1962 with immediate effect and, therefore, the revision petitions would not be entertained on these grounds. The learned Judges gave this decision in the following language :-
"By the decree of the learned District Judge the respondent acquired a legal right, of which he is now being sought to be deprived in revision. We are accordingly of the view that the petition must be considered in the light of the law as it now stands."
3. With great respect I venture to differ from the view taken in the judgment on this point. By the decree of the learned District Judge the respondent did not acquire a legal right of which he was being sought to be deprived in revision because at that time Regulation I of 1931 was in force and according to the Regulation, in revision petition, the decision on important question of law and usage could have been assailed by the petitioner. The question for decision is that law is applicable in such a case ; in other words, as said in the Division Bench judgment what law "now stands" under which the revision should be decided. In my view section 34 of Regulation I of 1931 is still applicable as the revision has been instituted on a date earlier than the promulgation of Ordinance II of 1962. This view finds support from section 6 of the N: W. F. P. General Clauses Act. This section provides :-
"Where any Act repeals any enactment hitherto made, or hereafter to be made, or where an Act enforced for a period ceases to operate on the expiry of the period, than, unless a different intention appears, the repeal or expiry shall not-
(b) affect the previous operations of any enactment so repealed or expired or anything duly done or suffered there under,
(c) * * * * * * * * * *
(d) * * * * * * * * * *
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ; and any such investigation, legal proceedings or remedy be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act bad not been passed or the expiring Act had not ceased to operate."
A revision petition is a "legal proceeding" as mentioned in clause (e) of the aforesaid section. Besides this, in clause (b) it is expressly laid down that "the repealing Act shall not affect the previous operation of any enactment so repealed or expired or anything duly done or suffered thereunder, unless a different intention appears." In Ordinance lI of 1962 no different intention has been expressed with regard to the matters instituted prior to its enforcement except with respect to the appeals pending in the High Court of the value of less than Rs. 25,000. This intention has been expressed in section 28, subsection (3), in the following words :-
"(3) On the commencement of this Ordinance, if any suit or appeal is pending in the High Court or any other Civil Court, which under this Ordinance is to be tried or heard by some other Court, such suit or appeal shall stand transferred to the Court competent under this Ordinance to try or hear the same."
If the Legislature had the intention that the revision petitions already filed under the repealed enactments should be treated as having been instituted under the C. P. C. then the decision of the Division Bench would have found support, but since no such intention has been expressed in this Ordinance, therefore, the matters pending in the form of revisions at the time of the promulgation of Ordinance II of 1962 will be disposed of in accordance with the provisions of the repealed enactment. It appears that section 6 of the General Clauses Act was not brought to the notice of the Division Bench. Since this is a vital question of law and affects a fairly large number of cases, therefore, I direct that this case be lard before my Lord the Chief Justice, and if he agrees, then the matter be referred to a Full Bench for decision of the point raised above.
-The question referred to the Full Bench is whether a petition for revision which was Instituted under section 34 of the N.-W. F. P. Courts Regulation, 1931, should be heard, after the promulgation of the West Pakistan Civil Courts Ordinance (1I of 1962), as a petition under section 34 of the Regu lation or a petition under section 115 of the Code of Civil Procedure.
2. In respect of the North-West Frontier Province the law regulating civil revisions was contained in section 34 of the N. W.-F. P. Courts Regulation, 1931, which so far as relevant, is reproduced below :-
"34. (1) The Court of the Judicial Commissioner may call for the records of any case in which no appeal lies to it, and-
(a) if the Court by which the case was decided appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction with material irregu larity, o r
(b) if on application made to it the Court of the Judicial Commissioner is of opinion that there is an important question of law or custom involved and that such question requires further consideration,
the Court of the Judicial Commissioner may make such order in the case as it thinks fit
Provided that-
(i) * * * * * * * * * * *
(ii) * * * * * * * * * * *
(iii) * * * * * * * * * * *
(iv) when any such application has been admitted, the Court of the Judicial Commissioner shall, subject to proviso (iii), treat the matter of the application as if it were an appeal.
(2) * * * * * * * * * * *
(3) Section 10 of the Code of Civil Procedure 1908, shall not apply in the territory to which this Regulation extends."
3. This Regulation, among other enactments, was repealed on the 8th of January 1962 by the West Pakistan Civil Courts Ordinance (II of 1962). It provides for appeals, not for revi sions, with the result that revisions will now lie under section 115, C. P. C. even in the area formerly governed by the Regulation. The provision relating to appeal is contained in sections 17 and 18, and the following provisions may be referred to with advantage :-
"18. (1) Save as aforesaid, an appeal from a decree or order of a Civil Judge shall be lie-
(a) to the High Court if the value of the original suit in which the decree or order was made exceeds twenty-five thousand rupees; and
(b) to the District Judge in other case."
(Originally the District Judge heard appeals only up to Rs. 5,000 in value.)
"28. (3) On the commencement of this Ordinance, if any suit or appeal is pending in the High Court or any other Civil Court, which under this Ordinance is to be tried or heard by some other Court, such suit or appeal shall stand transferred to the Court competent under this Ordinance to try or hear the same."
4. There is no express provision as to whether revi sions pending under section 34 of the Regulation should be continued to be treated under the Regulation. The ordinary incidents of repeal should, therefore, follow. These have been noticed in section 28, subsection (5) of the Ordinance.
"28. (5) Notwithstanding the appeal of the enactments mentioned in the Schedule, everything done, action taken, obligation, liability, penalty or punishment incurred, inquiry or, proceeding commenced, officer appointed or person authorised, jurisdiction or power conferred, rule made and order issued under any of the provisions of the said enactments shall, if not inconsistent with the provisions of this Ordinance, continue in force and, so far as may be, be deemed to have been respectively done, taken, incurred, commenced appointed, autho rised, conferred, made or issued under this Ordinance."
It will be noticed that subsection (5) of section 28 of the Ordinance does not cover the entire ambit of section 4 of the West Pakistan General Clauses Act of 1956 which, so far as relevant, is to the following effect :-
"Where this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears, the repeal shall not-
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability . . . . . as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, . . . . . as if the repealing Act had not been passed."
5. The general rule is that an enactment operates from the date of its commencement unless it is made retrospective either expressly or by necessary, intendment. Subsection (5) of section 28 of the Ordinance saves a "proceeding commenced" under any of the provisions of the repealed enactments "if not inconsistent n with the provisions of this Crdinance . . . . . . and such proceeding shall, so far as may be, be deemed to have been . . . . . commenced under this Ordinance". Since there is nothing in the Ordinance to indicate that revisions filed under the old laws should be treated as though they had been filed under the Code of Civil Procedure, there is apparently nothing in it which is inconsistent with the continuance of the old proceedings. Where it was intended that pending proceedings which had, under the old laws, been instituted in the proper Courts should be treated as though they had been instituted under the new law, an express provision was made as in section 28, subsection (3), by which the pending appeals in the High Court stood automatically transferred to the Court of the District Judge.
6. The continuance of a pending proceeding would be inconsistent with the provisions of the new Ordinance if there had been something in the language of the Ordinance which forbade Its continuance, whether expressly or impliedly. This is different from saying that the proceeding should be consistent with or in accord with the provisions of the Ordinance. Such accord would be achieved only if there had been express provision for the filing of revision petitions in the exact manner stated in section 34 of the Regulation.
7. It was also argued that since section 28, subsection (5), of the Ordinance did not embrace all aspects of section 4 of the West Pakistan General Clauses Act, 1956, it was not exhaustive on the effect of repeal and that consequently where a right had been acquired by filing a petition for revision any legal proceeding in respect of such right could be continued under clause (e) of section 4 of the General Clauses Act. The argument is merely academical, because while subsection (5) of section 28 of the Ordinance saves all "proceedings" commenced under the old law, the General Clauses Act saves "legal proceeding" "in respect of any such right" as has been acquired under the old law. It would be proper, however, to exclude section 4 of the General Clauses Act because that section applies only where a different intention does not appear in the repealing enactment, and an express provision as to the effect of repeal having been made in subsection (5) of section 28 of the Ordinance,. it should be presumed that whatever was left out of section 4 of the General Clauses Act was not intended to be saved.
8. Of the cases cited, Gondicalo Hypolito Constancio Noronha v. Damji Devji (P L D 1954 P C 22) seems to be to the point. The Supreme Court of Kenya had, pursuant to the provisions of the 1940 Increase of Rent and Mortgaged Interest (Restriction Ordinance) given vacant possession of certain premises to the plaintiff. This order was passed, however, at a time when a new Ordinance called the 1949 Ordinance, deprived the Supreme Court of jurisdiction in such cases. The Court of appeal allowed the appeal against the order of the Supreme Court on the ground that although proceedings were properly commenced in that Court, the effect of the coming into operation of the 1949 Ordinance was to deprive that Court of any further jurisdiction. The Privy Council, however, upset the order of the Court of appeal on the ground that no statute could be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication. In other words, a proceeding which was instituted validly under a law will continue on the repeal of that law unless the repeal- o inn Act expressed a different intention.
9. It will also be noticed that section 34 (3) of the Regula tion excluded the application of section 115, C. P. C. to the North-West Frontier Province. Up to the date of Ordinance No. II of 1962, therefore, revision petitions could be filed only under section 34 of the Regulation. After that date they will be filed under section 115, C. P. C. but there is no provision la Ordinance No. II that the pending petitions should be treated as petitions under section 115, C. P. C., and it could not have been intended that they should stand dismissed.
10. Our answer, therefore, is that petitions for revision instituted under section 34 of the Regulation before Ordinance 11 of 1962 came into force should be heard according to the provisions of the Regulation.
---I agree with the conclusion arrived at by the learned Chief Justice, but would add some brief remarks.
2. In the first place it may be pointed out that in Civil Revision No. 170 of 1959 only one point was raised concerning the effect of the West Pakistan Civil Courts Ordinance (No. II of 1962) (hereinafter referred to as the Ordinance), and consequently only that point was referred to.
3. Further, it is erroneous to suppose that while deciding the revision, above referred to, the provisions of section 4 of the West Pakistan General Clauses Act (VI of 1956) the (North-West Frontier Province General Clauses Act, 1932, was repealed by that Act) were overlooked, the real position being that since, as pointed out by the learned Chief Justice, the Ordinance contains a special provision for repeal, embodied in section 28 (5), it should be presumed that the other matters referred in section 4 of the General Clauses Act but not incorporated in section 28 (5) of the Ordinance were not intended to be saved.
4. As also pointed out by the learned Chief Justice, the Ordinance contains an express provision in section 28 (3) by which certain appeals pending in the High Court on the date of pro mulgation of the Ordinance automatically stand transferred to the Court of the District Judge, but, with respect, it may be observed that whereas the Ordinance changed the forum of appeal by increasing the pecuniary jurisdiction of the District Judge from Rs. 5,000 to Rs. 25,000 even under the law as it stood before the promulgation of the Ordinance revisions lay only to the High Court or its predecessors, the Chief Court of Sind and the Judicial Commissioner, North-West Frontier Province. From this point of view, therefore, there was no need of an express provision relating to revisions in the Ordinance.
5. It is also to be noted that the North-West Frontier Province Courts Regulation No. I of 1931 (hereinafter referred to as the Regulation) was unique among the enactments repealed by the Schedule to the Ordinance in departing, in matters of second appeal and revision, from the relevant provisions of the Civil Procedure Code. It is true that the Punjab Courts Act (No. VI of 1918) contains two special sections, Nos. 41 and 44, relating to second appeals and revisions respectively but a reference to those sections shows that their scope is identical with those of sections 100 and 115 of the Civil Procedure Code. On the other hand, sections 31 and 34 of the Regulation have appreci ably widened the scope of the latter sections For example, whereas, under section 100, C. P. C. findings of fact arrived at by the lower Appellate Court are ordinarily binding in second appeal, section 31 of the Regulation permits a further appeal from an appellate decree of a District Court on any ground which would be a good ground of appeal if the decree had been passed in an original suit. In other words, a further appeal under section 31 of the Regulation is treated as a first appeal. Again, while section 115, C. P. C. confines the scope of revision to errors relating to jurisdiction, section 34 of the Regulation permits a revision in cases involving an important question of law or custom requiring further consideration, and provides that where such a question is involved the revision is to be treated as if it were an appeal. With the greatest respect, it appears to me that, whatever may have been the original reasons for introducing such a sweeping departure from the relevant provisions of the Civil Procedure Code, in an integrated Province such a measure cannot be justified.
6. For the reasons given above I am of the opinion that sections 31 and 34 of the Regulation are contrary to the spirit of the Ordinance, which obviously aims at introducing uniformity throughout the Province. On the other hand I respectfully agree that if only the specific provisions of the Ordinance are to be looked to and bearing in mind the fact that the Regulation specifically excluded the operation of section 115, C. P. C., the view expressed by the learned Chief Justice must prevail.
---I agree, with respect, with the conclusions of the Chief Justice and J. Ortcheson, J. I also respectfully concur fully with the reasons recorded by the Chief Justice in answering the reference, and I have nothing to add to them as well as to the reasons I have already recorded in my order of reference, dated the 2nd of February 1962.
[Announced by Sajjad Ahmed Jan, J].
A. H. Reference answered.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer