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Miscellaneous Application No. 1 113 of 1962, decided on 30th November 1962.

, Art. 58 read with Art. 250 and Constitution of Pakistan (1956), Art. 158‑Application for leave to appeal to Supreme Court‑Case decided by High Court before operation of Constitution of Pakistan (1962)---‑Whether application for leave to appeal made after enforcement of Consti tution of Pakistan, 1962, would lie to Supreme Court under Art. 58 or would be governed by Art. 158, Constitution of Pakistan, 1956 read with Ss. 109 and 110, Civil Procedure Code (V of 1908): (Quaere)‑Case referred to Full Bench.

Colonial Sugar Refining Co. Ltd. v. Irving 1905 A C 369 ; Ram Singh and another v. Shankar Dayal and another A I R 1928 All. 437 ; Bimala Prosad Ray and another v. State of West Bengal A I R 1951 Cal. 258 and Messrs Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh and others A I R 1953 S C 221 ref.

Miscellaneous Application No. 191 of 1962, decision held doubtful.

Abdul Latif Khan for Petitioner.

Shah Zaman Khan for Respondents.

Dates of hearing : 23rd and 24th October 1962.

---‑This is an application for leave to appeal to the Supreme Court by Jamshed Ahmad Khan from the judgment and decree of Anwarul‑Haq and J. H. Rizvi, JJ. of the High Court of West Pakistan, Peshawar Bench, dated the 1st of May 1962, under which the orders, dated the 1st of May 1958 of Khan Abdul Latif Khan, Assistant Collector, 1st Grade, acting as Civil Court, as required by section 117, sub clause (2) of the Land Revenue Act, dismissing the suit as time barred, was affirmed. The application for leave to appeal was presented on the 16th of June 1962 when the new Constitution had come into operation.

2. The facts giving rise to this application for leave to appeal have been fully and fairly stated in the judgment dated the 1st of May 1962 of our learned brothers and we, therefore, do not propose to re‑capitulate the same.

3. Mr. Shah Zaman Khan learned counsel for the respon dents, raised a preliminary objection to the maintainability of the application for leave to appeal by this Court, on the ground that from 8th June 1962; when the National Assembly met for the first time, the procedure for leave to appeal to the Supreme Court was to be governed by Art. 58 of the new Constitution, in that under sub‑clause (3) of Art: 58 "an appeal to the Supreme Court from a Judgment, decree, order or sentence of a High Court in a case to which clause (2) of this Article does not apply shall lie only if the Supreme Court grants leave to appeal." Mr. Shah Zaman Khan, however, conceded that but for the provisions of Art. 58 of the new Constitution, the case of the applicant was covered by Art. 158 sub‑clause (a) of the old Constitution, in that the amount of the value of the subject‑matter of dispute in the Court of first instance, and also in dispute on appeal was not less than Rs. 20,000. Mr. Shah Zaman Khan to back his argument sought reliance on the judgment of the Division Bench, dated 4‑10‑1962, in Miscellaneous Appli cation No. 191 of 1962 (of which one of us was a member) dismissing the petition for leave to appeal in limine, on the ground that since the petition for leave to appeal was filed after the promulgation of the present Constitution, Art. 250(b) was not applicable.

4. We heard industrious and able arguments from Abdul Latif Khan, learned counsel for the applicant. His argument in paraphrase may be summed up as follows :‑

(1) That Art. 58 of the new Constitution was to be read along with Art. 250 which as a saving clause preserved the remedies in respect of legal proceedings which had been instituted before the promulgation of the new Constitution.

(2) That the legal proceedings of a remedy, suit, appeal, and second appeal were really but steps in series of proceedings all connected by an intrinsic unity and are to be as regarded as one legal proceedings.

(3) That the right of appeal was not a mere matter of pro cedure but was a substantive right.

(4) That the institution of the suit carried with it the impli cation that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

(5) The right of appeal was a vested right and such a right to enter the superior Court accrued to the litigant and existed as on and from the date the lis commenced and although it may he actually exercised when the adverse judgment was pronounced such a right was to be governed by the law prevailing at the date of the institution of the suit r proceeding and not by the law that prevailed at the date of its decision or at the date of the filing of the appeal.

(6) That the vested right of appeal could be taken away only by a subsequent enactment if it so provided expressly or by necessary intendment and not otherwise.

To put it in a few words, it was argued that the institution of the suit was to determine the number and forum of appeals unless the legislature had either abolished the Court to which an appeal then lay or had expressly or by necessary intendment given the Act a retrospective effect.

5. Since the decision of the petition depends largely on the interpretation of the provisions of Art. 58 and Art. 250 of the new Constitution, it will be convenient here to reproduce the same :‑

"58. (1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of a High Court.

(2) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court shall lie as of right where‑

(a) The High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution ;

(b) the High Court has sentenced a person to death or to transportation for life; or

(c) the High Court has imposed punishment on a person in pursuance of the power conferred on the Court by Art. 123.

(3) An appeal to the Supreme Court from a judgment, decree, order or sentence o f a High Court in a case to which clause (2) of this Article does not apply shall lie only if the Supreme Court grants leave to appeal."

"250. Where a law is repealed, or is deemed to have been repealed by, under, or by virtue of this Constitution, the repeal shall not‑

(a) revive anything not in force or existing at the time at which the repeal takes effect;

(b) affect the previous operation of the law or anything duly done or suffered under the law ;

(c) affect any right, privilege, obligation or liability acquired, acrued or incurred under the law ;

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or punishment; incurred in respect of any offence committed against the law ; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the 1ct% l;; 1 not bee': an repealed."

6. Khan Abdul Latif Khan strenuously argued that Art. 58 had to be read with Art. 250, and that the latter Article governed the former Article. It was argued that the language of Art. 250 in most unambiguous terms provided that if the provision of the new Constitution either repealed or deemed to repeal in express terms or by implication any law, the repeal would not affect the cases enumerated in clauses (a) to (e). It was argued that the forum for leave to appeal in the instant case was governed by clause (e), which in clear words preserved the "legal remedy" which term included the right of appeal, notwithstanding the provisions of Art. 58. The concluding part of clause (c) stated that notwithstanding any such repeal, any legal remedy could be instituted, continued, or enforced, as if the law has not been repealed. With a view to appreciating the full significance of this argument Art. 250 shorn of clause (a) to (d), would read as follows :‑

Where a law is repealed, or is deemed to have been repealed by, under, or by virtue of this Constitution, the repeal shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted continued, or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed.

It would be plain from the reading of the above provision that Art. 58 is not retrospective in operation as Art. 250 sub‑clause (e) preserves the provisions of Art. 158 of the old Constitution it, regard to cases which had been commenced before the operation of the new Constitution.

7. Khan Abdul Latif Khan cited several rulings in support of the points raised by him, but we would content to refer to a few of them. The first authority which we would like to quote is the decision of their Lordships of the Privy Council in Colonial Sugar Refining Co. Ltd. v. Irving (1905 A C 369), wherein it was held that a right of appeal which was one of the methods by which a decision which would otherwise be final, could be challenged was not a procedural right but a substantive right and therefore, an Act purporting to take away a right of appeal could have no retrospective effect if such was not clear from the express words of the Statute or could not be inferred from its terms. In Ram Singha and another v. Shankar Dayal and another (A I R 1928 All 437 (F B)), it was held that "the right of appeal to the Court of District Judge was governed by the law prevailing at the date of insti tution of the suit, and not by the law that prevailed at the date of the decision, or at the date of the filing of the appeal." The same view was approved in Bimala Prosad Ray and another v. State of West Bengal (A I R 1951 Cal. 258), a Special Bench of three Judges. The last authority which we would like to refer, though not cited at the Bar, is the decision of the Supreme Court of India, reported in Messrs Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh and others (A I R 1953 S C 221). That was a case under C. P. and Berar Sales Tax Act (21 of 1949). The Proviso to sec tion 22 (1) of the C. P. and Berar Sales Tax Act was amended on 25‑11‑1949 by the Central Provinces and Berar Sales Tax Act (Second Amendment) Act (Act 57 of 1949) which required the assessee at the time of filing the appeal to furnish a proof of payment of the Tax in respect of which the appeal had been preferred. When the matter was carried to the Supreme Court, S. R. Das, J., delivering the judgment for the Court, at page 224 observed :‑

A right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an inferior Tribunal to a superior Tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by the inferior Court. In the language of Jenkins, C. J., in Nana v. Sheku (B) (Supra) to disturb an existing right of appeal is not a mere alteration in procedure. Such a vested right cannot be taken away except by express enactment or necessary intendment. An inten tion to interfere with or to impair such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication.

At page 224, while dealing with the argument that the language of section 22, subsection (1), as amended, clearly made the section retrospective. His Lordship observed as under:

The new proviso, it is pointed out, peremptorily requires the authority not to admit the appeal unless it be accompanied by a satisfactory proof of the payment of the tax in respect of which the appeal is preferred and this duty the authority must discharge at the time the appeal is actually preferred before him. The argument is that after the amendment the authority has no option in the matter and he has no jurisdiction to admit any appeal unless the assessed tax be deposited. It follows, therefore, by necessary implication, according to the learned Advocate, that the amended provision applies to an appeal from an assessment order made before the date of amend ment as well as to an appeal from an order made after that date. A similar argument was urged before the Calcutta Special Bench in Sardar Ali v. Dolimuddin (E) (Supra), namely that after the amendment the Court had no authority to entertain an appeal without a certificate from the Single Judge, Rankin, C.J. repelled this argument with the remarks at p. 643 "Unless the contrary can be shown, the provision which takes away jurisdiction is itself subject to the implied saving of the litigant's right.

In our view the above observation is apposite and applies to the case before us. The true implication of the above observation as of the decisions in the other cases referred to above is that the pre existing right of appeal is not destroyed by the amendment if the amendment is not made retrospective by express words or neces sary intendment. The fact that the pre‑existing right of appeal continues to exist must, in its turn, necessarily imply that the law which created that right of appeal must also exist to support the continuation of that right. As the old law continues to exist for the purpose of supporting the pre‑existing right of appeal that old law must govern the exercise and enforcement of that right of appeal and there can then be no question of the amended provision preventing the exercise of that right The argument that the authority has no option or jurisdiction to admit the appeal unless it be accompanied by the deposit of the assessed tax as required by the amended proviso to section 22 (1) of the Act overlooks the fact of existence of the old law for the purpose of supporting the pre‑existing right and really amounts to begging the question. The new proviso is wholly inapplicable in such a situation and the jurisdiction of the authority has to be exercised under the old law which so continues to exist. The argument of Sri Ganapathy Ayer on this point, therefore, cannot be accepted."

8. After careful perusal of the authorities cited at the Bar and giving the arguments addressed to us our mature consideration we have doubts about the correctness of the preposition laid down by the decision dated the 4th of October 1962 of the Division Bench in Miscellaneous Application No. 191 of 1962 to which one of us was party. We, therefore, refer the question to the Full Bench. We accordingly direct that the case be laid before the Senior Judge of this Bench for constitution of Full Bench, the point to be referred to the Full Beech being "whether after the operation of new Constitution, (from 8th June 1962) on the correct interpretation of Art. 58, read with Art. 250, applications for leave to appeal in cases decided by the High Court before the operation of the Constitution would lie to the Supreme Court only or would be governed by Art. 158 of the old Cons titution, read with sections 109 and 110 of the Civil Procedure Code.

K. B. A. Order accordingly.

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