2026 PLP 370 (CLC)

DR. KHURSHID IQBAL, J.

This opinion seeks to resolve the subject writ petition along with the connected Petition No. 103-D/2023, as both involve common questions of law and fact. Both petitions challenge the judgment of the learned District Judge dated 20.02.2023, which restored an ex parte decree that had been set aside by the trial court on 08.11.2022, subject to costs of Rs. 20,000.

2. The factual matrix of these petitions is that Respondent No.1 filed a suit for the recovery of Rs. 7 crores and 2 lacs (70.02 million) against the petitioners and the proforma respondents. Upon service, they were proceeded against ex parte. After recording ex parte evidence, the learned trial court decreed the suit in favor of Respondent No.1 vide an ex parte judgment dated 22.12.2021. It was during the execution proceedings that the petitioners and the proforma respondents appeared before the court and jointly filed an application for setting aside the ex parte decree and proceedings, along with a petition for condonation of delay.

3. Allowing the applications on 01.10.2022, the trial court set aside the ex parte decree, subject to costs of Rs. 20,

000. However, upon a revision petition, the learned District Judge, through a judgment dated 20.02.2023, reversed the said order and restored the ex parte decree. Aggrieved, the petitioners and proforma respondents Nos. 6 to 8 have challenged this judgment through the present constitutional petitions.

4. The petitioners' counsel vehemently argued that the learned revisional court overlooked two key aspects: first, that the trial court lacked pecuniary jurisdiction, and second, that in a previous suit filed by Respondent No.1, the trial court had allowed only a fresh suit for rendition of accounts. Conversely, counsel for Respondent No.1 contended that the trial court had duly settled the question of jurisdiction and that the present suit adhered to the direction given in the previous proceedings. This Court examined the record during the course of arguments.

5. Turning to the first question, it is undisputed that the suit was for the recovery of Rs. 70.02 million and was instituted on 04.02.2019. During its pendency, the Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020 (Act No. XLIX of 2020) was enacted by the Provincial Legislature, amending Section 6 of the Civil Procedure Code, 1908. For ready reference, Section 3 of the amending law is reproduced below:

3. Substitution of section 6 of the Act No. V of 1908.

In the said Act, for section, the following shall be substituted, namely: "

6. Pecuniary jurisdiction.

Save in so far as is otherwise expressly provided, all civil suits shall be filed in the following manner, namely: (a) where the amount or value of the subject matter of the suit is below rupees fifty million, the suit shall be filed in the Court of Civil Judge, as may be prescribed by the High Court; and (b) where the amount or value of the subject matter of the suit is rupees fifty million or above, the suit shall be filed in the Court of District Judge, as may be prescribed by the High Court."

6. As consequence of the above amendment, the trial court lost its pecuniary jurisdiction during the pendency of the suit. Although the trial court acknowledged the amendment in its order dated 23.10.2021, it held that the amendment had no retrospective effect, solely because it did not expressly provide for such applicability. As a result, the trial court proceeded to assume pecuniary jurisdiction.

7. The trial court failed to properly appreciate the true effect of the amending law. Notably, the revisional court also overlooked this crucial aspect of the case. It is a well-established principle that, unless expressly stated otherwise, amendments affecting substantive rights do not have retrospective application. However, amendments concerning procedural matters are generally deemed to have retrospective effect, as they regulate the manner in which rights are enforced rather than altering the rights themselves. One of the earliest cases in which this issue was discussed by the Apex Court is the Adnan Afzal case (SC: 1969).1 The significance of this judgment lies in its comprehensive tracing of the history of the principle of retrospectivity concerning procedural amendments. A relevant extract reads as under: The general principle with regard to the interpretation of statutes as laid down in the well known case of the Colonial Sugar Refining Company Limited v. Irving (1905 A C 369) is that "if the matter in question be a matter of procedure only", the provisions would be retrospective. "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", then "in accordance with a long line of authorities extending from the time of Lord Coke to the present day", the legislation would not operate retrospectively, unless the Legislature had either "by express enactment or by necessary intendment" given the legislation retroactive effect. To the same effect are the observations of Jessel, Master of the Rolls, in the case of In re: Joseph Suche and Co. Limited ((1875) 1 Ch. D. 48), where it was observed that as "a general rule when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that, these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights." The question for consideration there was regarding the right of a secured creditor of a company to prove for the full amount of his debt without deducting the value of his Securities in the course of the winding up. That was held to be, in substance, a right of action for the recovery of a debt and, therefore, section 10 of the English Judicature Act was held not to apply retrospectively. The principle has been admirably put by Crawford in his Book on Construction of Statutes, 1940 Edition, page 581, as follows: "As a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retroactive operation. Similarly, the presumption against retrospective construction is inapplicable. In other words, such statutes constitute an exception to the rule pertaining to statutes generally. Therefore, in the absence of a contrary legislative intention, statutes pertaining solely to procedure or legal remedy may affect a right of action no matter whether it came into existence prior to, or after the enactment of the statute. Similarly, they may be held applicable to proceedings pending or subsequently commenced. In any event, they will, at least, presumptively apply to accrued and pending as well as to future actions." This principle has also been fully adopted by this Court in the cases of The State v. Muhammad Jamil (P L D 1965 SC 681) and Muhammad Alam v. The state (P L D 1967 SC 259). On the point of procedural matters, the apex Court further went on to say as: The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause 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. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favorably incline towards giving effect to such procedural statutes retroactively.

8. This seminal ruling has been reaffirmed subsequently in the cases of Muhammad Abdullah (SC: 1972)2; Bashir (SC: 1987)3; Mst. Nighat Yasmin (SC: 1988)4; Yusuf Ali Khan (SC: 1994)5; and Malik Gul Hassan (SC: 1996)6.

9. The post-amendment issue regarding the retrospective application of Section 6 of the C.P.C., particularly in relation to the pecuniary jurisdiction of civil courts, was comprehensively addressed by this Court in the cases of Shahzada (PHC: 2021)7, Amir Zada (PHC: 2021)8 and Mst. Naseem Ishaq (PHC 2023)

9. In the last mentioned case, this Court observed: Thus, I have no doubt in my mind that amendment through Section 3 of the Act, 2020, whereby Section 6 of the C.P.C. was substituted, whereby the pecuniary jurisdiction of Civil Court viz-e-viz the District judge has been determined has a retrospective effect and the requirement of law is that any matter which was pending before the Civil Court where the value of the subject-matter of the suit is more than rupees fifty million it should be transferred to the respective District Judge, who has the pecuniary jurisdiction under Section 6(b) of the Act, 2020.

16. Moving on further to the assertions of the learned AAG to the provision of Section 19 of the Act, 2020, according to which, it is held that notwithstanding the repeal of the Act, 2019, all suits, applications or appeals instituted and any other proceedings commenced, initiated or continued under the repealed Act till the commencement of the Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020 shall be deemed to have been validly instituted, commenced, initiated or continued under the Act, 2020. This provision, in my humble understanding, only protect and save the initiation of lis during the particular period or which was initiated prior to the Act, 2019, however, it does not in clear words protect the continuity of lis in the forum i.e. the Court of Civil Judge or District Judge to receive and entertain a suit regarding the value as provided under the substituted Section 6 of the C.P.C. Albeit Section 19 of Act, 2020 does not give any clear impression that the amendment regarding the jurisdiction of the Civil Judge viz-a-viz District Judge are prospective in nature and this Court see no absurdity in the clear language of Section 3 of Act, 2020, substituting Section 6 of the C.P.C. and Section 19 of the Act, 2020 regarding the jurisdiction of the respective Courts. This issue has effectively been resolved by this Court in the cases of Shahzada Colonel Sharifuddin and others v. The Settlement Officer District Upper and Lower Chitral and others (2021 CLC 1968) and Amir Zada and others v. Mian Zamin Khan and others (2021 CLC 2042).

17. Thus, this Court in view of the above, holds that the amendment introduced through Section 3 of Act, 2020 whereby the pecuniary jurisdiction of Civil Judge viz-a-viz District Judge have been determined has the effect on all pending suits which should be transferred by the respective Civil Judges seized of the matter to the competent court under Section 6(b) of the C.P.C. (as substituted). [emphasis supplied]

10. The upshot of the foregoing discussion is that the trial court lost its pecuniary jurisdiction upon the enactment of the 2020 Amendment. The revisional court failed to address this crucial issue. Consequently, the ex parte decree passed by the trial court on 22.12.2021 was without jurisdiction and, therefore, a nullity in the eyes of the law.

11. Regarding the second question, the petitioners' counsel argued that Respondent No.1 had previously filed a suit against the petitioners, seeking a declaration that he was awarded a contract in 2007 for the construction of a road in South Waziristan, which he could not complete due to the precarious law and order situation. He contended that, following the merger of South Waziristan Agency, the contract was wrongly awarded to the petitioners. Additionally, he prayed for the rendition of accounts. Vide order dated 12.11.2019, the trial court rejected the plaint while granting Respondent No.1 permission to file a fresh suit specifically for rendition of accounts. However, instead of complying with the court's direction, Respondent No.1 instituted a suit for the recovery of Rs. 50 million as compensation for losses allegedly incurred due to the non-completion of the contract, Rs. 20 million, as damages for mental distress, and Rs. 200,000, as counsel's fee. This Court refrains from addressing this question further, as doing so may prejudice merits of the suit.

12. For the reasons recorded above and in light of the applicable legal principles, both petitions succeed and are accordingly allowed. The impugned order, along with the imposed cost of Rs. 20,000, is set aside. Consequently, the suit filed by Respondent No.1 is restored and remanded to the trial court with the direction to return the plaint to Respondent No.1 for presentation before the appropriate forum, subject to all legal objections. UN/133/P Petitions allowed. 1 Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187). 2 Muhammad Abdullah v. Imdad Ali (1972 SCMR 173). 3 Bashir v. Wazir Ali (1987 SCMR 978). 4 Mst. Nighat Yasmin v. N.B. of Pak (PLD 1988 SC 391). 5 Yusuf Ali Khan v. Hongkong and Shanghai Banking Corporation, Karachi (1994 SCMR 1007). 6 Malik Gul Hassan and Co. v. Allied Bank of Pakistan (1996 SCMR 237). 7 Shahzada Colonel Sharifuddin and others v. The Settlement Officer District Upper and Lower Chitral and others (2021 CLC 1668). 8 Amir Zada and others v. Mian Zamin Khan and others (2021 CLC 2042). 9 Mst. Naseem Ishaq and others v. Khizar Hayat and others (PLD 2023 Peshawar 133).