1993 PLP 154 (CLC)

"(f) `Special Court' means‑‑ (i) in respect of a cafe in which the outstanding amount of the loan does not exceed one million rupees, or the trial of offences punishable under this Ordinance, a person who is or has been a District Judge or an Additional District Judge and is appointed by the Federal Government, by notification in the official Gazette, to be a Special Court to exercise jurisdiction within such territorial limits as may be specified in the notification, and, in the absence of such appointment, the District Court; and (ii) in respect of any other case, the High Court in the exercise of original civil jurisdiction. The effect of this amendment was that with respect to claims in which the outstanding amount of loan did not exceed Rs. One Million, Special Court meant the Court constituted by the Federal Government, or the District Court as the case may be, while in respect of other cases i.e. Where the outstanding amount of loan was more than Rs. One Million, this Court in the exercise of its original civil jurisdiction was to be the Special Court.

3. The present suit, which is for recovery of Rs.69,85,511.27 was instituted on 6th April, 1989, and is being tried by this Court as a Special Court. The Banking Companies (Recovery of Loans) Ordinance, 1979 has now been further amended by promulgation of Banking Companies (Recovery of Loans) (Amendment) Act, 1992, by virtue of which the word `one million' appearing in section 2 (f) (i) of the Ordinance has been substituted by words `ten million', with the result that now the pecuniary jurisdiction of Special Court constituted by the Federal Government stands enhanced to Rs. ten million, and it is only where the value exceeds that amount that the suit can be tried by this Court. The question which now falls for decision is as to whether the Banking Companies (Recovery of Loans) (Amendment) Act, 1992, is retrospective in character, so as to affect the cases pending before this Court at the time of its promulgation.

4. All the learned counsel except Mr. Shahid Hamid, Advocate, are of the view that the amendment being procedural in nature applies to pending cases and all these suits are now to be tried by the Special Court. Mr. Shahid Hamid, Advocate, has, however, argued that as there is no specific provision relating to pending cases, unlike the earlier Ordinance, these cases shall continue to be tried by this Court.

5. The situation is not without parallel. When the Banking Companies (Recovery of Loans) Ordinance, 1979 was amended by the Banking Companies (Recovery of Loans) (Amendment) Act, 1983, a similar question arose as to whether the Amending Ordinance was applicable to the cases pending before the Civil Court as prior to the said amendment, the suits of the value of less than Rs. one lac, were triable by the Civil Court. This Court had taken the view in National Bank of Pakistan v. Taj Muhammad (PLD 1984 Lahore 417) and United Bank .Ltd. v. Mian Abdul Khaliq (PLD 1988 Lahore 225) that the amendment was not retrospective in nature and would not affect pending cases. However, the Supreme Court of Pakistan in Mst. Yasmeen Nighat and others v. National Bank of Pakistan and others (PLD 1988 SC 391), taking the contrary view ruled that the amendment being procedural in nature would apply to pending cases also as nobody has any vested right in procedure which includes the question of forum of trial. The law declared by the Supreme Court is applicable with equal force in the present case also and, therefore, there is no difficulty in holding that the provisions of the Banking Companies (Recovery of Loans) (Amendment) Act, 1992, are applicable to pending cases.

6. The argument of Mr. Shahid Hamid, Advocate, that as there is no provision in the Banking Companies (Recovery of Loans) (Amendment) Act, 1992, dealing with pending matters, unlike the Amending. Ordinance of 1983, the Amending Act cannot be applied to pending cases, has no merit. Although in the Amending Ordinance of 1983, section 8 provided for transfer of cases pending before the Special Court constituted under the Ordinance of 1979, to Special Court set up under section 2 (f) of the Amending Ordinance, but' there was no provision regarding the cases pending before the Civil Court. Yet it was held by the Supreme Court in Mst. Yasmeen Nighat's case (supra) by applying the well‑accepted principle of interpretation that the forum of trial is matter of procedure in which no litigant had vested right, the amending law would be applicable to cases pending before the Court.

7. The leading judgment on this aspect of the matter is Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), in which the question arose as to whether the cases for maintenance pending at the time of promulgation of West Pakistan Family Courts Act, 1964, which created a special forum for such cases, would continue to be tried by ordinary Courts. The answer to this question was rendered by the Supreme Court in the following words:‑‑ "Looking at the provisions as a whole, we are of the view that all that the Family Courts Act has done is that it has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. It has, thus in every sense of the term, brought about only procedural changes and not affected any substantive right. According to the general rule of interpretation, therefore, a procedural statute is to be given retrospective effect unless the law contains a contrary indication. There is no such contrary indication in the West Pakistan Family Courts Act. We would, therefore, hold that the Act affected also pending proceedings and the District Magistrate was right in holding that the Courts of Magistrates had no longer any jurisdiction either to entertain, hear or adjudicate upon a matter relating to maintenance." Similar position obtains in the present case also.

8. It is a matter of common knowledge that originally for the Province of Punjab, there were only two Courts set up by the Federal Government under section 2 (f) (i) of the Banking Companies (Recovery of Loans) Ordinance, 1979, one at Lahore and the other at Multan. Now after the amendment made in the Banking Companies (Recovery of Loans) Ordinance, 1979, the number of these Courts has been increased and Special Courts have been set up in each the divisional headquarter of the Province. The amendment thus appears to be beneficial in nature and is geared towards providing for expeditious disposal of the suits. It may also be noticed that the amendment does not take away any right of the defendant and even the right of appeal is not affected as irrespective of the fact whether the case is tried by this Court in the exercise of its original civil jurisdiction or by the Special Court, appeal lies to the Division Bench of this Court. In this view of the matter, there appears to be no compelling reason for holding that pending cases shall continue to remain triable by this Court.

9. In the last, notice must also be taken of the authority of the Supreme Court in Bashir v. Wazir Ali (1987 SCMR 978) in which the effect of the amendment in the West Pakistan Civil Courts Ordinance, 1962 by the Punjab Civil Courts (Amendment) Ordinance X of 1978, on the pending appeals before the High Court, came up for consideration. Prior to the amendment, the appeal against the decrees of Civil Courts in matters the value of subject- matter of which did not exceed Rs.50,000 was to be filed in the High Court. However, by virtue of the Amending Ordinance, this pecuniary limit was raised from Rs.50,000 to Rs.2,00,

000. In that context, it was held by the Supreme Court that the amendment, which relates to change of forum would affect the pending appeals before this Court, which were to be tried and disposed of by the District Courts. In view of what has been stated above, it is held that the suit in which the amount to be recovered is up to 10 million, shall now be tried by the Special Court constituted by the Federal Government under section 2 (f)(i) of the Banking Companies (Recovery of Loans) Ordinance, 1979. Office shall remit the files of this Court to the Special Court. However, in cases which have been instituted after coming into force of the Banking Companies (Recovery of Loans) (Amendment) Act, 1992, on 1st of August, 1992, the plaints shall be returned to the plaintiffs for presentation to the proper Courts. AA./H‑50/L Order accordingly.