P L D 2009 Supreme Court (AJ&K) 1 (PLP)

MUHAMMAD REAZ AKHTER CHAUDHRY, C.J.

Through this appeal with leave of the Court the appellants have sought annulment of judgment of the High Court dated 7-4-2006, whereby the appeal filed by the appellants was dismissed.

2. The relevant and necessary facts for the disposal of instant appeal are that late Mst. Anwar Begum, predecessor-in-interest of present appellants, brought a suit for declaration in the Court of Senior Civil Judge Mirpur. It was averred by her that land measuring 35 Kanals, 4 Marlas, out of 57 Kanals, 16 Marlas, comprising survey Nos.1122, 1123 (previous) and 224 (present), Khata No.2/21-min (previous), 3/21 (present), Khewat No.2/6, situate in village Dudyal-Jagir, Tehsil Mirpur, was under the ownership and possession of plaintiff and pro forma-defendants. The gift-deed executed by defendant No.2 in favour of defendant No.1 was beyond his share and without possession. It was further averred that a specific survey number' was transferred through gift, therefore, the gift-deed may be declared null and void and inoperative on the rights of plaintiff. Consequently it was also craved that decree for joint possession may be passed in her favour. The suit was partly decreed to the extent of 17 Marlas of land. It was held by the learned Senior Civil Judge that the donor has transferred the land measuring 17 Marlas beyond his share, therefore, the gift-deed was declared null and void to the extent of 17 Marlas of land. Remaining gift-deed was kept intact. Feeling aggrieved from the said judgment, late Mst. Anwar Begum (who was then alive) filed an appeal in the Court of District Judge, Mirpur. The appeal was dismissed and the judgment and decree passed by the learned Senior Civil Judge were maintained. Feeling dissatisfied from the judgment and decree of the learned District Judge, the legal heirs of Mst. Anwar Begum, appellants herein, filed an appeal in the High Court of Azad Jammu and Kashmir. It was alleged in para. 12 of the memo of appeal that during hearing of appeal before the learned District Judge, Mst. Anwar Begum, plaintiff, died, but there was no person to communicate as such because her attorney was in England. The present appellant, Mst. Hamida Begum, being a woman, could not communicate. Moreover before the death of Mst. Anwar Begum the amended C.P.C. was adapted in Azad Jammu and Kashmir, therefore, the appeal could not be dismissed on account of abatement. Thus it was craved that the order of abatement of appeal may be set aside. Along with the appeal an application for setting aside the order of abatement was also moved. The learned Judge of the High Court dismissed the application and it was held by him as under:-- "The appeal is continuation of the original suit, therefore, notwithstanding her death during the pendency of her appeal before the District Judge, this Court can also take notice of the situation as the same powers are available to this Court under section 107 read with Order XLI of C.P.C. The appeal of Mst. Anwar Begum stood abated before the District Judge. No order is required for the purpose as the abatement is an automatic process. The application before this Court has been made after the prescribed period of limitation meant for setting aside the abatement which is 60 days. The reasons listed in the application are neither tangible nor supported by the affidavit of the applicant. The affidavit of the counsel in such like matter is of no use." No order for abatement was passed by the learned District Judge. Neither any such point was raised before the learned District Judge nor as such was considered by the learned District Judge, but the learned Judge of the High Court held that abatement shall automatically operate. The instant appeal has been filed against the afore-said judgment of the High Court.

3. Mr. Muhammad Yunus Arvi, the learned counsel for the appellants, argued that an amendment has been introduced in C.P.C., whereby Order XXII, rule 3, sub-rule (2) has been substituted. Prior to substitution, this provision contained that where within the time provided by law no application is moved under sub-rule (1) for impleading the legal heirs as party, the suit shall abate, while this rule was substituted and now according to the substituted rule, if the legal heirs are not impleaded, it will not make any difference. This provision of law clearly contains that where plaintiff has died and his legal representatives have not been brought on record, the Court may proceed with suit, notwithstanding the death of such plaintiff, and the order made in the suit shall have the same force and effect as if it had been made or pronounced before the death took place. The learned counsel submitted that in the light of this provision of law, even if no application is moved, the appeal shall not abate. The learned Judge of the High Court has failed to consider that Order XXII; rule 3, sub-rule (2) has been substituted. The amendment has been adapted in Azad Jammu and Kashmir. The plaintiff died after the adaptation of afore-said amendment, therefore, it was fully applicable to the present case. The learned Judge of the High Court has wrongly dismissed the appeal on technical ground.

4. While controverting the arguments of the learned counsel for the appellants, Ch. Lal Hussain, the learned counsel for the respondents, argued that the judgment of the High Court is based on sound, cogent and sagacious reasoning. It does not require any indulgence by this Court. It was further argued by the learned counsel that under Order XXII, rule 9(2) of C.P.C. any person claiming himself to be the legal representative of deceased plaintiff or defendant, may apply to the Court for setting aside any order made or judgment pronounced by it in his absence, therefore, the remedy available to the appellants was to move the Court of learned District Judger It was next submitted by the learned counsel that under Article 171 of the Limitation. Act, the period of limitation for moving such application is sixty days, and the appellants have not moved application within the prescribed period of limitation: Thus now they cannot move any such application after the expiry of period of limitation. It was next submitted by the learned counsel that as no list of legal representatives of plaintiff, as required under Order VII, rule 26 of C.P.C. was before the Court of learned District Judge, therefore, no question arises for applying newly adapted sub-rule (2) of rule 3 of Order XXII, C.P.C.??????????

5. We have heard the learned counsel for the parties, perused the relevant record and have given our earnest thought to the arguments advanced by the learned counsel for the parties. It is pertinent to note that in the instant case it was alleged by the present appellants for the first time before the High Court that Mst. Anwar Begum had died during the pendency of appeal before the learned District Judge and it did not come in the notice of learned counsel for Mst. Anwar Begum. The present appellant, Mst. Hamida Begum, being a woman was unable to communicate the counsel, therefore, the order of abatement may be set aside. It stultifies us that no order for dismissal of appeal on account of abatement was passed by the learned District Judge, but the learned Judge of the High Court has held that the appeal is continuation of original suit, therefore, the High Court can also take notice of the situation and the same powers are available to it. It is pertinent to note that the appeal was sub judice before the learned District Judge and not the trial Court. Assuming for the sake of arguments that Mst. Anwar Begum would have died during the pendency of original suit, even then the suit would not have been dismissed on account of abatement because before the year, 1972, Order XXII, rule 3, sub-rule (2) conferred the powers upon the Court to dismiss the suit on account of abatement, but in 1972 an amendment was introduced in Pakistan, whereby the powers of dismissal of suit on account of abatement have been taken away and it has been laid down in the afore-said rule that if no application is moved for impleading legal representatives, it shall not make any difference. For having proper perception we-would like to reproduce sub-rule (2) of rule 3 of Order XXII C.P.C. which reads as under:-- "Where within the time allowed by law no application is made or intimation is given under sub-rule (1), the Court may proceed C with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such plaintiff, have the same force and effect as if it had been made or pronounced before the death took place." The afore-said rule clearly contains that powers regarding abatement have been taken away from the Court so the Court of learned District Judge was not competent to dismiss the suit on account of abatement because this amended provision was also adapted in Azad Jammu and Kashmir on 5-3-2003, while Mst. Anwar died on 16-6-2003. Therefore this amendment was fully applicable to the present case.

6. Now the next question arises whether the afore-said amendment shall apply to the present case or not? The afore-said amendment was adapted in Azad Jammu and Kashmir in 2003, while the present suit was filed on 28-8-1994 and decided by the learned Civil Senior Judge on 19-2-2002. This amendment shall also apply to the present suit for the reason that Mst. Anwar Begum died after the substitution of afore-said provision of law. It would also not be out of place to mention here that amendment was introduced in C.P.C. in Order XXII, rule 3, sub-rule (2). It is an amendment in the procedure. Any amendment in the procedural law shall always apply retrospectively. It is well established principle of law that the procedural law always operates retrospectively unless contrary intention is expressed. This view finds support from a case reported as Abrar Hussain Shah v. The State 1992 SCR 294 wherein at page 298 it has been observed as under:-- "??.Even otherwise it is settled principle of law that procedural law always operates retrospectively unless a contrary intention is expressed."??????????? Same like proposition arose before the Supreme Court of Azad Jammu and Kashir in a case titled -Muhammad Ayub v. Mst. Rehmat Jan PLD 1996 SC (AJK) 1 that whether the procedural law should operate retrospectively or not. It was held as under:-- "The procedural law always operates retrospectively unless it is otherwise provided, i.e. it would also apply to the pending cases." (Underlining is ours).

7. In a case reported as Muhammad Aslam v. Senior Vice President H.B.L. and others 2003 PLC (C.S) 388 it has been held that if a matter is merely of procedural nature, it would operate retrospectively, however, if the amendment is of such nature that it also affects the existing rights of substantive nature which would cause inconvenience and injustice, then the Court will not give retrospective effect to such procedural amendment. This view also finds support from cases titled Ghulam Murtaza v. Mst. Rahifa Begum 2003 SCR 17 and Abrar Hussain Shah v. The State 1992 PSC 363.

8. In all the afore-said reports it has been clearly laid down that procedural law shall always apply retrospectively, therefore, in the instant case the amended provision of C.P.C. shall apply to the present case from all the four corners.

9. It is to be noted that even otherwise all the rules of procedure are meant for sake of administration of justice and they have to serve this very purpose. The technicality of procedure should not be considered for thwarting the intention of law. The basic purpose of procedure in the system of administration of justice is to help and not to thwart the grant of rights to the people. The technicality should be avoided. This view finds support from a case reported as Alam Din alias Alam Sher and 3 others v. Alain Din PLD 1990 SC (AJK)1 wherein at page 13 it has been observed as under:-- "....I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be system that gives to every person what is his." The afore-said view finds support from another case reported as Ch. Muhammad Aslam Khan v. Malik Sher and 2 others 1992 CLC 196 wherein at page 196 it was held that all rules of procedure are intended to aid and assist the main cause of justice.

10. The provisions of procedure are meant for the sake of administration of justice and such provisions should be subservient to cause of justice. Such provisions do not control the powers of Court from passing an order necessary for doing full justice in a case. This view finds support from a case reported as Giyani Khan and 7 others v. Sher Ali and 3 others 2005 CLC

686. Same like proposition arise before the Supreme Court of Pakistan in a case titled Province of Punjab and others v. Col. Abdul Majeed and others 1997 SCMR 1692, wherein it was held that the Code of Civil Procedure was enacted for regulating the procedure before the Civil Courts. The provisions of C.P.C. are mainly the rules of procedure and all the procedural laws should be subservient to cause of justice. They neither limit nor control the power of Court to pass an order or decree which is necessary for the ends of justice. For having proper perception, we would like to reproduce relevant portion of judgment which is as under:-- "The Code of Civil Procedure, 1908 (hereinafter to be referred as the Code only) was enacted to regulate the proceedings before the Civil Courts. The provisions contained in the Code are mainly rules of procedure. It is well established that all procedural laws are subservient to the cause of justice and therefore such laws neither limit nor, control the power of the Court to pass an order or decree which is necessary to do full justice in the facts and circumstances of the case. Interpretation of procedural law in a manner, it tends to obstruct the course of justice, has to be avoided as far as possible." The afore-said report clearly contains that the procedural law should be interpreted in such a manner that it should not obstruct the course of justice and the Court should avoid from such interpretation. It is desired that the case should be decided on merits. The rights of parties should be resolved by the Court after considering the merits of both sides instead of disposing of the same on mere technicalities.

11. As stated in the earlier part of this judgment that the amended sub-rule (2) of rule 3 of Order XXII, C.P.C. shall apply to the present case, therefore, if at all the legal representatives have not been brought on record, it will not make any difference in the light of amended provision of C.P.C. It is also pertinent to note that in the instant case no order for dismissal of appeal on account of abatement was passed by the learned District Judge and the learned Judge of the High Court has wrongly held that the suit stood automatically dismissed on account of abatement.

12. As the finding of the learned Judge of the High Court that the abatement took place automatically is concerned, it has no substance for the reason that the powers regarding dismissal of any cause on account of abatement have been taken away from the Courts by way of substitution of sub-rule (2) of rule 3 of Order XXII, C.P.C., which was adapted in Azad Jammu and Kashmir on 5-3-2003. Right from 5-3-2003 no powers for dismissal of any cause on account of abatement were available to the Courts of Azad Jammu and Kashmir. In the instant case Mst. Anwar Begum died on 16-6-2003 after the adaptation of the afore-said provision of law. When Mst. Anwar Begum died, at that time the powers of dismissal on account of abatement were not available to the Court, therefore no question arises for dismissal of appeal on account of abatement automatically.

13. The nub of the above discussion is that this appeal is accepted and the judgment of the High Court dated 7-4-2006 is hereby set aside. The case is remanded to the High Court for decision on merits. H.B.T./7/SC(AJ&K)??????????????????????????????????????????????????????????????????????????? Case remande