1999 PLP 2496 (SCMR)

IRSHAD HASAN KHAN, J.

This appeal, with the leave of the Court, is directed against the judgment of the Peshawar High Court, Peshawar, dated 8-6-1994 in Civil Revision No. 453 of 1988.

2. Brief facts are that in the suit for pre-emption by the appellants filed in the Court of Civil Judge, Nowshera on 20-7-1987 they were directed to deposit Rs.3,00,000 in cash and furnish bank guarantee in the sum of Rs.4,00,000 under section 24 of the N.-W.F.P. Pre-emption Act, 1987 (hereinafter referred to as the Act). Appellants deposited the cash amount on 1-9-1987 but instead of bank guarantee produced a certificate from the bank showing Rs.4,00,000 credited in the appellants' account.

3. Respondent/vendee in his written statement resisted the appellants' surd and prayed for dismissal of the suit on account of non-compliance of order of deposit, dated 20th July, 1987. Appellants' application that they be given an opportunity for furnishing, bank guarantee was refused and their suit was dismissed for non-compliance of the order stated above. Appellants' appeal an4 revision against the said order also failed.

4. Leave was granted in the following terms:-- "It was contended by the learned counsel for the petitioners that the learned trial Judge had received the certificate and had placed it on file, meaning thereby that such certificate was sufficient compliance of the order, therefore, when an objection was raised the learned Judge ought to have given an opportunity to the petitioners for furnishing bank guarantee before ordering dismissal of their suit. The contention raised requires consideration. Leave is granted."

5. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court for the appellants argued that the learned Judge in Chambers as well as the Courts below failed to appreciate that the parties ought not to suffer by the act of the Court, inasmuch has, the trial Judge accepted the credit balance certificate issued by the bank, which was equivalent to a bank guarantee. The contention is devoid of any force. First, the certificate was accepted subject to objections by the opposite-party, which was also pressed at the time of disposal of the revision petition. The High Court was right in observing that mere showing of a credit balance in the bank was not the sufficient requirement within the meaning of section 24(2) of the Act. Clearly, the certificate placed by the appellants before the Court did not fulfil the requirement of a bank guarantee in terms of . subsection (1) of section 24 of the Act. The bank has not given an undertaking to be answerable to the Court for the guarantee impugned in case of default or failure on the part of the pre-emptors to deposit the same. The mere fact that the appellants deposited 1/3rd of sale-price in cash within time granted by the learned trial Judge, would not absolve them to fulfil the requirement of the bank guarantee within time. Thus visualized, the pre-emption suit instituted by the appellants was rightly dismissed under subsection (2) of section 24 of the Act. Attention of this Court has also been drawn to a decision of a Division Bench of the Peshawar High Court in the case of Hayatullah Khan v. Additional District Judge (1991 CLC 1501), wherein a similar question was considered and the same view was taken. We approve the rule laid down in the above case.

6. When faced with the above situation, Mr. Muhammad Akram Sheikh argued that section 24 was amended by the N.-W.F.P. Pre-emption (Amendment) Act, 1992 (Act X of 1992) (hereinafter referred to as the Amending Act), whereby the requirement of furnishing bank guarantee has been done away with and statutory requirement is to deposit 1/3rd of sale-price only. He further argued that the Amending Act was published in the Gazette of N.-W.F.P. on 16-12-1992. The Bill was passed by the Provincial Assembly on 13-12-1992 and assented to by the Governor of the Province on 14-12-1992. Subsection (2). of section 1 of the Amending Act, provides that, "it shall come into force at once and shall hp deemed to have taken effect on the 31 st December, 1.991. The precise submission was that the provisions of amended section 24 pertained to procedural law to be given retrospective effect. He argued that the amended section 24 was in force during the pendency of the revision petition before the High Court, in that, the revision petition was filed on 26-9-1988 but was decided on 8-6-1994 i.e. before 31st December, 1991 of the date when the Amending Act was deemed to have taken effect. Reliance was also placed on Muhammad Afzal v. Karachi Electric Supply Corporation (1999 SCMR 92), Adrian Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), Malik Gul Hasan & Co. v. Allied Bank of Pakistan (1996 SCMR 237), Federation of Pakistan v. Muhammad Siddiq (PLD 1981 SC 249) and the Chairman, PIAC v. Nasim Malik (PLD 1990 SC 951), to contend that matters relating to remedy, mode of trial, manner of taking evidence, being all matters pertaining to procedure, same would be-effective retrospectively.

7. There is no cavil with the above proposition. Nevertheless, it is well settled that such a matter, would not operate retrospectively if it touches a right in existence at the time of passing legislation. Refer the case of Adrian Afzal (supra), wherein with respect to retrospectivity of legislation it was observed by Hamoodur Rehman, C.J.:-- "..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 is retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retrospectively."

8. Let us now examine as to whether there was any right in existence in favour of the appellants at the time of passing of legislation. The answer is in the negative, inasmuch as, under the first proviso to unamended section 24 of the Act the period for furnishing bank guarantee, as may be fixed by the Court, was not extendable beyond 30 days of the filing of the suit. Viewed in this perspective, the claim of the appellants on the strength of the amended provisions of section 24 of the Act, was hit by the doctrine of past and closed transaction.

9. When faced with this, Mr. Muhammad Akram Sheikh, placed reliance on Maulvi Abdul Qayyum v. Syed Ali Asghar Shah (1992 SCMR 241), to contend that when the revisional jurisdiction is exercised, revisional Court intends to correct the error in the proceedings of the Court below and may pass such orders as it may deem fit in aid of justice in exercise of its such jurisdiction, therefore, it was within the competence of the revisional Court to treat the certificate as bank guarantee by setting aside the orders of the Courts below, therefore, the order of the trial Court, dismissing the suit on ground of failure to furnish the bank guarantee within the specified period, was not final, therefore, no right was in existence in favour of the respondents when the amended provisions of section 24 came into force or deemed to have taken effect. Emphasis was laid on the following observations in the case of Maulvi Abdul Qayyum (supra):-- "The distinction between the remedy by way of appeal and revision was not unknown. The appeal was the continuation of original proceedings before the higher forum for the purposes of testing the soundness of the decision of the lower Court. On the other hand, the remedy of revision was discretionary and the revisional Court had to proceed under certain limitations in interfering with the judgment and decree of the lower Court, but on filing the appeal or revision, as the case may be, the decree of the lower Court was put in jeopardy. Indeed the correction of error in the proceedings, of the Court below, was common characteristic of both the remedies. The concept of acceptance of appeal was that the lower Court had failed to pass the decree which should have been passed. The same object was achieved when a revision from the decree of the lower Court was accepted. Thus, in a way revisional jurisdiction partakes of appellate jurisdiction. " Be that as it may, the above rule does not advance the case of the appellants. The appellants admittedly failed to furnish the requisite bank guarantee pursuant to the orders passed by the trial Court under section 24 of the Act and instead produced a certificate, which though entertained subject to objections, was rightly rejected at the time of the final hearing of the revision petition. As pointed out above, under the first proviso of the unamended section 24, the period fixed by the Court for furnishing the requisite bank guarantee, was not extendable beyond 30 days of the filing of the suit. The appellants cannot be allowed to avail benefit of his own wrong. Law is to be interpreted and applied rationally, justly, fairly and not arbitrarily. Thus, no benefit can be claimed by the appellants by invoking the amended provisions of section 24 of the Act. The order passed by the learned trial Judge, dated 1-2-1988, upheld by the lower appellate Court and the High Court did not suffer from any I infirmity.

10. There is another circumstance for dismissing the appeal, inasmuch as, the High Court rightly recorded finding that the appellants have not fulfilled the requirement of Talabs. Refer the following concluding passage of the impugned judgment:

"I have found that although the suit has been instituted after the enforcement of the N.-W.F.P. Act No.X of 1987, the pre-emptors have not mentioned anything in the plaint on the demands of pre-emption as to whether they have made any such demands in the order as stated in section 13 of the Act aforesaid. There cannot be any dispute that the pre-emption suit could not proceed in the absence of such demands even if we absolve them of the liability for which their suit has been dismissed under section 24(2) of the Act." Clearly, non-fulfilment of requirement of Talabs would not entitle the appellants to a decree for pre-emption.

11. Resultantly, we dismiss the appeal but there shall be no order as to costs. M.B.A./M-357/5 Appeal dismissed.