1991 PLP 544 (CLC)

Ch. Nawab‑ud‑Din Mahmood for Respondents, This order will dispose of a preliminary objection raised by learned counsel for the respondents with regard to competency of this first appeal against an order (F.A.O.).

2. Suit giving rise to the FA.O. in hand was filed by one Muhammad Anwar against the appellant, Muhammad Shafi, to challenge the validity of a rent deed. Prayer made in the suit was that the rent deed may be declared to be void and illegal, and be also cancelled. Value of the suit for the purpose of jurisdiction was fixed at Rs.200. Muhammad Anwar died during the pendency of the suit, whereupon the respondents, Mst. Sakina Bibi and others, were brought on the record as his legal representatives. The suit was dismissed by a Civil Judge. Respondents, therefore, went in appeal before an Additional District Judge, who accepted the appeal and remanded the suit for fresh decision. This F A 0 is directed against the order of remand passed by the learned Additional District Judge.

3. Objection raised by learned counsel for the respondents is that since a second appeal could not be preferred if the learned Additional District Judge had disposed of the appeal by means of a decree, this appeal against the order of remand made by him is also not competent. In this connection reliance was placed by him on section 102 of the Code of Civil Procedure, which reads thus:‑

"102 No second appeal shall lie‑‑ (a) In any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed five thousand rupees; and (b) in any other suit, when the amount or value of the subject‑matter of the original suit does not exceed (fifty) thousand rupees."

4. On the other hand, it was contended by learned counsel for the appellant that provisions of law relied upon by learned counsel for the respondents are not applicable to the present case. His argument was that the litigation culminating in this appeal commenced in 1970 when clause (b) of section 102 of the Code of Civil Procedure was not a part of that section and only provision relating to second appeals against the decrees passed by Courts other than the Courts of Small Causes was contained in section 100 of the Code of Civil Procedure, which did not lay down any limit relating to jurisdictional value of the second appeal. Argument proceeds that the right of appeal is a substantive right and, therefore, it cannot be taken away even by the Legislature without ‑making an express provision in this regard. It was pleaded that since no indication in this behalf was given by the Legislature while amending section 102 or otherwise, right of second appeal available to the appellant at the time of the commencement of the litigation remained unaffected. In this connection, reliance was placed on Governor, N.‑W.F.P. and another v. Gul Naras Khan (1987 S C M R 1709).

5. It was by means of Law Reforms Ordinance, 1972, that section 102 of the Code of Civil Procedure was substituted. Earlier, there was no clause (b) in that section and the whole of it was comprised of the provisions contained in the existing clause (a) thereof except that for the words "five thousand" the words "five hundred" appeared therein. Thus, prior to the coming into force of the Law Reforms Ordinance, section 102 dealt with decrees passed by the Courts of Small Causes only. It had nothing to do with decrees passed by the other Courts of civil jurisdiction, which could be appealed against for the first time under section 96 of the Code of Civil Procedure and for the second time under section 100 therefor. As stated earlier, in section 100 there is no mention of valuation of the suit or that of the appeal. Thus, at the time of the institution of the suit, giving rise to this appeal, parties to the suit had a right of second appeal. This was also conceded by learned counsel for the respondents. In view of the law laid down by the Supreme Court in the aforesaid case of Governor, N.W.F.P. and another, cited by learned counsel for the appellant, the said right, being substantive in nature, remains unaffected by the above amendment in the Code of Civil Procedure because while making that amendment or otherwise the Legislature did not give any indication to the effect that the amended provisions would hold good qua the litigation commencing before 1972 as well. In this view of the matter, there is no force in the preliminary objection raised by the learned counsel for the respondents and the appeal is held to be competent. A.A./M‑2544/L Order accordingly