P L D 1952 Lahore 245 (PLP)

M. R. KAYANI, J.‑These four petitions in revision were instituted against appellate orders passed under the West Punjab Urban Rent Restriction Act, XXIII of 1949, before a Full Bench of this Court held that such petitions were not competent under section 115 of the Code of Civil Procedure, since a Rent Controller was not a Court Subordinate to the High Court. As by this time it had become known that the Legislative Assembly, then in session, had before it an amend ment of the Act providing for revision, these petitions were adjourned from time to time so as to give the petitioners a sporting chance in the event of the amendment turning out to be retrospective in operation. The Amending Act, XVI of 1952, appeared in the Punjab Gazette of the 5th February, 1952, but without fulfilment of any such hope. One might have thought that since the amend ment was proposed in anticipation of the Full Bench decision, and revisions were entertained before that decision, it would be made expressly retrospective. As it is, the amendment reads thus "(3‑A) Any person aggrieved by an order passed on appeal by the appellate authority appointed by Government under clause (a) of subsection (1), and if an appellate authority has not been appointed in respect of any area or classes of cases, any person aggrieved by the order of the Controller may, within 30 days from the date of the order by the appellate authority or as the case may be, by the Controller, prefer a revision in writing to the High Court which shall be preferred and decided as if it were a revision under to Code of Civil Procedure, 1908". It is argued, however, that since the Legislature had enacted the amendment in anticipation of the Full Bench deci sion, it should be presumed to have intended retrospectively ; that, secondly, the matter. being merely one of procedure, operation is bound to be retrospective. As regards the first argument, I am asked to assume that, after a century's legacy of interpretation, the legislative drafts man did not know how to express his mind and that although he spoke of the present and future, he was thinking of the past also. As regards the second argument, we are all agreed that if the amendment touches a right in existence at the passing of the Act, it is more than a mere matter of procedure, and n operates only prospectively unless a different intention is ex pressed ; but that if it is a matter of procedure, its effect is, impliedly retrospective. Now it seems to me clear that before the amendment the respondents in these petitions had a right to the finality of the Rent Controller's order (subject to the decision of the appel late Court) and that the amendment now takes away that right and substitutes therefore a right, in the opposite party, of revision. That a right of appeal is a vested right was recognized by the Privy Council in the Colonial Sugar‑Refining Co. Ltd., v. Irving (1905) Appeal Cases 369 where a new law taking away the right of appeal to the Privy Council and substituting there fore an appeal to the High Court of Australia was held 'not to act retrospectively, for, "deprive a suitor in a pending act on of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating' procedure. In principle their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well‑known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested" So also in principle, there is no difference between giving a person a fresh right of appeal and taking away from him an existing right of appeal. In the former case a right is given which did not exist, in the latter a right which existed is taken away. If on the date of the judgment there was no right of appeal, a new law conferring such right cannot be stretched, back unless that law itself contains such power. You cannot imagine a stretching back of rights except by legal fiction, and legal fiction is made to exist by legal methods. If not so made, is pure fiction unless, of course, the matter is only procedural ; but apart from what the Privy Council said in this behalf in the Colonial Sugar Refining Co. Ltd. v. Irving, it seems clear that when we speak of procedure, we are not thinking of rights, but of the manner in which we proceed to adjudicate upon rights or liabilities. Thus when the Public Safety Act provided fog trial without the aid of assessors, it was providing a procedure which applied even to cases pending trial at the date of it; passing, because "no person has a vested right in any course of procedure". (Costa Rica v. Evlanger) (1874) 3 Ch. D

69. In re a Debtor (1936) 1 Ch. 237 Lord Wright M. R quoted the following passage from the judgment of Jessel M.R in In re. Joseph Suche & Co. (1875) 1 Ch. D 48 in order to bring out the distinction between matters of rights and matters merely of procedure or remedies; "It is a general rule that 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 where enactments merely effect procedure‑ and do‑not extend to rights of action, they have been held to apply to existing rights, and it is suggested here that the alteration made by this section (i.e., section 10 of the Judicature Act, 1875) is within that exception. I am of opinion that it is not. This is an alteration not merely in procedure, but in the right to prove for a debt which is not distinguishable in substance from a right of action before winding up, being simply a legal proceed ing to recover a debt against a company in liquidation". (Joseph Suche & Co. Ltd., were a company in liquidation before the Judicature Act of 1875 came into force. The position before the Act was that a second debt could be proved against a company in liquidation without any deduction in respect of the value of the securities held by the creditor. The ordinary law of bankruptcy in respect of individuals, however, required such deduction to be made. Section 10 of the Judicature Act of 1875 provided that "the same rules shall prevail and be observed as to the respective rights of secured and un -secured creditors, and as to debts and liabilities provable . . . as may be in force for the time under the law of bankruptcy with respect to the estate of persons adjudged bankrupt ; and all persons who in any such case would be entitled to prove for and receive dividends out of the assets of any such company, may come in under the winding‑up of such company and make such claims against the same as they may respectively be entitled to by virtue of this Act)". Then it is argued that a right of appeal is very different from a right to invoke the revisional jurisdiction of the High Court under section 115 of the Code of Civil Procedure, which merely permits the Court to exercise a discretion subject to certain conditions. It is true that there is no such compulsory re‑hearing of the entire case in revision as there is in appeal, but can it be said for that reason that while the right of appeal is a vested right, a petition in revision is merely a matter of procedure? When we say that the law allows a person to move the Court on the revision side, we mean in plain language that he has a right of so moving the Court. It is a different matter that the corresponding obligation on the part of the Court is not so heavy as in the case of an appeal: the Court may not hear him, though in practice it does hear him‑quite as patiently as in the case of an appeal‑given certain condi tions. But it is wrong to suggest that this is merely an alteration in procedure, for if by another amending Act, the amend ment of the 5th February 1952, is repealed, it would be correct to say that the right of preferring a petition in revision is taken away, and incorrect to say that the procedure‑in respect of what? is also not clear‑has undergone a change. In principle, a petition in revision is as little a matter of procedure as a petition of appeal. The amending Act came into force on the 5th February, 1952, and provides a limitation of thirty days for petitions in revision. The first three of the present petitions in which the order of the District Judge was beyond thirty days of the date of promul gation of the Act, are clearly incompetent by the very language of the amendment. The fourth petition, number 8 of 1952, is within that period, but as no right to bring a petition of this nature existed at the date of the decision, that also does not lie. The result is that all the four petitions are dismissed. A. H. Petition dismissed.