1986 PLP 1423 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑‑The petitioners seek leave to appeal against the judgment of the Lahore High Court , Lahore, dated 29‑11‑1975, dismissing their R.S.A. The facts giving rise to the petition, briefly, are that Karam Din the predecessor‑in‑interest of the present petitioners was allotted Government measuring 15 Acres in Chak No. 53/E.B, Tehsil Khushab District Surgodha in the year 1950. Subsequently he was given another piece of land in exchange He complied with the terms and conditions of allotment and remained in possession till 195E. But his allotment was cancelled in 1957 without any notice to him. He challenged the order of cancellation through a civil suit filed on 24-5-1965. A preliminary objection regarding jurisdiction of the Court was raised by the respondents/ defendants but the same was decided against them. This suit was, however, withdrawn due to a technical defect and a fresh suit was subsequently filed by the petitioner on 9‑12‑1966, in the Court of Senior Civil Judge, who vide his order, dated 7‑12‑1967 returned the plaint for presentation to the proper Court which was done on 21‑12‑‑1967. The suit was contested by respondent No. l and the remaining defendants (including Muhammad Shafi defendant No.4), were proceeded ex parte. The trial Court decreed the suit in petitioners' favour on 16‑3‑1972. Muhammad Shafi respondent thereupon filed an application for setting aside the ex parte proceedings against him. This was allowed and after a fresh trial the suit was dismissed by another Civil Judge. The petitioners filed an appeal against the dismissal of the suit before the District Judge, Mianwali, which was dismissed on 22‑7‑1974 on the sole ground that the jurisdiction of the civil Court had been taken away, with retrospective effect, by the Thal Development (Punjab Amendment) Ordinance (XIX) 1975 as amended by Act XLVI of 1975 and the appeal was, therefore, not competent. The petitioners then filed an R . S . A . before the High Court which met the same fate vide the impugned judgment. Hence, the present petition.

3. Learned counsel for the petitioners submitted that the leaned District Judge, Mianwali, erred in holding that the appeal before him was not competent in view of the 1975 Ordinance (XIX) because the law applicable to the case was that existing in 1966‑67, i.e., at the time when the suit' was filed. For this contention be relied on the following observation in Nusrat Waheed v. Administrator Thal 1980 CLC 334:‑ 'It cannot be ignored that a statute taking away or impairing vested rights acquired under existing laws cannot have a retrospective effect. I have held in Barkat Ali v. Administrator Thal Development Bhakkar that a statute which takes away or affects right of action is presumed not to apply to pending actions unless there are express words in the statute affecting such rights. Courts have always, learned very strongly against applying a new statute to pending actions, when the language of the statute does compel to do so. The bar of jurisdiction was first created on 6th June, 1975, when the Ordinance XIX, 1949. The Ordinance came in existence at a time when the cause of action had accrued to the appellants and the suit had since been instituted on 31st May, 1975. The Statute having no indication of its application to pending actions, cannot be c‑trued to apply to them. In view of the maintainability of on the suit notwithstanding the retrospectively of the Statute there spas definitely a question in this case for determination by the Civil Court whether the act of the Collector in canceling allotment was illegal and was thus not "under the Act". We are of the view that this question needs consideration. Leave is, therefore, granted. Security in the sum of Ra.1,

000. To be heard on the same record with permission to file additional documents. M.I. Leave granted.