P L D 1975 Lahore 334 (PLP)

At the relevant time subsection (1) of section 15 read as follows: `The Central Government may on an application to be made within 30 days of any order made by the Rent Controller under this Act call for the record for the purpose of satisfying itself as to the legality or propriety of the order and as to the regularity of the proceedings, if any, in which the order was made, and may pass such order thereon as it deems fit, and may stay the order of eviction pending the hearing and disposal of the matter.' Thus the revision provided in the above subsection has all the character istics of an appeal. In other wordy the revisional power under this Act is not subject to any specified restrictions like those mentioned to section 115, C. P. C. It is, therefore, clear that the word `revision' in this Act has not been used in the same sense as what is technically known as a revision under section 115 of the Code of Civil Procedure." It will be seen from the portion of that judgment which I have underlined' above that it has been held that the power of revision under section 115, C. P. C. was not akin to an appeal.

19. Another case is the case of Commissioner of Income-tax, West Pakistan v. Fazlur Rahman PLD 1964 S C

410. The question in that case was whether an applicant for exercise of revisional jurisdiction under section 33-A of the Income-tax Act, 1922 is entitled to an opportunity of being heard. It was held that he is so entitled and if no such opportunity is given the order of the Commissioner, income-tax passed in such proceedings would be void and of no legal effect. At page 414 of the report it was observed as follows: "The remedy under section 33-A is alternative to an appeal before the Appellate Assistant Commissioner or the Appellate 'Tribunal and should be similar in nature. In a case where the assessee acquires the right to file an application under section 33-A by waiving right of appeal it will not be reasonable that he should not get the same remedy from the Commissioner of Income-tax as he could have had from the appellate authority. By the amendment a right has been given to the assessee to file an application. He has to pay for this application a court-fee of Rs. 25 which would mean that he has a right to get a decision from the Income-tax Commissioner on the points which he has raised." Again at page 416 it was observed as follows: We do not think the mere absence of a provision as to notice can override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing to that party. A reference to provisions in other statutes will show that the existence of a provision of notice as to one proceeding has not been accepted as an argument against the need of notice in the case of a proceeding with respect to which there is no express provision of notice. Under the Criminal Procedure Code there is a distinct provision in the case of an appeal for notice of hearing to the appellant, but there is no such provision in the case of a revision petition in the High Court. It cannot be urged, however, that the right of hearing in a revision petition has thereby been excluded. In the Civil Procedure Code similarly there is a provision in Order XLI, rule 22 directing notice of the hearing of appeal to be given to the appellant and there is no such provision with respect to a proceeding under section 115, C. P. C. yet it cannot be said that it is not necessary to hear the parties affected in a proceeding under section 115, C. P. C. The fact that the proceedings are judicial or quasi judicial in nature is sufficient to entitle a party to a hearing in the absence of a specific provision to the contrary."

20. It maybe seen from these observations that unlike section 115, C. P. C. the provisions of section 33-A of the Income-tax Act could be invoked as an alternative to an appeal. The right has been given to the petitioner to file an application for which he has to pay court-fee. The main ground, however, for holding that the applicant had a right to be heard appears to be based on the principles of natural justice which entitle a party to a hearing in every judicial or quasi-judicial proceedings. From all the cases under this group, it is apparent that the provisions of section 115, C. P. C. have been distinguished from revisional power given in the Displaced Persons (Land Settlement) Act, Karachi Small Cause Court Act or the Income-tax Act. I am, therefore, of the view that the revisional jurisdiction under section 115, C. P. C. does not confer any substantive right on the petitioner. As held in Lala Bishambhar Nath v. Seth Achal Singh A I R. 1932 All, 651=140 I C 123 revision is really a matter between the high and the lower Courts. Since a party can move the higher Court in exercise of revisional jurisdiction, I will prefer to call it a privilege rather than a right. Assuming for the sake of argument that revision is also a right, the next question is whether or not it is covered by the term 'procedure' in section 25 of the Family Courts Act. I have already stated that the word 'procedure' in the above section has been held in Muhammad Ismail v. Fazal Ahmad P L D 1959 Lah. 834 to include a provision of an appeal under the Guardians and Wards Act. I appeal is included in procedure, a fortiori revision must be included in it. What then is meant by 'procedure'. Blackstone in his book 'Elements of Law' (1889 Edn.) at page 21 says "Every Law consists of four parts: 1st. The declaratory: whereby the rights to be observed and the wrongs to be eschewed are clearly defined and laid down. 2nd. The directory: whereby the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs. 3rd. The remedial: whereby a method is pointed out to recover a man's private rights, or redress his private wrongs. 4th. The sanction or vindicatory which signifies what punishment or penalty shall be incurred by such as commit wrongs." Holland in his book `Jurisprudence' (Thirteenth Edition, 1924) at pages 358 and 359 explains the scope of remedial or adjective law as follows: "A remedial right is in itself a mere potentiality, deriving all its value from the support which it can obtain from the power of the State. The mode in which that support 'may be secured, in order to the realisation of a remedial right, is prescribed by that department of law which has been called 'adjective', because it exists only for the sake of 'substantive law', but is probably better known as `procedure'. In the exceptional cases in which an injured party is allowed to redress his own wrong, adjective law points out the limits within which such self help is permissible. In all other cases it announces what steps must be taken in order duly to set in motion the machinery of the law-Courts for the benefit either of a plaintiff or a defendant." The Law of Procedure is that the law which falls under the category of adjective law or remedial law as distinguished from substantive law. In Wharton's Law Lexicon (Fourteenth Edition) the word 'procedure' is explained as a mode in which successive steps in litigation are taken. In A. K Gopulan v. The State of Madras A I R 1950 S C 174 the 'procedure' is defined as "the manner and form of enforcing the law." In State of Seraikella v. Union of India A I R 1951 S C 253 it was held that `procedure' means the mode in which successive steps in litigation are taken. In England the express on practice and procedure' is equivalent to the term `procedure' and it was held in the above case decided by the Supreme Court of India that: "Practice in its larger sense like procedure, denotes the mode of proceed ing by which a legal right is enforced, as distinguished from the law that gives and defines the right." The word 'practice' has been defined in Wharton's Law Lexicon (Fourteenth Edition) as follows: "the form and manner of conducting and carrying on suits. actions, or prosecutions at law or in equity, civil or criminal, through their various stages, from the commencement to final judgment and execu tion, according to principles and rules laid down by the several Courts." In Hertha J. Sibbach v. Wilson Ltd. (312) 1 S. U. 85 L. Ed. 479 the following dictum was laid down:, "The test must be whether a rule regulates procedure-the judicial process for enforcing rights and duties recognized by substantive law and for justly administering the remedy for redress for disregard or infraction of them." At another place it is held in the same judgment: "Is the phrase 'substantive right' confined to rights conferred by law to be protected and enforced in accordance with the adjective law of judicial procedure? It certainly embraces such rights. One of them is the right not to be injured in one's person by another's negligence to redress infraction of which the present section was brought" In another American case Charles F. Kring v. State of Missouri 107 U. S. 221-227 L, Ed. 506 (510) it was held: "The word 'procedure', as a law term, is not well understood, and is not found at all in Bourvier's Law Dictionary, the best work of the kind in this country. Fortunately a distinguished writer on criminal law in America has adopted it as the title to a work of two volumes. Bishop, Criminal Procedure. In his first chapter he undertakes to define what is meant by procedure. He says: "Section

2. The term procedure is as broad in its signification that it is seldom employed in our books as a term of art. It includes in its meaning what ever is embraced by the three technical terms, pleading, evidence and practice." And in defining practice, in this sense, he says, "The word means those legal rules which direct the course of proceeding to bring parties into the Court and the course of the Court after they are brought in" ; and evidence, he says as part of procedure. "Signifies those rules of law whereby we determine what testimony is to be admitted and what rejected in each case, and what is the weight to be given to the testimony admitted." `Procedure' is not a term of art. It is quite broad in significance. It is what we call as remedial law or adjective law. `Substantive Law' is that portion of law which deals with rights conferred by law and those rights are 'protected and enforced in accordance with the adjective law of judicial procedure'. Procedure denotes the `mode of proceeding by which a legal right is enforced.' (See State of Seralkella v. Union of India A I R 1951 S C

253. It deals with the manner and form of enforcing the law. Holland describes rights not only as substantive but also as remedial. Procedure may include remedial rights. It will not, therefore, be correct to say that procedure is something which is distinguishable from or an antonym of right. That a right of appeal may belong to the sphere of procedure is clear from Salmond on Jurisprudence (Twelfth Edition), page

461. In Chapter entitled The Law of Procedure, the author says:- "It is no easy task to state with precision the exact nature of the distinction between substantive law and the law of procedure, and it will conduce to clearness if we first consider a plausible but erroneous explanation. In view of the facts that the administration of justice in its typical form consists in the application of remedies to the violation of rights, it may be suggested that substantive law is that which defines the rights, while procedural law determines the remedies. This application, however, of the distinction between jus and remedium is inadmissible. For, in the first place, there are many rights (in the wide sense) which belong to the sphere of procedure, for example, a right of appeal, a right to give evidence on one's own behalf, a right to interrogate the other party, and so on. In the second place, rules defining the remedy may be as much a part of the substantive law as are those which define the right itself . . .". He further states:- "What then, is the true nature of the distinction. The law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions jus suod ad actiones pertinet using the term action in a wide sense include all legal proceedings, civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purpose and subject-matter. Substantive law is concerned with the end which the administration of justice seeks, procedural law deals with the means and instruments by which these ends are to be attained. The latter regulates the conduct and relation of Courts and litigants in respect of the litigation itself ; the former determines their conduct and relation in respect of the matters litigated. A glance at the actual contents of the law of procedure will enable us to judge of the accuracy of the explanation. Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of administration of justice, but in what Court and within that terms I must institute proceedings, are questions of procedural law for they relate merely to the modes in which the Courts fulfil their functions. What facts determine a wrong is determined by the substantive law." He then says at page 462:- "So far as the administration of justice is concerned with the application of remedies to violated rights, we may say that the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other." This matter is dealt with as follows in Jurisprudence by Paton, III Edition, page 535 "English usage sometimes speaks of practice in a wide sense as including all the proceedings by which a cause is brought to judgment and execution ; sometimes it distinguishes practice, pleading and evidence. Procedure has been defined as `the body of rules that governs the process of litigation; practice as the rules, that make or guide the cursies, curiae and regulate the proceedings in a cause within the walls or limits of the Court itself.' On this usage procedure is a wider term than practice; the former covers everything from the issue of the writ to execution, the latter only the proceedings in an actual trial. A Victorian Court held that the phrase `practice and procedure' covered the manner in which a decree for the dissolution of marriage is made and the period to elapse before it is made absolute. To define procedure as Court process is really a description of it in terms of itself, but it is difficult to discover any purely logical test that will make a clear-cut division. Thus the rules of evidence regulate the process of the Court, but a power to make rules governing procedure has been held not to cover the rules of evidence." Regarding the right of appeal the same author states at page 536:- "Whether I possess a right of appeal or not is sometimes regarded as a question of substantive law, . . ." I have underlined* the word 'sometimes' to show that it is not universally held that the right of appeal is a question of substantive law. The author discusses the jurisprudential division of rights into primary and remedial. At page 535 he states thus :- * Here in italics "One of the orthodox classifications is that which distinguishes between substantive and procedural law, but it is difficult to draw a clear line between them. One suggested test is that substantive law determines rights, procedural law remedies; this, however, is inaccurate. Firstly, the whole law of remedies does not belong to procedure, and secondly. there are rights in the realm of procedure just as in that of substantive law. Thus, to take the first point, substantive law itself recognizes both antecedent and remedial rights, i.e., those which exist independent ly of wrong-doing and those that arise from the wrongful act or omission of another." True that while illustrating this point that substantive law may also include remedial rights, the learned author does not describe appeal as an example. He, however, illustrates this point in the following manner: "A power to recover damages is a remedial right, but it does not fall under the heading of `procedure'. If we adopt the view of those realists who deny that antecedent rights exist at all (since In effect the law consists only of remedies), then any definition of procedure which described it as covering all such actions would entail almost the total disappearance of substantive law. Secondly, the law of procedure creates rights-or more accurately claims, liberties, powers, and immunities-just as does the substantive law." At page 538 he says:- "Unfortunately no statute has drawn definite line to mark the boundaries of substance and procedure. The modern revolt against authority is leading many to reject the most useful classifications merely because they are difficult to formulate. The legal distinction between substance and procedure is not a priori one, but is pricked out by each system along the lines that appear expedient. Yet, although based on pragmatic tests, the division between substantive and procedural law is an essential one, as can be shown by a practical example. In a question concerning conflict of laws there is sometimes only one point of substance, but many problems in procedure. The convenience of leaving these questions to be determined according to lex fori shows the absurdity of rejecting the distinction between substance and procedure. The practical problems which face a plaintiff are the choice of a Court, a decision as to the most appropriate form of action, the issue of a summons to get his opponent before the Court, and the most skilful use of the rules governing, pleading and proof in the hope that he may secure judgment and, if necessary, execution. Once judgment has been given the question of the possibility of appeal will arise. Yet not all these problems can be regarded as falling under the head of procedure. Whether an action lies in equity or at common law, in England, or in France, is determined by substantive law. The rules that mark the boundaries of contract and tort have in England been influenced by procedural requirements, but they can hardly be placed under the law of procedure. Forms of action are difficult to classify : the detailed rules belong to process, the broad distinction between trespass and case to substantive law. In the last analysis, it is a ques tion of convenience precisely where the line is drawn. The functional test to which all procedural rules should be subjected is their practical efficiency in providing machinery for the prompt and reasonably cheap settlement of disputes on lines that do justice to both parties. Jurisprudence has often failed to realize the practical importance of procedural problems. The substantive law which defines our rights and duties is, of course, important to all of us, but unless the adjective law of procedure is a working machine, constantly translating these obligations in terms of Court orders and actual execution, the subtantive law might just as well not exist." Salmond is more precise in this respect but Paton also concedes that the term `procedure' may have a wider or narrow significance and it is a question of convenience where precisely the line is drawn to distinguish between substantive law and procedural law. According to him `law of procedure creates rights.' In its wider sense a statute dealing with procedural law will include all the methods to recover a man's private rights or to redress private rights or to redress private wrongs. It will include all the procedural laws by which remedy for the enforcement of right or redress of wrong is made available. It deals with the mode in which successive steps in litigation are taken from the time of starting the litigation in Court up to the stage of its final termination which includes the culmination of execution proceedings. It is fur this reason that in books on jurisprudence `appeal' is dealt with generally under the chapter of `pro cedure.' It is is this wider sense that the word `procedure' has been used in the preamble to the Code of Civil Procedure which, as stated there "has been enacted to consolidate and amend the laws relating to the Courts of civil jurisdiction." Evidently this Code includes the provisions about appeals and revisions in its sections 96, 97, 100, 104, 109, Order XLIII, rule 1 and section 115, C. P. C. The entire Code deals with the machinery provisions for the settlement or disposal of disputes. Again it is in that sense that the West Pakistan Family Courts Act is an Act dealing with procedure. This will be clear not only from the scheme of that Act given above but also from its preamble which reads as follows:- "Preamble.-Whereas it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters con nected therewith." It is hereby enacted as follows:- In Adnan Afzal v. Capt. Sher Afzal P L D 1969 S C 187, to which I will refer later, their Lordships of the Supreme Court also held that Family Courts Act brought about only procedural changes and not affected any substantial right. In these circumstances I find no reason to give a restricted meaning to the word `procedure' in section 25 of the Family Courts Act so as to exclude an appeal from its ambit. The same result can be achieved by an analysis to section 25 of the Family Courts Act in the context of the scheme of that Act and the Guardians and Wards Act. It provides that the Court shall follow the procedure described in the Guardians and Wards Act "in dealing with matters specified in that Act." Before interpreting these words it would be necessary to survey the scheme of the two Acts in order to find out the scope of the term `procedure' and the expression in dealing with matters specified in that Act" (i.e. the Guardians and Wards Act). Chapter II of the Guardians and Wards Act deals with appointment and declaration of guardians. Section 5 deals with the powers of the parents to appoint guardian of person or property or both by will or other instruments. According to section 6 this power shall have to be considered to take away or derogate in the case of a minor who is not an European British subject, from any power to appoint a guardian of person or property or both which is valid by law to which the minor is subject. Section 7 deals with the power of the Court to make order as to guardianship, whenever it is in the welfare of the minor that such an order should be made. The word `Court' is defined in section 3(5) as meaning a District Court which is explained in subsection (4) of the same section as having the meaning assigned to that expression in the Civil Procedure Code and including a High Court in the exercise of its ordinary original civil jurisdiction. Section 8 deals with the persons entitled to apply for order. Then follow a number of procedural provisions. Section 9 provides for the territorial jurisdiction of the Court which can hear the petition with respect to guardianship of person or property. Section 10 deals with the form of application. Section 11 makes provisions for procedure on admission of application including the manner of service of persons interested. Section 12 deals with the power to make interlocutory orders for production of minor and interim custody and protection of person and property. Section 13 provides for hearing of evidence before proceeding for appointment or declaration of guardian. Section 14 makes the necessary provisions for proper determination which Court shall hear it. At this stage reference may also be made to section 4(a) which empowers the transfer of cases pending in one Court to another. Section 15 provides that more than one person can be appointed or declared as a guardian. Section 16 is about appointment or declaration as guardian for property beyond jurisdiction of the Court. Under section 17 are detailed matters which are to be considered by the Court, before appointing a guardian. In certain cases guardian should not be appointed vide section

19. The next chapter deals with the duties, rights and liabilities of the guardians who are always subject to the supervision of the Court. In this Chapter section 39 deals with the grounds on which a Court can pass orders of removal of the guardian. There are certain supplemental provisions in Chapter IV. Section 43 authorises the Court to make order regulating the conduct of proceedings of guardian and enforcement of those orders. Sections 44 and 45 are penal provisions which provide for sanction for the implementation of the order of the Court. Section 47 deals with the orders which are appealable and provides that an appeal shall lie to the High Court from an order made by a Court under the different provisions specified in clauses (a) to (j ) of that section. Section 48 deals with the finality of the orders but this has been made subject to section 115 of the Code of Civil Procedure. It will be seen that this Act deals not only with the powers and procedure of appointment or declaration as guardian but also with the right to such appointment or declaration vested in certain parties. This Act can, there fore, be appropriately said to be the aggregation of substantive as well as procedural law on the subject of Guardianship. It not only provides certain rights but also machinery of enforcement of those rights. The machinery provisions are included in all the Chapters. It provides for the forum to making application for appointment or declaration as guardian, for supervision of the persons appointed as guardian and for the removal of guardians. It makes provisions for power of transfer of cases determination of the Court which should decide a particular matter where proceedings are filed before two different Courts, territorial jurisdiction of the Courts, supervisory jurisdiction of the superior Courts under section 115, C. P. C. and the right of a party to challenge orders passed under this Act by way of appeal. As distinguished from this Act the West Pakistan Family Courts Act is a procedural Act which deals with the establishment of Family Courts Act (section 3), qualification of Judge, Family Court (section 4), exclusive jurisdic tion of Family Courts in matters specified in the schedule including the matters of custody of children and guardianship (which are the subject-matters of Guardians and Wards Act) (section 5), places of sitting of the Family Courts (section 6), the manner of institution of a suit (section 7), the procedure to be adopted by the Court after the institution of the suit (section 8), filing of the written statements (section 9), pre-trial proceedings (section 10), hearing of evidence (section 11), announcement of judgment and award or decree (section 12), manner of enforcement of that decree (section 13), the manner in which decrees and decisions can be challenged by way of appeal (section 14), power of Family Court to summon witnesses (section 15), power of the Court to take proceedings for Contempt of Family Court (section 16), applicability of some provisions of the Oaths Act (sections 8 and 11 of the Oaths Act) and declaration that the provisions of the Evidence Act and other provisions of the Civil Procedure Code shall not apply to the Family Courts (section 17), appearance of certain persons through duly authorised agents (section 18), provision of court-fee payable on plaints (section 19), power of Government to invest any Judge of a Family Court with powers of Magis trate Ist Class to make order for maintenance under section 488, Cr. P. C. (section 20), provisions that the Act shall not affect provisions of Muslim Family Laws Ordinance or rules made thereunder (section 21), bar on the power of the Family Court to issue an injunction or stay proceedings before a Chairman or Arbitration Council (section 22), bar on the power of Court to question validity of marriages registered under the Family Laws Ordinance (section 23), power of the Court to communicate certain illegalities to the Union Council (section 24), power of the High Court to ask the District Court to make orders of transfer of cases from one Court to another (section 25-A) and stay of proceedings by the High Court and the District Courts (section 25-B). Section 25 which has already been reproduced above provides that the Family Court shall be deemed to be a District Court for the purposes of Guardians and Wards Act, 1890, and notwithstanding anything contained in this Act shall in dealing with matters specified in that Act follow the procedure described in that Act. The entire Family Courts Act provides for the machinery by which certain matters specified in the schedule of the Act can be disposed of. This machinery consists of not only the provisions of a forum in the form of Family Court where such disputes can be instituted for determination but also the right of the aggrieved party to challenge the decisions of the Family Court before a higher forum specified in section

14. Section 5 read with Schedule to the Act, provides that even the matters relating to custody of children and guardianship matters have to be decided by a Family Court which has ex clusive jurisdiction over them notwithstanding the provisions of the Guardians and Wards Act. In section 25, however, it was clarified that for the purposes of Guardians and Wards Act, a Family Court shall be deemed to be a District Court. There is a non obstante clause which becomes necessary in view of the fact that the provisions in the Family Courts Act were different in many a particulars from the provisions of the Guardians and Wards Act. It was, therefore, provided that notwithstanding anything contained in the Family Courts Act, the Family Court (acting as a District Court) shall in dealing with matters specified in the Guardians and Wards Act, follow the procedure prescribed in that Act. By declaring that the Family Court is a District Court it has been made possible to apply the Guardians and Wards Act in its entirety to cases of custody of children in guardianship matters. As stated above, the Guardians and Wards Act makes provisions for certain rights of appointment or declaration as guardian, right to apply for such appointment or declaration and the power of the Court to supervise the guardians and to remove them. All these matters are covered by the expression "in dealing with matters specified in that Act." The other pro visions would, therefore be covered by term `procedure.' They are all procedural provisions would at from this point of view it will be evident that all those provisions of procedure which are given in the Guardians and Wards Act will apply to case in the absence of the non obstante clause in section 25 the provisions of the Family Courts Act, would have applied. There are cases which have been relied upon by the learned counsel for the respondent, and which lay down that a right of appeal is distinguished from mere procedure, and a statute destroying an existing right of appeal or placing an onerous condition on it shall not be given retrospective effect unless the statute is clear on the point. On the other hand no person has any vested right in mere procedure and any change in procedural law will operate retrospectively. It is not necessity to refer to all the rulings in this con nection. It will be sufficient to refer to the case of Colonial Sugar Refining Co. Ltd. v. Irving 1905 A C 369 which has been relied upon in all the numerous cases. In this case the judgment was delivered by Lord Macnaghten, who stated: "As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that. in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judicature Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty-in-Council a right vested in the appellant at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in the pending action 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 statues are not to be held to act retrospectively unless a clear intention to that effect is manifested." This view was adopted by the Supreme Court of Pakistan also in State v. Muhammad Jamil P L D 1965 S C 681 and Muhammad Alem v. State P L D 1967 S C

259. In re: Joseph Suche & Co. Ltd. (1879) 1 Ch. D

48. Jessel M. R. studied the rule as follows:- "It is the general rule that when the Legislature alters the rights of the parties by taking away or conferring any right of action, its enactments, unless in express terms though applied to pending actions, do not affect them. But there is an exception to this rule, namely, where enactment merely affects of section." As noticed in Craies on Statute Law (7th Edition), page 401, this rule was for the first time distinctly enunciated by the Court of Exchequer in Wright v. Hale (1860) 30 L J Ex. 40 (42). "I have always understood", said Pollock C. R., "that there is a considerable difference between laws which affect vested rights and those laws which merely affect the proceedings of Courts: as, for instance, declaring what shall be deemed good service, what shall be the critertion to the right to costs, how much costs shall be paid, the manner in which witnesses shall be paid, or what witnesses to party shall be entitled to, and so on . . . I do not think a matter of that sort can be called a right in any sense in which Lord Coke in his Institutes has spoken of rights." In Gardner v. Lucas (1878) 3 App. Cas. 582 (603) Lord Blackburn while dealing with the question of retrospectivity held that alterations in the form of procedure are always retrospective. The word "form of procedure" is to be marked. But this principle does not go against the word `procedure' being inclu sive of an appeal. It does not really go to the extent of saying that a right of appeal is as such distinguishable from a procedural right. Mere distinction was made between a vested right of appeal and a mere matter of `procedure.' As rightly pointed out by Pandrang Row, J. in the case of S. Girdharilal Son & Co. v. B. Kappini Gowder and others A I R 1938 Mad. 688 "The real test, when deciding whether a particular provision of law is to be given retrospective effect or not, is not whether the law is a law of procedure or substantive law, but whether the law in question affects or impairs existing rights including rights of action which are substantive rights. There, existing rights would be adversely affected. Courts decline to give retrospective effect unless compelled thereto by the words of the statute. That a right of action is a substantive right is not disputed ; there is considerable authority in support of that position and it is not necessary to refer to the large number of cases which bear on the point. It is enough to mention (1876) 1 Ch. D 48, (1898) 2 Q B 547." The case of Adnan Afzal v. Capt. Sher Afzal P L D 1969 S C 187 is the final word on the subject. In that case, an application under section 488, Cr. P. C. was sub mitted before a Magistrate on the 4th September 1964. The Family Courts Act was enforced in Sialkot District to which the case pertains from the 21st February 1967. After its enforcement an objection was taken on the basis of section 5 of the Family Courts Act that that Court had exclusive jurisdic tion over the matters under section 488, Cr. P. C. This objection was given effect to. The High Court agreed with this and dismissed the revision petition. The matter was then taken to the Supreme Court. A question was raised whether the Family Courts Act affected pending proceedings or will it have retrospective effect. After discussing the case of Colonial Sugar Refining Co. Ltd. and other cases it was observed:- "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertain to pro cedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retrospectively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause incon venience 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 its 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 retroactively." After comparing the provisions of section 488 with the provisions of the Family Courts Act, their Lordships held that the Family Courts Act had changed the forum, altered the method of the trial and empowered the Court to grant better remedies. In every sense of the term, therefore, it has brought about only procedural changes and not affected any substantive right. It was, therefore, held that the Act affected the pending proceedings also. In this case also a distinction was drawn between mere matter of procedure as such or form of procedure and any existing right. It was, however, held that the Family Courts Act brought about only `procedural changes and not affected any substantive rights.' A note of caution was, however, given that even in procedural statutes the Courts will not favour an interpretation giving retrospective effect to the statute if the result is not to promote justice but consequential embarrassment or detriment to the parties concerned. Clearly, therefore, this judgment envisages that even in procedural statutes which deal with procedure only and not substantive rights, there may be rights which shall not be deemed to have been taken away retrospectively unless the law is clearly retroactive in character. A statute may, therefore, be pro cedural statute but may still confer certain rights which may be of the same character as substantive rights but it does not mean that to that extent it ceases to be a procedural statute. The other question is whether it is open to a Court in cases under the Guardians and Wards Act to examine the minors in the absence of the parties to the proceedings. In the case of Malik Khizar Hayat Khan Tiwana v. Mst. Zainab Begum and others P L D 1967 S C 402, the nature of these proceedings was considered by their Lordships of the Supreme Court and it was held that the Courts should not lose sight of the fact that they exercise a parental jurisdic tion and it is not a jurisdiction in which there can by its very nature be any scope for undue adherence to the technicalities. At page 409 of the report it is observed:- "This argument is not without force. Even if the procedure of the Code can be said to be attracted to proceedings under the Act where no specific provision has been made in the Act itself that must be under the terms of section 141 of the Code itself only "as far as it can be made applicable". This clearly indicates that there can be no rigid adherence if the nature of the cause or matter itself gives a contrary indication. Apart from the scheme of the Act itself to which the learned counsel for the respondent has with reason adverted we are also of the view that in a proceeding under the Act the Court should not lose sight of the fact that the overriding consideration is always the welfare of the minor. The Court in such cases is really exercising a parental jurisdiction as if it were in loco parentis the minor. This is not a jurisdiction, therefore, in which there can, by its very nature, be any scope for any undue adherence to the technicalities." In Juma Khan v. Mst. Gul Ferosha P L D 1972 Pesh. 1 there was no evidence on record of income of the applicant. It was held that evidence concerning his income given in proceedings under section 488, Cr. P. C. can be taken into account. Reliance was placed upon the case of Malik Khizar Hayat Khan Tiwana in support of this proposition. This matter came up for consideration before the House of Lords. In official Solicitor v. K. and another (1963) All E R 191 (H L), certain confidential reports were not disclosed to the parties. The Court of appeal held that disclosure must be made even if it is harmful to the ward. This was dissented from by the House of Lords and it was held that interested parties to wardship pro ceedings, even parents of the children concerned have no absolute right to see confidential reports that have been lodged with the Chancery Division by the Official Solicitor as the guardian ad litem of the children, for, since the welfare of the infants (rather than arbitrament between interested parties) is the paramount consideration, and purpose of the jurisdiction, disclosure of such reports must remain a matter for the Court's discretion, although the occasions when a Judge will decide against disclosure on the ground that the welfare of the infant outweighs the principle that a case should be decided on information that a party has not seen and cannot challenge, will be rare. It was further observed that where the Judge decides that reports should not be disclosed to the parties themselves he may avail himself of the practice of allowing disclosure to their counsel. In this case the ward was described as `child in law' of the Court exercising the ancient prerogative and parental jurisdiction, I am, therefore, of the view that in the interest of the welfare of the minor it is open to the Court to examine the minor without affording an opportunity to the parties to the case to be either present or to cross-examine him if facts justify this. I may, however, state that the departure from the age old principle of natural justice of giving full opportunity of being heard and of participating in the proceedings of the parties to the litigation should be made in cases of exceptional nature and should not generally be resorted to. In the present case the children would not have been even as responsive as they proved to be, if they had been examined in the presence of the parties. It was for their welfare to adopt this method of examination. For these reasons I had passed the order dated 4-4-1974 allowing the revision petition. Since no order about cost was announced on that date I leave the parties to bear their own costs. K. B. A. Petition accepted.