2000SCMR367 (PLP)

SAIDUZZAMAN SIDDIQUI, C.J.

We propose to dispose of above-mentioned 25 civil appeals by consolidated judgment as the leave has been granted in all the cases on a common question of law which is as follows:-- "In all these petitions same question of law is involved which was agitated in Petition No. 151-P of 1994 (Noor Khan v. Mumtaz Khan and others). The question of law involved is whether by filing a suit before the amendment in section 31 of the N.-W.F.P. Pre-emption Act, 1987, by the N.-W.F.P. Pre-emption (Amendment) Act, 1992 (Act No.X of 1992), a vested right was created in the plaintiffs and could such right be taken away by procedural amendment reducing the period of limitation with retrospective effect. Civil Petitions Nos.183-P, 212-P, 211-P, 212-P (sic) and 213-P of 1994 are barred by limitation. In these petitions leave is granted subject to limitation. In all other petitions leave is granted. In all these petitions and several other petitions in which leave has been granted same question of law is involved. It is a legal question of general importance which will affect a large number of cases pending in Court. It is, therefore, necessary that it may be decided at an early date by a larger Bench. The office may place the matter before the Hon'ble Chief Justice for necessary orders." We have heard Mian Younis Shah, Senior Advocate Supreme Court for appellants in Civil Appeals Nos.97, 100, 101, 102 of 1995, 693 of 1996; ' Mr. Zahoor Qureshi, Advocate-on-Record in Civil Appeal No.98 of 1995 and 1258 of 1998; Mr. Aman Khan, Advocate Supreme Court in Civil Appeals Nos. 103, 104, 1155 of 1995 and 1256 of 1998; appellants in person in Civil Appeals Nos. 105, 106, 107 of 1995 and 1309 of 1996; Mr. Fateh Muhammad Khan, Advocate Supreme Court in Civil Appeals Nos. 108 of 1995 and 597 of 1997; Mr. Abdul Aziz Kundi, Advocate-on-Record in Civil Appeals Nos. 110 to 113 of 1995, 1256 of 1998; Mr. Abdul Sattar Khan, Advocate Supreme Court in Civil Appeals Nos.631, 632 of 1997 and 240 of 1998 and for respondents Mr. Anwar H. Mir, Advocate-on-Record in Civil Appeal 'No.97 of 1995; Mr. K.G. Sabir, Advocate-on-Record in Civil Appeal No.98 of 1995 and 240 of 1998; Mr. Jan Muhammad Khan, Advocate-on-Record in Civil Appeals Nos.99, 103, 104, 113, 1155 of 1995; Mr. Muhammad Latif, Advocate Supreme Court in Civil Appeals No. 100 to 102 of 1995; Mr. Sardar M. Aslam, Advocate Supreme Court in Civil Appeal No. 108 of 1995; Mr. Abdul Samad Khan, Advocate-on-Record in Civil Appeals Nos. I10 to 112 of 1995. Before we proceed to consider the above common question of law arising in these above appeals, it will be appropriate to mention the dates of sale/mutation of land in each case and the dates of filing of the suit as these dates are relevant for the purposes of deciding the controversies raised in the above appeals. The details of these dates are as follows:-- Case No. Date of sale/mutation Date of filling suit C.A.97/95 C.A.100/95 C.A.101/95 . C.A.102/95 C.A.110/95 C.A.111/95 C.A.112/95 C.A.113/95 C.A.631/97 C.A.632/97 C.A.103/95 C.A.104/95 C.A.1256/98 C.A.693/96 C.A.240/98 C.A.597/97 C.A.108/95 C.A.1258/98 C.A.105/95 C.A.106/95 C.A.107/95 C.A.1309/96 C.A.1155/95 C.A.98/95 C.A.99/95 24-5-1992 21-9-1991 30-11-1991 31-7-1991 30-6-1991 25-7-1991 25-7-1991 5-11-1991 26-10-1991 26-10-1991 17w3-1991 17-3-1991 24-9-1991 17-3-1991 18-12-1991 27-11-1991 27-7-1991 29-12-1991 31-10-1991 19-2-1992 23-11-1991 28-9-1991 22-10-1991 26-2-1992/26-8-199: 30-1-1991 20-8-1992 2-9-1992 8-9-1992 7-3-1992 25-6-1992 25-6-1992 25-6-1992 16-3-1992 13-4-1992 13-10-1992 16-3-1992 16-3-1992 26-1-1992 15-3-1992 16-12-1992 22-9-1992 21-7-1992 6-5-1992 27-10-1992 15-10-1992 26-8-1992 15-6-1992 19-10-1992 1-9-1992/8-11-1992 29-1-1992 Leave to Civil Appeals Nos. 105 of 1995, 106 of 1995, 107, of 1995, 108 of 1995, 1309 of 1996 and 240 of 1998 has been granted subject to plea of limitation. Civil Appeals Nos. 105 of 1995, 106 of 1995 and 107 of 1995 are barred by one day and similarly, Civil Appeal No. 108 of 1995 is barred by 38 days, Civil Appeal No. 1309 of 1996 is barred by 89 days and Civil Appeal No.240 of 1998 is barred by 757 days. After considering the grounds mentioned in the applications for condonation of delay, we are inclined to condone one day's delay in filing Civil appeals Nos. 105, 106 and 107 of 1995. However, no sufficient grounds are made out for condonation of delay in Civil Appeals Nos. 108 of 1995, 1309 of 1996 and 240 of 1998. The learned counsel for the appellants in Civil Appeals Nos. 108 of 1995, 1309 of 1996 and 240 of 1998, mainly contended that as leave has been granted in these cases to consider a legal question of general importance, delay in filing of these appeals may be condoned. This fact alone is not sufficient to condone the delay in these appeals. Civil Appeals Nos.108 of 1995, 1309 of 1996 and 240 of 1998 are, accordingly, dismissed as time barred. We now take up the remaining appeals. The common question of law arising in these appeals is whether the amendments made in section 31 of North-West Frontier Province Pre-emption Act, 1987 (hereinafter to be referred as 'the Act of 1987') through North-West Frontier Province Pre emption (Amendment) Act, 1992 (hereinafter to be referred as 'Act X of 1992') is retrospective in effect and if so whether on account of retrospective operation of the amendment, the suits and proceedings instituted before promulgation of the Act X of 1992 were rendered not maintainable? To appreciate the above contention, it will be appropriate to reproduce here section 31 of the Act of 1987 as it originally stood. It reads as follows:-- "

31. Limitation.

The period of limitation for a suit to enforce a right of pre-emption under this Act shall be (one year) from the date-- (a) of the registration of the sale deed; or (b) of the attention (sic) of the mutation, if the sale is made otherwise than through the registered sale deed; or (c) on which the vendee takes physical possession of the property if the sale is made otherwise than through the registered sale deed or the mutation; or (d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph (b) or paragraph (c). Section 31 of the Act of 1987 reproduced above, was amended on 16-12-1992 by Act X of 1992. Section 8 of Act X of 1992 substituted in section 31 of the Act of 1987 in place of the words "one year" the words "one hundred and twenty days". Section 1 of the Act X of 1992 reads as under:-- "

1. Short title and commencement.

(1) This Act may be called the North-West Frontier Province Pre-emption (Amendment) Act, 1992. (2) It shall come into force at once and shall be deemed to have taken effect on the 31st December, 1991. " From a careful reading of section 1 (2) of Act X of 1992 it is quite clear that though Act X of 1992 came into force on the date of its enactment namely 16-12-1992, but its provisions were given effect to from 31-12-1991. We are, therefore, of the view that Act X of 1992 is retrospective in its application and its provisions came into effect from 31-12-1991. It therefore, follows that the period of limitation which was originally prescribed under section 31 of the Act as one year, stood curtailed to 120 days and this amendment was made effective with effect from 31-12-1991. The question which, however, arises for consideration in these appeals, is whether the above retrospective effect given to Act X of 1992 through subsection (2) of section 1, destroyed the vested rights of the parties and if so to what extent? It is a well-settled principle of interpretation that there is a strong presumption against the retrospectivity of a legislation which touches or destroys the vested rights of the parties. No doubt the Legislature is competent to give retrospective effect to an Act and can also take away the vested rights of the parties, but to provide for such consequences, the Legislature must use words which are clear, unambiguous and are not capable of any other interpretation or such interpretation follows as a necessary implication from the words used in the enactment. Therefore, while construing a legislation which has been given retrospective effect and interferes with the vested rights of the parties, the words used therein must be construed strictly and no case should be allowed to fall within the letter and spirit of Act which is not covered by the plain language of the legislation. We have already reproduced above a chart showing the dates of sale/mutation as well as filing of the suits in the above appeals. In all the above-mentioned cases, the suits were instituted by the parties prior to 16-12-1992, when Act X of 1992 was enacted. The learned counsel for the appellants do not dispute that the question of limitation is generally considered to be a matter of procedure and therefore, even without giving retrospective effect to the amendment made in section 31 ibid, the provisions would have applied retrospectively. It is, however, contended by the learned counsel that where the question of limitation also touches a vested right of party, it does not remain a mere matter of procedure, and such provision cannot be given effect retrospectively so as to impair the vested rights of the parties, in the absence of clear words used in the statute. The learned counsel for the respondents, on the other hand, contend that as the Legislature had made their intention absolutely clear by providing in clause (2) of section 1 that the provisions of Act X of 1992 will be effective from 31-12-1991, therefore, even those suits which were instituted before the date. Act X of 1992 came into effect, are liable to be dismissed as time-barred if they were not filed within 120 days of the sale/mutation. We have already stated above that the Legislature is competent to give retrospective effect to a legislation and in that process even it could take away vested rights of the parties but for that it must use clear words in the statute, or such a consequence must arise as a necessary implication from the language of the legislation. As would appear from the chart reproduced above that the suits for pre-emption in all the above appeals were instituted on dates which were prior to the date of enactment of Act X of 1992. We have also reproduced section 1 of Act X of 1992 which states that it shall come into force at once but its provisions shall be deemed to have taken effect on 31-12-1991. Therefore, by virtue of subsection (2) of section 1 of Act of 1987, the amendment made in section 31 of Act of 1987 was effective from 31-12-1991. However, the question which arises for consideration is, whether the words used in section 1(2) of Act X of 1992 are wide enough to take away the vested rights or to undo past and closed transactions. In our view, by merely providing in subsection (2) of section 1 ibid that the "provisions of the Act shall be deemed to have taken effect from 31-12-1991, the suits already filed in accordance with the existing provision of section 31 of Act of 1987, could not be rendered non-maintianable. We have already stated that while construing a provision, which is retrospective in operation and touches the vested rights of the parties, the words used therein cannot be stretched to include those cases which do not fall within the plain and unambiguous language of the legislation. The words "shall be deemed to have taken effect on 31st December, 1991 " in section 1(2) of Act X of 1992, in our view, are not capable of interpretation and wide enough to include within their scope the proceedings legally instituted and which were pending on the date Act X of 1992 was promulgated. In our view, suits filed under Act of 1987 in accordance with the period of limitation prescribed under section 31 of Act of 1987, which were pending on the date Act X of 1992 was promulgated could not be dismissed on the ground that the limitation prescribed under section 31 of the Act of 1987 stood curtailed as a result of amendment brought about through Act X of 1992. If the Legislature intended that section 31 of the Act of 1987 would apply to the pending suits/proceedings also, it could have provided so in Act X of 1992. Instances where Legislature extended a new provision to the pending proceedings are not wanting. Service Tribunals Act, 1973, which provided for a new forum of appeal in service matters, was 'made applicable to the pending proceedings also by making following provisions in section 6 of that Act:-- "Abatement of suits and other proceedings:

All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith: Provided that, any party to such a suit, appeal or application may, within ninety days of the establishment of the appropriate Tribunal, prefer an appeal to it in respect of any such matter which is in issue in such suit, appeal or application." However, if any suit or proceedings are initiated on or after 16-12-1992, the same will be governed in accordance with the amended provisions of section 31 of Act of 1987. Our above conclusions are supported by the following observations in the case of Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187):-- "The general principle with regard to the interpretation of statutes as laid down in the well known case of the Colonial Sugar Refining Company Limited v. Irving (1905 AC 369) is that 'if the matter in question be a matter of procedure only', the provisions would be retrospective. ' 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', then 'in accordance with a long line of authorities extending from the time of Lord Coke to the present day', the legislation would not operate retrospectively, unless the Legislature had either by express enactment or by necessary intendment' given the legislation retroactive effect. To the same effect are the observations of Jessel, Master of the Rolls, in the case of In re: Joseph Suche & Co.. Limited (1875) 1 Ch. D. 48, where it was observed that as ' a general rule 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, these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights." We may also refer with respect, the following observations made by the Privy Council in the case of New Bon Tev v. Kemderana Bas Mara (1983 PSC 1200) in support of our conclusion:

"The Federal Court developed this line of reasoning by referring to part of the judgment of Williams, J. in Maxwell v. Murphy (1957) 90 CLR 261 at 277-278. The passage in the judgment of Williams, J. which the Federal Court found of great assistance as also have their Lordships reads as follows:

"Statutes of limitation are often classed as procedural statutes. But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation. Two classes of case can be considered. An existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted. If the time is enlarged whilst a person is still within might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action the abridgement might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time statutes which enable a person to enforce a cause of action which was then barred or provided a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect the substantive rights." The Federal Court in the present case accepted the reasoning of William, J. and concluding by saying:-- "On the failure the respondents to commence action within the specified period the appellants had acquired an accrued right which was designed to give them immunity for acts done in the discharge of their public duties. This right was well preserved by the Interpretation Act, 1967. It therefore, seems to use that in the circumstances of this case, the time for the claim was not enlarged by [the 1974 Act]. The Act is not retroactive in operation and has no application to a cause of action which was barred before the Act came into operation." With that conclusion their Lordships entirely agree. They would wish to add only a few observations. "

19. Whether a statute has a retrospective effect cannot in all cases safely be decided by classifying the, statute as procedural or substantive, for example in The Ydun the bargue might have grounded on 13th May instead of 13th September, 1893 and the 1893 Act might have come into force on 5th December, 1893, when it received the Royal assent, instead of 27 days later. Had those been the facts the Act would if its procedural character were the true criterion of its effect, have deprived the owners of their ability to pursue their cause of action on the day the Act reached the statute book. A Limitation Act which had such a decisive effect on an existing cause of action would not be merely procedural in any ordinary sense of that expression. The Lordships assume (without expressing an opinion) that the Ydun was on its facts, correctly decided.

20. Their Lordships consider that the proper approach to the construction of the 1974 Act is not to decide what label to apply to it, procedural or otherwise, but to see whether the statute is applied retrospectively to a particular type of case would impair existing rights and obligations. The appellants assert that a Limitation Act does not impair existing rights because the cause of action remains on the basis that all that is effected is the remedy. There is logic in the distinction on the particular facts of The Ydun because the right to sue remained, for a while totally unimpaired. But in most cases the loss, as distinct from curtailment of the right to sue is equivalent to the loss of the cause of action. The Public Authorities Protection Act, 1893, can be regarded as procedural on the facts of The Ydun but a slight alteration to those facts would have made it substantive. A Limitation Act may, therefore, be procedural in the context of one set of facts, but substantive in the context of a different set of facts." The above observations of Privy Council were quoted with approval by this Court in the case of Commissioner of Income-tax v. Asbestos Cement Industries Ltd. (1993 SCMR 1276) as follows:-- "The first legal proposition not open to question is that the law of limitation is by and large and substantially procedural law. It was so held in S.M. Junid v. President of Pakistan PLD 1981 SC

12. The other principle equally well established is that a procedural law has a retrospective application and is attracted forthwith to the pending proceedings. In-between these two general principles is to be found a word of caution put in by the Privy Council in Yew Bon Tev. v. Kenderaan Bass Mara (1983 Pakistan Supreme Court Cases 1200 Privy Council)." In view of the foregoing, discussion, we are of the view that although section 31 of Act of 1987 was amended retrospectively by Legislature through Act X of 1992 and the period of limitation for institution of a pre-emption suit was curtailed from one year to 120 days and this provision was made applicable from 31-12-1991 but the words used in subsection (2) of section 1 of Act of 1992 are trot wide enough to cover the proceedings pending on the date when the amendment in section 31 of the Act of 1987 was made through Act X of 1992. As a result of the above discussion, we hold that the suits instituted by the appellants in the above cases, which were pending on 16-12-1992 when Act X of 1992 was enforced, were maintainable. Having decided the legal question arising in the above cases, we now take up these appeals separately as they proceed on different facts, although leave was granted in all these cases on a common question of law but the appeals cannot be disposed of in terms of the findings recorded above. This appeal arises from the order of Peshawar High Court whereby application made to the Trial Court for impleading a subsequent purchaser of part of the pre--'empted land, which was subject-matter of a pre-emption suit was not allowed The application for impleading the subsequent purchaser as defendant in the suit was moved on 8-3-1993 while sale had taken, place on 20-9-1992. The application was allowed by the trial Court and on appeal, the District Judge maintained the order. However, on a revision application filed by the respondents before the High Court, the orders of trial Court and 1st Appellate Court were set aside and the application filed by the appellants for impleading Fazal-e-Akbar as defendant in suit on 8-3-1993 was set aside and case was remanded to the trial Court for decision on merits with regard to the remaining area of land which was subject-matter of pre-emption suit. The order passed by the High Court does not suffer from any infirmity and the trial Court will now decide the suit remanded by the High Court in the light of observations made above. This appeal is, accordingly, dismissed. In this appeal, the pre-emption suit was decreed by the trial Court but on appeal the 1st Appellate Court on merits found that neither Talb-e- Muwathibat nor Talb-e-Ishhad was made in accordance with law. The learned 1st Appellate Court further came to the conclusion that the suit filed by the appellant was otherwise barred by limitation. The High Court refused to interfere with the above order of 1st Appellate Court in its revisional jurisdiction. In view of the findings recorded above, by us, the suit filed by the appellant shall be deemed to be within time but as the suit was dismissed on merits also holding that neither Talb-e-Muwathibat nor Talb-e-Ishhad was made in accordance with law, no case for interference with the order of High Court is made out. The appeal is, accordingly, dismissed. In Civil Appeals Nos. 98 of 1995 to 107 of 1995, 110 of 1995 to 113 of 1995, 1155 of 1995, 1258 of 1998, 693 of 1996, 631 of 1997, 597 of 1997 'and 632 of 1997, the plaints in all these cases were rejected under Order 7, rule 11, C.P.C. In view of our findings, all these appeals are allowed and the impugned judgments are set aside. The suits are remanded to the trial Courts for decision in accordance with the law. No order as to costs. M.B.A./M-399/S Appeals allowed.