1988 PLP 1003 (CLC)

"S. 6:‑Effect of Repeal. Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not:‑ (a) revive any thing not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or any thing duly done or suffer there under; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."

4. Under Clause 'c' of the above‑noted Section, the right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed is not affected unless a different intention appears.

5. The question arose whether an amendment amounts to a repeal of the order and whether Section 6 of the General Clauses Act, 1897 applies to an amendment. This point was clarified in Saeed Ahmad v. The State (P L D 1964 SC 266). The relevant para for our purpose may be reproduced as under which is at page 290 of this precedent:‑ "It will be observed that in accordance with this Section all rights, liabilities, etc. continue in spite of repeal and all proceedings can be taken and continued which could have been taken or continued as if the repealing Act did not come into force. When I asked learned counsel for the appellant what he had to say in reply to this Section, his only answer was that this Section applies to a repeal and not to an amendment and before us there is a case of an amendment. Every amendment contains a repeal for the law in the form in which it stood previously disappears and a new law comes into force. There is no difference at all between a case where the Legislature says that a particular section will stand amended in a particular way and a case where it says that the Section stands repealed and its place will be taken by a new section, if the new Section is the same as the amended section. Whenever there is an amendment, the Legislature could very well have said that the previous provision would be omitted and the provision as amended would be inserted. There is no reason for giving any different effect to these two methods which achieve the same result. At the same time, there is no difference in principle between repeal and amendment and if in the case of a total repeal a proceeding can be continued as if there was no repeal why should be proceedings not be continued in the case of an amended provision?" It follows that an amendment contains a repeal and provision of Section 6 of the General Clauses Act can be extended to an amendment.

6. It may further be noted that the Code of Civil Procedure of 1882 was substituted by Code of Civil Procedure of 1908 and as regards an appeal, section 154 C.P.C. in the form of saving clause was enacted which reads as under:‑ "154.‑‑Nothing in this Code shall affect any present right of appeal which shall have accured to any party at its commencement." This section has been omitted by Ordinance XXVII of 1981. Subsequently, section 102 Civil Procedure Code was amended by Ordinance XII of 1972. The relevant portion of this Ordinance is reproduced below:‑ "No second appeal shall lie in any suit of the nature referred to in section 102 of the Code of Civil Procedure, 1908 (V of 1908), as amended by this Ordinance Provided that nothing contained in this ‑Ordinance shall be construed as affecting any such appeal which was pending immediately before the commencement of this Ordinance. By virtue of this amendment for Rs.500, Rs.2,000 were substituted.

7. Section 102 of the Code of Civil Procedure has further been amended by Ordinance X of 1980 and for Rs.2,000, Rs.50,000 have been substituted and the amended section as it stands now is given below for the facility of reference:‑ "Amendment of section 102, Act V of 1908. In the said Code, in section 102, in clause (b), for the word 'two' the word 'fifty' shall be substituted".

8. It has been made clear supra that section 6 of General Clauses Act 1897 is attracted to an amendment. In Kh. Fakhar‑ud‑Din v. Hasin‑ud‑Din Qureshi and 3 others (P L D 1980 Lah. 778) it has been held that when a provision is repealed then the provisions of new Act are to be looked at for determining whether different intention inferable. Section 6 of the General Clauses Act positively indicates that right, privilege and obligation etc. are not affected at the time of such repeal unless a different intention appears. From the amendment of section 102 of the C.P.C. by the Law Reform Ordinance 1972, no second appeal is competent when the jurisdictional value does not exceed Rs.2,000 and the proviso to this section is significant as nothing contained in this section shall be construed as affecting any such appeal which was pending immediately before the commencement of this Ordinance. The Legislature has full power t enact a law retrospectively so as to destroy the right or a remedy altogether but this must be explicitly laid down or this result must follow by necessary implication. The proviso to section 102, C . P. C . embodied in Ordinance XII of 1972 makes it clear that only pending appeals were saved by the said Ordinance and the institution of new regular second appeals was barred, the jurisdictional .value of which was less than Rs.2,

000. In a way retrospectivity has been attached to the amended provisions of law by virtue of Ordinance XII of 1972 and no second appeal would lie in suits where the jurisdictional value of the subject‑matter was less then Rs.2,000.

9. It could be argued that section 154 of the C . P. C .was in existence when Ordinance XII of 1972 and Ordinance X of 1980 were enacted. Although there is a saving clause in section 154, C.P.C. regarding appeals yet it may be noted that if two sections are repugnant then the known rule is that the latest in time must prevail. In this manner, the provisions of amended section of 102 C.P.C. will prevail. The law framers, when became conscious of this refundancy, directed the omission of section 154 C.P.C. by Ordinance XXVII of 1981.

10. In this case, the jurisdictional value of the suit is Rs.1,000 i.e. less than Rs.2,000 and the second appeal is barred by Ordinance XII of 1972. This being so, no second appeal could be preferred and the civil revision was the appropriate remedy in such a case. The same principle was enunciated in Yaqoob v. Mst. Hasso etc (1983 C L C 580.

11. In the light of the above observations, the regular second appeal was not preferable in this case and the civil revision has rightly been instituted. The objection raised by the learned counsel for the respondents is devoid of any force and is over‑ruled. It may be placed before the single Bench for disposal. M.Y.H./A‑296/L Objection overruled.