1975 PLP 252 (SCMR)

Ch. Muhammad Sardar Khan, Advocate‑on‑Record for Respondents (Caveators). Date of hearing : 19th October 1973. HAMOODUR RAHMAN, C. J.‑This petition has been filed to call in question the judgment and order of a learned Single Judge of the Lahore High Court declaring a second appeal as abated by reason of the death of the deceased petitioner Ghulam Haider. The said second appeal arose out of a suit for pre‑emption filed by the said Ghulam Haider against the respondents. The suit was decreed by the trial Court on payment of Rs, 7,215 as the preemption money. On appeal, the Additional District Judge, Gujrat, upheld the decree for pre‑emption but modified it to the extent that the amount of the pre‑emption money payable by the pre‑emptor was raised from Rs. 7,215 to Rs. 12,

000. The pre‑emptor Ghulam Haider came to the High Court in second appeal in 1966, but during the pendency of the appeal he died on the 1st of December 1958. One of the points argued before the High Court was that the question of abatement did not arise in this case after the coming into force of Law Reforms Ordinance No. XII of 1972, as this was an amendment of the law relating to procedure which was necessarily retrospective in operation as held by the Supreme Court in several cases. The High Court also relied on these decisions but nevertheless declared the suit as having abated after the lapse of ninety days from the death of Ghulam Haider before the Law Reforms Ordinance came into force. The learned Judge, it appears, was not of the view that this was an amendment of the substantive provisions of law, yet opined that "If the alteration in procedure is permitted to be applied retrospectively to this pending petition, it would cause great injustice to the respondents so as to deprive them of the right which had accrued to them before the change came in." If the amendment was procedural, then the considerations which had weighed with the High Court were wholly irrelevant and clearly opposed to the principles hithertofore generally accepted that amendment of procedural law always takes effect retrospectively, for, no litigant has any vested right with regard to the procedure. Learned counsel further points out that the refusal of the High Court to permit the pre‑emptor to deposit even the decretal amount determined by the Lower Appellate Court was clearly wrong, for, even if the appeal abated, the decree of the Lower Court stood, and the High Court should have given reasonable time to comply with that decree which he had not been able to do by reason of the appeal that he lead filed in the High Court. Both these points raise important questions of law which, in oar view, need examination. We accordingly grant leave to the petitioners to examine the above two questions. The petitioner will furnish security for costs in the sum of Rs. 1W0 (Rupees one thousand). During the pendency of the appeal in this Court, the status quo as to possession will continue to be maintained in terms of the interim order of this Court dated the 2nd of January 1973, but the respondents‑caveators will be entitled to withdraw the money already deposited in terms of the interim order of this Court on furnishing security to the satisfaction of the trial Court.