1998 PLP 1557 (CLC)

Bashir v. Wazir Ali 1987 SCMR 978 and Malik Gul Hasan & Co. and 5 others v. Allied Bank of Pakistan 1996 SCMR 237 ref. Kunwar Akhtar Ali for Appellant. Ch. Muhammad Hussain Jahania for Respondent. . Mr. Muhammad Hussain Jahania, Advocate, for respondents has raised a preliminary objection about maintainability of present Regular Second Appeal. According to the learned counsel after amendment made in section 102, C.P.C. read with section 18 of Civil Court Ordinance, regular second appeal is not maintainable.

2. According to Ordinance X of 1980, which was amended on 26‑3‑1980 the jurisdictional value was enhanced from Rs.2,000 (two thousands) to 'Rs.50,000 (fifty thousands). However, another amendment was incorporated in section 102 of C.P.C. by the Act VI of 1992, which became operative from 30‑5‑1992. By way of this amendment the jurisdictional value of 1st Appellate Court was enhanced from 50,000 to Rs.1,00,000 (one lacy. Subsequent thereof another amendment was introduced by Ordinance XXXIII of 1993 and jurisdiction value was further enhanced from Rs.1,00,000 (one lac) to Rs.2,50,000 (two lac fifty thousand) which became operative from 13‑10‑1993. It was later on made Act XIV of 1993 and became operative from 31‑7‑1994.

3. It is contended by the learned counsel for respondents that the Statute providing change of forum pecuniary or otherwise would be procedural in nature and would have retrospective effect unless contrary is provided expressly or impliedly and effect the existing rule or cause injustice or prejudice. It is further contended that any Statute which enhances or reduces the pecuniary jurisdiction of the Court or provides forum other than where the case was pending the same would fall within the category of Procedural Law. In such a situation, according to the learned counsel, such amendments are procedural in nature and, therefore, operates retrospectively because no injustice will be caused to the appellants if the Act is treated to be operative with retrospective effect. The learned counsel has placed reliance upon the cases Bashir v. Wazir Ali (1987 SCMR 978) and Malik Gul Hasan & Co. and 5 others v. Allied Bank of Pakistan (1996 SCMR 237).

4. Conversely the learned counsel appearing on behalf of appellants has contended that the amendment made subsequent to the filing of suit does not affect the rights enjoyed by the parties when right of second appeal was conferred on the parties by existing Statute and the mere fact that the right of second appeal was not conferred after institution of the suit did not effect the situation. It is further contended that the Proposition that institution of the suit carried with it the implication that all rights of appeal then in force were reserved to the parties concerned till rest of the career of the suit and these rights would be taken away only by subsequent enactment provided it so provided expressly or by necessary intendment and not otherwise and would not preclude the addition of the remedy of the second appeal if the litigation was pending before First Appellate Court or any Court subordinate to it when the second appeal was added. The learned counsel advancing his arguments further stated that the appeal is not a mere matter of procedure, but a substantive right and this right accrued to the plaintiffs, when he brought the suit and the suit would continue at all stages of litigation in spite of repeal of the Provisions which created rights. The learned counsel has referred the cases of Haji Muhammad Ibrahim and 3 others v. Mst. Surrayia un Nisa and 9 others (PLD 1992 Supreme Court 637) and Mst. Shohrat Bano v. Imail Dada Adam Soomar (1968 SCMR 574).

5. I have heard the arguments advanced by the learned counsel for parties and have also gone through the record with the help of learned counsel. The suit was instituted on 25‑3‑1992 before the learned Trial Court. It is necessary to point out that at the time of institution of suit the Ordinance X of 1980 was in force. According to above Ordinance, the amendment made in section 102(2), C.P.C., the jurisdictional value was enhanced from Rs.2,000 (two thousands) to Rs.50,000 (fifty thousands). Subsequent thereto the jurisdictional value was further enhanced vide amendment brought through Act VI of 1992, from Rs.50,000 (Fifty thousand) to Rs.1,00,000 (One lack) of First Appellate Court. The said Act became operative from 30‑5‑1992. Since the suit in the present case was instituted on 25‑3‑1992, therefore, the amendment made through Act VI of 1992, which came into force on 30‑5‑1992, was not at all applicable to the case. As held by their Lordships in 1968 SCMR 574 (ibid) that the right accrued to the plaintiff when he brought his suit and would continue at all stages of the litigation in spite of the repeal of the Provision, which created the right and since the appeal is in continuation of the suit, therefore, the principle laid down by their Lordship, in the abovecited cases, would also govern the present case and subsequent amendment made after institution of the suit would not make any difference and the right of filing the second appeal before this Court, as existed at the time of institution of suit, would continue. In the present case the jurisdictional value of the suit is Rs.56,850 and according to law, which existed at the tine of institution of the suit, would also govern the institution of appeal, therefore, the present regular second appeal being continuation of the suit is very much maintainable.

6. In the light of above discussion, the objection raised by the learned counsel is overruled. Since the present regular second appeal is still at motion stage, let it be fixed in motion. The status quo already granted shall continue in the meanwhile. A.A./A‑261/L????????????????????????????????????????????????????????????????????????? ??????????? Order accordingly