1979 PLP 895 (CLC)

By this order I intend to dispose of an objection of the respondents in S. A. Os. Nos. 624, 619, 608, 609 and 618 of 1979, that the present appeals are not competent in view of the Punjab Urban Rent Restriction Ordinance (Amendment Ordinance IX of 1979) which came into force on 12-9-1979. In the above appeals petitions for eviction had been filed under section 13 of the West Pakistan Urban Rent Restriction Ordi nance, 1959 by the respondents being the landlord of the property before the enforcement of the Punjab Urban Rent Restriction Ordinance (Amendment Ordinance IX of 1979) and the orders of the Rent Controller as well as that of the Appellate Authority under section 15 of the said Ordinance had been passed before coming into force of the Punjab Urban Rent Restriction Ordinance, 1979. In all these cases the appeals have been filed after coming into force of the Ordinance IX of 1979. In these circumstances the point that has arisen for consideration is whether the appeals are competent.

2. Section 1 of the Punjab Urban Rent Restriction Ordinance (Amendment Act IX of 1979) (hereinafter called the amending Ordinance of 1979) provides that it shall come into force at once, and as already stated above it was gazetted on 12-9-1979. Before the amending Ordinance of 1979 came into force section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called principal Ordinance of 1959) provided two appeals against an order of the Rent Controller firstly before the Appellate Authority and thereafter a second appeal was provided under subsection (4) to the High Court and in certain cases a direct appeal was provided to the High Court. Such appeals were to be governed under the provisions of Civil Procedure Code, making section 96 applicable to the first appeals and section 100 to the second appeals. It was the order of the Rent Controller with the right of appeal to the appellate authority and the High Court which could not be called in question in any Court of law by suit or otherwise except as provided under the law. Subsection (4) is reproduced below "Any party aggrieved by an order passed on appeal by the appellate authority appointed by the Government under clause (a) of subsection (1) and if an. appellate authority has not been appointed in respect of any area or class of cases, any party aggrieved by an order of the Controller may, within 30 days from the date of the order of the appellate authority or, as the case may be, of the Controller, prefer an appeal in writing to the High Court and the decision thereof shall be final. Explanation.--An appeal under the subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of the Controller and as an appeal from the appellate order under section 100 of the said Code if it is from an order of the appellate authority and the provisions of Part VI and of the First Schedule to the said Code relating to appeals shall, with such modifications as the context may require, apply to such proceedings."

3. Section 5 of the amending Ordinance IX of 1979 substituted section 15 of the Ordinance, 1959 and the right of second appeal to the High Court was taken away. The substituted section is reproduced below "Appeal.-(1) Any party aggrieved by an order of the Controller finally disposing of an application made under this Ordinance may, within thirty days of the date of such order, prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land in relation to which the order is passed, is situated: Provided that no appeal shall lie against an order made by a Controller under subsection (6) of section 13 eetermining approximately the amount of rent due or the rate of rent and directing the tenant to deposit all the rent due Provided further that no appeal shall lie from an interlocutory order passed by the Controller. (2) On such appeal being preferred, the District Judge may hear it himself or refer it for disposal to an Additional District Judge having jurisdiction over the area where the building or rented land in relation to which the order is passed, is situated. (3) The District Judge may recall an appeal made over by him to an Additional District Judge and either hear it himself or refer it for disposal to another Additional District Judge having jurisdiction as provided in subsection (2). (4) In such appeal being preferred, the appellate authority may stay the operation of the order appealed against. (5) The appellate. authority admitting an appeal for hearing shall have the same powers to direct the tenant to deposit the rent as are vested in the Controller under this Ordinance and, if the tenant makes default in compliance with such an order, then, if he is the appellant, his appeal shall be dismissed summarily and, if he is the respondent his defence shall be struck off. (6) The appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit, either personally or through the Controller. (7) The order of the Controller, subject to the result of appeal, if any, shall be final and shall not be called in question in any Court of law including the High Court by suit, appeal or otherwise."

4. From the comparison of the original provisions of the principal Ordinance of 1959 and that of by the amending Ordinance of 1979, it would therefore be clear that the amendment has taken away the right of second appeal with which we are concerned in these appeals.

5. The appellants have contended that irrespective of substitution of section 15 by the amending Ordinance of 1979, the right of second appeal still subsists as the right of appeal vested in the suitor cannot be taken away by the amending Ordinance which came into force on 12-9-1979. It would be pertinent to point out that this amending Ordinance IX of 1979 by virtue of section 7 had the effect of repealing the Punjab Urban Rent Restriction (Amendment) Ordinance I of 1978 which never came into force. According to the aforesaid Ordinance (I of 1978) even the pending appeals in the High Court were to abate and a special procedure was provided for the re-determination of the matter by filing a review before the District Judge and the intention of the Legislature was manifest that no second appeal would lie in any case after coming into force of the said Ordinance I of 1978. Section 1 I of the said Ordinance may be reproduced below "

11. Transitional Provisions.-(1) On the appointment of a Controller under section 3-A and of the appellate authority under section 15(1) of the principal Ordinance as amended by this Ordinance all proceedings pending before any officer performing the functions of a Controller or appellate authority before such appointment shall stand transferred to the Controller or as a case may be, to the appellate authority so appointed, and be continued by such Controller or the appellate authority from the stage they had reached before such transfer. (2) Notwithstanding anything contained in the principal Ordinance or in any law for the time being in force, no appeal shall lie to the High Court against the order of am appellate authority made at any time before or after the commencement of this Ordinance and all appeals pending in the High Court on such commencement shall stand abated. (3) Any person affected by the provisions of subsection (2) may within a period of ninety days of the commencement of this Ordinance make an application for review of orders before the appellate authority. (4) The appellate authority, on review, shall decide the matter keeping in view the provisions of the Ordinance as amended by this Ordinance and its decision shall be final."

6. A perusal of the earlier amending Ordinance which has been repealed by section 7 of the amending Ordinance of 1979; that no such provision had been made in the amending Ordinance nor any such intention had been mad manifest by the Legislature in the said Ordinance, and therefore, for the proposition the following conclusions are evident: (a) That the pending appeals have not been affected by the substitution of section 15 of the principal Ordinance; (b) That there is no provision in the amending Ordinance that it shall have the retrospective effect.

7. The proposition, therefore that remains for determination is whether this right of second appeal was a vested right and could not be taken away by amending Ordinance unless the intention was clear in the amending Ordinance itself.

8. The leading case on the subject is the Colonial Sugar Refining Co. Ltd. v. Irving (1905 A C 369). In that case the Collector of Customs acting under an Act called the Excise Tariff' Act, 1902 required the appellants to pay .20,100 excise duty on 6,700 tons of sugar. The appellants disputed the claim. So they deposited the money with the Collector and then brought an action before the Supreme Court of Queensland against the Collector for recovering the sum so deposited. The writ in the action was issued on October 25, 1902. At the date of the institution of the action the Order in Council of June 30, 1860 gave a right of appeal to His Majesty-in-Council from the judgment of the Supreme Court. A special case having been stated for the opinion of the Full Court, that Court on September 4, 1903 gave judgment for the Collector. 1n the meantime the Judiciary Act, 1903 bad been passed and it received the Royal assent on August 25, 1903, that is to say about 10 days before the judgment was delivered by the Supreme Court. By section 38 the jurisdiction of the High Court of Australia in certain certain specified matters was made exclusive of the jurisdiction of the several Courts of the States and by section 39 ft was made exclusive in all other matters except as therein provided. Subsection (2) of section 39 provided that the several Courts of the States would be invested with Federal Jurisdiction in all matters above-mentioned except those specified in section 38, subject to certain conditions and restrictions, one of which was that every decision of a Court of a State from which, at the establish ment of the Commonwealth, an appeal lay to the Queen-in-Council should be final and conclusive except so far as an appeal might be brought to the High Court. The result of this Act was that Her Majesty-in-Council ceased to be a Court of Appeal from the decision of the Supreme Court and the only appeal from the Supreme Court under that Act lay to the High Court of Australia. The Supreme Court of Queensland having granted leave to the appellants under the Order in Council of 1860 the appellants filed the appeal in the Privy Council. The respondent filed a petition before the Privy Council praying that the appeal might be dismissed with costs on the ground that the right of appeal to His Majesty in Council given by the Order-in-Council of June 30, 1860 under which the leave had been granted had been taken away by the Judicial Act. 1903 and that the only appeal from a decision of the Supreme Court of Queensland lay to the High Court of Australia. On behalf of the appellants it was contended that the provisions of the Judicial Act, 1903, on which the respondent relied were not restrospective so as to defeat a right in existence at the time when the Act received the Royal assent. Their Lordships of the Privy Council dismissed the respondent's petition and observed as follows :- "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 band, 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 Judicial 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 appellants 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 a 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 transfer ring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."

9. In a case of the Supreme Court of India Garikapati Veenaya v. N. Subbiah (AIR 1957SC540), a similar question was examined in the light of above judgment of the Privy Council. In this case the facts were that an application for special leave to appeal had been filed from the judgment passed by the High Court of Andhra, on 10-2-1955. The suit out of which this application arises was instituted on April 22, 1949 in the sub-court of Bapatla, which was then within the jurisdiction of the Madras High Court. The judgment of the trial Court was passed on November 14, 1950, dismissing the suit. The plaintiff appealed. On October 1, 1953 the Andhra State was formed and a new High Court was established under section 28 of the Andhra State Act, 1953 (Act XXX of 1953), and apparently the appeal stood transferred to the High trial Court of Andhra under the provisions of section 38 of the same Act. On March 4, 1955 the High Court of Andhra accepted the appeal, reversed the decree of the trial Court and decreed the suit: The application for leave to appeal to this Court was dismissed on the ground, inter alia, that the value of the property was only Rs. 11,400 and did not come up to the amount of Rs. 20,

000. In this application the petitioner contends that the judgment being one of reversal and the value being above Rs. 10,000, he was entitled, as a matter of right, to come up to this Court on appeal and as that right has been denied to him by the High Court, this Court should in exercise of its discretion, grant him special leave to appeal to this Court under Article 136 of the Constitution.

10. The majority after discussing the entire case-law came to the following conclusion "For reasons stated above we think that the suit, out of which this application arises, having been instituted before the date of the Constitution the parties thereto had, from the date of the institution of the suit, a vested right of appeal upon terms and conditions then in force and the judgment sought to be appealed from being a judgment of reversal and the value of the subject-matter being Rs. 10,000 the applicant had a vested right of appeal to the Federal Court.. under the provisions of the old Civil Procedure Code read with the Government of India Act, 1935 and the Federal Court (Enlargement of Jurisdiction) Act, 1947. Such a vested right of appeal was a .matter which did not fall within Art. 133 and jurisdiction and powers with respect to such right of appeal was exerciseable by the Federal Court immediately before the commencement of the Constitution and consequently the applicant had a right of appeal under Article 135 and the High Court was in error in refusing leave to appeal to the petitioner. As in our opinion the petitioner was entitled under Art. 135 to come up on appeal to this Court as of right and such right has been wrongly denied to him we are prepared in the circumstances of this case, to grant him special leave to this Court under Art. 136 of the Constitution. The petitioner will have the costs of this application from the respondents Nos. 1 and 2."

11. A Full Bench case of Rain Singha and another v. Shankar Dayal and another (A I R 1928 All. 437 ), may be referred also in support of the proposition where a similar question was referred to the Full Bench by the Allahabad High Court: "Whether the filing of an appeal is governed by the law obtaining at the date of the institution of a suit or by the law that may prevail at the date of the decision of it, or at the date of the filing of the appeal." The suit in which the above question had arisen was filed on 12-7-1926 and was a rent suit. At that time the North-Western Provinces Tenancy Act, 1901 (U. P. Act lI of 1901) was in force. Section 177 of that Act gave a right of appeal from the decision of the Assistant Collector to the District Judge when the amount or value of the subject-matter of suit exceeded Rs.

100. On September 7, 1926 Agra Tenancy Act (U. P. Act III of 1926) came into force. It repealed the old Act of 1901. Section 140 of the new Act reproduced section 175 of the old Act providing that no appeal would lie from any decree or order passed by any Court under this Act except as provided in this Act. The following opinion was expressed "Our answer to the reference is that the right to appeal to the Court of the District Judge was governed by the law prevailing at the date of the institution of the suit, and not by the law that prevailed at the date of its decision or at the date of the filing of the appeal."

14. A Full Bench judgment of the Lahore High Court reported as Kirpa Singh v. Ajay Pal Singh (A I R 1928 Lab. 627) had also adopted the Privy Council judgment referred to above and it was held that the right of appeal was not a mere right of procedure but was a vested right from the commencement of action in the Court of first instance and that such right could not be taken away except by an express provision or by necessary implication. The decision of the Privy Council in Colonial Sugar Refining Co. Ltd. v. Irving was followed subsequently in several other judgments.

15. In a judgment of the Supreme Court of Pakistan reported as Muhammad Ishaq v. The State (P L D 1956 S C (Pak.) 256), it was held in this case that the right of appeal being a creation of the statute was a substantive right of appeal and it could only be conferred or taken away retrospectively by express words or necessary implication. The facts of the case were that the appellant had been acquitted by the Additional Sessions Judge, Faisalabad on the charge of murder. The Government filed an appeal against his acquittal. The petitioner was convicted and sentenced to death by the High Court of West Pakistan on 21-2-1956. The appeal was filed on 24-3-1956. After the Constitution had come into force on 23-3-1956. Article .156 of the Constitution provided appeal in 4 classes of criminal cases. One by which the case where the High Court had on appeal reversed the order of acquittal of an accused person and sentenced him to death or transportation for life. This clause (a) which provided certificate that the case is one fit for appeal to the Supreme Court. In clause (c) of that Article a certificate, was required .that the case was fit one for appeal to the Supreme Court. When no such power had been given to the High Court by law of Letters Patent or the Code of Criminal Procedure. Their Lordships of the Supreme Court observed as follows :-- "But even if clause (a) be considered not to be expressly prospective, the principle is that where a statute affects a substantive right, in the absence of express words or necessary intentment, it has to be construed prospectively and retrospectively. The right of appeal in this country being the creation of statute is a substantive right, and it can only be conferred or taken away retrospectively by express words or necessary implication, in the Privy Council case in Delhi Cloth & General Mills Co. Ltd. v. Income-tax Commissioner, Delhi and another A I R 1927 P C 242, the rule is thus stated by Lord Blanesburgh : "The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the Colonial Sugar Refining Co, v. Irving 1905 A C 369 where it is in this effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders, which. when the statute came into force, were final, are provisions which touch existing rights."

16. Similarly in a case reported as Yusuf Ali Khan v. laved 1qbal Cheema (P L D 1975 Lab. 1339), it was observed as follows "Last of all the appellant submitted before us that his right to prefer or prosecute this appeal was not affected by any subsequent change in the law abolishing the appeal or modifying its form unless it was so provided expressly in the amending Statute. In this connection reliance was placed on the ratio in Bhai Kirpa Singh v. Rasalldar Ajaipal Singh and others A I R 1928 Lab. 627 to the effect that the right of appeal is not a mere matter of procedure but is a vested right which inheres in a party from the commencement of the action in the Court of first instance. If according to the law in force at the time when the action was started in the Court of the first instance the ultimate decision of such Court was appealable, the right to prefer or prosecute an appeal therefrom is not affected by subsequent change of the law abolishing the appeal or modifying its forum unless it is so provided expressly in the amending statute or follows by necessary implication from its terms. There is no quarrel with the dictum." However, this principle was not applied to the above case as the appellant who moved the High Court was not permitted to fall back on section 3 of the Law Reforms Ordinance XII of 1972 prevailing on the date of the suit on 28-10-1973.

17. In view of the above discussion the conclusion is that the right of second appeal as envisaged under section 15 of the principal Ordinance would continue except all actions that were initiated before the amendment as the right of appeal including the second appeal is a substantive right and could not be taken away except with a clear intention on the part of the Legislature. The very fact that in the earlier amending Ordinance of 1978 g there was a specific bar of filing a second appeal whether the decision was made before or after the amendment, the intention of the legislature in amending ; Ordinance of 1979 is clear. The appeals are competent and are entertained as such and the question on merits shall be determined separately. A. A. H. Order accordingly.