P L D 1980 Lahore 778 (PLP)

3. "Appeal to High Court in certain cases.-(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction. (2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan, not being an order made under sub-paragraph (i) of paragraph (b) of that clause Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article' 201 arises out of any proceedings in which the law applicable provided for at least one appeal to any Court, Tribunal or authority against the original order. (3) No appeal shall lie under subsection (I) or subsection (2) from an interlocutory order or an order which does not dispute of the entire case before the Court. (4) Nothing contained in this Ordinance shall be construed as affecting- (a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908), which was pending immediately before the commencement of this Ordinance ; or (b) any appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972." Some minor changes were brought about by the Law Reforms (Amendment) Act, 1974 (VI of 1975) effective from 13-I-1975 whereby the words "clause (2) of Article 201", were to be read as "clause (1) of Article 199" and after the words "one appeal" the words, "or one revision or one review" were inserted. Section 3 so amended is now the law in force.

4. Learned counsel contends that as a right of appeal existed under the Letters Patent at the time of commencement of the lis, that right survives notwithstanding the repeal of clause (10) of the Letters Patent by the Law Reforms Ordinance, 1972, and that the appeal is maintainable. For this he relies on Mirza Ashiq Hussain v. Additional Settlement Commissioner and 4 others (P L D 1977. Lab. 684).

5. The legislative competence to repeal prior laws is neither in doubt nor in question. In fact no statute can make itself secure against a future repeal. It is also not in doubt that the provisions of a statute, which touch a right in existence at the passing of the statute, are riot to be applied retrospectively in the absence of express enactment or necessary intendment. This means that if the law is changed during the pendency o an action, the principle that governs the situation would be that the right of the parties are to be decided according to the law as it existed when the action commenced unless the new law shows a clear intention either expressed or impliedly to vary such right. At the same time it is also not in doubt that the legislature has full.-power to make a law retrospectively so as to destroy aright or a remedy altogether but this has to be expressly laid down or such result must be held to flow by necessary implication. When the intention of the Legislature is clear that the Act should have' a retrospective operation then it must unquestionably be so construed even though the consequences may appear unjust' and harsh. Re Williams and Stepney (I and Stead v. Carey (2) refer. It was held In, re. Athlumney (3) per Wrigh J, that "Perhaps no rule of construction is more firmly established than this that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matte of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only." Jessel M. R. in the case of In re: Joseph Suche &. Co. Limited (4) explained the rule in the words. : "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." The rule had been re-enunciated by the Privy Council in Colonial Sugar Refinding Co. v. Irving (5) and followed in Delhi Cloth and General Mills Co., Ltd. v. Income-tax Commissioner, Delhi, and another (6). Commentries by well-known Authors are to the same effect (See Maxwell on Interpretation of Statutes, Eleventh Edition, page 204 et seq. and Craies on Statute Law, Seventh Edition, page 387 et seq. Crawford: in his "The Construction of Statutes", while stating the rule that "Repealing Acts, as .a general rule operate retrospectively, and, in the absence of a legislative intention to the contrary, should not be denied that effect" has commented that "If any other construction" is possible the Act should not be construed so as to affect rights which have vested under the old law, or as requiring the abatement of actions instituted for the enforcement of such rights", and has gone on to say "A repeal will generally, therefore, divest all inchoate rights which have arisen under the repealed statute, and destroy all accrued causes of action based thereon. As a result, such a repeal, without a saving clause, will destroy any proceeding, whether not yet begun, or whether pending. at the time of the enactment of the repealing act, and not already prosecuted to a final judgment so as to create a vested right." The rule of denying retrospective effect to a repealing Act in regard to vested rights unless a contrary intention is expressed or implied-has been applied consistently by the Courts in Pakistan. See Ghazi and others v. The State and another (7), Malik Mir Hassan and another v. The State (8) and Adnan Afzal v. Capt. Sher Afzal (9). In Commissioner of Sales Tax (West) Karachi v. Messrs Kruddsons Ltd. (10), however, it was held that a curative (1) (1891) 2.Q B 257 (2) (1845) 14 L J C P 177 (3) (1898) 2 `Q B 551 (4) 4 1875)1 Ch. D 48 (,5) 1905 A C 369 (6) A I. R 1927 P C 242 (7) P L D 1962 Lah. 662 (8) P L D 1969 Lah. 786 (9) P L D 1969 S C 187 (10) P L D 1974 S C 180 legislation enacted during the pendency of an appeal destroyed the finality of the judgment impugned in the appeal, although it was unassailable according to the law as it then stood when the impugned judgment had been announced.

7. Where, therefore, the repeal is simpliciter and there is no provision for exceptions, exclusions and savings, then the repeal applies only prospectively and the rights of the parties under the repealed law survive. But where the repeal is accompanied or followed by fresh legislation on the same subject, we have undoubtedly to look to the provisions of the new Act for the purpose of determining whether a different intention is inferable.

8. Ordinance XII of 1972 not only repealed clause 10 of the Letter Patent but also enacted fresh legislation barring all appeals under the provision of that clause and prohibiting the Courts from entertaining such appeal. The saving was only in respect of appeals already pending before the commencement of the Ordinance. The ouster of the Court's jurisdiction to entertain or decide an appeal under clause 10 except those already pending was made quite clear. The provision of section 3 is not amenable to a interpretation that the right to appeal in, a pending lis was still available. The subsequent amendment, brought about by Ordinance (XXXIV of 1972) whereby a new section 3 was substituted, again bars jurisdiction of the Court to entertain an appear from the order of a Single Bench made in exercise of the writ jurisdiction in a matter arising under any law relating to the rehabilitation and settlement of displaced persons. The provision of section 3 was no doubt modified by Act VIII of 1972 with effect from the very date of the commencement of the Law Reforms Ordinance XII of 1972 whereby an appeal from the order of the Single Bench made under the writ jurisdiction was allowed except where the law applicable to the proceeding giving rise to the writ petition provided for at least one appeal. This meant that where the law applicable to the proceeding instead of appeal, provided for revision or review, an appeal could lie from the order of the Single Bench. But such appeal, too, became barred w. e. f. 13-1-1975 by Act VI of 1975. The changes brought about by the last two amending laws could, however, not revive the right under clause 10 which had been extinguished by the original provision of section 3 of Ordinance XII of -1972, except to the extent that until the coming into force of that Act on 13-1-1975 an intra Court appeal could lie if the law applicable to the proceeding allowed for a review or revision but in no case such an appeal could be brought if the law applicable to the proceeding provided for an appeal. The repeal of an Act or of the repealing Act itself, unless a different intention appears shall not by virtue of section 6 of the General Clauses Act "revive- anything not in force or existing at the time at which the repeal takes effect".

9. The case of Mirza Ashiq Huwain is of no help to the appellant because the simple question there was whether an intra-court appeal could lie in a case where the original order was not appealable but revisable or reviewable and in this context it was observed that as Act VI of 1975 was not retrospective, it did not affect vested right of such intra-court appeal as had been filed before the enforcement of that Act. This authority cannot be invoked to press the contention that an intra-court appeal could lie even when the law y applicable to the proceeding provided for an appeal. Learned counsel also' referred to two appeals, namely, L. P. As. Nos. 123/1973 and 143/197( which both bad been entertained in this High Court. The difficulty, however is that-the point in controversy here had not been raised and discussed or even adverted to in those appeals.

10. We may usefully refer to M. Jamil Chaudhry and another v. M. Hanif Chaudhry and 4 others (P L D 1975 Lah. 379), where the Division Bench discussed the applicability of the Lettere Patent in the context of the Law Reforms Ordinance, 1972 in the following words : "Therefore, if at any time the jurisdiction, power or authority which was conferred by the Letters Patent is intended to be taken away or curtailed the only way to do so will be by amending the Letters patent. This is what has been done by the Law Reforms Ordinance, 1972, and by virtue of the provisions contained in the Schedule read with ' section 2 of the Ordinance "clause 10 of the Letters Patent applicable to the Lahore High Court, the Sind & Baluchistan High Court and the Peshawar High Court stood omitted." The intention of the Legislature was to take away the right of appeal under clause 10 of the Letters Patent and it has done so by the amendment of the `Letters Patent'."

11. In the case before us the law governing the proceedings at the 'relevant time had a provision for appeal and as such we must conclude that no right exists to move this intra-court appeal. The same is, therefore, dismissed in limine. Appeal dismissed.