P L D 1988 Peshawar 40 (PLP)

SARDAR FAKHRE ALAM ACTG. C.J.‑‑By this consolidated order we propose to dispose of the three writ petitions bearing Nos.178, 267 and 268 of 1985, for that in all the three the following common question of law was raised:‑ "Whether the decisions by the appellate authority under the Rent Restriction Act,. 1963 are invalid and without jurisdiction, as during the pendency of the appeals the law was amended and the High Court was invested with power to hear the appeals. "

2. All the three matters are under the Cantonments Rent Restriction Act, 1963. In W.P.No.178 of 1985 Khairul Bashar the tenant has questioner his ejectment from shops Nos.9 and 24‑A owned by Muhammad Tariq Khan landlord /respondent No.

1. In the first instance, the ejectment petition was rejected by the Additional Controller of Rents, Peshawar Cantonment (respondent No.3), but the order was reversed on appeal by Additional District Judge‑III Peshawar (respondent No.2) on the basis of wilful default in payment of rent from October 1981 to March 1982. The appeal was filed on 22‑1‑1985 and decided on 7‑5‑1985. In W.P.No.267 of 1985 Additional Controller of Rents, Peshawar cantonment (respondent No.5) passed an ejectment order in favour of Sanaullah and others respondents against Pir Bakhsh, tenant of Shop No.193/3. Kabari Bazar Peshawar Cantt. The matter was taken up In appeal by the tenant but it was dismissed by the appellate authority i.e. District Judge, Peshawar. The appeal was filed on 16-1-1985 and dismissed on 1‑7‑1985. Here too the ejectment order was passed, as the tenant had committed default in payment of rent.

4. In W.P. 268 of 1985 Sanaullah and other landlords filed an ejectment order was passed against Izat Gul tenant-petitioner herein. An ejectment order was passed against tenant by Additional Controller Rents Peshawar Cantonment (respondent No.5) on 25-11-1984. The tenant went in appeal, which was dismissed by the District Judge, Peshawar, the appellate authority. The appeal was filed on 16-1-1985, which was decided on 1-7-1985.

5. During the pendency of the appeals in all the three matters, Section 24 of the Cantonments Rent Restriction Act, 1963 was amended by Ordinance No. IX of 1985, which was given effect to on 31-1-1985, whereby the forum of appeal against the orders passed by the Rent Controller was changed from District Judge or an Additional District Judge to that of High Court. All the appeals were 'filed when the District Judge were competent to decide these. However; when these were decided the appellate forums were changed and High Courts were empowered to adjudicate upon the appeals.

6. Sardar Akhtar Ali, learned counsel for tenant-petitioners in all the three matters vehemently contended that the decisions by the District Judge disposing of the appeals due to change of forum all without jurisdiction and accordingly these be quashed. It appears that when the matter was argued and decided by the District Judge as an appellate authority neither the parties nor the Court was aware of the amending Ordinance, as none of the parties raised objection to the jurisdiction of that Court. We have no cavil with the proposition that simple change of forum from one Court to the other is a procedural change retrospective in nature. Matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters procedural in nature. It is well-settled that question relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertains to procedure, provided the burden of proof is not shifted. Thus, a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant when we say that a change of forum by law is retrospective being matter of procedure only. Nevertheless the superior Courts have laid down some exceptions to retroactive application of procedural changes in that these do not affect the existing rights or cause inconvenience or injustice. If so the Courts will not even in the case of a procedural statute favour an interpretation giving retrospective effect to the statute. On the other hand if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Court would be favourably inclined to give an effect to such procedural statutes retroactively In this view of ours we have relied on a judgment of the Supreme Court of Pakistan titled as Adnan Afzal v. Capt. Sher Afzal (P L D 1984 S C 187). A Division Bench of the Lahore High Court in National Bank of Pakistan v. Taj Muhammad (P L D 1984 Lah. 417) has also held, normally procedural amendments including those purporting to transfer jurisdiction over certain causes of action operate retroactively but when the new forum makes the remedy provided inconvenient, the Courts are not inclined to treat the procedural amendment to be retrospective in effect. In this case too reliance was placed on Adnan Afzal's case referred to here-before.

7. It is crystal clear that a procedural amendment is given retrospective effect but not so if it causes inconvenience to the parties. Inconvenience in the background of the present matters is not far off to seek and it can be gathered from the established facts. Besides others a single circumstance that the parties in the High Court might have to engage senior counsel and to pay more fee could be a source of inconvenience. What we gather is that a pending matter would not be transferred to the changed forum if it causes inconvenience to the parties, and therefore, the decision by the; original forum shall be treated to be one with jurisdiction. If it is so then the verdict given by the old forums not objected to by any of the parties on the same analogy would not be quashed for want of jurisdiction. On merits too we find that in all the three matters the tenants have been wilful defaulters in payment of rent. They are least entitled to equitable relief, permissible in the exercise of extraordinary jurisdiction.

8. For the reasons referred to here-before, all the three writ petitions bereft of merit are dismissed with no order as to costs. A.A./587/P Petition dismissed.