P L D 1962 (W (PLP)

(c) that they were so purchased within the period of six months next preceding the date on which they were so delivered Provided that, where the person is a licensed vendor of stamps, the Collector may, if he thinks fit, make the repayment of the sum actually paid by the vendor without any such deduction as aforesaid." On proof of the conditions contained in sub‑clauses (a), (b) and (c) the Collector is bound to repay the value of the stamps after the deduction provided for. The provision of the section is mandatory In this regard. Now as to the requirement of proof it Is plain to me from the facts of this case that the Stamps Office authority and the Collector deliberately avoided to take any action on the application for refund. This application was admittedly made on 16‑10‑51 and the list of reliance filed with the written statement mentions this document. Now, normally action should have been taken on this application and if the Collector wanted any proof with regard to the purchase of these stamps with the bona fide Intention of using them he should have called upon the plaintiff to provide that proof. But that is not all. There are two registered letters dated 24th July 1954 and 16th August 1954 addressed to the Collector by the lawyer of the plaintiff, Exhs. 6 and 7 in which the Collector has been reminded of the earlier letters on the subject and of the several personal visits to his office In connection with the refund of the value of the said stamps. In Exh. 7 he is pointedly told that the plaintiff is willing to satisfy him of the requirements mentioned in section 54 of the Stamp Act and that he has done his best to satisfy him of it through his letters, but there has been no response. The receipt of both these registered letters is admitted by the defendant, and there are two acknowledgements receipts attached to them yet the Collector took no action and sent no reply to the plaintiff or his lawyer nor did be call upon them to satisfy him with the requirements of section 54 of the Stamp Act. There are three more letters which have been proved in the suit. These are Exhs. 8, 9 and 10 dated 28th April 1952, 8th April 1953 and 11th December 1953. The first two are addressed to the Assistant Superintendent of Stamps and the third to the Superintendent of Stamps who is the Collector himself. These are also in respect of the same subject matter. In Exh. 10 which was addressed to the Collector the plaintiff has stated as follows:‑ "That the stamps were purchased for a bona fide purpose which can be proved by the fact that subsequently when the said deal was completed, we purchased fresh stamps and got the document registered." No reply was sent to these pressing letters. The matter did not rest there, because even when the Collector received the notice of suit neither he nor the Government send the plaintiff any reply. In view of all this the defence taken on behalf of the Federation that the plaintiff failed to establish that the stamps were purchased with a bong fide intention to use them is not only without any substance but is even tortuous. P. W. 1 Kassim Tar Mohammad, the attorney of the plaintiff at the relevant time, has given evidence before me and has stated that the plaintiff had entered into an agreement to by a property on plot No. 30, Bunder Road, Karachi for a sum of Rs. 11,00,000 and for the sale‑deed thereof this wit ness had purchased the stamps of Rs. 32,998 on 16‑4‑51; that the sale could not be completed within 6 months of the purchase of these stamps and so he returned them to the Stamps Office on 16‑10‑

51. He has further stated that the Trust ultimately did purchase that property, bought fresh stamps and got the sale‑deed registered on 2‑1‑

52. He has referred to the various letters addressed to the Collector and the Assistant Superintendent and stated that no reply of any of these letters was ever received nor was the plaintiff ever asked by notice or otherwise to satisfy the Collector about the bona fide nature of the purchase of the stamps for use by him. He also stated that the stamps which had been returned by him were exhibited in the criminal case against the Office Superintendent Soomar Ali and he was examined as a witness in respect of them. I accept this evidence which is abun dantly supported by admitted documents. As against all this the only witness produced on behalf of the defendant was that of the present Assistant Superintendent of Stamps who knew nothing about the case. But even he admitted in cross‑examination that he knew from the record that alt the stamps of this case were recovered from Soomar and they ultimately came to be exhibited in the criminal case. No evidence whatever was led about the alleged suspicious circumstances, which were referred to In the written statement. In fact, it is quite clear to me that this was a perfectly straightforward transaction by the plaintiff and neither the Collector nor any other connected authority lid‑d any doubt about the bona fide purpose for which the stamps were purchased or about their return in due course coupled with an application for the refund of the value. Nothing of the kind was ever suggested until the written statement was filed. I, therefore, hold that the Collec tor was in fact satisfied as to the requirements of section 54 and that in any case in view of his studied silence inspite of repeated letters and reminders in that behalf by the plaintiff it is not open to the defendant to contend that the requirements of section 54 were , not fulfilled by the plaintiff. In view of the conclusion reached by me my finding on issues Nos. 1, 2 and 4 is in the nega tive and on issue No. 3 in the affirmative.

7. Issue No. 5 was not pressed by the learned counsel for the defendant and in any case I do not find anything in the notice served by the plaintiff under section 80, C. P. C., which would render it invalid. The finding on this issue is, therefore, in the negative.

8. Issue No. 6 relates to the bar of the suit under section 226 of the Government of India Act, 1935. When the suit was institu ted the said Act was still in force. It was repealed by Article 221 of the late Constitution which came into force on the 23rd of March 1956. Section 226 of the Government of India Act reads as follows:‑ "226 Jurisdiction in revenue matters.‑(1) Until otherwise provided by Act of the appropriate legislature, no High Court shall have any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force. (2) A Bill or amendment for making such provision as afore said shall not be introduced into or moved in the Federal or a Provincial Legislature without the previous sanction of the Governor‑General or, as the case may be, of the Governor." It was strenuously contended by the learned counsel on behalf of the defendant that the subject‑matter of this suit related to a matter concerning the revenue and the original jurisdiction of the High Court in such a matter was expressly barred by section 226 which bar continued to operate notwithstanding the repeal of the Government of India Act including section

226. I shall deal with this question presently, but before I do that I must dispose of the contention of the plaintiff's counsel that the bar of jurisdiction contained in section 226 of the Government of India Act was not attracted in this case even at the time when the suit was instituted. It was urged that this suit contained a simple claim for the refund of the value of the stamps which was provided by section 54 of the Stamp Act and it was neither a matter concerning the revenue or any act ordered or done in the collection thereof. It was further urged that there was neither a determination by the Collector or any other revenue authority against the plaintiff nor was there any act of imposition against him, and even the Collector had not passed any order to the effect that the amount was not liable to be refunded. The argument, though plausible, cannot bear scrutiny. The expression 'revenue' was defined in section 136 of the Govern ment of India Act, 1935 as follows:- "The expression 'revenues of Federation' includes all revenues and public moneys raised or received by the Federation, and the expression 'revenues of the Province' includes all revenues and public moneys raised or received by a Province." There can be no question that the amount of money received by the Stamps Office for the adhesive stamps fell within the definitions of the expression 'revenue' given above. The present suit is for the refund of a sum of money which was received as revenue and thus clearly comes within the mischief of section 225 which affects "any matter concerning the revenue." I have, therefore, no hesitation in overruling this contention of the learned counsel for the plaintiff.

9. I shall now proceed to deal with the argument of the defendant's learned counsel that notwithstanding the repeal of the Government of India Act the bar contained in section 226 of the said Act still operates and renders the suit incompetent. The contention put forward was two‑fold. It was firstly urged that having regard to the provision contained in sub‑clause (5) of Article 227 of the late Constitution, the repeal of the Government of India Act, 1935 did not give jurisdiction to the High Court in any matter concerning the revenue and the bar contained in the said section remained in tact. Sub‑clause (5) of Article 227 of the late Constitution is as follows:‑ "227 (5). Without prejudice to the other provisions of the Constitution, each High Court shall have the same jurisdiction and powers as were exercisable by It immediately before the Constitution Day." The argument was that this provision of the Constitution main tained the jurisdiction of the High Court precisely, as it existed, Immediately before the Constitution Day with all its limitations, and inasmuch as the original civil jurisdiction of the High Court in any matter concerning the revenue was barred immediately before the Constitution Day, the said bar shall be deemed to continue. The second argument was that by virtue of section 6(e) of the General Clauses Act the repeal of the Government of India Act did not affect any pending legal proceeding and the bar, which existed at the time of the institution of the suit, shall continue to operate. I shall now examine these contentions.

10. Sub‑clause (5) of Article 227 of the late Constitution has got to be read with Articles 221 and 224 and has to be interpreted in the light of general principles. Article 221 repealed the Govern ment of India Act, 1935 and the Indian Independence Act, 1947 together with all enactments amending or supplementing those Acts. Section 226 of the Government of India Act, therefore, stood repealed, and in the late Constitution the provision con tained in Article 226 of the Government of India Act was delibe rately omitted. Article 224 of the Constitution maintained the continuance in force of all existing laws except the two enactments which had been repealed by Article

221. The effect clearly was that while all other laws continued to be in force, the Government of India Act. 1935 which contained section 226 was put out of action. The original jurisdiction of the Chief Court of Sind in which the suit was instituted was derived by section 8 of the Sind Courts Act. Then by virtue of the Establishment of West Pakistan Act, 1955 the Chief Court of Sind was integrated into the West Pakistan High Court. By section 5 of the High Court of West Pakistan (Establishment) Order of 1955 the original civil jurisdiction of the Bench at Karachi for the civil districts of Karachi as given to it by section 8 of the Sind Courts Act, 1926 was maintained. Article 224 of the Constitution continued it in force as existing law, and by President Order No. 2 of 1956 section 8 of the Sind Courts Act was amended whereby the Bench at Karachi was to have jurisdiction in respect of suits wherein the subject‑matter in amount or value exceeded Rs. 25,

000. This was because of the creation of the District Courts at Karachi. No such bar, as was contained in section 226 of the Government of India Act, is found in these provisions and I cannot see how one can read into sub clause (5) of Article 227 the intent to preserve the bar contained in section 226 which had died with the repeal of the Government of India Act. The bar contained in that section was so obnoxious and unreasonable that it would be unfair to the framers of the late Constitution to attribute to them the intent of keeping it alive by virtue of Article 227, sub‑clause (5), though they had expressly repealed it by‑ Article

221. Kaikaus, J., as he then was, considered the utter unreasonableness of this provision in a Bench decision of this Court in Dada Limited v. Pakistan (P L D 1959 Kar. 264) and observed that:‑ "The provision contained in section 226 was not introduced in the Government of India Act, 1935 for the first time. It had existed in the previous Acts providing for the Government of India Act from the earliest times. Probably the High Court was the only Court of civil jurisdiction (apart from the Small Causes Court) when it was introduced for the first time and in the later Acts it was retained in spite of the absurdity which it created." The absurdity was that though a District Court, if it had existed in Karachi, would have the jurisdiction to entertain a suit concern ing any matter of the revenue, the jurisdiction of the High Court in that respect was excluded. Again, if a cause of action arose, say in Hyderabad, an aggrieved person could institute a suit in the District Court of Hyderabad a right which would not be available to a person whose cause of action arose within the Civil District of Karachi. I have, therefore, no doubt whatever that the repeal of section 226 of the Government of India Act and the omission of any similar provision in the late Constitution was a deliberate; act and it was intended that this obnoxious provision should no longer be in force. I, therefore, reject the first contention of the learned counsel for the defendant.

11. In support of the second contention it was urged that with regard to this suit the bar which existed at the time of its institution must be held to continue and in any case the repeal of section 226 did not, in view of the provision of section 6(e) of the General Clauses Act, affect these pending proceedings. Reliance was placed by the learned counsel on the following cases which I shall now proceed to examine.

12. In the well‑known Privy Council case of The Colonial Sugar Refining Company Limited v. Irving ((1905) A C 369), it was held that although the right of appeal from the Supreme Court of Queensland to His Majesty‑in‑Council given by the Order‑in‑Council had been taken away by the Australian Commonwealth Judiciary Act, 1903, yet the Act was not retrospective, and a right of appeal to the King‑in‑Council in a suit pending when the Act was passed and decided by the Supreme Court afterwards was not taken away.

13. In the case of Delhi Cloth and General Mills Co. v. Income‑tax Commissioner, Delhi and another (A I R 1927 P C 242) it was held as follows :‑ "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. 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 :" The question briefly in that case was whether the amendment of the Income‑tax Act which came into force on the 1st of April 1926, had the effect of doing away with the requirement of section 109(c) Civil Procedure Code, which provides for a certificate of fitness for an appeal to be taken to the Supreme Court. Their Lord ships held that it did not, and that if the said section was to apply to orders final at the date when it came into force it must have been clearly so provided.

14. The case of G. B. Pramanik and others v. Nawab Bahadur of Murshidabad (A I R 1932 Cal. 207), related to a bar of a suit contained in section 109 of the Bengal Tenancy Act of 1885 which was subse quently amended in 1929. In this case the defendant was recorded in the "Record‑of‑Rights" as a tenant under the plaintiff and his tenancy was recorded as "no rent paid, liable to assessment of rent." In 1918 the plaintiff applied under section 105, Bengal Tenancy Act for settlement of fair and equitable rent payable by the defendant in respect of the land held by him. This application was withdrawn by the plaintiff. The unamended section 109 of the Act contained a bar of suit. The amended section however entitled the landlord to maintain a suit in the ordinary Civil Court even if his application under section 105 had failed, provided that it had not been decided on merits. Upon these facts it was held that the right which the defendant had obtained under section 109 of the old Act was a substantive right which could not be affected except by express words, by subsequent alteration of the law.

15. In a Full Bench case of the Calcutta High Court in Sardar Ali v. Dalilduddin Ostagar (A I R 1928 Cal. 640) the question was whether or not the applicant had a right of appeal from the decision of a single Judge sitting in Second Appeal in the absence of a certificate from him that the case was a fit one for appeal. The question arose in view of the amendment in clause (15) of the Letters Patent which had come into effect on 14th January 1928, long after the institution of the suit though before the presentation of the Second Appeal to the High Court. It was held that the amend ment to clause (15) did not have a retrospective effect and the relevant date for determining whether the amendment could apply was the date of the institution of the suit.

16. In all these cases the decision turned upon the question whether there had come into being a substantive right in favour of a party. If it had than any subsequent amendment of the law could not take away from the party the right by the retrospective appli cation of the amended law unless it was so enacted. It was conceded in these eases that there was no vested right in the procedure.

17. In the case before me I am unable to hold that section 226 of the Government of India Act created any substantive right in favour of the Federation of Pakistan. There was no absolute immunity to the Government In respect of an action by a private party in a matter concerning the revenue. All that section 226 laid down was that there shall be a bar in the exercise of the original jurisdiction of the High Court in any matter concerning the revenue. The jurisdiction of the District Court, if any, was not barred, and it is well established that nobody has any vested right, in the procedure or in respect of a particular forum. Section 9 of the C. P. C. lays down that the Courts shall have the jurisdiction to try all suits of a civil nature excepting suits of which cognizance is either expressly or impliedly barred. Therefore, as soon as the bar of section 226 was removed by the repeal of that provision and by the absence of a similar provision in the late Constitution section 9 of the C. P. C. came into full force. The question of the exclusion of the original jurisdiction of the High Court related to a matter of procedure and did not create any substantive right in favour of the Government and, therefore, when at the time of the disposal of the suit there was no bar of jurisdiction the Court cannot be deprived of it upon the ground that there was such a bar at the time when the suit was instituted. In fact, the provision contained in section 226 was so unreasonable anti led to such absurdities that even if it was found by me that this suit was bad in view of the bar contained in section 226 I would have been inclined to treat this as a fresh suit instituted after the coming into force of the Constitution, in the interest of justice. It is after all only a matter of procedure and the procedure is to be applied for the purpose of advancing justice and not denying it unless any substantive right had vested into the defendant which it had not in the present case. The cases cited by the learned counsel for the defendant are thus clearly distinguishable.

18. With regard to the applicability of section 6 (e) of the General Clauses Act, it must be observed in the first instance that section 226 of the Government of India Act, 1935 had not confer red any right or privilege upon the Government and it did not enjoy any absolute immunity against an action concerning the revenue. On the other hand, the plaintiff did have a right to bring a suit in respect of a matter concerning the revenue except this that that action could not have been instituted on the original side of the High Court. Section 6 of the General Clauses Act only gives continuity to a rich; privilege or liability but where no such right existed there was nothing which was saved by the operation of this section. But what is more important is that section 226 only related to a question of procedure and as was held by tile Priv3 Council in the case of The Colonial Sugar Refining Company Ltd. v. Irving, a provision of a statute dealing with matters of procedure may properly have retrospective effect unless that construction be textually inadmissible. Nobody has any vested right to a particular procedure and, therefore, normally it is the procedure, in force at the time of the trial or then disposal of the suit which must be applied. The Court cannot refuse to exercise jurisdiction if it has got it when the case comes up for trial upon the ground that it did not have such jurisdiction when the suit was instituted. This question pointedly arose before a Bench of the Bombay High Court consisting of Chagla C. J., and Bhagwati, J. in a case Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass and others (A I R 1952 Bom. 365). The appeal in this case arose out of a suit for partition and at the date when the suit was instituted certain property was situated in a place which was not within the territorial jurisdiction of the Court at that time. However, by a subsequent amendment the place was brought within the ordinary original civil jurisdiction of the High Court and it was contended that the Court had no jurisdiction to pass a decree in respect of the property which at the time of the institution of the suit was outside the jurisdiction of the Court. This contention was repelled and the learned Chief Justice observed as follows:‑ "No party has a vested right to a particular proceeding or to a particular forum, and it is also well settled that all proce dural laws are retrospective unless the Legislature expressly states to the contrary. Therefore, procedural laws in force must be applied at the date when a suit or proceeding comes on for trial or disposal. The Court is bound to take notice of the change in the law and is bound to administer the law as it was when the suit came on for hearing. If the Court has jurisdiction to try the suit when it came on for disposal it cannot refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date when it was insti tuted."

19. In another case of the same High Court Lalitabai Banwarilal v. The Dominion of India (A I R 1954 Bom. 527) Desai J. dealt with a similar question which is before me. A suit had been instituted on the original side of the Bombay High Court before coming into force of the Indian Constitution and when section 226 of the Government of India Act was still applicable. The suit, it was contended on behalf of the Dominion of India, was not maintain able as it concerned revenue and an order for collection of income- tax dues as arrears of revenue. The Government of India Act, 1935 was repealed by the Constitution Act in the same manner as it was done here and Article 225 thereof gave continuity to the jurisdiction of Courts as was given by Article 227 of our Constitu tion but with this difference that a proviso was added to Article 225 of the Indian Constitution which expressly did away with the restriction to the exercise of original jurisdiction by the High Court with respect to any matter concerning the revenue. No express proviso was appended to Article 227 of the late Constitution, but in my opinion that makes no difference. I have already held that Article 227, sub‑clause (5) does not give continuity to the restriction contained in section 226 of the Government of India Act. The learned Judge of the Bombay High Court dealing with the objection, set out above, held as follows:‑ "The proviso in express terms removes the restriction to the exercise of the jurisdiction of High Courts in matters concer ning revenue. That bar, therefore, no longer survives. It is true that the Constitution had not come into force when the suit was filed, but the provisions of section 226 (1) of the Government of India Act, 1935, relate, in my opinion, entirely to matters of procedure and I have to apply the procedural law In force at the time of the trial of the suit. There is authority for the proposition that no party has a vested right to a particular proceeding or to a particular forum." The earlier case reported in A I R 1952 Bom. 365 referred to above was followed in this case.

20. For the reasons given above I am clearly of the opinion that I have the jurisdiction to try and dispose of this case and that the bar contained in section 226 of the Government of India Act which merely related to a question of procedure, is no longer appli cable. My finding on issue No. 6 is, therefore, in the negative.

21. In view of the finding arrived at by me, I decree the plaintiff's claim for Rs. 30,935‑10‑0 with costs. The defendant shall pay interest at 6%, on the decretal amount from the date of the decree till payment. The decree shall be against Pakistan. K. M. A. Suit decreed.