2016 PLP 523 (MLD)

M. TABASSUM AFTAB ALVI, J.

The supra titled revision petition has been directed against the impugned order dated 22-11-2004, passed by the learned Senior Civil Judge, Kotli, whereby an application for abatement of suit titled "Ch. Munshi Khan v. Muhammad Rasheed and others" was disallowed.

2. The precise facts forming background of the instant revision petition are that a suit for declaration-cum-prior purchase was filed by Ch. Munshi Khan, respondent-plaintiff, challenging validity of a compromise decree dated 21.03.1994, allegedly passed to deprive his rights of preemption, before Senior Civil Judge, Kotli, on 20.04.1994. The claim of Ch. Munshi Khan, respondent-plaintiff, was that the aforesaid decree was in fact a sale deed for consideration of Rs.2,75,000/-, however, vendor and vendee collusively managed and obtained the same in order to defeat his preemption right, hence, he solicited possession of suit land comprising survey Nos.1431, 1880 and 1886 measuring 07 Kanals 01 marla situated in village Roli on the ground of right of prior purchase. During pendency of the aforesaid suit, defendant No.2, namely Punnu Khan, died on 07.08.1998. Consequently an application was preferred by petitioner-defendant No.1, Muhammad Rasheed, for abatement of suit as legal heirs of the deceased were not arrayed as party within time limit prescribed for the purpose, on 18.03.2002. The application was, however, opposed by respondent-plaintiff Ch. Munshi Khan, through objections dated 09.04.2002. The learned trial Court after hearing dismissed application vide order dated 29.08.2002. Against the aforesaid order petitioner-defendant, Muhammad Rasheed, filed a revision petition before this Court which was accepted and case was remanded to the trial Court for afresh decision vide order dated 25.02.2003. The learned trial Court after hearing again dismissed application vide impugned order dated 22.11.2004, hence, the instant revision petition. It may be observed here that revision petition was dismissed by this Court vide order dated 11.05.2005, however, on appeal of petitioner-defendant, the apex Court remanded the same for afresh disposal on the basis of formulated points as per paragraph 13 through judgment dated 06.02.2007. This Court after hearing again dismissed revision petition through order dated 23.06.2007. The aforesaid order was again challenged by petitioner- defendant and by setting the order supra case was remanded for afresh decision on the basis of observations made by the Hon'ble Supreme Court in paragraphs 13 and 14 of judgment dated 06.02.2007, through judgment dated 18.01.2012.

3. Sardar Ghulam Mustafa Khan, the learned counsel for petitioner vehemently argued that provisions of Order XXII, Rule 4 of Code of Civil Procedure, as adapted in Azad Jammu and Kashmir vide Act IV of 2003 dated 05.03.2003, are prospective, therefore, suit filed by respondent-plaintiff was accordingly abated. The learned counsel pressed into service that Punnu Khan, defendant No.2, died on 07.08.1998, who was buried in the locality where respondent-plaintiff resided, however, no application for bringing his legal heirs on record was filed till moving the application dated 18.03.2002. He further maintained that as land in question was not divisible, hence, the suit filed by respondent-plaintiff was liable to be abated as a whole which important aspect last consideration of the Court below. The learned counsel in support of his contentions referred to and relied upon the following case law:-- i. Nizam Din and another v. Custodian and 15 others [2011 SCR 390]. ii. Haji through his legal heirs and others v. Khuda Yar through his legal heirs and others [PLD 1987 SC 453]. iii. Sardar Noor Hussain v. Chief Settlement Commissioner and others [PLD 1983 SC 62]. In case of Nizam Din and another, supra, it was held by the apex Court that where a matter stands decided and the decision attains finality as a transaction past and closed, the subsequent amendment in the law will not effect in the decision in absence of express intention of law if it touches a right or existence of a right at that time unless expressly provided, it will not operate retrospectively. In case of Haji through his legal heirs and others, ibid, it was held by the apex Court of Pakistan that amendments made by Ordinance XII of 1972 are not retrospective in operation. Abatement under O.XXII, C.P.C. already having taken place before coming into force of amendments, law as it stood prior to amendments would determine consequences flowing from non-joinder of legal representatives of deceased appellant. In case of Sardar Noor Hussain, supra, it was held by the apex Court of Pakistan that Law Reforms Ordinance, 1972, having come into force on date when High Court held appeal to have abated and provision of Code relating to abatement of appeal having been omitted by such Ordinance, High Court should have implemented spirit of new law instead of following old one. Abatement having already set in much before coming into force of Law Reforms Ordinance, 1972 and such Ordinance being not retrospective in operation.

4. Malik Muhammad Mansha Khan, the learned counsel for respondent-plaintiff, however, defended the impugned order with full force and submitted that provisions of Order XXII, Rule 4 of the Code of Civil Procedure, as adapted vide Act IV of 2003 dated 05.03.2003, are procedural, therefore, shall be deemed to be construed as retrospective The learned counsel in support of his aforesaid contention referred to and relied upon the following case-law:-- i. Malick Hussain Shah v. Superintendent of Police Rangers [2014 SCR 1120]. ii. Mst. Hameeda Begum and another v. Mazhar Hussain and 40 others [PLD 2009 SC (AJK) 1]. iii. Abrar Hussain Shah v. The State [1992 SCR 294]. In case of Malick Hussain Shah, supra, it was held by the apex Court that it is celebrated principle of interpretation of statutes that provisions of the procedural law are always retrospective but the provisions of an Act which deals with the rights are always prospective and not retrospective unless provided otherwise. In case of Mst. Hameeda Begum and another, ibid, was held by the apex Court that procedural law always operates retrospectively unless contrary intention is expressed. In case of Abrar Hussain Shah, supra, it was held by the apex Court that procedural law always operates retrospectively unless a contrary intention is expressed.

5. The learned counsel for contesting respondent-plaintiff further argued that as before death the deceased Punnu Khan, was proceeded ex-parte, therefore, due to non-impleading his representatives-in-interest the suit cannot be abated. The learned counsel in support of his aforesaid contention referred to and relied upon following case law:-- i. Assistant Commissioner and others v. Abdul Ghaffar and others [PLD 1994 Peshawar 161]. ii. Khan Muhammad Khan and 19 others v. Saif Ali and 22 others [1999 YLR 550]. In case of Assistant Commissioner and others, supra, it was held by the Peshawar High Court that provisions of O.VIII, R.10, C.P.C., nowhere empowers Court to pass decree in favour of plaintiff if defendant had failed to file written statement; Court in such situation can, however, pronounce judgment or make such order in relation to suit as it would think fit. Such discretion nowhere would imply a blind follow up of assertions made in plaint. Provision of O.VIII, R. 10, C.P.C., although gives powers to Court to announce judgment even without recording evidence once party had failed to file written statement, yet proceedings in suit would continue ex parte in which case, sort of filing written statement, defendant could nevertheless participate in such proceedings and could even cross-examine plaintiffs witnesses. In case of Khan Muhammad Khan and 19 others, ibid, it was held by the apex Court that where out of more than one defendants, some had died before institution of suit, their legal heirs could be brought on record in exercise of provisions contained in O.I., Rule 10, C.P.C., subject to point of limitation and not under O.XXII, Rule 4, C.P.C. Limitation against such legal heirs would start running from date when they were impleaded. Supreme Court accepting appeal, set aside findings of Courts below whereby suit filed by plaintiffs/appellants was dismissed and directed plaintiffs/appellants to delete names of defendants who had died before institution of suit and to implead their legal heirs.

6. The learned counsel for contesting respondent-plaintiff further argued that in any case out of three defendants, Punnu Khan, died and as landed property is devisable, therefore, the suit can only be abated to the extent of fractional share of the deceased Punnu Khan. The learned counsel in support of last contention referred to and relied upon the following case law:-- (i) Muhammad Latif Khan and 15 others v. Muhammad Ashraf Khan and 3 others [1989 CLC 2402]. (ii) Muhammad Yaseen and 9 others v. Mst. Begum Noor and 9 others [PLD 1978 SC (AJK) 112]. In case of Muhammad Latif Khan and 15 others, supra, it was held by the apex Court that where interest of a deceased party whose legal representatives were not brought on record was ascertainable distinctly from the surviving parties, the abatement only takes place in relation to the deceased party. In case of Muhammad Yaseen and 9 others, ibid, it was held by the apex Court that rights of plaintiffs and defendants ascertained or ascertainable. Death of one or more of them cannot cause abatement of entire suit. Suit in such case shall only abate with respect to a plaintiff or defendant whose legal representative not substituted.

7. After hearing the learned counsel for parties at length, I have perused the contents of revision petition and examined the record.

8. The instance case has got a checkered history. The suit filed by respondent-plaintiff for right of prior purchase is sub judice before the trial Court since 20.04.1994, however, due to death of defendant No.2, late Pannu Khan, the controversy of abatement is in debate since 2002. The instant revision petition was previously dismissed by this court through orders dated 11-5-2005 and 23.6.2007 respectively. However, the same has been remanded by the apex Court for afresh decision on the basis of observations made in judgment dated 06.02.2007. Therefore, before embarking upon merits of revision petition, it seems appropriate to reproduce paragraph 13 of judgment of the Hon'ble Supreme Court dated 06.02.2007:-- "

13. It is also pertinent to note that the learned Judge of the High Court has held that ex-parte proceedings was ordered against Punnu Khan who had died therefore if his legal representatives were not brought on record, it will make no difference but the learned Judge has failed to consider that a joint decree for possession was passed in favour of Muhammad Rasheed, Punnu Khan and Muhammad Iqbal. Now Munshi Khan is claiming that it was not a decree but a sale, therefore, a decree for possession on the basis of prior rights of purchase may be passed in his favour. In absence of Punnu Khan, who has died, how a decree can be passed against a dead person or his legal representatives, who have not been impleaded as party, how they can be condemned unheard. Moreover another important point involved in this case is whether the amended provision of C.P.C., as stated above in this judgment, shall run retrospectively. We are inclined to remand the case, therefore, we would not like to express our opinion on the aforesaid points."

9. It is an admitted position that Ordinance XII of 1972, popularly known as Law Reforms Ordinance, 1972, was adapted in Azad Jammu and Kashmir on 05.03.2003. The aforesaid adapted provisions are reproduced as follows:-- "AZAD GOVT. OF THE STATE OF JAMMU AND KASHMIR LAW, JUSTICE, PARLIAMENTARY AFFAIRS AND HUMAN RIGHTS DEPARTMENT "MUZAFFARABAD DATED: 05.03.2003 No. LD/81-88/03. The following Act of the Assembly received the assent of the President on 27th day of February, 2003 is hereby published for general information:- (ACT IV of 2003) AN ACT to adapt amendments in the Code of Civil Procedure, 1908. WHEREAS it is expedient to adapt amendments in the Code of Civil Procedure, 1908 for the purposes hereinafter appearing; It is hereby enacted as follows:-

1. Short title and commencement:

(1) This Act may be called the Code of Civil Procedure (Adaptation of Amendments) Act, 2003. (2) It shall come into force at once.

2. Adaptation of Amendments of the Code of Civil Procedure, 1908:- In the Code of Civil Procedure, 1908, as adapted in Azad Jammu and Kashmir, all the amendments made in Pakistan, from time to time, before the commencement of this Act, as far as practicable, are hereby adapted. (IRSHAD AHMED QURESHI) DEPUTY SECRETARY"

10. Admittedly at the time of filing suit on 20.04.1994 and death of defendant No.2, Punnu Khan, on 07.08.1998, the aforesaid provisions were not adapted. The basic question which is liable to be resolved in the instant revision petition, on the basis of para 13 of judgment of Hon'ble Supreme Court dated 06.02.2007, is that whether the aforesaid provisions shall run prospectively or retrospectively. The aforesaid provisions are brought on statute book which are basically procedural in nature. It may be observed here that before the year 1972, Order XXII, Rule 4, sub-rule (3) conferred the powers upon the Court to dismiss the suit on account of abatement, however, in 1972 an amendment was introduced in Pakistan, whereby the powers of dismissal of suit on account of abatement have been taken away and it has been laid down in rule supra that if no application is moved for impleading legal representatives, it shall not make any difference. For having proper perception I would like to reproduce Rule 4, sub-rule (3) of Order XXII C.P.C. which speaks as follows:-- "(3) Where within the time limited by law no application is made or intimation is given under sub-rule (1), the Court may proceed with the suit and any order made or judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and effect as if it had been pronounced before the death took place." The aforesaid Rule clearly postulates that powers regarding abatement have been taken away from the Court which amended provisions were also adapted in Azad Jammu and Kashmir on 05.03.2003. The point that whether the provisions of procedural law are retrospective came under consideration before the apex Court in case titled Malick Hussain Shah v. Superintendent of Police Rangers (2014 SCR 1120), Wherein, at page 1157 of the report it was opined as under:-- "Section 1(3) of Act, 2001, postulates that it shall come into force at once. The provisions of the Act are applicable from the date shown in the Act when it has been promulgated. The Act was promulgated on 11.12.2001 and it has been made applicable from the said date. It is celebrated principle of interpretation of statutes that provisions of the procedural law are always retrospective but the provisions of an Act which deals with the rights are always prospective and not retrospective unless otherwise provided." The same point came under consideration before the apex Court in case titled Mst. Hameeda Begum and another v. Mazhar Hussain and 40 others [PLD 2009 SC (AJK) 1]. At pages 32 and 33 of the report, it was opined as follows:-- "We have heard the learned counsel for the parties, perused the relevant record and have given our earnest thought to the arguments advanced by the learned counsel for the parties. It is pertinent to note that in the instant case it was alleged by the present appellants for the first time before the High Court that Mst. Anwar Begum had died during the pendency of appeal before the learned District Judge and it did not come in the notice of learned counsel for Mst. Anwar Begum. The present appellant, Mst. Hamida Begum, being a woman was unable to communicate the counsel, therefore, the order of abatement may be set aside. It stultifies us that no order for dismissal of appeal on account of abatement was passed by the learned District Judge, but the learned Judge of the High Court has held that the appeal is continuation of original suit, therefore, the High Court can also take notice of the situation and the same powers are available to it. It is pertinent to note that the appeal was sub judice before the learned District Judge and not the trial Court. Assuming for the sake of arguments that Mst. Anwar Begum would have died during the pendency of original suit, even then the suit would not have been dismissed on account of abatement because before the year 1972, Order XXII, Rule 3, sub-rule (2) conferred the powers upon the Court to dismiss the suit on account of abatement, but in 1972 an amendment was introduced in Pakistan whereby the powers of dismissal of suit on account of abatement have been taken away and it has been laid down in the aforesaid rule that if no application is moved for impleading legal representatives, it shall not make any difference. For having proper perception we would like to reproduce sub-rule (2) of Rule 3 of Order XXII, C.P.C. which reads as under:-- "Where within the time allowed by law no application is made or intimation is given under sub-rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such plaintiff have the same force and effect as if it had been made or pronounced before the death took place." The aforesaid rule clearly contains that powers regarding abatement have been taken away from the Court so the Court of learned District Judge was not competent to dismiss the suit on account of abatement because this amended provision was also adapted in Azad Jammu & Kashmir on 05.03.2003, while Mst. Anwar died on 16. 06. 2003. Therefore, this amendment was fully applicable to the present case." The same view was expressed by the Hon'ble Supreme Court in case titled Abrar Hussain Shah v. The State [1992 SCR 294]. At page 298 of the precedent case, it was observed as follows:-- "Sections 4 and 6 of the amending Ordinance are comprehensive enough to rectify all the procedural defects, including a case in which the proceedings were taken by one of the members of the District Criminal Court. Section 6 of the amending Ordinance clearly lays down that despite any judgment or order of any Court, the amendment shall prevail. The phraseology employed in section 6 of the amending Ordinance clearly covered the cases which were pending and thus it would operate retrospectively. There is no particular form of expression to give retrospectivity to a piece of legislation. It would suffice if the intention of the law-giver is ascertainable from the phraseology used in the relevant statute. Even otherwise, it is settled principle of law that procedural law always operates retrospectively unless a contrary intention is expressed. Thus, an amendment is procedural law would apply to the cases pending in a Court of law, despite any order of the Court in derogation to the amending law." A similar point was considered by the Islamabad High Court in case titled Pakistan Industrial Development Corporation (PIDC) and another v. M. Iqbal Sole Proprietor of Messrs PEMSECO and 3 others [2015 CLC 1066]. At page 1070 of the report, it was held as follows:-- "So far issue No.11 is concerned, at the time when appellants filed the present suit, the law dealing with disputes between the customers and Banking Companies was Banking Companies (Recovery of Loans) Ordinance, 1979 and Banking Tribunals Ordinance, 1984. During the course of proceedings in the trial Court Banking Companies (Recovery of Loans, Finances etc.) Act, 1997 was enacted. Under section 9 of the referred Act, a borrower and the customer can institute a suit against the Banking Companies in the Banking Courts which had exclusive jurisdiction to adjudicate upon the matter falling within its jurisdiction. It is an established principle of law that no one has vested right in procedure and that the procedural law operates retrospectively meaning thereby that all pending suits which come within the jurisdiction of any subsequent forum created under the same subject law need to be transferred to the same Court/Tribunal, Reliance is placed on PLD 1996 SC 187, 2006 PTD 330 and 2011 SCMR 1254. Since the dispute in the suit, filed by the appellants, was regarding return of the securities/ guarantees tendered by the appellants for loan/finance facility of obtained by respondent No.2, therefore, it fell within the jurisdiction of Banking Companies (Recovery of Loans, Finances etc.) Act, 1997. In view of above position of law it is held that the learned Trial Court correctly decided issued No.11 as well."

11. After survey of case law discussed, herein above, I respectfully follow the ratio decidendi laid down by the Hon'ble Supreme Court, in cases titled i. Malick Hussain Shah v. Superintendent of Police Rangers [2014 SCR 1120]. ii. Mst. Hameeda Regurn and another v. Mazhar Hussain and 40 others [2009 SCR 27] plus iii. Abrar Hussain Shah v. The State [1992 SCR 294], and it is held that amended provisions of Order XXII of Civil Procedure Code are retrospective, therefore, due to death of defendant No. 2, Punnu Khan, the suit filed by respondent-plaintiff has not been abated. The other points raised by the learned counsel for parties, however, have become academic, after resolving point supra, hence, the same need not to be attended as such.

12. The crux of above discussion is that finding no force in the instant revision petition, the same is dismissed with costs. Consequently an application moved on 10.11.2015, in office by petitioner-plaintiff for production of documents on record is turned down. However, while exercising powers as visualized under Order-I, Rule 10 of Civil Procedure Code, the legal representatives of defendant No.2, late Pannu Khan, who have been arrayed as respondents Nos.4 to 8 in the instant revision petition are impleaded as defendants Nos.2 to 2(d) in suit No.84/94. The learned trial Court shall do the needful accordingly and then proceed with the suit as per law. As the case is sub judice before the learned Senior Civil Judge, Kotli, since 20.04.1994, therefore, the trial Court seized with the matter is directed to decide the same within 5 months from the receipt of the instant order. The office is directed to transmit the file of the trial Court forthwith along with an attested copy of the instant order. ZC/58/HC(AJ&K) Revision dismissed.