2026 C L C 370

 2026 C L C 370

[Peshawar (D.I.Khan Bench)]

Before Dr. Khurshid Iqbal, J

SAIF-UL-MALOOK and others ---Petitioners

Versus

Malik MEHMOOD KHAN and others ---Respondents

Writ Petition No. 30-D of 2023 with IR, decided on 10th March, 2025.

(a) Civil Procedure Code (V of 1908)---

----S.6 & O.VII, R.10---Khyber Pakhtunkhwa Code of Civil Procedure

(Amendment) Act (XLIX of 2020), S.3---Pecuniary jurisdiction of the

Trial Court, loss of---Amendment in C.P.C. (procedural law) made

during pendency of the suit---Effect---Retrospective application of

the amendment---Scope---Trial Court held that procedural

amendment had no retrospective effect in absence of express

provision---Legality---The facts of the present case were that

respondent No.1 instituted a suit for the recovery against the

petitioners and proforma respondents---The Trial Court proceeded

against them ex parte and decreed the suit---Subsequently, the

petitioners and proforma respondents appeared, applied for setting

aside the ex parte decree, and also sought condonation of delay---

Trial Court allowed their applications and set aside the decree,

however, on a revision petition, the district court reversed that

order and restored the ex parte decree, which constrained the

petitioners to file the present Constitutional petitions---The legal

question for determination before the High Court was as to whether

the Trial Court had pecuniary jurisdiction to continue entertaining

the suit after the enactment of the Khyber Pakhtunkhwa Code of

Civil Procedure (Amendment) Act, 2020, and whether the revisional

court erred in overlooking the effect of the amendment and the

settled principle regarding retrospective application of procedural

laws ?---Held: During the pendency of the suit the Khyber

Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020 was

enacted amending S.6 of the C.P.C., as a consequence to which, Trial

Court lost its pecuniary jurisdiction---Amendment through S.3 of the

Act 2020, whereby S.6 of C.P.C. was substituted, and whereby the

pecuniary jurisdiction of civil court viz-e-viz the district judge had

been determined had a retrospective effect---The revisional court

failed to address this crucial issue---Consequently, the ex parte

decree passed by the Trial Court was without jurisdiction and

therefore a nullity in the eyes of the law---Impugned order was set

aside, consequently, the suit filed by respondent No.1 was restored and remanded to the Trial Court with the direction to return the plaint to

respondent No.1 for presentation before the appropriate forum---

Present Constitutional petitions were allowed, in circumstances.

Shahzada Colonel Sharifuddin and others v. The Settlement Officer

District Upper and Lower Chitral and others 2021 CLC 1668; Amir Zada

and others v. Mian Zamin Khan and others 2021 CLC 2042 and Mst.

Naseem Ishaq and others v. Khizar Hayat and others PLD 2023

Peshawar 133 ref.

(b) Interpretation of statutes---

----Procedural amendments---Retrospectivity---Principle---Amendments

affecting substantive rights do not have retrospective application---

However, amendments concerning procedural matters are generally

deemed to have retrospective effect as they regulate the manner in

which rights are enforced rather than altering the rights themselves.

Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Muhammad

Abdullah v. Imdad Ali 1972 SCMR 173; Bashir v. Wazir Ali 1987 SCMR

978; Mst. Nighat Yasmin v. N.B. of Pak PLD 1988 SC 391; Yusuf Ali Khan

v. Hongkong and Shanghai Banking Corporation, Karachi 1994 SCMR

1007 and Malik Gul Hassan and Co. v. Allied Bank of Pakistan 1996

SCMR 237 rel.

Muhammad Mohsin Ali for Petitioners.

Sohail Baloch, Abdul Majeed Lagari Mehsood and Humayun Khan

for Respondent No. 1.

Ahmad Abu Hanifa Gandapur, Assistant Advocate General for

Respondents Nos. 6 to 8.

Date of hearing: 10th March, 2025.

JUDGMENT

DR. KHURSHID IQBAL, J.---This opinion seeks to resolve the subject

writ petition along with the connected Petition No. 103-D/2023, as both

involve common questions of law and fact. Both petitions challenge

the judgment of the learned District Judge dated 20.02.2023, which

restored an ex parte decree that had been set aside by the trial court

on 08.11.2022, subject to costs of Rs. 20,000.

2. The factual matrix of these petitions is that Respondent No.1 filed

a suit for the recovery of Rs. 7 crores and 2 lacs (70.02 million) against

the petitioners and the proforma respondents. Upon service, they were

proceeded against ex parte. After recording ex parte evidence, the

learned trial court decreed the suit in favor of Respondent No.1 vide

an ex parte judgment dated 22.12.2021. It was during the execution proceedings that the petitioners and the proforma respondents

appeared before the court and jointly filed an application for setting

aside the ex parte decree and proceedings, along with a petition for

condonation of delay.

3. Allowing the applications on 01.10.2022, the trial court set aside

the ex parte decree, subject to costs of Rs. 20,000. However, upon a

revision petition, the learned District Judge, through a judgment dated

20.02.2023, reversed the said order and restored the ex parte decree.

Aggrieved, the petitioners and proforma respondents Nos. 6 to 8 have

challenged this judgment through the present constitutional petitions.

4. The petitioners' counsel vehemently argued that the learned

revisional court overlooked two key aspects: first, that the trial court

lacked pecuniary jurisdiction, and second, that in a previous suit filed

by Respondent No.1, the trial court had allowed only a fresh suit for

rendition of accounts. Conversely, counsel for Respondent No.1

contended that the trial court had duly settled the question of

jurisdiction and that the present suit adhered to the direction given in

the previous proceedings. This Court examined the record during the

course of arguments.

5. Turning to the first question, it is undisputed that the suit was for

the recovery of Rs. 70.02 million and was instituted on 04.02.2019.

During its pendency, the Khyber Pakhtunkhwa Code of Civil Procedure

(Amendment) Act, 2020 (Act No. XLIX of 2020) was enacted by the

Provincial Legislature, amending Section 6 of the Civil Procedure Code,

1908. For ready reference, Section 3 of the amending law is

reproduced below:

3. Substitution of section 6 of the Act No. V of 1908.---In the said Act,

for section, the following shall be substituted, namely:

"6. Pecuniary jurisdiction.---Save in so far as is otherwise expressly

provided, all civil suits shall be filed in the following manner,

namely:

(a) where the amount or value of the subject matter of the suit is

below rupees fifty million, the suit shall be filed in the Court of

Civil Judge, as may be prescribed by the High Court; and

(b) where the amount or value of the subject matter of the suit is

rupees fifty million or above, the suit shall be filed in the Court

of District Judge, as may be prescribed by the High Court."

6. As consequence of the above amendment, the trial court lost its

pecuniary jurisdiction during the pendency of the suit. Although the

trial court acknowledged the amendment in its order dated 23.10.2021,

it held that the amendment had no retrospective effect, solely because it did not expressly provide for such applicability. As a result, the trial

court proceeded to assume pecuniary jurisdiction.

7. The trial court failed to properly appreciate the true effect of the

amending law. Notably, the revisional court also overlooked this

crucial aspect of the case. It is a well-established principle that, unless

expressly stated otherwise, amendments affecting substantive rights

do not have retrospective application. However, amendments

concerning procedural matters are generally deemed to have

retrospective effect, as they regulate the manner in which rights are

enforced rather than altering the rights themselves. One of the earliest

cases in which this issue was discussed by the Apex Court is the Adnan

Afzal case (SC: 1969).

1 The significance of this judgment lies in its

comprehensive tracing of the history of the principle of retrospectivity

concerning procedural amendments. A relevant extract reads as

under:

The general principle with regard to the interpretation of statutes as

laid down in the well known case of the Colonial Sugar Refining

Company Limited v. Irving (1905 A C 369) is that "if the matter in

question be a matter of procedure only", the provisions would

be retrospective. "On the other hand, if it be more than a matter

of procedure, if it touches a right in existence at the passing of

the Act", then "in accordance with a long line of authorities

extending from the time of Lord Coke to the present day", the

legislation would not operate retrospectively, unless the

Legislature had either "by express enactment or by necessary

intendment" given the legislation retroactive effect.

To the same effect are the observations of Jessel, Master of the Rolls,

in the case of In re: Joseph Suche and Co. Limited ((1875) 1 Ch. D.

48), where it was observed that 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 question for consideration there was regarding the right of a

secured creditor of a company to prove for the full amount of his

debt without deducting the value of his Securities in the course

of the winding up. That was held to be, in substance, a right of

action for the recovery of a debt and, therefore, section 10 of the

English Judicature Act was held not to apply retrospectively The principle has been admirably put by Crawford in his Book on

Construction of Statutes, 1940 Edition, page 581, as follows:

"As a general rule, legislation which relates solely to procedure or to

legal remedies will not be subject to the rule that statutes should

not be given retroactive operation. Similarly, the presumption

against retrospective construction is inapplicable. In other

words, such statutes constitute an exception to the rule

pertaining to statutes generally. Therefore, in the absence of a

contrary legislative intention, statutes pertaining solely to

procedure or legal remedy may affect a right of action no matter

whether it came into existence prior to, or after the enactment

of the statute. Similarly, they may be held applicable to

proceedings pending or subsequently commenced. In any event,

they will, at least, presumptively apply to accrued and pending

as well as to future actions."

This principle has also been fully adopted by this Court in the cases

of The State v. Muhammad Jamil (P L D 1965 SC 681) and

Muhammad Alam v. The state (P L D 1967 SC 259).

On the point of procedural matters, the apex Court further went

on to say as:

The next question, therefore, that arises for consideration is as to

what are matters of procedure. It is obvious that matters

relating to the remedy, the mode of trial, the manner of taking

evidence and forms of action are all matters relating to

procedure. Crawford too takes the view that questions relating

to jurisdiction over a cause of action, venue, parties pleadings

and rules of evidence also pertain 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 by saying that a change of

forum by a law is retrospective being a matter of procedure

only. Nevertheless, it must be pointed out that if in this process

any existing rights are affected or the giving of retroactive

operation cause inconvenience or injustice, then 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 Courts would favorably incline

towards giving effect to such procedural statutes retroactively. 8. This seminal ruling has been reaffirmed subsequently in the cases

of Muhammad Abdullah (SC: 1972)

2; Bashir (SC: 1987)

3; Mst. Nighat

Yasmin (SC: 1988)4; Yusuf Ali Khan (SC: 1994)5; and Malik Gul Hassan

(SC: 1996)

6.

9. The post-amendment issue regarding the retrospective

application of Section 6 of the C.P.C., particularly in relation to the

pecuniary jurisdiction of civil courts, was comprehensively addressed

by this Court in the cases of Shahzada (PHC: 2021)

7, Amir Zada (PHC:

2021)

8 and Mst. Naseem Ishaq (PHC 2023)

9. In the last mentioned case,

this Court observed:

Thus, I have no doubt in my mind that amendment through Section

3 of the Act, 2020, whereby Section 6 of the C.P.C. was

substituted, whereby the pecuniary jurisdiction of Civil Court

viz-e-viz the District judge has been determined has a

retrospective effect and the requirement of law is that any

matter which was pending before the Civil Court where the

value of the subject-matter of the suit is more than rupees fifty

million it should be transferred to the respective District Judge,

who has the pecuniary jurisdiction under Section 6(b) of the Act,

2020.

16. Moving on further to the assertions of the learned AAG to the

provision of Section 19 of the Act, 2020, according to which, it is

held that notwithstanding the repeal of the Act, 2019, all suits,

applications or appeals instituted and any other proceedings

commenced, initiated or continued under the repealed Act till

the commencement of the Khyber Pakhtunkhwa Code of Civil

Procedure (Amendment) Act, 2020 shall be deemed to have been

validly instituted, commenced, initiated or continued under the

Act, 2020. This provision, in my humble understanding, only

protect and save the initiation of lis during the particular period

or which was initiated prior to the Act, 2019, however, it does

not in clear words protect the continuity of lis in the forum i.e.

the Court of Civil Judge or District Judge to receive and entertain

a suit regarding the value as provided under the substituted

Section 6 of the C.P.C. Albeit Section 19 of Act, 2020 does not give

any clear impression that the amendment regarding the

jurisdiction of the Civil Judge viz-a-viz District Judge are

prospective in nature and this Court see no absurdity in the

clear language of Section 3 of Act, 2020, substituting Section 6 of

the C.P.C. and Section 19 of the Act, 2020 regarding the

jurisdiction of the respective Courts. This issue has effectively

been resolved by this Court in the cases of Shahzada Colonel Sharifuddin and others v. The Settlement Officer District Upper

and Lower Chitral and others (2021 CLC 1968) and Amir Zada

and others v. Mian Zamin Khan and others (2021 CLC 2042).

17. Thus, this Court in view of the above, holds that the amendment

introduced through Section 3 of Act, 2020 whereby the

pecuniary jurisdiction of Civil Judge viz-a-viz District Judge have

been determined has the effect on all pending suits which

should be transferred by the respective Civil Judges seized of the

matter to the competent court under Section 6(b) of the C.P.C. (as

substituted). [emphasis supplied]

10. The upshot of the foregoing discussion is that the trial court lost

its pecuniary jurisdiction upon the enactment of the 2020 Amendment.

The revisional court failed to address this crucial issue. Consequently,

the ex parte decree passed by the trial court on 22.12.2021 was without

jurisdiction and, therefore, a nullity in the eyes of the law.

11. Regarding the second question, the petitioners' counsel argued

that Respondent No.1 had previously filed a suit against the

petitioners, seeking a declaration that he was awarded a contract in

2007 for the construction of a road in South Waziristan, which he

could not complete due to the precarious law and order situation. He

contended that, following the merger of South Waziristan Agency, the

contract was wrongly awarded to the petitioners. Additionally, he

prayed for the rendition of accounts. Vide order dated 12.11.2019, the

trial court rejected the plaint while granting Respondent No.1

permission to file a fresh suit specifically for rendition of accounts.

However, instead of complying with the court's direction, Respondent

No.1 instituted a suit for the recovery of Rs. 50 million as

compensation for losses allegedly incurred due to the non-completion

of the contract, Rs. 20 million, as damages for mental distress, and Rs.

200,000, as counsel's fee. This Court refrains from addressing this

question further, as doing so may prejudice merits of the suit.

12. For the reasons recorded above and in light of the applicable

legal principles, both petitions succeed and are accordingly allowed.

The impugned order, along with the imposed cost of Rs. 20,000, is set

aside. Consequently, the suit filed by Respondent No.1 is restored and

remanded to the trial court with the direction to return the plaint to

Respondent No.1 for presentation before the appropriate forum,

subject to all legal objections.

UN/133/P Petitions allowed.