Naveed Ashraf Vs Muhammad Kaleem Qureshi

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Civil Revision No. 386-N2023

JUDGMENT

Date of hearing. .'22.05.2025"""

petitioner (Naveed Ashraf Abbasi) By tvlr. sajjad Ahmad Abbasi, Advocate.

Respondents (Muhammad Kaleem Qureshi & two others) By Mr. Saeedullah Khan, Advocate'

AURANGZEB. J.- This revision petition is directed against the judgment and decree dated 27.05.2023, passed by the learned Additional District Judge-!, Abbottabad, whereby the petitioner's appeal filed against the judgment and decree dated 30.10.2021 of the learned Civil Judge-ll, Abbottabad, was partially accepted.

2.The brief facts of the case are that the petitioner/plaintiff instituted a civil suit against the respondents/defendants seeking recovery of a total sum of Rs.14,09,000/- along with interest at the rate of 14o/o per annum from 13.09'2011 until the date of futl and final payment. The petitioner further sought recovery of an additional sum of Rs.10,50,000/- along with 14o/o interest per annum from 16.12.2011 until full realization. Additionally, the petitioner claimed Rs.1,00,00,000/- as

damages on account of a defective sale agreement executed with the petitioner in respect of propetty bearing Khasra No' 2902, situated in \llauza Urban, measuring 3'70 marlas, fully described in the headnote of the plaint'

3.Upon service of summon, the respondernts/defendants entered appearance before the learned trial court and contested the claim of petitioner/plaintiff by filing a written statemenrt. The learned trial court, after framing the necessary issues, recording evidence, and hearing arguments advanced by learned counsel for both parties, vide judgment and decree dated 30.10.2021, partially decreed the suit in favour of the petitioner/Plai ntiff .

4.Aggrieved by the partial relief granted by the learned trial court, the petitioner preferred an appeal before the learned appellate court. The learned appellate court, after hearing the matter, also partially allowed the appeal vide its judgment and decree dated 27.05.2023. Dissatisfied with the extent of relief granted in both the lower courts, the petitioner has filed the present civil revision petition before this court.

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5.I have heard arguments of the learned counsel for the parties and have gone through the record with their valuable assistance'

6.The core issue that arises for consideration before this court is whether the petitioner is entifled to be granted interest on the decretal amount under the provisions of section 34 of the Code of Civit Procedure, 1908 (CPC). Speciflcally, the question is whether such interest may be awarded for the period prior to the institution of the suit, during the pendency of the suit, and post- decree, in accordance with the discretion vested in the court under the said provision. For the convenience of reference and a clearer understanding of the statutory framework, the relevant text of Section 34 of the CPC is reproduced below:-

"34. lnterest.---(1) Where and in so far as a decree is for the PaYment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be Paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such princiPal sum for any period prior to the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.

(2)Where such a decree is silent wiih respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of PaYment or other earlier date, the Court shall be deemed to have refused such interest, and a seParate suit therefore shall not lie"

7.The examination of the aforesaid section shows that interest can be awarded by the court in a money suit and this interest may be awarded for the period; firstly from the date when the payment was due till the date of institution of the suit;

secondly it be from the date of institution of the suit till date of the decree and thirdly the same may be from the date of decree till the realization of the decretal amount and the award of the interest from the date of institution of the suit till date of realization of the amount is a discretion of the court and cannot be claimed as a right, therefore, keeping in view the mandate of law the petitioner/plaintiff is entitled for the grant of interest from the date of institution of suit till its realization of the amount as he has suffered for long ten years. The apex court in case titled Raja Muhammad Sadiq and 09 others versus WAPDA through Chairman, WAPDA House, Lahore and 3 others (PLD 2003 Supreme Gourt 290), it was held under:-

"The Court in exercise of its discretion under section 34, C'P'C', can allow interest from the date of institution of a suit till the date of the decree and also from the date of decree to the date of PaYment but the Court under this section cannot grant interest for the period prior to tne institution of the suit in its discretion as the interest for the period before the date of the suit being a matter of substantive law can only be allowed if there was a statutory Provision or an express understanding between the parties specifying the date of interest. ln the facts and circumstances of the case in hand, there was no questlon of grant of interest for the period prior to of the institution suit. The next question would be whether in absence of a sPecific order, the decree- holder will get interest from the date of institution of suit or from the date of judgment and decree and if the decretal amount was deposited in Court without notice, which would be the date-of payment of interest to the decree holder."

8.The learned counsel for the respondents argued that in the light of judgment of Honourable Federal Shariat Court delivered in case titled Messrs Farooq Brother and others versus United Bank Limited and others (PLD 2023 Federal Shariat Gourt 47) the interest was declared as Riba, therefore, cannot claim the same. On the other hand, learned counsel for petitioner submitted that the judgment of the Honourable Federal Shariat has been challenge before the august Supreme Court Appellate Shariat Bench

andunderArticle2o3-DoftheConstitutionof lslamic Republic of Pakistan, 1973 any decision of the Federal Shariat Court has been challenged before august Supreme Court of Pakistan Appellate Shariat Bench, no status quo order has been required under Article 203-D of the Constitution of Islamic Republic of Pakistan, 1973'

9.What is wording of Article 203-D of the constitution of Islamic Republic of Pakistan, 1973' For ready reference the same is reproduced below:- .203-D. Powers, jurisdiction and functions of the Gourt (1) The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the lnjunctions of lslam, as laid down in the Holy Qur'an and the Sunnah of the Holy ProPhet, hereinafter referred to as the !njunctions of lslam.

(1A) Where the Court takes uP the examination of any law or provision of law under clause (1) and such law or provision of law appears to it to be repugnant to the lnjunctions of lslam, the Court shall cause to be given to the Federal Government in the case of a law with respect to a matter in the Federal Legislative List, or to the Provincial Government in the case of a law with respect to a matter not enumerated [in the Federal Legislative Listl, a notice specifying the particular provisions that appear to it to be so repugnant, and afford to such Government adequate

opportunity to have its point of view placed before the Court.

(2)lf the Court decides that any law or provision of law is rePugnant to the lnjunctions of lslam, it shall set out in its decision-

(a)the reasons for its holding that opinion; and

(b)the extent to which such law or provision is so repugnant; and (c) specify the day on which the decision shall take effect:

[Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Shariat Appellate Bench of the SuPreme Court or, where an appeal has been so preferred, before the disposal of such appeal.l

(3)lf any law or provision of law is held by the Court to be rePugnant to the lnjunctions of lslam-

(a)the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the lnjunctions of lslam; and

(b') such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect."

10.Article 203-D outlines the powers and responsibilities of the Court regarding the conformity of laws with lslamic teachings. The

Court has the authority to review any law on its

the own or upon a petition from a Pakistani citizen' Federal Government, or a Provincial Government to determine whether it goes against the and injunctions of lslam, as stated in the Qur'an Sunnah. lf the Court finds any part of a law to be

repugnant to lslamic teachings, it must notify the relevant government, Federal for national matters and Provincial for local matters, and allow them an opportunity to present their viewpoint' lf the Court concludesthatthelaworanypartofitisindeed contrary to Islam, it must explain the reasons for its decision, specify how much of the law is affected,andsetadateforwhentherulingtakes effect. However, this ruling will only take effect after the appeal period ends or any filed appeal is resolved. Once a law is declared against lslam, the President or Governor must take steps to amend it accordingly, and the repugnant part of the law will no longer be in effect from the date specified by the Court.

11.Ho,wever, the above 203-D of the Constitution has been amended through Act No.XXVl of 2024, which is reproduced below:- "19. Amendment of Article 203D of the Constitution.- ln the Constitution, in Article 203D, in clause (2), in the proviso, for the full stop at the end, a

colon shall be substituted and thereafter the following new proviso shall be added, namelY- "Provided further that appeal against the decision given after commencement of the Constitution (Twenty-sixth Amendment) Act, 2024 of ixxvl of 2024) shall be disPosedthe within twelve months whereafter decision shall take effect unless suspended bY the SuPreme Court'"

12.A new clause is added to ensure that any appeal against a decision made after the 26th Amendm enl (2024) must be resolved within 12 months.,Afterthisperiod,theCourt'sdecisionwill automatically take effect unless the Supreme Court susPends it.

13.The arguments put forth by the learned counsel for the respondents are devoid of merit and fail to catry any persuasive value in the present context. The primary basis of the respondents' contention is a judgment rendered by the Honourable Federal Shariat Court, which they have produced in support of their case' However, it is a matter of record that the said judgment has not attained finality, as it has been duly challenged before the august Supreme Court of Pakistan' The appeal against the said judgment is currently sub judice and awaits final adjudication by the apex Court. lt is a well-settled principle of law that a judgment which is under appeal and no restraining

order has been passed by the august Supreme Court of Pakistan Shariat Appellant Bench.

14.lVloreover, recent legislative developments the Constitution (Twenty-sixth Amendment) Act, 2024 (Act XXVI of 2024), has introduced an important proviso that directly governs such situations. According to the newly inserted proviso, any appeal filed against a decision, where such decision is rendered after the commencement of the said Amendment, is required to be decided by the Court within a period of twelve months. This provision aims to ensure the expeditious resolution of constitutional and Shariat-related matters, thereby preventing undue delay and legal uncertainty.

15.Furthermore, the proviso clearly states that upon the lapse of the twelve-month period, the decision shall automatically take effect unless its implementation is specifically suspended or stayed by an order of the Supreme Court. This language reinforces the doctrine that judgments under appeal do not operate as binding precedent or create enforceable rights unless and until confirmed by the apex Court or allowed to take effect by lapse of the prescribed period without intervention.

16.ln the present case, the august Supreme Court has not yet rendered its decision on the appeal nor has it issued any final direction with respect to the validity or implementation of the judgment in question. As such, any reliance upon the Federal Shariat Court's decision, which is still subject to appellate scrutiny, is both premature and legally impermissible, Until the august Supreme Court either upholds the judgment or set aside the judgment of Federal Shariat Court. Accordingly, the respondents' reliance on the impugned judgment is wholly misplaced and cannot be entertained as a valid legal argument at this stage of the proceedings.

17.For what has been discussed hereinabove, the instant revision petition is partially allowed to the extent of payment of interest on the decretal amount at the bank rate from the date of institution of the suit till the realization of the decretal amount.

Announced:

Aftab PSY JUDGE