P L D 1984 Quetta 92 (PLP)

This appeal is directed against the judgment and decree passed by the Majlis‑e‑Shoora, Kbuzdar on an appeal filed by the present respondent Bachoo whereby the suit of the present appellants has been dismissed.

2. The relevant facts necessary for the consideration of the case are that Mst. Chaghi d/o Juble (one of the appellants before me) filed a suit against the respondent and appeared before the Kazi on 12‑12‑1974 whereupon Kazi Lasbela observed :‑ The plaintiff appeared before the Assistant Commissioner, Hubb who ordered on 13‑12‑1974 that a copy of the plaint be sent to the defendant through the Tehsildar and the defendant be directed to appear and file the written statement on 23‑12‑1974. Accordingly the defendant Bachoo appeared and filed the written statement. The Assistant Commissioner framed the issues and referred the matter to Qazi Lasbela for dis posal, according to Shara.. The parties appeared before the Qazi who obtained better statements from the parties and framed further issues and after considering the evidence led by the parties dismissed the suit on 30‑8‑1975. The plaintiff filed an appeal before the Majlis‑e.Shoora and by the order dated 19‑8‑1976 Majlis‑e‑Shoora accepted the appeal and remanded the matter back to Qazi and directed that "the parties be allowed to prove their respective documents and lead further evidence and then the issues be decided and in recording the documentary evidence the provisions contained in the Evidence Act be kept in view."

3. The plaintiff produced a document in support of her title, on the perusal of the same the Qazi on 12‑11‑1977 ordered that Mst. Aaisha widow of Usman son of Badal, Mst. Suona w/o Yarn and Mst. Allah Rakhi be impleaded as co‑plaintiffs because by that document these persons also have a share in the property. The plaint was accordingly on the orders of the Qazi amended (the amended plaint appears at page 30 of the file) and thereafter the evidence of the parties was recorded and the suit of the p13intiff was decreed on 9 2‑1978. The respondent Bacho filed an appeal before the Majlis‑e Shoora and this time the Majlis‑e‑Shoora was of the view that the suit was improperly drafted and presented in a wrong Court, the decree passed by Qazi on 9‑2‑1978 was therefore set aside vide judgment dated 13‑1‑1980. The reasons which prevailed with the learned Members of the Majlis‑e Shoora may be reproduced "Under Order VII of the C. P. C. and under section 3 of the Dastoor it is obligatory that the suit should be drawn in accordance with the form prescribed and the suit be deemed to be a suit only when it is drawn accordingly and if not then the suit will be not in pro per form. According to the Dastoor‑ul‑Amal, sections 2 to 7, the suit should be presented before the Administrative Court and the same Court should do the preliminary proceedings and then it should be sent to Kazi Sahib and there is no provision that the Kazi should receive the application and forward it for necessary proceedings before the Administrative Court. It was also observed by the learned members that at "initial stages Qazi has no jurisdiction and the plaint has to be presented first before the Court of Administrative and the Government has also ordered it to be done so. Kazi gets jurisdiction to decide a cause when the Administration after receiving the plaint, getting a written statement and fra ntng issues transfers it for decision to him. Thus according to Mukhtar/3hami referred above Kazi should not indulge in doing that work which the administration has to do else the proceedings will be vitiated. Further there is no prayer in the plaint and this plaint has been ad dressed to Kazi Bela and after that he sent it to A. C. Bela for necessary pre trial proceedings which is against law. Accord ing to Dastoor‑ul‑Amal the plaint should have been addressed to A. C. and he should have received a written statement and settled issues and thereafter under section 7 of the Dastoor‑ul‑Amal the plaint should have been sent to Kazi but this procedure has not be followed. The plaint was improperly drafted and presented in a wrong Court and the wrong Court adopted a wrong procedure. The plaint has not been amended so that the Court of A. C. would have become competent. The plaint should have been addressed to A. C. and then he should have sent it to Kazi. Since it has not been done it was the duty of Kazi to return the plaint to the plaintiff for presentation to a proper Court. He should have explained that plaint be addressed to A. C. and he can come be fore him only through A. C. In the instant case the plaint was presented before Kazi and was received by Kazi and he sent it to A. C. and in this way A. C. also had no right to receive plaint, call for a written statement and settle issues. The plaint could be sent by A. C. to Kazi and not otherwise. In the light of the facts stated above the plaint has not been instituted properly hence the defendant should not have been called upon to submit written statement and thus the written statement is illegally submitted and no direction should have been passed on the basis of a wrong plaint. In the light of the facts and reasonings given above the judgment and decree of the Kazi dated 9‑2‑1978 cannot be confirmed. Thus, the appeal is accepted and the decree of the lower Court is set aside."

4. Against this judgment of the Majlis‑e‑Shoora, Khuzdar passed on 13‑2‑1980 the appeal has been filed on 9‑4‑1980 in this Court.

5. The Advocate appearing for the respondent has taken a pre liminary objection that in view of the amendment made on 26‑3‑1980 by Ordinance X of 1980 in section 102, C. P. C. second appeal is not competent as the amount or value of the subject‑matter of the original suit does not exceed fifty thousand rupees. The objection is no doubt sound. The learned counsel for the appellants expressed his regrets and submitted that by the time the appeal was filed in Court no Gazette Notification was available to him nor any published in any law journal. Accordingly he requested me in the special circumstances of this case to treat the appeal as revision. There is no question of deficiency of court‑fee no limitation involved and the prayer of the learned counsel was found hon est and bona fide. I treat the appeal as revision, keeping in view the we ighty observations of Shabir Ahmad, J in case of Land Acquisition Collector, Rawalpindi v. Lt.‑Gen. Wajid All Khan Burki (P L D 1960 Lah. 40) Shabbir Ahmed, J. in the quoted case observed :‑ "It appears to me that the fact that a petition for revision has been filed when an appeal should have been filed or vice versa is not sufficient for depriving a party of a remedy which has been sough under a wrong nomenclature. The object of the petitioner in the present case was to have the impugned order examined by the Court and the circumstances that the petition was described as a petition for revision and not as a memorandum of appeal can not on any reasonable ground, be considered fatal .for the case of the petitioner. It is open to this Court to treat a petition for re vision as a petition of appeal and a petition of appeal as a petition for revision." In the interest of justice and for the reason that the order/judgment of the Majlis‑e‑Shoora, Khuzdar is palpably erroneous based on fallacious reasoning and is perverse the interference by this Court is called for I therefore, allowed the request of the counsel and treat the memorandum) of appeal as a revision petition. .6. Now 1 proceed to consider the merits of the case (Revision). ‑ It is very significant that the objection taken suo motu by the Majlis‑e Shoora was not taken by the defendant when he filed the written statement before the Assistant Commissioner nor before the Qazi and) the same was not found worthwhile by the Majlis‑e‑Snoora itself when the entire record was before them at the hearing of the appeal filed by Mst. Chagi. Even for the second time when the present respondent (Bachoo) filed the appeal against the decree passed against him by the Kazi no objection as to jurisdiction or place of suing was raised in the memorandum of appeal, the point of objection thus raised suo motul by the Majlis‑e‑Shoora cannot be legally sustained as it proceeds on a misconception and is barred by section 21 of the C. P. C. which is made applicable to Kalat by the enforcement of the Central Laws (Statute Reforms) Ordinance, 1960. The provision of section 21 of the Code of Civil Prodedure is reproduced :‑ No objection to jurisdiction.‑No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice. The object of section 21, C. P. C. is that such objection should be raised in the form of preliminary objection so that if the Court does not posses jurisdiction it may withdraw its hands from adjudicating the suit and the time and effort of the Court may not be wasted. A distinction must be drawn between want of inherent jurisdiction and irregular exercise of juris diction, for while the former renders the decree a nullity, the latter does not. In (Rajagopala Pandarather and others v. Tirupathia Pillai and another (A I R 1926 Mad. 421) Venkatasubba Rao, J. delivering the judgment of the Disvision Bench at page 422 observed :‑ "It is a settled principle that where a Court has no inherent jurisdiction over the subject‑matter of a suit, no waiver on the part of the defendant can confer jurisdiction over the subject matter. But where the Court had jurisdiction over the subject‑matter. But there are irregularities in the initial procedure, the defendant who without objection goes to trial upon the merits cannot subsequently dispute the jurisdiction of the Court." In Chokkalinga Pillay v. Velayudha Mudaliar and others (A I R 1925 Mad, 117) it is laid down that the principle underlying section 21, C. P. C., is that the objection to territorial jurisdiction is cured not merely for the purpose of appeal or revisional Court but cured entirely for all purposes. I may quote with advant age here the observations of Kaikaus, J. in Muhammad Swaleh v. United Green & Fodder Agencies (P L D 1964 S C 97) :‑ "By merely showing therefore that an order passed was in violation of some provisions of law or procedure, the conclusion that the order is nullity would not follow. It should further be shown that there was such a violation of some statutory principle or principle of natural justice as would render the proceedings coram non judice." I am in respectful agreement with these observations. It has been pointed out by Kaikaus J. in Zaffarullah Khan's case (P L D 1964 S C 865) that a question of defect of procedure is always question of prejudice and has to be raised by the party and to not be raised suo motu by the Court and defect in procedure can always be waived and will be demeed to have been waived if not objected to at any stage. Objection to error or irregularities should ordinarily be raised before the trial Court at the earliest opportunity otherwise it will be taken as waived. In Zafar Ali v. Parshatam Dass Nathu Ram (A I R 1929 Lah. 449) it is observed that section 21, C. P. C., creates what may be called a statutory waiver of the objection to jurisdiction so far as it relates to the place of suing and the Full Bench case of Madras (A I R 1925 Mad. 117) was referred with approval.. In Suleman and others v. Gulab Rai and others (A I R 1931 Lab. 142) it has ‑ been pointed out that section 21 clearly forbids any appellate or revisional Court to allow an objection as to place of suing unless there has been consequent failure of justice and when in the grounds of appeal failure of justice was not even alleged and the defendant was unable to show that failure of justice has really occurred the appellate Court was wrong in holding that the lower Court had no jurisdiction.

7. Keeping in view the above principles of law we have to examine the provisions of the Dastoorul Amal Diwani Kalat. Section 2 of the Dastur provides for the presentation of the plaint in a. Court of competent jurisdic tion and section 20 circumscribes the limits of functions of various Courts to whom plaints can be presented, according to section 2 of the Dastoorul Amal these Courts are the Courts of the Naib‑Tehsildar, Tehsildar, the Assistant Commissioner (formerly Nasim) and Deputy Commissioner (for merly Wazir‑a‑Adlia). After the institution of suit the Court would summon the defendant, receive written statement and frame issues‑and for recording evidence on the issues and deciding the matter ac.,ording to Shara (Jyl ) the suit is to be sent to Qazi. Section 2 of Dastur merely enacts a rule of procedure and contains a direction to the plaintiff to file the suit. The proposition of law now stands settled that if a suit cognizable by a Court of lower grade is filed in a Court of higher grade, it may be returned for presentation to the proper Court but if it is tried and determined by the Court of higher grade, the decree will be valid and binding, as trial before a Court of higher grade is only an irregularity which does not affect the jurisdiction of the Court. In Kalat Area whatever be the valuation of the suit and whenever it is presented ‑and filed by the plaintiff, the Hakim or MIJAZ IDALAT if it has to be decided according to Shara it has to be referred as per necessity of law to the Qazi and the relief claimed in the suit can only be granted by Kazi deciding the suit on merit. Thus, it can be safely said that Qazi does not lack the inherent jurisdiction to try the suit, only a procedural formality is to be completed by the Hakim . In the instant case the Kazi by his order dated 12‑12‑1974 (as reproduced earlier) only pointed out that the formalities are to be completed and the object was to be get the procedural aspect of the case completed (receipt of written state ment from defendant and framing the issues arising out of the pleadings and this in no way offends the procedure or policy of law laid down by Das toorul Amal Diwani Kalat. The order/opinion recorded on 12‑12‑1974 can therefore under no stretch of imagination be regarded as an order of transfer. or conferring any jurisdiction on Assistant Commissioner as has been under a misconception understood by the learned members of the Majlis‑e‑Shoora. Be that as it may, the suit could not be dismissed. All that could be done at the most was to return the plaint for presentation to the proper Court. In this connection there is a very salutory rule contained in section 99, C. P. C.,1 to be followed by the appellate Court which reads :‑ "Section 99, C. P. C. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case, or the jurisdiction of the Court." The aim of the Rule laid down in section 99 is to prevent technicalities from defeating the ends of justice and operating as a means of circuity of litigation. It would therefore be unreasonable and unjust to drive the plain‑) tiff to file a fresh suit now and incur costs de novo in that suit and there appears to be no wisdom in repeating the procedure which has been completed in the instant case and all the time and labour expended on the trial of the suit be thrown away. To prevent the mischief which may be caused by the reversal of the decree in a case of this kind section 99, C. P. C., provides that no decree shall be reversed or substantially varied, nor shall in any case be remanded in appeal on account of any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court (See A I R 193 7 P C 233). 1' have no hesitation in holding that the objection raised by Majlis‑e‑Shoora suol motu is most technical of technicalities and to accept it would be to make a fetish of technicalities. Since it was not even taken by the respondent in the appeal, the Majlis‑e‑Shoora was not justified in raising an objection of that type, which was barred under section 21, C. P. C. I would, therefore, rest my judgment on this issue on the short ground that since the respondent/ defendant did not object to the jurisdiction of the Court at the earliest oppor tunity and had participated in the proceedings, he is precluded now to fall back upon the objection raised suo motu by the Majlis‑e‑Shoora on the princi ple underlying section 21, C. P. C. For the above reasons I allow the revision, set aside the judgment and decree of the Majlis‑e‑Shoora, Khuzdar dated 13th February, 1980 and remand the case back to the Majlis‑e‑Saoora and direct that the appeal filed by the respondent be heard and disposed of in accordance with law on the grounds urged in the memorandum but in view of the legal question involved in the matter I leave the parties to bear their own costs. Since the parties are litigating for the last ten years it is expected that Majlis‑e‑Shoora would dispose of the appeal within two months and no adjournment would be allowed. Petition accepted.