2004 PLP 933 (SCMR)

Shaukat Ali Saqib, Advocate Supreme Court with Muhammad Aslam, Advocate‑on‑Record for Respondents. Date of hearing: 18th June, 2002. FAQIR MUHAMMAD KHOKHAR, J.‑‑‑The petitioner seeks the grant of leave to appeal against judgment dated 9‑6‑1999 passed by the Lahore High Court, Lahore in Civil Revision No.947 of 1999.

2. Briefly stated, the facts of the case are that the petitioner filed a civil suit, against the respondents, for declaration that a registered sale deed dated 16‑4‑1963 for the sale of suit‑land situated at village Matta Virkan, District Gujranwala, executed by the petitioner during his unsoundness of mind in favour of the respondents was illegal, void and inoperative against his rights. As a consequential relief, permanent injunction for restraining the respondents from interfering in ownership and possession of the petitioner over the suit‑land was also prayed for. On account of divergent pleadings of the parties, the trial Court framed, amongst others, Issue No.5 as to whether the suit had been properly valued for the purposes of court‑fee and jurisdiction, if not what was correct valuation? OPP. The Civil Judge, Gujranwala, by judgment and decree dated 23‑6‑1973, dismissed the civil suit. It was held, inter alia, that the petitioner not being in possession of the property could not maintain a suit for simple declaration and that the suit had not been properly valued for the purposes of court‑fee and jurisdiction. Issue No.5 was decided accordingly. The appeal preferred by the petitioner was also dismissed by the Additional District Judge, Gujranwala vide his judgment and decree dated 23‑6‑1973. Thereafter, he filed Regular Second Appeal No.533 of 1976 which was converted into Civil Revision No.947 of 1999 and the same was dismissed by the Lahore High Court, Lahore by impugned judgment dated 9‑6‑1999 Hence this petition for leave to appeal.

3. The learned counsel for the petitioner submitted, inter alia, that the learned Single Judge in Chambers of the High Court was not justified to convert the Regular Second Appeal into Civil Revision as their scope and extent of jurisdictions were different. He further argued that once the finding on Issue No.5 regarding the value of the suit for purposes of court‑fee and jurisdiction was recorded against the petitioner, the only course open to the trial Court was to return the plaint under Order VII, rule 10, C.P.C. without feeling the necessity of deciding the case on other issues.

4. On the other hand, the learned counsel for the respondents submitted that the High Court ought to have dismissed the Regular Second Appeal of the petitioner being not maintainable instead of converting the same into civil revision. He argued that all the Courts had recorded their concurrent findings of fact justifying the dismissal of the civil suit of the petitioner on merits as well by rendering decision all the issues including Issue No.5 to which no exception could be taken. As to Issue No.5, the learned counsel contended that fragmentary decisions by the Courts were discouraged and the suit had been rightly dismissed.

5. After hearing the learned counsel for both the parties, we grant leave to appeal to consider:‑‑ (1) Whether in the facts and circumstances of the present case, the Regular Second Appeal of the petitioner was competent and whether the case of the petitioner was prejudiced by the conversion of the appeal into Civil Revision by the High Court? (2) Whether in facts and circumstances of the case the trial Court was required to return the plaint under Order VII, rule 10, C.P.C. and was prohibited by law to decide Issue No.5 alongwith other issues ? M.H./M‑630/S Leave granted.