P L D 1966 Azad J & K 31 (PLP)

MUHAMMAD SHARIF, A. C. J.‑This is a second appeal against the appellate judgment and decree of the District Judge, Muzaffarabad, dated 20‑10‑64 by which the judgment and decree of the Court of the Additional Sub‑Judge, Muzaffarabad, dated 11‑12‑63, was upheld. The facts giving rise to this second appeal are that the plaintiff was An Assistant Sub‑Inspector of Police since 20‑4‑48 but the Inspector‑General of Police by order dated 9‑12‑58 terminated his service treating him as a probationer and discharged him from the post of A. S. I. with effect from 7‑12‑

58. The plaintiff instituted a suit in the Court of the Additional Sub‑Judge, Muzaffaranad, on 17‑7‑61 for a declaration that the order of the Inspector‑General of Police No. O. B. 455 dated 9‑12‑58, being against law and the Police Rules, was void and inoperative as against the rights of the plaintiff and that the plaintiff still continues to bold the post of an Assistant Sub‑Inspector of Police. The suit was contested on behalf of the Government. The learned trial Judge framed the following issues:‑ (1) Whether the plaintiff remained as a permanent A. S. I. of Police w.e.y. 20‑4‑1948 till 9‑12‑1958? (O. P. P.) (2) Whether after the lapse of 3 years of service from its very start, i.e. after the expiry of probation, the plaintiff's service turned to have been permanent and he could not be ousted under Law? (O. P. P.) (3) Were the services of the plaintiff temporary from the very beginning and he despite clear instruction of 2‑10‑1950 did not go through the training and further was also found unsuitable for service by the Medical Board and as such his removal by an order dated 9‑12‑1958 was justifiable and correct? (O. P. D.) (4) Lastly, to what relief if any, is the plaintiff entitled? (O. P. D.) The learned Sub‑Judge by his judgment and decree dated 11‑12‑63 decreed the plaintiff's suit. The defendant then went up in appeal before the District Judge; Muzaffarabad, who by his judgment and decree dated 20‑10‑64 dismissed the appeal with costs. The Government has now come up in second appeal before this Court. The learned counsel for the plaintiff‑respondent had raised the following two preliminary objections on 24‑3‑

64. The learned counsel for the defendant‑appellant wanted time to study the points and make a reply. Arguments were heard yesterday and supplementary arguments were heard even to‑day. The first preliminary objection was that the memorandum of appeal filed in the High Court was not accompanied by a copy of the judgment of the trial Court which was necessary and the appeal is not complete and, therefore, incompetent. The second preliminary objection was that the value for purposes of jurisdiction had been fixed at Rs. 4,000, therefore, the first appeal should have been filed in the High Court but it was filed in the Court of the District Judge; and that the present, appeal has been filed against the judgment And decree not of the first Court but of the lower appellate Court; and that the judgment and decree of the lower appellate Court being without jurisdiction has no existence m law and an appeal from such judgment and decree does not lie. As regards the first preliminary objection the reply of the learned Government Advocate is that a copy of the judgment of the Court of the first instance is not required at all and even if it is required by law, his position is that he had applied for a copy of the judgment but had not been supplied with one so far. He has referred to Order XLI, rule I, C. P. C. which provides that the memo. shall be accompanied by a copy of the decree appealed from and (unless the appellate Court dispenses therewith) of the judgment on which it is found. This provision relates to appeals from original decrees. The learned Government Advocate has also referred to Order XLII, rule 1, C. P. C. which provides for an appeal from appellate decree and reads as under:‑ "The rules of Order XLI shall apply, so far as may be to appeals from appellate decrees." Reading Order XLI, rule 1 and Order XLII, rule 1 together tile learned Government 'Advocate has argued that it is only the copy of the decree appealed from which is a must and a. copy of the judgment also unless dispensed with by the appellate Court but this is not the correct legal position. We adapted the Civil Procedure Code as it applied to West Pakistan in 1948 and it continues to remain in force so far. In West Pakistan Rule 11 had been added to Order XLII which is reproduced below:‑ "In addition to the copies specified in Order XLI, rule 1, the memo of appeal shall be accompanied by a copy of the judgment of the Court of first instance, unless the appellate Court dispenses therewith." So according to the law prevailing in West Pakistan on the date of adaptation by Azad Kashmir the memorandum of a second appeal was to be accompanied not only .by a copy of the judgment and decree of the lower appellate Court but also by a copy of the judgment of the Court of first instance unless the appellate Court dispensed therewith. The learned Government Advocate has, put down in the memo of appeal towards its end that an application for obtaining copies of the judgment and decree of the Court of the Additional Sub‑Judge, Muzaffarabad, has been made and the same shall be submitted when supplied. The learned Government Advocate on 5‑12‑64 presented the memo of appeal in the High Court but the copy of the judgment of the Court of the first instance had not been supplied so far. It cannot be said that the Court had dispensed with this copy because there is no such order. The memo of appeal had been accepted subject to the learned Government Advocate supplying the copy of the judgment of the Court of the first instance. We hold that in view of the clear provisions of rule 11 to Order XL1I, C. P. C. the memo. of appeal should be accompanied by a copy of the `` judgment of the Court of the first instance and the appeal would not be complete without such copy. We have come across an application made by the learned Government Advocate on 11‑12‑1964 for obtaining copies of the judgment and decree of the Court of the Additional Sub‑Judge in the case "Sayed Mohammad Younis Shah Gillani v. Azad Government of the State of J. & K." On the back of this application there is an endorsement dated 16‑12‑64 that the copy had been prepared and banded over under rules. This application has been placed on the file of the lower appellate Court. However, the contention of the learned Government Advocate is that he has not been 1 supplied with the copy so far. If his contention is accepted to be true or proves out to be true, the position would be that the appeal is not yet complete and we cannot go into the merits of the case, Further it depends upon our decision on the second preliminary objection whether we .should keep the appeal pending or dispose it of. Now we take up the second preliminary objection. It is not disputed that where the value for purposes of jurisdiction exceeds Rs. 2,500 the first appeal would lie in the High Court and not in the District Court. The learned Government Advocate tried to wriggle out of this position by saying that the value for purposes of jurisdiction had not been fixed in the plaint when it was first instituted; and that in spite of an objection taken by the Government pleader in his written statement that value had not been fixed for purposes of court‑fees and jurisdiction purposes, no issue was struck by the trial Court and no action taken in this respect. Issues were struck on 9‑11‑61 and the case was adjourned to 10‑1‑1962 for the evidence of the plaintiff. From 10‑1‑62 the case was adjourned to 12‑3‑62 and then again to 24‑5‑62 and again to 6‑8‑62 because the witnesses could not be served. Sometime after 24‑5‑62 arid before the case was taken up on 6‑8‑62 a Clerk of the Court appended a note on the file that the valuation for purposes of a court‑fee and jurisdiction had not been fixed in the plaint which was a necessity though this thing should have been pointed out by the Office at the time of the presentation the `Kafiat Sarishta'. However, the learned Sub Judge drew the attention of the counsel for the plaintiff towards this note and he admitted it to be correct and prayed for making the necessary correction which was allowed to be done and the file was ordered to come up on 1‑10‑1962. The order dated 1‑10‑1962 records that the amended plaint had not been filed. Another adjournment was granted till 22‑10‑1962. A further adjournment was granted till 5‑11‑

62. The order dated 5‑11‑62 recites the presence of the counsel for the plaintiff and the Clerk of the counsel for the defendant and records that the plaintiff's counsel had made the correction in para. 7 of the plaint in the presence of and With the permission of the Court. The witnesses were then ordered to be summoned again. The learned Government Advocate has referred to an unreported Division Bench judgment of this Court which is Civil Appeal No. 4 of 1963 "Matrvali Khan v. Shah Zaman and others", date of institution 25‑4‑63, date of decision 3‑4‑

64. This judgment was delivered by the same Bench that is hearing the present appeal and we held therein that in a. case governed by section 7 (iv) (c) of the Court Fees Act that is where the suit is one for a declaration with consequential relief, it is the value fixed by the plaintiff for' purposes of court‑fee that determines the value for purposes of jurisdiction also and not vice versa. We had in the unreported judgment also ignored a certain amendment made by the plaintiff to the plant enhancing the value for purposes of jurisdiction. The learned Government's contention is that in the present case before us too it should be held that the amendment made by the plaintiff in the plaint incorporating the value for purposes of jurisdiction is to be ignored. The facts of the two cases are different. In the unreported judgment referred to above we had ignored the amendment enhancing the value for purposes of jurisdiction because this amendment had not been applied for and had not been authorised by the trial Court, but in the present case before us the amendment about incorporating the value for purposes of jurisdiction was the amendment sought for and allowed, therefore, this amendment cannot be said to be un-authorised and cannot be ignored. The learned Government Advocate has argued that the plaintiff in his plaint has made two claims, one that the order of the Inspector‑General of Police is void and inoperative and the second that the plaintiff continues to hold the office of an Assistant Sub‑Inspector of Police. His contention is that the first prayer should be taken to be a declaration and the second to be a consequential relief. It has been argued in reply by Mr. Farooqi, learned counsel for the plaintiff ‑respondent that both the prayers are for a declaration and that none of these prayers can be termed to be a consequential relief. His contention is that the suit is pure and simple for a declaration and not for a consequential relief, therefore, it was open to the plaintiff to pay a fixed court‑fee of Rs. 10 and to fix any value for purposes of jurisdiction that he deemed fit. The learned Government Advocate has cited A I R 1928 Nag. 241 (1), A I R 1931 Pat. 78, A I R 1932 All. 485 and A I R 1927 Cal.

775. The learned counsel for the respondent cites Province of East Pakistan v. K. A. Mansur (P L D 1963 Dacca 211), Province of East Pakistan v. Golam Sarwar (P L D 1962 Dacca 557) in which have also been discussed Habib khan v. Federation of Pakistan (P L D 1954 Sind 199), High Commissioner for India and High Commissioner for Pakistan v. I. M. Lall (P L D 1948 P C 150), Sardar Muhammad v. Pakistan (P L D 1961 Kar. 232.), Abdul Hanif v. Abdul Haque (P L D 1961 Dacca 191) and Muhammad Wafati v. Federation of Pakistan (P L D 1956 Kar. 464). It was held in A I R 1928 Nag. 241 (1) that:‑

"Where the plaintiff's case was that he was the next heir to an inalienable estate which the then holder was about to sell for Rs. 40,000 and he prayed for a decree in the form of a declaration that would prevent him from doing so, the Court‑fee payable for such a claim was the ad valorem fee for that sum." It was held that this was not a case of a mere declaration brought by reversioners against Hindu widow but the claim here was much more inasmuch as it was sought to prevent the present holder from alienating the property. We agree that the claim for preventing the holder from alienating the estate was a consequential relief though couched in the form of a declaration. It was laid down in A I R 1931 Pat. 78 that:‑

"The substance of the plaint and not merely the exact relief ask for, has to be looked into in order to determine the court -fees payable on the plaint. If in the substance the plaintiffs ask for a cancellation of a deed or gift, they ask for a declaration with consequential relief and the case clearly falls under section 7 (iv) (c) of the Court Fees Act." There can be no dispute with the rule of law laid down in this case. It was laid down in A I R 1932 All. 485 that:‑ "The Court has to see what is the nature of the suit and of the relevant claim, having regard to the provisions of section 7 of the Court Fees Act." It was laid down in A I R 1927 Cal. 775 that:‑ "Where in reliefs appear on their face to be of a declaratory nature, but they are really consequential ones, ad valorem court‑fees must be paid." We have to see if the reliefs sought by the plaintiff amount to a declaration and the consequential relief or are merely of a declaratory nature. The cases cited by the learned Government Advocate do not help us in determining this question. In P L D 1963 Dacca 211 the plaintiff brought a suit for a declaration that the Government Orders Nos. 49 and 50 dated 5th January 1957, removing the plaintiff from the post of professor of Pathology, Dacca Medical College are illegal, inoperative and not binding upon him and the plaintiff is still in service as professor of Pathology in the College. This is a case where the declaration sought was similar to the declaration sought by the plaintiff in the present case before us. This case was treated as for a simple declaration. In P L D 1962 Dacca 557 the facts were that the plaintiff brought a suit for declaration that the order of dismissal of the plaintiff from service is illegal, void and inoperative and that the plaintiff still holds office as a Sub‑Inspector of Police. It was argued that the suit was for a mere declaration and could not proceed without prayer for a consequential relief. The Division Bench of the Dacca High Court that the suit for mere declaration without prayer of consequential relief was maintainable and the grant of declaration was discretionary with the Court decided it. The two famous cases of I. M. Lall P L D 1948 P C 150 and Habib Khan v. Federation of Pakistan were relied upon in this case. In this case the plaintiffs sought the same declaration that Sayed Mohammad Younis Shah is seeking in the case before us with the only difference that the plaintiff in P L D 1962 Dacca 557 was a Sub‑Inspector of Police while the plaintiff in the present case before us is an Assistant Sub‑Inspector of Police. Objection was raised in this case that the suit in which these two prayers had been made was for a mere declaration and could not proceed without a consequential relief but the Court held that the suit could proceed. This case shows that wherein a suit the plaintiff seeks the declaration that the order of his dismissal is void and inoperative and ineffective and that he continues to hold office is a suit for mere declaration and not a suit for declaration and consequential relief. P L D 1956 Kar. 464 was also a case where the plaintiff sought a declaration that the plaintiff's dismissal was void and inoperative and was no dismissal at all and that he continued in service. It was held that no consequential relief arose and the suit was maintainable in the form of a declaration. The cases cited by the learned counsel for the plaintiff respondent are on all fours with the case before us. We have no hesitation in holding that the plaintiff's case is for a mere declaration and not for a declaration with consequential relief. Therefore, our unreported judgment "Matwali Khan v. Shah Zaman Khan and others" relied upon by the learned counsel for the defendant‑appellant does not apply. We hold that the plaintiff‑ respondent's suit is for a mere declaration and the plaintiff was free to fix any value for purposes of jurisdiction as he liked because the relief claimed by him could not be assessed to value. The net result is that the value for purposes of jurisdiction being Rs. 4,000 the first appeal lay in the High Court and not in the District Court. We have held above that the first appeal lay in the High Court and not in the District Court, therefore, the judgment and decree of the District Judge is a nullity and non‑existent in the eye of law and an appeal filed from such judgment and decree also is without any force. It was next urged by the Government Advocate that even if it be held that the first appeal was not competent before the District Judge, the present appeal may be treated as an appeal against the judgment and decree of the Court of the first instance but our difficulty is that there are no copies of the judgment and decree of the Court of the first instance before us, therefore, we cannot treat the present appeal as an appeal from the Court of the first instance. The memorandum of appeal is accordingly rejected. In view of the fact that the plaintiff had acquiesced in the proceedings before the lower appellate Court and had raised no objection that the lower appellate Court had no jurisdiction, we leave the parties to bear their own costs of the appeals. S. A. H. Memo. of appeal rejected.