P L D 2025 Supreme Court (AJ&K) 9 (PLP)
ABDUL WAHID RAFIQUE and 8 others — Appellants Versus MUHAMMAD MISKEEN and 12 others — Respondents
| Citation | P L D 2025 Supreme Court (AJ&K) 9 (PLP) |
| Forum / Court | High Court |
| Bench Members | N/A |
| Parties | ABDUL WAHID RAFIQUE and 8 others — Appellants Versus MUHAMMAD MISKEEN and 12 others — Respondents |
| Primary Law | (b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), (a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974) |
Q1: What are the key laws and sections cited in P L D 2025 Supreme Court (AJ&K) 9 (PLP)?
This judgment primarily cites: (b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), (a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 2025 Supreme Court (AJ&K) 9 (PLP)?
The case was heard and decided by the High Court bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 2025 Supreme Court (AJ&K) 9 (PLP) (ABDUL WAHID RAFIQUE and 8 others — Appellants Versus MUHAMMAD MISKEEN and 12 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- ----Arts. 42(11)(d), 42(11)(e) & 42(12)---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration, perpetual injunction and correction in the revenue record during settlement---Value of the subject-matter less than Rs.50,000/- High Court setting aside the judgment passed by the Court immediately below---Whether appeal or Petition for Leave to Appeal---Conduct of advocate---Effect---Respondents raised objection regarding maintainability of appeal against the judgment passed by High Court---Contention of the Advocate, representing the appellants, was that the appellants filed the PLA against the impugned judgment, however, the Assistant Registrar of the Court, raised objection on the maintainability of the PLA and advised for filing direct appeal---Validity---Such assertion and conduct of the Advocate, who was appearing before the Supreme Court, was regrettable---An Advocate, appearing before this (Supreme) Court has to be well-versed with the Supreme Court Rules and has to file a case against the judgment(s) of the Courts below according to his own wisdom and not on the advice of the Assistant Registrar of the Court---At least, if there was any confusion in understanding the statutory provision, he had to consult with some senior Advocates---Thus, assertion made by the Advocate, being vague in nature was repelled---Present appeal had been filed incompetently and was liable to be dismissed on such sole ground---Appeal was dismissed.
- Muhammad Yaqboob Khan Mughal for Respondents.
- 2. The facts of the case briefly stated are that Muhammad Rafique, (predecessor of the appellants, herein), filed a suit for declaration-cum-perpetual injunction and correction of the entries made in the revenue record during the settlement, before the Senior Civil Judge Muzaffarabad, pertaining to the land comprising survey No.164 (old), 654 (new), measuring 4 kanal, 15 marla, situate at village Dhaman Jhool, Tehsil and District Muzaffarabad. On being summoned, the defendants/ respondents, herein, filed an application for rejection of the plaint under the provisions of Order VII, Rule, 11, C.P.C. After seeking objections and hearing the parties, the trial Court rejected the plaint on the ground of res-judicata, vide judgment and decree dated 30.11.2017. Feeling dissatisfied from the said judgment and decree, the appellants, herein, preferred an appeal before the District Judge Muzaffarabad. After hearing the parties, the learned District Judge accepted the appeal and while setting aside the judgment and decree dated 30.11.2017, remanded the case to the trial Court for decision on merit, vide judgment dated 24.11.2018. The private respondents, herein, challenged the judgment dated 24.11.2018, passed by the learned District Judge by filing an appeal before the High Court. After necessary proceedings, the learned High Court while accepting the appeal, set aside the judgment passed by the learned District Judge and restored the judgment and decree passed by the trial Court. The appellants, have challenged the judgment of the learned High Court, by way of this direct appeal. The learned Advocate, representing the appellants was directed to file the written arguments, which have duly been filed.
- 3. At the very outset, Mr. Muhammad Yaqoob Khan Mughal, the learned Advocate, representing the private respondents, raised the preliminary objection regarding the maintainability of the appeal on the ground that although, through the impugned judgment, the learned High Court has set aside the judgment of the learned District Judge (the Court immediately below), however, the value of the subject matter before the Court of 1st instance as well as in the appeal before the 1st Appellate Court is less than Rs.50,000/-, therefore, against the judgment of the learned High Court petition for leave to appeal (PLA) has to be filed before this Court, whereas the appellants, have filed the direct appeal which is not competent. In support of his submissions the learned Advocate, referred to and relied upon the case titled "Naseer Ahmed v. Nazm-e-Ahala Auqaf and others" (Civil Appeal No.39 of 2021, decided on 10.03.2022) and the cases reported as "Raja Khalid Mehmood Khan and 10 others v. Muhammad Hussain and another 2019 CLC Note 26, p. 25 and "Anis Ibrahim v. The State and another 2020 MLD 1424 and lastly, the learned Advocate prayed for dismissal of the appeal being filed incompetently.
- 4. In the written arguments, filed on behalf of the appellants, regarding the preliminary objection raised by the learned Advocate, representing the respondents, it is averred that against the impugned judgment the appellants, filed the PLA, however, the Assistant Registrar of the Court, raised objection that the PLA is not maintainable and instructed for filing the direct appeal.
- 5. We have considered the written arguments filed on behalf of the appellants as well as the learned Advocate, representing the respondents, raised at Bar, on the preliminary objection regarding the maintainability of the appeal. It is an admitted position, that against the impugned judgment, whereby the learned High Court while accepting the appeal of the private respondents, herein, set aside the judgment passed by the learned District Judge, the appellants, have filed direct appeal. According to the learned Advocate, representing the private respondents, although through the impugned judgment the learned High Court has set aside the judgment of the learned District Judge (the Court immediately below), however, the value of the subject matter is less than Rs.50,000/-, hence, against the impugned judgment, PLA was competent and direct appeal is not competent. For resolving the controversy, we would like to reproduce here the relevant provisions of law, on the subject matter i.e. Article 42(11)(d) and (e) of the Azad Jammu and Kashmir Interim Constitution, 1974, which reads as under:--
- 6. So far as the contention of the learned Advocate, representing the appellants, in the written arguments that the appellants, filed the PLA against the impugned judgment, however, the Assistant Registrar of the Court, raised objection on the maintainability of the PLA and advised for filing direct appeal. Such assertion and conduct of the learned Advocate, who is appearing before the Supreme Court, is regrettable. An Advocate, appearing before this Court has to well versed with the Supreme Court Rules, and has to file a case against the judgments of the Courts below according to his own wisdom and not on the advice of the Assistant Registrar of the Court. At least, if there was any confusion in understanding the statutory provision, he has to consult with some senior Advocates. The assertion made by the learned Advocate, is vague in nature, hence, is hereby repelled.
Headnotes / Summary
Arts. 42(11)(d), 42(11)(e) & 42(12)
Specific Relief Act (I of 1877), Ss. 42 & 54
Suit for declaration, perpetual injunction and correction in the revenue record during settlement
Value of subject-matter less than Rs.50,000/=
High Court setting aside judgment passed by District Court
Whether appeal or petition for leave to appeal
Respondents raised objection regarding maintainability of appeal against the judgment passed by High Court
Objection of the respondents was that although, through the impugned judgment, the High Court had set aside the judgment of the District Judge, however, the value of the subject matter was less than Rs.50,000/-, hence, against the impugned judgment, Petition to Leave to Appeal (PLA) was competent and not direct appeal
Reading of the provisions of Arts. 42(11)(d), 42(11)(e) & 42(12) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, showed that a direct appeal laid in the (Supreme) Court when the value of the subject matter in the Court of first instance and in the appeal was not less than fifty thousand rupees and the High Court had altered or varied or set aside the impugned judgment or decree of the Court immediately below
First condition for filing the direct appeal before this (Supreme) Court under the said statutory provision was the value of the subject matter before the Court of first instance, as well as in the appeal, which should not be less than Rs.50,000/-, and the second condition was that the High Court had altered, varied or set aside the judgment and decree of the Court immediately below
Except for these two conditions, Art. 42(12) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, shall apply
An appeal to the Supreme Court may be filed only if the Court grants leave to appeal upon a petition, and not otherwise
In the present case, the plaintiff (predecessor of the appellants) filed a suit for declaration etc. regarding suit-property before the Senior Civil Judge (Muzaffarabad); and in relevant para of the plaint, the plaintiff himself fixed the value of the suit for the purpose of Court fee and jurisdiction of the Court as Rs.5000/
Thus, admittedly, the value of the subject matter was less than Rs.50,000/- in the Court of first instance i.e. the Trial Court as well as in the appeal
Had the value of the subject matter been above 50000 rupees in the Court of 1st instance and the High Court had also varied or set aside the judgment and decree of the Court immediately below, then the direct appeal was competent, otherwise, PLA was competent before this (Supreme) Court, even though the High Court set aside, altered or varied the judgment of the Court immediately below
Present appeal had been filed incompetently and was liable to be dismissed on this sole ground, therefore, there was no need to discuss the merits of the case
Appeal, having being filed incompetently, was dismissed.
Arts. 42(11)(d), 42(11)(e) & 42(12)
Specific Relief Act (I of 1877), Ss. 42 & 54
Suit for declaration, perpetual injunction and correction in the revenue record during settlement
Value of the subject-matter less than Rs.50,000/- High Court setting aside the judgment passed by the Court immediately below
Whether appeal or Petition for Leave to Appeal
Effect
Respondents raised objection regarding maintainability of appeal against the judgment passed by High Court
Contention of the Advocate, representing the appellants, was that the appellants filed the PLA against the impugned judgment, however, the Assistant Registrar of the Court, raised objection on the maintainability of the PLA and advised for filing direct appeal
Such assertion and conduct of the Advocate, who was appearing before the Supreme Court, was regrettable
An Advocate, appearing before this (Supreme) Court has to be well-versed with the Supreme Court Rules and has to file a case against the judgment(s) of the Courts below according to his own wisdom and not on the advice of the Assistant Registrar of the Court
At least, if there was any confusion in understanding the statutory provision, he had to consult with some senior Advocates
Thus, assertion made by the Advocate, being vague in nature was repelled
Present appeal had been filed incompetently and was liable to be dismissed on such sole ground
Appeal was dismissed.
Judgment & Decree
KH. MUHAMMAD NASIM, J.
The captioned appeal has been directed against the judgment and decree dated 16.04.2024, passed in Civil Appeal No.15/2019.
2. The facts of the case briefly stated are that Muhammad Rafique, (predecessor of the appellants, herein), filed a suit for declaration-cum-perpetual injunction and correction of the entries made in the revenue record during the settlement, before the Senior Civil Judge Muzaffarabad, pertaining to the land comprising survey No.164 (old), 654 (new), measuring 4 kanal, 15 marla, situate at village Dhaman Jhool, Tehsil and District Muzaffarabad. On being summoned, the defendants/ respondents, herein, filed an application for rejection of the plaint under the provisions of Order VII, Rule, 11, C.P.C. After seeking objections and hearing the parties, the trial Court rejected the plaint on the ground of res-judicata, vide judgment and decree dated 30.11.2017. Feeling dissatisfied from the said judgment and decree, the appellants, herein, preferred an appeal before the District Judge Muzaffarabad. After hearing the parties, the learned District Judge accepted the appeal and while setting aside the judgment and decree dated 30.11.2017, remanded the case to the trial Court for decision on merit, vide judgment dated 24.11.2018. The private respondents, herein, challenged the judgment dated 24.11.2018, passed by the learned District Judge by filing an appeal before the High Court. After necessary proceedings, the learned High Court while accepting the appeal, set aside the judgment passed by the learned District Judge and restored the judgment and decree passed by the trial Court. The appellants, have challenged the judgment of the learned High Court, by way of this direct appeal. The learned Advocate, representing the appellants was directed to file the written arguments, which have duly been filed.
3. At the very outset, Mr. Muhammad Yaqoob Khan Mughal, the learned Advocate, representing the private respondents, raised the preliminary objection regarding the maintainability of the appeal on the ground that although, through the impugned judgment, the learned High Court has set aside the judgment of the learned District Judge (the Court immediately below), however, the value of the subject matter before the Court of 1st instance as well as in the appeal before the 1st Appellate Court is less than Rs.50,000/-, therefore, against the judgment of the learned High Court petition for leave to appeal (PLA) has to be filed before this Court, whereas the appellants, have filed the direct appeal which is not competent. In support of his submissions the learned Advocate, referred to and relied upon the case titled "Naseer Ahmed v. Nazm-e-Ahala Auqaf and others" (Civil Appeal No.39 of 2021, decided on 10.03.2022) and the cases reported as "Raja Khalid Mehmood Khan and 10 others v. Muhammad Hussain and another 2019 CLC Note 26, p. 25 and "Anis Ibrahim v. The State and another 2020 MLD 1424 and lastly, the learned Advocate prayed for dismissal of the appeal being filed incompetently.
4. In the written arguments, filed on behalf of the appellants, regarding the preliminary objection raised by the learned Advocate, representing the respondents, it is averred that against the impugned judgment the appellants, filed the PLA, however, the Assistant Registrar of the Court, raised objection that the PLA is not maintainable and instructed for filing the direct appeal.
5. We have considered the written arguments filed on behalf of the appellants as well as the learned Advocate, representing the respondents, raised at Bar, on the preliminary objection regarding the maintainability of the appeal. It is an admitted position, that against the impugned judgment, whereby the learned High Court while accepting the appeal of the private respondents, herein, set aside the judgment passed by the learned District Judge, the appellants, have filed direct appeal. According to the learned Advocate, representing the private respondents, although through the impugned judgment the learned High Court has set aside the judgment of the learned District Judge (the Court immediately below), however, the value of the subject matter is less than Rs.50,000/-, hence, against the impugned judgment, PLA was competent and direct appeal is not competent. For resolving the controversy, we would like to reproduce here the relevant provisions of law, on the subject matter i.e. Article 42(11)(d) and (e) of the Azad Jammu and Kashmir Interim Constitution, 1974, which reads as under:-- "42. (11) An appeal shall lie to the Supreme Court of Azad Jammu and Kashmir from any judgment, decree, final order or sentence of the High Court of Azad Jammu and Kashmir. (a) (b) (c) (d) if the amount of value of the subject matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of the Council and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below; or (e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; '42. (12). An appeal to the Supreme Court of Azad Jammu and Kashmir from a judgment, decree, order or sentence of the High Court in a case to which sub-Article (11) does not apply shall lie only if the supreme Court of Azad Jammu and Kashmir grants leave to appeal." A glance reading of the above provisions shows that a direct appeal lies in this Court when the value of the subject matter in the Court of first instance and in the appeal is not less than fifty thousand rupees and the High Court has altered or varied or set aside the impugned judgment or decree of the Court immediately below. The first condition for filing the direct appeal before this Court under the statutory provision (supra) is the value of the subject matter before the Court of 1st instance, as well as in the appeal, which should not be less than Rs.50,000/- and the second condition is that, the High Court has altered, varied or set aside the judgment and decree of the Court immediately below. Except for these two conditions, the Article 42(12) of the Azad Jammu and Kashmir Interim Constitution, 1974, shall apply. An appeal to the Supreme Court may be filed only if the Court grants leave to appeal upon a petition, and not otherwise. Our this view, finds support from the case reported as WAPDA and others v. Taj Begum and others 2014 YLR 2649 whereby, it observed by this Court as under:-- "The proposition in hand relates to Article 42(11)(d) and (e) of the Act, which provides that the appeal shall lie to the Supreme Court of Azad Jammu and Kashmir from any judgment, decree or final order of the High Court of Azad Jammu and Kashmir if the amount or value of the subject matter of the dispute in the Court of first instance was and also in dispute in appeal is not less than fifty thousand rupees or such other sum, as may be specified in that behalf by the Act of the Council and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final of the Court immediately below." In the instant case, the plaintiff (predecessor of the appellants, herein), filed a suit, for declaration-cum-perpetual injunction and correction made in the revenue record during the settlement, before the Senior Civil Judge Muzaffarabad, pertaining to the land comprising survey No.164 (old), 654 (new), measuring 4 kanal, 15 marla, situate at village Dhaman Jhool, Tehsil and District Muzaffarabad. In para 11 of the plaint, the plaintiff himself fixed the value of the suit for the purpose of Court fee and jurisdiction of the Court as Rs.5000/-. For convenience, we would like to reproduce here para 11 of the plaint which reads as under:- Thus, it is admitted that the value of the subject matter is less than Rs.50,000/- in the Court of first instance i.e. the trial Court as well as in the appeal before the High Court. Had the value of the subject matter is above 50000/- rupees, in the Court of 1st instance and the learned High Court has also varied or set aside the judgment and decree of the Court immediately below, then the direct appeal was competent, otherwise, PLA was to be competent before this Court, even though the High Court set aside, alter or vary the judgment of the Court immediately below.
6. So far as the contention of the learned Advocate, representing the appellants, in the written arguments that the appellants, filed the PLA against the impugned judgment, however, the Assistant Registrar of the Court, raised objection on the maintainability of the PLA and advised for filing direct appeal. Such assertion and conduct of the learned Advocate, who is appearing before the Supreme Court, is regrettable. An Advocate, appearing before this Court has to well versed with the Supreme Court Rules, and has to file a case against the judgments of the Courts below according to his own wisdom and not on the advice of the Assistant Registrar of the Court. At least, if there was any confusion in understanding the statutory provision, he has to consult with some senior Advocates. The assertion made by the learned Advocate, is vague in nature, hence, is hereby repelled.
7. In view of the above, as we have reached the conclusion, that the instant appeal has been filed incompetently and is liable to be dismissed on the sole ground, therefore, there is no need to discuss the merits of the case. For the above stated reasons, this appeal being filed incompetently is hereby dismissed, with no order as to costs. MQ/15/SC(AJ&K) Appeal dismisse