2017 PLP 405 (YLR)

SYED MUHAMMAD FAROOQ SHAH, J.

Captioned appeal under Section 100, C.P.C. read with Section 115, C.P.C. has been preferred against the conflicting findings of learned Courts below, whereby the judgment in respect of dismissal of Suit No. 51/1988, filed by the Respondents was reversed by the appellate Court, by pronouncing impugned judgment in Civil Appeal No. 31/1999.

2. Record and proceedings have carefully been perused with the able assistance provided by the learned Counsel for the appellant, which transpires that learned Vth Civil Judge, Karachi (Central) with the consent of Counsel for the plaintiff returned the plaint for its presentation before the competent Court having pecuniary jurisdiction. In the aforesaid suit, the plaintiff had sought relief for declaration that the gift deed dated 05.02.1976, allegedly executed by deceased Muhammad Ali be considered void and cancelled. A perusal of the record reveals that after showing value of the suit at Rs. 50,000/- by filing amended plaint on 13.10.1993 by the Respondents, the plaint was returned. Original plaint of the aforesaid suit was instituted on 11.08.1981, written statement was filed by the appellant on 31.05.1982 and proposed issues were settled on 13,07.1992. Learned Civil Judge recorded the evidence of both parties. R&Ps of Suit No. 51/1988 reflects that on 05.07.1993, the side of defendants was closed by their Counsel. It appears that on receipt of R&Ps of the said suit by the competent Court of law i.e. IInd Senior Civil Judge at Karachi, the appellant has filed written statement on dated 19.02.1998 and the learned IInd Senior Civil Judge had settled issues on 10.03.1998 but the judgment was delivered by him on the issues those were already framed by the original Court of Civil Judge, and without recording fresh evidence the learned IInd Senior Civil Judge pronounced the judgment on the same evidence which was recorded earlier by the Civil Judge. In such view of the matter, learned counsel for the appellant submitted that as per provisions of Order VII Rule 10, C.P.C. only plaint can be returned to the plaintiff and suit cannot be transferred to the Court having pecuniary jurisdiction.

3. Mr. Badar Alam, Counsel for the appellant argued that the plaint presented before the Court having jurisdiction is to be treated as a fresh suit after return of plaint by the Court having no jurisdiction and as per provisions of Order VII Rule 10 of C.P.C., in which plaint can be returned and suit cannot be transferred. Learned Counsel submitted that it is now settled law that proceedings before the Court having no jurisdiction or coram non judice is nullity in the eyes of law. In support of his submissions, he referred the following case laws:--

1. PLD 1981 Kar. 277 (DB):- After return of plaint by court having no pecuniary jurisdiction, plaint pre-sented to Court having jurisdiction must be deemed to be a fresh plaint/ suit for all intents and purposes.

2. AIR 1931 Madras 575:-- Evidence Act (1872), S. 33

Proceeding in Court not having pecuniary jurisdiction is not judicial proceeding

Evidence taken in such proceeding cannot be used in retrial. (O.7 R.10) 3. (1935) 153 IC 53:--Lahore High Court, Jurisdiction

Suit for possession of land

Market value--Judge trying the case finding that value of suit exceeds his jurisdiction

Proper order to be passed

Proceedings before him, coram non judice. In a suit for possession of land, it is the market value of the land that determines the jurisdiction of the court. Where in a suit the judge trying the case finds that the value of the suit exceeds his jurisdiction, the proceedings before him are coram non judice and the order to be passed is to direct the plaint to be presented to a proper court having jurisdiction in the matter. (O.7 R.10)

4. PLD 1993 Karachi 151:- [B] O. VII, R. 10

Return of plaint for presentation of same to proper court

Validity

Contents of plaint disclosed that defendant had admitted liability and promised to pay specified amount to plaintiff, which was beyond the pecuniary jurisdiction of Trial Court

Trial Court had, thus rightly refused to reject the plaint for after having found that it had no pecuniary jurisdiction in the matter, only order that could be passed was the one for return of the plaint. 5. 1980 CLC 589 (Lahore):

[a] West Pakistan Civil Courts Ordinance

S.8

pecuniary jurisdiction

Court passing order having no pecuniary jurisdiction

Such order, held, ultra vires and set-aside

(b) West Pakistan Civil Courts Ordinance

S.8

Suit filed before incompetent Court

Held, no order for transfer of such suit to a competent court can be passed. 6. 1999 CLC 130 (Azad J&K):

[B] Limitation. Question of limitation would become question of law where facts necessary for resolution of such question were available on record. c) Qanun-e-Shahadat, Art. 18

Person alleging any fact has to prove such fact- [burden of proof] e) Administration of justice

Preponderance of probability would decide a lis in civil case while criminal cases proof beyond doubt, was the requirement of law for providing guilt.

4. Second limb of arguments advanced by Mr. Badar Alam is that the decisions of the Courts below, being contrary to law as the suit was not maintainable being time barred. Learned counsel argued that the entire proceedings including evidence as recorded by the Civil Judge having no jurisdiction as the plaint was presented on 11.08.1981 and on the strength of same evidence, the learned IInd Senior Civil Judge authored the judgment in the same suit. Moreso, the R&Ps in Suit No. 51/88, presented before IInd Senior Civil Judge and verification clause shows that the same was verified on the same day i.e. 13.10.1993. It is the case of Respondents/plaintiff that the deceased Muhammad Ali, brother of the appellant, died at Karachi on 04.03.1976 and thereafter he prepared forged Gift Deed of the subject house, wherein the deceased was living with him along with his wives. It has further been stated in plaint that the plaintiff attained knowledge of Gift Deed on 05.09.1976, in favour of the appellant/ defendant on 03.06.1981, therefore, as per Article 120 of the Limitation Act, limitation of six years is provided for relief of declaration when the right to sue accrued and Article 91 of the Limitation Act is providing three years period of cancellation of documents from the date of knowledge, therefore, the suit was hopelessly time barred. While placing reliance on the following reported judgment, Mr. Badar Alam says that it was the duty of the Court to notice the question of limitation, irrespective of the fact whether the plea of limitation was raised by the parties or not.

7. PLD 2002 Supreme Court 403:--[b] Limitation

Question of limita-tion

Duty of Court

Scope

Duty of Court to notice the question of limitation, irrespective of the fact whether the question had been agitated or not

Any order or judgment passed by trial Appellate or Revisional Courts should be indicative of the fact that the Courts concerned were not only aware but were conscious regarding the question of limitation to be dealt with the same diligently with application of mind prior to dilating upon and deciding the controversy on merit because disposal on merit alone was not sufficient to presume that the delay was condoned.

8. PLD 1998 Karachi 250:

[b] Limitation Act

S.3

Duty of Court

Court would be duty bound to determine question of limitation irrespective of the fact whether such plea was raised or not. 9. 1994 CLC 1291 [Lahore]:

[b] Limitation Act-Duty of Court-whether the plea of limitation was raised by the parties or not, it was the duty of the Court to notice the point of limitation.

10. PLD 1969 Supreme Court 167:

[a] Displaced Persons (Compensation and Rehabilitation) Act (XXVII of 1958), S. 19 and Limitation Act (IX of 1908), Ss. 3 and 5

Appeal barred by limitation

Waiver by court of question of limitation not permissible even where period of limitation prescribed by a special or local law

Mere disposal of appeal on merits

Not sufficient to lead to inference that appellant court had condoned delay.

5. Third legal point for determination as raised by the learned Counsel for the appellant is in respect of non-maintainability of suit in view of Section 42 of Specific Relief Act, on the grounds that the Respondents/plaintiffs did not seek relief of declaration regarding their status as being alleged wife and daughter of the deceased Muhammad Ali (brother of the appellant) and also did not claim consequential relief for possession of the subject property in the plaint. Per learned Counsel under provisions of Section 42 of Specific Relief Act, it was incumbent on the Respondents/plaintiffs to seek declaration of their status as being alleged wife and daughter of the appellant's deceased brother Muhammad Ali, therefore, plaintiff was not entitled to any relief sought in the plaint, more particularly, in para-11 of the plaint, the plaintiff had admitted exclusive possession of the appellant on the subject property, inspite of this plaintiff did not seek consequential relief of possession, thereby rendering the suit as not maintainable. In support of his contention, learned Counsel referred the following case laws:-- 1. 1991 SCMR 1483: S. 42

Constitution of Pakistan, Art.185(3)

Suit for declaration without seeking consequential relief of possession

Dismissal of suit

High Court after taking into consideration all points raised before it, concluded--No exception, held, could be taken to the view that prevailed with High Court

Leave to appeal was refused. 2. 2015 MLD 191 [Peshawar]:

S. 42

Specific Relief Act

Suit for declaration

Validity

Petitioner failed to establish his possessory right to the suit property, suit was not maintainable within the ambit of S. 42 of Specific Relief Act. 3. 1980 CLC 1483 [Peshawar]: (a) S. 42

Declaration without consequential relief

Plaintiffs not in possession of property

Held, cannot seek a mere declaration of title without asking for possession as consequential relief. 4. 1969 DCL 416 (424 F & G ):

Maintainability of suit-Relief under Section 42 of Specific Relief Act cannot be sought under the garb of Section

39. Plaintiff out of possession must seek relief for possession. He cannot be permitted to claim decree merely for cancellation of document.

6. To sum up his contention, learned Counsel submits that suit is hopelessly time barred, therefore, as per dictum laid down by Hon'ble Supreme Court in a case reported as 1974 SCMR 522, it is not possible to go into the merits of the case and as per dictum laid down in 1991 CLC 2070, it would not be in the interest of parties to remand the case to trial Court for putting the parties in further litigations, when the same is badly time barred.

7. It is not out of context to mention here that the Respondents and their counsel did not show their appearance before this Court and were found to be persistent defaulter in attending this Court. Their deliberate and willful absence before this Court to contest the instant appeal shows that perhaps they have lost the interest to contest the instant appeal, which has been contested by the appellant through his Counsel merely on legal points. Mr. Badar Alam contended that this second appeal is pending since last about 16 years and the litigations in between the parties were commenced by filing suit on 11.08.1981.

8. I have considered the arguments advanced by the learned Counsel for the appellant and record has also been perused. As mentioned supra, the plaint was returned for presentation before the Court having jurisdiction. The competent trial court having jurisdiction, on receipt of the plaint could not differentiate in between the plaint and suit. Plaint if being returned, to be considered as fresh proceedings for all intents and purposes though plaintiff is not barred from filing a fresh suit but such suit a first suit for all intents and purposes and not merely a continuation of old proceedings in former suit as held in the case of Mst. Hawa Bai and 6 others v. Abdus Shakoor and 8 others (PLD 1981 Karachi 277) relied upon by the Counsel for the appellant. In the case of Sankappa Rai and others v. Keraga Pujary and others (AIR 1931 Madras 575), a division bench of Madras High Court held that the proceedings in Court not having pecuniary jurisdiction is not judicial proceedings and evidence taken in such proceedings cannot be used in retrial. However, in the instant case, evidence has been recorded by the Court having no pecuniary jurisdiction but the same was considered by recording the judgment. In the case of Suba Khan v. Rehmatuddin and 2 others (1980 CLC 589), it was held that the Court passing order of transfer of suit to a competent Court having no pecuniary jurisdiction is nullity; in the instant case, it appears that whole suit was transferred instead of returning the plaint as provided under Order VII, Rule 10, C.P.C.

10. Keeping in view as to the maintainability of the suit, being barred by limitation and even according to plaintiff's own showing the appellant was in possession, obviously without claiming consequential relief suit for declaration in present form was not maintainable. In the present case, declaratory suit was hit by limitation and plaintiff did not have possession, and they have not shown their possessory right and in absence of any existing right to the suit property, suit was not maintainable within the ambit of Section 42 of the Specific Relief Act, 1877. Conflicting findings of Appellate Courts below appears to be based on misreading of evidence, non-appraisal of the record including the material points for determination, on the basis of which learned Counsel advanced his submissions.

11. In the case of Abdul Rashid v. Bashrian and another (1996 SCMR 808), the Hon'ble Supreme Court held that the second appeal only lies on the ground of error of law, or, an error in the procedure which might have affected decision of case on merits. Likewise in the present case, applying this test the decision being contrary to law is based on substantial error or defect in the procedure as the evidence recorded by incompetent court has been considered by subsequent Court having jurisdiction which action of the Court is nothing but coram non judice. Courts below having committed non-appreciation of error of law by ignoring material piece of evidence on record, therefore, same are not tenable in law.

12. Whatever mentioned above, the impugned judgment delivered by the Courts below are set aside being coram non-judice and not maintainable in law as well. Resultantly, the captioned appeal is allowed as prayed for, with no order as to costs. SL/A-79/Sindh Appeal allowed.