2003 PLP 1025 (YLR)

Aziz Ahmad Malik for Respondent No.

1. Muhammad Hanif Khatana, Addl. A.G. Date of hearing: 12th February, 2002. Briefly stated the facts giving rise to this petition are that Faisal Raza respond No. 1 filed a suit for declaration permanent injunction against the Province of Punjab etc. (respondents Nos.2 to 5) and the present petitioner on 8‑11‑1999. He prayed for a declaratory decree to the effect that the construction work of Road No.16104‑1 in Chak No.59 on Sahiwal Noor Shah Road assigned through agreement, dated 13‑3‑1999 to the plaintiff was completed by him for which he was entitled to receive the payment from the defendants. He also sought a consequential relief restraining defendants Nos. 1 to 4 (respondents Nos. 2 to 5) from making payment to Messrs United Awan Construction Company, defendant No.5/the petitioners, for the construction work of the Road and amount of Cheque No. A‑914021, dated 14‑10‑1999 issued by defendants Nos.2 and 3 (respondents Nos. 3 and 4) and deposited with defendant No.4 (respondent No.5). The petitioner resisted the suit and filed his written statement raising a few preliminary objections therein. The trial Court recorded the petitioner's statement in which the petitioner admitted that the entire work of road construction was completed by the plaintiff/respondent No. 1 and that he was entitled to receive the payment from defendants Nos. 1 to 3 (respondents Nos. 2 to 4). He also stated that he had handed over a cheque for an amount of Rs.10,90,000 to the plaintiff who would be entitled to withdraw the amount from the bank. In the light of the petitioner's statement of trial Court disposed of the suit vide judgment, dated 7‑3‑2000 with a direction to follow the compromise deed Mark‑A, dated 29‑12‑1999. Respondent No. 1 initiated execution proceedings and recovered an amount of Rs.20,00,000 from the petitioner. The petitioner challenged the judgment and decree of the trial Court by way of an appeal before the learned Additional District Judge in which cross‑objections were filed by the respondent No.

1. The Appellate Court dismissed the appeal filed by the petitioner but accepted the cross‑objection filed by respondent No. 1 and held that his suit was "decreed" (not disposed of) as ordered by the trial Court.

2. Arguments in this case were heard on a number of dates on the presumption that it was a Pacca case. However, while dictating the judgment it transpired that the main petition had not yet been admitted for regular hearing. Therefore, it was ordered to be fixed for motion hearing on 12‑2‑2002. On the said date the petition was admitted for regular hearing. Learned counsel for the parties were, present and stated that they had already addressed the arguments at length and did not desire to add anything more.

3. I have carefully considered the arguments raised by the learned counsel for the parties and perused the material on the record. It is evident that the suit was disposed of (decreed as claimed by respondent No. 1) by the trial Court in view of the consenting statement trade by the petitioner. The interim order, dated 29‑12‑1999 shows that Noor Khan Awan, proprietor of the petitioner‑Firm made the following statement before the learned Civil Judge:‑‑ Obviously the petitioner had admitted that the entire construction work of the road was completed by respondent No.1 in accordance with the terms of the agreement and that he was entitled to receive the payments for the same from respondents Nos.2 to

4. He had also acknowledged that he had handed over 9 cheque for an amount of Rs.10,90,000 to the plaintiff/respondent No. 1 who was entitled to encash it from the bank. Accordingly the trial Court "disposed of" the suit. The trial Court decree being a consent decree was not open to appeal before the learned Additional District Judge. The appellate Court rightly held it to be incompetent in view of the provision of section 96(3) of the C.P.C. Once it was held that the appeal was incompetent, the Appellate Court had no option but to dismiss the cross‑objections as well being equally incompetent in the eye of law. The use of the words "Appellate Court" and "Court" in sub -rules (1), (3) and (4) of rule 22, Order 41 of the C.P.C. means a Court which is competent to entertain and decide the appeal. If an appeal is filed before a competent Court of law, then mere withdrawal of the appeal does not divest the Appellate Court of its jurisdiction to decide the cross‑objections on merits. This view, was expressed in the case of Messrs Galadari Cement (Gulf) Ltd. v. District Judge, Khuzdar and 6 others (1986 CLC 10) in these words:‑‑ "It is by now a well‑settled principle of law that even if a civil appeal against a decree is withdrawn the cross‑objection to the decree are to be decided as an appeal." The position is entirely different if the Court comes to a definite conclusion that the appeal is not maintainable and dismissed it accordingly. In that eventuality the cross obiections will meet the same fate.

4. Learned counsel for respondent No. 1 placed reliance‑on the judgments in the cases of Muhammad Hassan and others v. Lauti Ram and others (AIR 1927 Allahabad 453) and Hira Nand v. Sheikh Mahbub Ilahi (AIR (31) 1944 Lahore 174). I am afraid, the above judgments proceed on their own distinguishable facts and have no application in the present case. In none of these judgments it was held that if the appeal was incompetent the Court was still required to decide the cross‑objections on merits independently. The petitioner's learned counsel has referred to the judgment in the case of Rammohanbai v. Somabhai (AIR (37) 1950 Bombay 161) to urge that if an appeal is not maintainable then cross‑objections cannot be filed in the same. This judgment also proceeds on distinguishable facts. The case before the Court was a Letters Patent Appeal and the question to be decided was whether by virtue of the provision of Order 41, rule 22 of the C.P.C. cross‑objections could be tiled in the appeal. It was held that cross -objections could be filed in a Letters Patent Appeal but it was further held that if nothing was decided against a party in the decree then the said party could not file the cross- objections in the appeal.

5. The learned counsel for respondent No. 1 urged that the use of the words "disposed of" in the judgment and decree passed by the learned Civil Judge did not make any difference. According to him, it clearly meant that the suit was decreed and the decree could be executed before the Executing Court. I need not make any observation about it at this stage. This point may be raised before the Executing Court first. Respondent No.1 has already received an amount of Rs.20,00,000 and wants to recover the remaining amount of Rs.10,00,000 from respondents Nos.3 and

4. The question whether he is lawfully entitled to the said amount is also left to be decided by the Executing Court.

6. For the foregoing discussion, if do not find any merit in this revision petition which is dismissed with the above observation leaving the parties to bear their own costs. H.B.T./U‑29/L Revision petition dismissed.