1986 PLP 270 (MLD)

(b) Civil Procedure Code (V of 1908)‑‑ ‑‑S.100/151 and O.XLI, R.5‑‑Appeal‑‑Admission of‑‑Preliminary issues framed alongwith other issues‑‑Evidence recorded by Trial Court‑‑Suit dismissed on preliminary issues‑‑First appeal allowed with direction to decide suit on merits‑‑Second appeal against remand order‑‑Remand order already complied with and suit finally decided by Trial Court‑ Finding of two Courts below on preliminary issues being in conflict with each other, appeal was, admitted to regular hearing. S.Z.A. Qureshi for Appellant. Nasrullah Awan for Respondents. Date of hearing: 9th October, 1985. There is office objection that this is not a IInd Appeal but a Revision and reference is made to section 12 of Code of Civil Procedure (Amendment) Ordinance, 1980 by which section 102 of Civil Procedure Code has been amended to increase valuation of the subject‑matter of the suit from Rs.2,000 to Rs.50,000 in order to attract application under section 100, C.P.C. for making a Second Appeal competent. Mr.Qureshi has submitted that this amendment is not attracted in the instant case for the reason that the suit was filed in the Trial Court way back in 1970 and at that time valuation of the suit as contemplated under section 102, C.P.C. was only Rs.500 which was subsequently increased to Rs.2,000 in 1972 and to Rs.50,000 in 1980. It is further submitted that in such circumstances IInd Appeal is competent and Mr.Nasrullah Awan, Advocate for respondents also concede to this legal position and states that IInd Appeal has been properly filed. This objection is, therefore, overruled.

2. So far the question of admission is concerned, it Appears that in the suit two preliminary issues were framed and the suit was dismissed after evidence was recorded. On those preliminary issues against which on Appeal was filed, which has been allowed by the first appellate' Court with direction that case was remanded to be decided on merits on remaining issues within three months. It is admitted position and both counsel present state that they were appearing at the trial stage and at the time when preliminary issues were framed there were other issues as well. Mr. Nasrullah Awan, Advocate has pointed out that this appeal has become infructuous and should not be admitted for the reason that order of remand of the first appellate Court against which this IInd Appeal has been filed, stands already complied with by the Trial Court which has recorded evidence and finally disposed of the suit hence now the appellant can have grievance over the final judgment on merits of the Trial Court which has disposed of the suit on all issues. In this context Mr. Qureshi has submitted that after the remand of the case no notice was issued to him hence appellant was precluded from the proceedings and only one side was heard and his grievance in the present IInd Appeal survives for the reason that the first appellate Court while passing the order of remand has given a final finding on those two preliminary issues, one of which was with regard to the claim of appellant for service of notice under section 30 of the Displaced Persons Act on the ground that he was in physical possession of the suit property. In such circumstances, the Trial Court proceeded further and gave findings on the remaining issues and so far the preliminary issues were considered, the finding of the first appellate Court had already attained the finality hence the appellant stands fully deprived of his right to call this finding in question. Point raised by Mr.Qureshi does not require further consideration. In any case, the findings of the two Courts below are in conflict with each other. I, therefore, admit this appeal to regular hearing. Issue Notice.

3. Mr.Zaheer Qureshi, Advocate states that he does not want to press this application which has become infructuous. Order accordingly. S. A. Appeal admitted.