P L D 1952 Baghdud﷓ul﷓Jadid 37 (PLP)

ABDUL AZIZ, C. J.‑Ali Bakhsh and Ghulam Haider filed a civil suit against Mitha, Ghulam Haidar, Imamoon and Wasoo to obtain a declaration that they are the owners and in possession of the land in suit comprising 66/480 shares of Khata No. 1 /3, in Chak No. 97A, Kot Ghamian, Tahsil Khanpur. The plaint was registered on 17th of March 1945 and a compromise . was presented in the Court and the claim was decreed on the basis of the compromise in the absence of Mitha one of the defend ants for whom the responsibility was taken by other defendants. Subsequently the suit was brought by those 4 defendants along with one Wahid Bakhsh against Ghulam Haidar and Ali Bakhsh for the cancellation of the previous decree dated 17th of March 1945 on the ground that the compromise was the result of coercion and undue influence. The claim was decreed by the trial Court and the first decree dated 17th of March 1945 was set aside. The aggrieved party preferred an appeal against the decree dated 20th of November 1948 in the Court of Senior Sub‑Judge, Rahimyar Khan, who accepted the appeal. In a second appeal before the High Court the decree of the Senior Sub‑Judge was set aside and the case was remanded to the Court of Senior Sub‑Judge Bahawalpur for fresh decision. He too dismissed the appeal. This is a second appeal before this Court. A preliminary objection was raised by the learned counsel for the respondents that the second appeal is incompetent as the jurisdictional value of the original suit was below Rs.

500. His contention was based evidently on the law of East Punjab on the subject. Here the second appeals are governed by section 100 of the Civil P. C. which reads :‑ "(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being an appeal shall lie to the High Court from every decree passed by any Court subordinate to a High Court, on any of the following grounds, namely :‑ (a) the decision being contrary to law or to some usage having the force of law. (b) the decision having failed to determine some material issue of law or usage having the force of law. (c) a substantial error or defect in the procedure provided by this Code or any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits. (2) An appeal may lie under this section from an appellate decree passed ex‑parte. It is admitted by the learned counsel of the appellants that with the exception of section 100 of the Civil P. C. there is no other law in the state which governs the second appeals, conse quently this appeal is entertainable but in a limited condition and this condition should come under clauses (a) and (c) in subsection 1 of section 100, Civil P. C. Mr. Mustafa Khan had admitted that the case of his client is governed by the first portion of clause (a) of subsection 1 of section 100 Civil P. C. In other words the appeal could lie only if the decision of the lower Court was contrary to law. It has been admitted before me during the course of arguments that no question of law arises. The only contention of Mr. Mustafa Khan was that the learned Senior Sub‑Judge confirmed the decree of the Court of first instance on the consideration of the evidence of two witnesses. This he was perfectly competent to do. If he con sidered that the evidence of the two witnesses was reliable and could support his conclusion and of the Court of first instance then in deciding the appeal he was committing no illegality. In the presence of these circumstances this second appeal incompetent and is dismissed with costs. A. H. Appeal dismissed.