P L D 2013 Lahore 495 (PLP)

AMIN-UD-D1N KHAN, J.

Through this appeal, appellant has challenged the judgment and decree dated 7-3-2005 passed by learned Addl: District Judge, Lahore, whereby the appeal filed by the appellant was dismissed on technical grounds. The appellant has prayed for setting aside the judgment and decree passed by learned Addl: District Judge and prayed for remand of the case.

2. Briefly, the facts of this case are that the appellant-plaintiff filed a suit for possession of suit land fully described in the head note of plaint. The suit was contested. Both the parties produced their respective evidence. Vide judgment and decree dated 6-4-1999 suit was dismissed by learned trial court. A regular first appeal was preferred before this court, as the jurisdictional value fixed in the suit was rupees twenty five lac. The appeal was transmitted to learned District Judge, Lahore, which was entrusted to learned Addl: District Judge, Lahore, who vide judgment and decree dated 7-3-2005 dismissed the appeal on the ground that in column of original claim of the opening sheet of appeal, there is mentioned the suit for mandatory injunction and in ground D of grounds of appeal as the findings of issues Nos.1 to 11 have been challenged, therefore observing that actually this appeal has been filed in a suit for mandatory injunction and while dismissing the application for permission to amend the grounds of appeal, the appeal was also dismissed on this score.

3. Learned counsel for the appellant argues that actually this appeal was filed in a suit for possession and the judgment and decree annexed with grounds of appeal were of a suit for possession and only on the basis that in opening sheet inadvertently in column of original claim, suit for mandatory injunction has been written and in ground D challenging issues Nos.1 to 11 does not make any difference. Learned counsel further argues that learned first appellate court has wrongly refused the amendment and also wrongly dismissed the appeal on technical grounds.

4. On the other hand, learned counsel for the respondent-defendant has supported the judgment and decree passed by learned first appellate court and has also referred that even the Advocate who originally filed the appeal, moved an application for withdrawal of his power of attorney when another counsel was engaged; that in the application he has also mentioned that appeal was filed against the judgment and decree in a suit for mandatory injunction. Learned counsel has argued that if the amendment is allowed or the appeal is decided on merits, it will change the character of the lis.

5. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.

6. It is not denied that along with the appeal certified copy of judgment and decree passed in a suit for possession were attached and further that jurisdictional value of suit in hand was rupees twenty five lac, whereas the value of other suit filed by the appellant-plaintiff for mandatory injunction was rupees three lac. The only defect as noted by learned first appellate court while deciding the appeal is that in column of original claim of opening sheet produced by the appellant at the time of filing of first appeal under Order XLI, Rule 1 of the C.P.C. before this court, it was mentioned that original suit is for mandatory injunction, whereas the original suit was for possession. The other defect as noted by learned first appellate court is that findings of issues Nos.1 to 11 have been challenged in ground D of grounds of appeal, whereas in suit for possession there were six issues only. I have gone through the judgment passed by learned first appellate court. While relying upon the judgment reported as "2004 SCMR 1740 learned Addl: District Judge has dismissed the appeal. I am afraid that this judgment of august Supreme Court while dismissing the appeal is not applicable to the facts of this case, as therein wrong judgment and decree were appended with the appeal. It is not the case of respondent that a wrong judgment and decree have been appended. The facts mentioned above have been pressed by the respondent for rejection of the appeal during the arguments. Even I have noticed that for abundant cautions the appellant filed application for withdrawal of opening sheet as well as for permission to amend the grounds of appeal. When the requisite certified copies of judgment and decree were appended with the appeal and grounds of appeal except a defect that findings of issues Nos.1 to 6 were to be challenged, there was written that the findings of issues Nos.1 to 11 are under challenge and mentioning of suit for mandatory injunction in the opening sheet. All these formal defects were ignorable by the court. Even the amendment sought by the appellant before lower appellate court was for the purpose of removing the formal objections and without seeking amendment the appeal was proceedable on merits. When names of the parties were correct, certified copies of correct judgment and decree were annexed with the appeal and the value for the purpose of court fee and jurisdiction was correctly mentioned in the opening sheet, therefore learned first appellate court was bound under the law to decide the appeal on merits. The case law referred to by learned first appellate court is not applicable to the facts of this case.

7. The upshot of above discussion is that this appeal is allowed. The impugned judgment and decree dated 7-3-2005 passed by learned Addl. District Judge, Lahore are hereby set aside. The matter is remanded to learned District Judge, Lahore with the direction to decide the same himself or entrust it to any Addl: District Judge, within a period of three months positively. The parties are directed to appear before learned District Judge, Lahore on 6-2-2013. KMZ/S-13/L Case remanded.