P L D 1954 BaghdadulJadid 35 (PLP)
ALLAH DITTA‑Appellant Versus HABIBULLAH‑Respondent
| Citation | P L D 1954 BaghdadulJadid 35 (PLP) |
| Forum / Court | |
| Bench Members | Faiz Muhammad, C. J. and Abdul Hamid Malik, J. |
| Parties | ALLAH DITTA‑Appellant Versus HABIBULLAH‑Respondent |
| Primary Law | It was contended by the learned counsel for the defendant -appellant that the first appeal, in the Court .of Senior Sub- Judge was filed by Habibullah (plaintiff‑respondent) beyond the period of limitation. It was, further alleged that the valuation of the suit was below Rs, 500, It transpires from the record that the plaintiff‑respondent, in the first instance filed the first appeal in the Court of District Judge Rahimyarkhan on 10th May 1951, against the judgment and decree of the trial Court dated the 21st March 1951. The learned District judge, however, returned the memorandum of appeal to the plaintiff appellant on the ground that .the valuation of the suit being less than Rs. 500 it should have been presented in the Court of Senior Sub‑Judge Rahimyarkhan. The latter order was passed by the District Judge on 22nd November 1951. Thereafter, the plaintiff‑respondent filed the appeal in the Court of Senior Sub‑Judge Rahimyarkhan. It is obvious that the appeal in the Court of Senior Sub‑Judge Rahimyarkhan was. filed after the period of limitation, for filing an appeal to that Court, had expired. Mr. Inayat Ali, the learned counsel for the plaintiff‑respondent has referred to section 39 (3) of the Punjab Courts Act which runs as follows:, Appeal |
Q1: What are the key laws and sections cited in P L D 1954 BaghdadulJadid 35 (PLP)?
This judgment primarily cites: It was contended by the learned counsel for the defendant -appellant that the first appeal, in the Court .of Senior Sub- Judge was filed by Habibullah (plaintiff‑respondent) beyond the period of limitation. It was, further alleged that the valuation of the suit was below Rs, 500, It transpires from the record that the plaintiff‑respondent, in the first instance filed the first appeal in the Court of District Judge Rahimyarkhan on 10th May 1951, against the judgment and decree of the trial Court dated the 21st March 1951. The learned District judge, however, returned the memorandum of appeal to the plaintiff appellant on the ground that .the valuation of the suit being less than Rs. 500 it should have been presented in the Court of Senior Sub‑Judge Rahimyarkhan. The latter order was passed by the District Judge on 22nd November 1951. Thereafter, the plaintiff‑respondent filed the appeal in the Court of Senior Sub‑Judge Rahimyarkhan. It is obvious that the appeal in the Court of Senior Sub‑Judge Rahimyarkhan was. filed after the period of limitation, for filing an appeal to that Court, had expired. Mr. Inayat Ali, the learned counsel for the plaintiff‑respondent has referred to section 39 (3) of the Punjab Courts Act which runs as follows:, Appeal as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 1954 BaghdadulJadid 35 (PLP)?
The case was heard and decided by the bench comprising: Faiz Muhammad, C. J. and Abdul Hamid Malik, J..
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 1954 BaghdadulJadid 35 (PLP) (ALLAH DITTA‑Appellant Versus HABIBULLAH‑Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Mustafa Khan, for Appellant.
- Inayat Ali, for Respondent.
Headnotes / Summary
‑Lying to Senior Subordinate Judge instead of to District Judge in respect of decree in suit valued at less than Rs. 500‑Bahawalpur Notification No. 34 dated 27th August 1947‑Limitation Act (IX of 1908), Art. 152 does not apply. Article 152 of the Limitation Act does not apply to an appeal preferred in .the Court of Senior Subordinate judge under Notification No. 34 dated 27th August 1947. In the absence of a Notification on the lines of section 39 (3) of the Punjab Courts Act (VI of 1918), it cannot be said that a Senior Subordinate judge may be deemed to be a District Court for the purposes of such an appeal. ORDER OF REFERENCE ABDUL HAMID, J., (28th March 1954).‑This second appeal has arisen out of a pre‑emption suit brought by one Habibullah against the defendant appellant Allah Ditta alias Juttoo. The suit was dismissed by Sub‑Judge, Ahmadpur East. On appeal, the learned Senior Sub‑Judge, Rahimyarkhan reversed the judgment and decree of the lower Court and decreed the suit. The defendant appellant has come in second appeal before this Court. "The High Court may by Notification direct that appeal lying to the District Courts from all or any of the decree or orders passed in an original suit by any Subordinate judge shall be preferred to such other Subordinate judge as may be mentioned in the notification, and the appeal shall thereupon be preferred accordingly and the Court of such other Subordinate judge shall be deemed to be a District Court for the purpose of all appeals so preferred." Again reference has been made by the learned counsel for the plaintiff‑respondent, to a Local Notification No. 34 dated the 27th August, 1947, which lays down that a Senior Sub- Judge would hear appeals upto the valuation of Rs.
500. On the basis of the above notification it is contended that a Senior Sub‑Judge of the State could not be deemed to be a District Court for the purpose of appeals preferred in that Court. It is, therefore, urged that Art. 152 of the Limita tion Act does not apply to the appeals preferred in the Court of Senior Sub‑Judge. I do find that, prima facie, the contention of the learned counsel for the plaintiff‑respondent has some force. Art. 152 of the Limitation Act provides that the period of limitation for filing an appeal to the Court of District judge is 30 days. There is nothing in the Indian Limitation Act prescribing the period of limitation for filing an appeal to the Court of Senior Sub‑Judge except by virtue of section 39 (3) of the Punjab Courts Act, which has not been enforced in the State. The point therefore for determination is whether Art. 152 governs appeals which are filed in the Court of Senior Sub- Judge. Since the point is not free from difficulty, I refer it to A. M. the Chief Justice with the request that a Division Bench may be formed to decide the point. The point may be formulated as follows :‑ " Whether the period prescribed in Art. 152 of the Limitation Act governs appeals filed in the Court of Senior Sub‑judge,"
Judgment & Decree
ABDUL HAMID, J.‑One Habibullah instituted a suit against the appellant for possession by pre‑emption in the Court of Sub‑Judge Ahmadpur East. The trial Judge dismissed the suit. Against this decision the plaintiff preferred an appeal to, the Court of District Judge, Rahimyarkhan, but the Presiding Officer returned the memorandum of appeal for presentation to the Court of Senior Sub‑Judge, Rahimyar khan, on the ground that the value of the plaint was below Rs.
500. The appeal was therefore re‑presented to the Senior Sub‑Judge. It transpired from the record that the appeal in question was filed in the Court of Senior Sub‑Judge after the expiry of statutory period of 30 days as provided in Art. 152 of Limitation Act. It was therefore contended by the learned counsel for the respondent that the appeal was barred by limitation. The learned Senior Sub‑Judge however brushed aside the contention of the counsel on the ground that Art. 152 did not apply to appeal preferred to the Court of Senior Sub‑Judge. Eventually the learned Senior Sub‑Judge accepted the appeal and reversed the judgment and decree of the trial Court. The' defendant, being dissatisfied with this decree has preferred an appeal to this Court. This appeal first came up for hearing before me in Single Bench and as the point "whether the period prescribed in Art. 152 of the Limitation Act governs appeal, filed in the Court of Senior Sub‑Judge" was not free from difficulty, I thought it desirable to have an authoritative decision on the point and therefore the point in question was referred to a Division Bench. It has now come up for decision before this Division Bench. The perusal of the Notification No. 34 dated 27th August 1947 published in the Bahawalpur Government Gazette dated 28th August 1947 shows that with effect from 15th September 1947 the Senior Sub‑Judges in the State were given appellate powers upto Rs.
500. The relevant notification runs as follows:‑ "The posts of the 2 existing Additional District Magis trates and Additional District Judges be abolished and in place thereof two new posts of Senior Subordinate judges be created on the same scale of pay and the existing incumbents of the posts lie appointed to the new posts with the following power,:‑ (i) Unlimited pecuniary jurisdiction on the original side. (ii) Appellate powers up to Rs.
500. It is therefore clear that the Notification referred to above empowers a Senior Sub‑Judge to hear appeals when the valuation of the claim does not' exceed Rs.
500. The notification nowhere provides and 'prescribes the period of limitation for filing an appeal to the Court of Senior Sub -Judge. It is conceded by counsel on both sides that there is a lacuna in the said notification. It was rightly pointed out answer however great the preponderance in favour of the prisoner might be‑then the committal was proper. It is therefore obvious from the above observation of the learned judge that if there is some evidence which called for an answer then committal was justified. In the present case, it has already been noted that there was; some evidence against the accused. Applying the above test it can safely b: held that the committal, to the Sessions was not illegal. Reverting to the question No. 1 referred to us for decision I may say that where offence is triable by the Sessions Court and by a Magistrate, the latter can commit the accused to the Sessions only if he is of the opinion that the case ought to be tried by the Sessions Court. He must give reasons for entertaining that opinion. Reference may be made to 1914 Bom. 237, where it was laid down that :‑‑ "In a case of this kind where the trial may either be by the Magistrate himself or by the Court of Session I think that reasons for commitment must include not merely reasons for not discharging the accused, but reasons for sending him before the Court of Session. There has therefore been a failure to comply with the law. This, no doubt, would amount to no more than an irregularity if the case were one which plainly ought to be committed to the Sessions". It is therefore clear that if a Magistrate commits a case to the Sessions in the ordinary way for the reasons that the case is 'exclusively triable by the. Sessions judge then the omission to disclose any ground in the order of the committing Magistrate would only amount to an irregularity and not to an illegality. Under Section 215 Cr. P. C. the' commitment can only be quashed on a lave point. Hence any irregularity in the order of committing Magistrate in a case which is exclusively triable by the Court of Session does not empower the High Court to quash it under section 215 Cr.P.C Assuming that the order of the committing Magistrate does not disclose any ground for it, it will be the duty of the High Court to go into the evidence with a view to decide whether or not evidence on the record justified the, framing of the charge. If the order is irregular, necessarily the evidence on record would have to be looked into for seeing whether the finding of the committing Magistrate can sustain the charge. To make the position clear, supposing a committing Magistrate commits a case to the Court of Session without alluding to the evidence on record, it will be then the function of the High Court to go into the evidence and to determine whether there are cogent grounds for the committal. For the foregoing reasons my answer to the first question referred to us for adjudication is in the negative and to the second and third is in the affirmative. With regard to the last question, the position is quite clear namely when the commitment is quashed the charge is vacated, which means that the accused stands discharged. The ordinary dictionary meaning of the word "quash" occurring in section 215 Cr. P. C. is "to set aside or remove". It there other Subordinate judge shall be deemed to be a District Court for the purpose of all appeals so preferred". It is clear that the wordings "Court of such other Subordinate Judge shall be deemed to be a District Court of the purposes of all appeals so preferred" occurring in the said clause of section 39 unequivocally and unmistakably make the Art. 152 of the Limitation Act applicable to all the appeals which are preferred in the Court of Senior Sub -Judge: In the absence of any notification on the lines of section 39 (3) we cannot hold that a Subordinate Judge who is empowered to hear an appeal up to Rs. 500 shall be deemed to be a District Court for;, the purpose of all appeals so preferred. It is regrettable to note that the Punjab Courts Act (VI of 1918) is not in force in the State. It is desirable that Punjab Courts Act be adopted in the State. Hence in the absence of any notification on the lines of section 39 (3) we cannot hold that a Senior Subordinate judge shall be deemed to be a District Court for the purposes of appeals. It therefore necessarily follows that Art. 152 of the Limitation Act does not apply to an appeal preferred in the Court of Senior Subordinate Judge. For the foregoing reasons our answer to the question referred to us for decision is in the negative. A. H. Reference answered.