2026 PLP 513 (CLC)

KHWAJA MUHAMMAD NASIM, J.

The captioned petition for leave to appeal has been filed against the judgment of the High Court dated 13.09.2024, whereby, the appeal filed by respondent No.1, herein, has been accepted.

2. The brief facts necessary for disposal of the instant petition for leave to appeal are that the plaintiff/respondent No.1, herein, filed a suit for recovery of Rs.19,23,970/- along with fine of Rs.40,00,000/- against the defendants/petitioners, herein, in the Court of Additional District Judge, Muzaffarabad. The suit was contested by the other side by filing written statement, whereby, the claim of the plaintiff was refuted in toto. An application was also filed by the defendants under Order VII, Rule 11, C.P.C., for rejection of the plaint. The plaintiff filed objections on the said application. The learned trial Court after hearing the parties on the application, accepted the same and rejected the plaint under Order VII, Rule 11, C.P.C., vide judgment and decree dated 18.01.2019. Against the said judgment and decree, an appeal was preferred by the plaintiff respondent No.1, herein, before the High Court. The learned High Court, after hearing the parties, accepted the appeal and while setting aside the judgment and decree dated 18.01.2019, remanded the case to the Additional District Judge, Muzaffarabad, for fresh decision, vide impugned judgment dated 13.09.2024, hence, this petition for leave to appeal.

3. Before proceeding further, the office has pointed out that the value of the subject matter, in the instant case, is more than Rs.50,000/-. The judgment of the Court immediate below i.e. Additional District Judge, Muzaffarabad, has been set aside by the High Court, thus, under Article 42 (11) (d) of the Azad Jammu and Kashmir Interim Constitution, 1974, direct appeal was competent and the PLA is not maintainable. When this position was confronted to the learned counsel for the petitioners, he submitted that this Court has ample powers to convert the PLA into regular appeal.

4. In the above perspective of the matter, I would like to attend the question of maintainability of the instant PLA at first. A perusal of the record reveals that the plaintiff/respondent No.1, herein, filed a suit for recovery of Rs.19,23,970/- along with fine of Rs.40,00,000/-, against the defendant/petitioners, herein, in the Court of Additional District Judge, Muzaffarabad. The defendant appeared in the Court and filed an application under Order VII, Rule 11, C.P.C., for rejection of the plaint. The learned Additional District Judge, Muzaffarabad, after hearing the parties, rejected the plaint under Order VII, Rule 11, C.P.C., vide judgment and decree dated 18.01.2019. The legality and correctness of the judgment and decree dated 18.01.2019, recorded by the trial Court was challenged by the plaintiff/respondent No.1, herein, through appeal before the High Court. The learned High Court, after hearing the parties, through the impugned judgment dated 13.09.2024, set aside the judgment passed by the learned Additional District Judge and remanded the case for fresh decision in accordance with law. The controversy emerges in this case is, as to whether, against the impugned judgment of the learned High Court, petition for leave to appeal was competent or direct appeal should have been filed by the petitioners, herein, before this Court. While attending the controversy, it would be appropriate to reproduce here the relevant provision of law, i.e. Article 42(11)(d) and (c) of the Azad Jammu and Kashmir Interim Constitution, 1974, which reads as under:- "_(11) An appeal shall lie to the Supreme Court of Azad Jammu and Kashmir from any judgment, decree, final order or sentence of the High Court of Azad Jammu and Kashmir. (a) ..................... (b) ..................... (c) ..................... (d) if the amount of value of the subject matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of the Council and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below; or (e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below. A glance perusal of the Constitutional provision (supra) shows that direct appeal lies in this Court when the value of the subject matter in the Court of first instance and in the appeal is not less than fifty thousand rupees and the High Court has altered, varied or set aside the impugned judgment or decree of the Court immediately below. The perusal of the record reveals that the learned High Court through the impugned judgment has set aside the judgment and decree of the trial Court and the value of subject matter is more than fifty thousand rupees, hence, direct appeal was competent in the instant case and not the PLA. Moreover, the examination of the record shows that the impugned judgment of the High Court was passed on 13.09.2024, against which petition for leave to appeal was filed by the petitioners before this Court on 25.10.2024. The limitation for filing appeal before this Court is 60 days. The PLA has remained pending for more than three months, thus, the limitation for filing appeal has expired during the pendency of the PLA and the petitioners have not filed any application for conversion of the PLA into appeal within limitation. In the identical circumstances, this Court in the case reported as Khalid Mehmood and 2 others v. Collector Land Acquisition and 3 others [2016 SCR 1075], has observed in para 5 as under:- "

5. We have heard the arguments of the learned counsel for the parties and gone through the record along with the impugned judgment. Before dilating upon the merits of the case, we are intended to record the findings firstly on the question of competency of appeal filed by WAPDA and others. The examination of record reveals that the impugned judgment of the High Court was passed on 22.05.2014, through which the learned High Court altered the judgment and decree of the Court immediate below, i.e. Reference Judge. The appellants, WAPDA and others challenged the same while filing petition for leave to appeal; whereas, under the Constitutional provision i.e. section 42 (11) (d) and (e), if the value of the subject matter is not less than fifty thousand rupees and the High Court has altered the judgment, only direct appeal is competent before the Supreme Court. Recently, the same proposition came under consideration of this Court in a case titled Ibrahim Yaqoob and others v. Ghulam Murtaza and others (Civil Appeal No. 85 of 2015, decided on 22.01.2016), wherein, on the strength of different case law this Court observed as under:- '

5. We have considered the arguments of the learned counsel for the parties and also examined the record. So far as the question of competency of appeal and petition for leave to appeal is concerned, in this regard this Court has already handed down an authoritative judgment in a series of cases reported as WAPDA and others v. Taj Begum and others [2014 YLR 2649] wherein while dealing with the proposition, this Court has observed as under:- '....The proposition in hand relates to Section 42 (11)(d) and (e) of the Act, which provides that the appeal shall lie to the Supreme Court of Azad Jammu and Kashmir from any judgment, decree or final order of the High Court of Azad Jammu and Kashmir if the amount or value of the subject matter of the dispute in the Court of first instance was and also in dispute in appeal is not less than fifty thousand rupees or such other sum, as may be specified in that behalf by the Act of the Council and the judgment, decree or final order appealed from has varied or set-aside the judgment, decree or final order of the court immediately below. The proposition came under consideration of this Court in a case reported as Muhammad Sharif and 7 others v. Azad Government and others [1998 CLC 2052], wherein it was observed that under Section 42(11) (d) direct appeal is competent only if value of the subject matter in the Court of first instance was and in appeal is not less than fifty thousand rupees and the High Court has altered the judgment. The proposition again came under consideration of this Court in the case reported as Chief Administrator Auqaf v. Sain Ghulam Ahmed Nisar and 38 others [PLD 2012 SC(AJ&K) 21], wherein it has been held as under:- '

15. It, therefore, follows that under clauses (d) and (e) of sub-section (11) of Section 42 of the Interim Constitution Act, 1974 a direct appeal lies to the Supreme Court if the amount or value of the subject matter in the first Court as well as in appeal before the Supreme Court is not less than fifty thousand rupees or any increased sum specified by the Act and the judgment, decree or final order placed before the Court is varied or set aside by the High Court. OR If the judgment, decree or final order by the High Court involves directly or indirectly claim or question respecting property of fifty thousand rupees, amount or value and the High Court has varied or set aside the judgment, decree or final order of the Court immediately below.' The provision i.e Section 42 (11) (d) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 is unambiguous. When the value of the subject matter in the Court of first instance and in the appeal is not less than fifty thousand rupees and the High Court has altered or varied the judgment or decree of the Court immediately below, then a direct appeal lies in this Court.'

6. The examination of record reveals that the impugned judgment of the High Court was passed on 26.11.2014 against which petition for leave to appeal was filed before this Court. Leave was granted vide order dated 29.4.2015, after 5 months' time from the impugned judgment. According to the enforced law as well as the principle of law enunciated by this Court, the limitation for filing of appeal is 60 days. The petition for leave to appeal in the instant case had not attained status of appeal within the prescribed limitation i.e 60 days, and if it would have been so, then the argument of counsel for the appellants may have substance and it could be presumed that within limitation the appeal has been brought before the Court. The petition for leave to appeal remained pending for almost 5 months. According to the constitutional provisions and the principle of law enunciated in Taj Begum's case (supra), petition for leave to appeal do not lie, thus, filing of petition for leave to appeal was not valid.

7. As the appellants failed to file any valid appeal or applied for conversion of petition into appeal within prescribed time; whereas the limitation prescribed by law i.e. (60 days), expired during pendency of incompetently filed petition for leave to appeal, consequently, by operation of law and following wing the dictum laid down by this Court in Taj Begum's case (supra), this appeal is not maintainable.' The limitation for filing appeal before this Court is 60 days. The appellants, WAPDA and others filed an incompetent petition for leave to appeal which remained pending for more than 5 months; thus, the limitation prescribed for filing appeal expired during the pendency of that petition. In such state of affairs, in the light of the relevant Constitutional provisions as well as the dictum laid down in the judgment (supra), it can safely be concluded that neither the appellants, WAPDA and others filed a valid appeal nor they applied for conversion of the petition into appeal within prescribed limitation, i.e. 60 days, therefore, this appeal is not maintainable on this sole ground." The same view has been reiterated in the case reported as Muhammad Rafique v. Mst. Sheena Akhter and others [2023 SCR 668] wherein, it has been observed as under:- "

5. We have heard the learned counsel for the parties and gone through the record. Article 42(11)(d) of the Azad Jammu and Kashmir Interim Constitution, 1974, forms the crux of the present controversy. It stipulates that an appeal shall lie to the Supreme Court from any judgment, decree or final order, or sentence of the High Court if the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in the appeal is, not less than fifty thousand rupees or such other sum as may be specified by Act of the council. Additionally, the appeal is competent if the judgment, decree, or final order appealed from has varied or set aside the judgment, decree, or final order of the Court immediately below. It is apt to refer here the relevant constitutional provision as follows:- "_(11) An appeal shall lie to the Supreme Court of Azad Jammu and Kashmir from any judgment, decree, final order or sentence of the High Court of Azad Jammu and Kashmir. (a) ................... (b) ................... (c) ................... (d) if the amount of value of the subject matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of the Council and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below; or (e) ...................' The aforesaid constitutional provision contemplates two crucial conditions: first, the monetary threshold of the subject matter, and second, the variation or setting aside of the judgment, decree, or final order of the Court immediately below. In the case at hand, the subject matter of petitioner's suit is not less than Rs.50,000/- and the learned High Court has set aside the judgment of the District Judge, thus, meeting the conditions of Article 42(11)(d). In this situation, we have no hesitation in holding that against the impugned judgment of the High Court an appeal was competent and not the petition for leave to appeal." In the instant case, the petitioners have failed to file any application for conversion of petition into appeal within prescribed time, therefore, by operation of law and following the dictum laid down by this Court in the pronouncements (supra), this PLA is not maintainable. As the PLA is not maintainable, therefore, dilating upon the merits of the case is felt inexpedient. Resultantly, this PLA, being incompetently filed, stands dismissed. SA/49/SC(AJ&K) Petition dismissed.