P L D 1983 Quetta 42 (PLP)

The appellant had filed a suit for pre-emption before the Assistant Commissioner, Barkhan in respect of land in Khasra Nos. 118, 123, 125 and 147 in Mauza Baidyani, Halqa Choharkot, Tehsil Barkhan valued at Rs. 10,000. _ The suit was contested by the respondents and they filed their written statements on the basis of which the Assistant Commissioner, Barkhan framed issues. During the pendency of the suit it transpired that the suit was cognizable by Kazi Barkhan under the Civil Disputes (Shariat Application) Regulation, 1976 and so the Assistant Commissioner passed on the suit to the Kazi. The Kazi after hearing of the suit is which parties led evidence pronounced judgment on 27-2-1980. The respondents filed an appeal before the Majlis-e-Shoora. The Majlis-e-Shoora accepted the appeal by its judgment dated 18-6-1981 and set aside the decree. The Member Majlis-e-Shoora wrote a separate judgment on 18-4-1981. This second appeal is directed against both these judgments.

2. The counsel of the respondent urged that second appeal is not competent in the present case. The question of competency of the appeal has to -be examined before proceeding on merits of the case. The case has been tried under the provisions of Baluchistan Civil Disputes (Shariat Application) Regulation, 1976, hereinafter referred to as the Regulation. This Regulation has created a new class of Courts which were not known to the Civil Procedure Code before. The Court of the Kazi and the Court of Majls-eShoora are creation of this Regulation. The Court of Kazi is a Court of limited Civil Jurisdiction while the Majlis-e-Shoora has appellate as well as original civil jurisdiction beyond a certain pecuniary limit. The Majlis-eShoora is the first Appellate Court from judgments, decrees and orders of the Court of Kazi. Appeals from the Court of Majlis-e-Shoora lie to the High Court. It will be pertinent to reproduce section 4 of the Regulation which deals with Courts and adjudication of civil disputes. It is as under :- "

4. Courts for adjudication of disputes under this Regulation.-Notwithstanding anything contained in section 3, there shall be the following Courts,, namely :- (a) the Court of Kazi, which shall be Court of original jurisdiction in respect of dispute wherein the subject-matter in amount or value does not exceed fifty thousand rupees; and (b), the Majlis-e-Shoora, which shall be the first Appellate Court in respect of judgments, decrees and orders of Court of Kazi and shall also be the Court of original jurisdiction in respect of all disputes wherein the subject-matter in amount of value exceeds fifty thousand rupees. (2) Every Majlis-e-Shoora shall be deemed to be a District Court within the meaning of the Code. (3) An appeal from a judgment, decree or order of the Majlis-e-Shoora shall lie to the High Court." In any case where the Majlis-e-Shoora exercises original jurisdiction appeal would lie to the High Court as provided under subsection (3) of section 4 of the Regulation. This provision of appeal is not confined to appeal from original decree but also includes appeals from appellate decrees. Majlis-eShoora being designated as a District Court under section 4 (2) of the Regulation becomes subordinate to the High Court under section 3 of the C. P, C. The object of section 4 (3) of the Regulation is to make judgments, decrees and orders of the Majlis-e-Shoora appealable to the High Court as by mere application of section 96, C. P. C. to proceedings under the Regulation, jurisdiction is not vested in the High Court to hear first appeals as will be seen from reading section 96 of the Code. Section 96, C. P. C. lays down :- "

96. Appeal from original decrees.-(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties." I have underlined the Courts authorized to hear appeal to lay stress upon the fact that there should be some authority vested in the High Court to hear appeals over and above the provision of section 96 of the Code, This authority has been given by section 4 (2) of the Regulation in respect of cases tried by the Majlis-e-Shoora on the original side.

3. As provided in clause (b) of section 4 (3) of the Regulation, Majhs-eShoora is the first Appellate Court from the decrees and judgments of the Court of Kazi. Subsection (3) deals with appeals from judgment and decree of Majlis-e-Shoora. The judgments and decrees can be on the original side of the jurisdiction of Majlis-e-Shoora or on the appellate side. Section 4 (3) of the Regulation contains provisions for first appeal as well as second appeal to the High Court.. It becomes an adjunct to section 96 of the Code in case of first appeal and to section 100, C. P. C. in case of second appeal, This provision would have made second appeal competent without any restrictions but for section 3 of the Regulation. The intention of the lawmakers does not appear to be that every judgment .and decree passed b3 Majlis-e-Shoora in the exercise of its appellate jurisdiction would be appealable to the High Court. Section 3 of the Regulation is reproduced below .- "

3. Act Y of 1908, Act' I of 1872 and Act IX of 1908 to apply. Notwithstanding anything contained in this Regulation the provision of Code of Civil Procedure, 1908, hereinafter referred to as the Code, the Evidence Act, 1872 2nd the Limitation Act, 1908, shall mutatis mutandis apply to the proceedings under this Regulation." By reading section 3 it is clear that the proceedings under the Regulation are to be regulated and controlled by the provisions of the Code. And since appeal is a proceeding under the Regulation and right of appeal is given thereunder it will have to be regulated by the provisions of the Code. The operation of the provisions of the Regulation is subservient to the Code as is abundantly clear from section 3 of the Regulation. If section 3 of the Regulation was not there every judgment and decree of Majlis-e-Shoora would be appealable to the High Court.

4. By force of section 3 of the Regulation sections 100, 101 and 102, C. P. C. apply with full force to the second appeals filed under section 4 (3) of the Regulation. Section 100, C. P. C. has curtailed the right of appeals as will be seen from reading it. Section 100, C. P. C. is reproduced below for ready reference :- "

100. Second appeal.-(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to 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 by 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." A second appeal would only be competent under section 100, C. P. C. on one of the grounds mentioned therein and since Majlis-e-Shoora is a Court subordinate to the High Court second appeal will be controlled by it. If the appeal is beyond the scope of the grounds mentioned therein it will not be competent. Section ;102;' C. P. C: bars second appeal in certain cases which are shown hereunder "

102. No second appeal in certain cases.-No second appeal shall lie,- (a) in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter' of the original suit does not exceed five thousand rupees ; and (b) in any other suit, when the amount or value of the subject-matter of the original suit does not exceed fifty thousand rupees." Prior to the amendment in section 102, C. P. C. by amending Ordinance No. X of 1980 second appeals were competent in suits the amount or value of the subject matter of which was more than Rs. 2,000 provided it was on any of the grounds mentioned in section 100, C. P. C. After the amendment second appeal would not be competent if the amount or value of the subjectmatter was less than Rs. 50,C00 even if it was on any of the grounds mentioned in section 100, C. P. C. 1n the present case the valuation of the suit filed by the appellant according to his own statement in the Memorandum of Appeal was Rs. 10,000 and therefore the appeal would be barred by section 102 C. P. C. The counsel of the appellant had nothing to say in this behalf so as to remove the hurdle of section 102, C. P. C. As a result of the above observation the appeal is dismissed on this ground alone. M. A. K. Appeal dismissed.