2003 PLP 1245 (CLC)

Kazim Khan for Appellants S.M. Masud for Respondent No.

1. Khalil Ahmed Naqvi for Respondent No.2. This order will govern R.F.A. No.28 of 2001 and R.F.A. No.29 of 2001. The brief facts out of which the aforesaid appeals arise are that Abdul Majeed filed suit for possession through specific performance of agreement to sell against Muhammad Ismail etc. on 9-7-1996 (Suit No.1188/1 of 2000) before Civil Judge 1st Class; Faisalabad. Mst. Zahida Perveen filed suit for declaration and injunction against Irfan Ali etc. on 6-3-1997 before Civil Judge 1st Class, Faisalabad (Suit No.29/1 of 2000). Muhammad Saleem filed a suit for possession against Mst. Zahida Parveen etc. before Civil Judge 1st Class, Faisalabad on 23-11-1996 (Suit No.126/1 of 2000). Muhammad Ismail also filed suit for declaration and injunction against Irfan Ali etc. on 18-7-1996 before the said Court. Learned `trial Court consolidated the suits and decided the same by one consolidated judgment and decree dated 2-12-2000. The parties aggrieved by the aforesaid consolidated judgment filed following appeals before this Court:-- (1) R.F.A. No.27 of 2001, (2) R.F.A. No.808 of 2001, (3) R.F.A. No.28 of 2001, (4) R.F.A. No.29 of 2001. The first two R.F.As. were transferred by the Division Bench of this Court in view of promulgation of the Punjab Civil Courts (amendment) Ordinance, 2002.

2. Learned counsel of the respondents raised an objection on 7-11-2002 that this Court may return the memorandum of appeal to the appellants to file the same before the competent Court. When the learned counsel of the appellant was confronted with this situation he got adjournment for preparation.

3. Learned counsel of the appellant submits that appellants filed aforesaid appeals before this Court by bona fide mistake in view of consolidated judgment passed by the trial Court in all the four suits. The appeals were admitted for regular hearing by the Division Bench vide order dated 18-1-2001. Therefore, objection of the respondent's counsel is highly technical and in the interest of justice and fairplay the appeals be transferred to the District Judge concerned. In support of his contention he relied upon Shireen's case 1995 SCMR 584.

4. Learned counsel of the respondents submits that appellants filed appeals before this Court by mentioning wrong valuation for jurisdiction as is evident from the pro forma in which appellants mentioned the valuation for the purposes of Court-fee and jurisdiction as Rs.20,00,000 in each column which was subsequently changed in both the columns as Rs.200. The appellants got the aforesaid admission order from this Court by playing fraud with this Court. He further submits that in view of the pro forma the appellants had to file appeals before the District Judge. The appeals are not properly instituted. Therefore, this Court has no jurisdiction to transfer the appeals to the District Judge. This Court under the law has to return the memorandum of appeals to the appellants to file the same before the competent Court. He further submits that by afflux of time vested right has accrued to the appellants because in case the appeals are returned to the appellants then the appeals would have become time-barred. He further submits that since the appeals were not properly instituted therefore, appellants cannot take benefit of section 24 of C.P.C: In support of his contention he relied upon the following judgments:-- (1) Ghulam Nabi's case 1994 MLD 576, (2) Razia Shafi's case PLD 1971 SC 247.

5. We have considered the contentions of the learned counsel of the parties and perused the record.

6. It is admitted fact that valuation for the purpose of court-fee and jurisdiction is Rs.200. Therefore, appellants have to file appeals before the District Judge concerned. It is settled principle of law that Court lacking pecuniary jurisdiction, order/judgment passed is void. In arriving to this conclusion we are fortified the law laid down in D.A. Gill's case 1986 MLD 942 and Ghulam Mohy-ud-Din Khan's case 1984 CLC 1171. It is also settled principle of law where Court of appeal has no pecuniary jurisdiction and adjudication made by it would amount to total nullity. In arriving to this conclusion we are fortified by) Ghulam Mustafa's case 1987 CLC 1999 and Ghulam Mohy-ud-Din Khan's case 1984 CLC 1171. The question of law has been considered by the Division Bench of this Court after considering all the case-law on the subject in the case reported- as Ghulam Nabi v. Moeen-ud-Din 1996 MLD 576 and office was directed to return the Memorandum of Appeal to the appellant for presentation to the proper forum and refund the court-fee to the appellant. Reference can also be made to Dawood Baig's case 1987 SCMR 1161.

7. In view of what has been discussed above, the preliminary objection raised by the learned counsel of the respondents has a force. Office is directed to return the Memorandum of Appeals to the appellants for presentation before the competent Court. The appellants may file application before the competent forum in view of law laid down by the Honourable Supreme Court in Shireen's case 1995 SCMR 584 for condonation of delay under section 5 read with section' 14 of the Limitation Act. The competent Court may consider the peculiar circumstances of this case and pass an appropriate order strictly in accordance with law. The Memorandum of Appeals be returned to the appellants in terms of the aforesaid direction. Z-157/L Order accordingly.