1. ' KHILJI ARIF HUSSAIN, J.---By this common judgment we intend to dispose of HCA Nos.336, 337 and 338 of 2005 as common question of law and facts are involved.
2. ' The facts to decide appeals can be summarized as that the appellant is the owner of trailer bearing No,829-050. It was alleged that on 17th August, 1996 at about 0703 hours the respondent No,2 employee of appellant while driving trailer No,829-050 in a rash negligent and careless manner on wrong side of the National High Way on its way from Karachi to Thatta, when reached near Channel III Petrol Pump, lost the balance of said trailer and it absolutely went on extreme right and bumped wrongfully into coach bearing No,PE-0628 which was coming from Thatta to Karachi on its side in normal speed. The trailer, was so fast and rash in speed that as an impact of this collision, the said coach was dragged ahead for quite a good distance and turned turtlle and fell into the bushes beside the road. As a result coach was badly damaged and passengers thereon received severe injuries and out of those injured passengers Shah Alam, Awal Khan, Ayub Khan and Muhammad Ishaque succumbed to the fatal accident and died on the spot while surviving injured Mohammad Hassan, Sagheer Mohammad Aslam, Shahbuddin, Mohammad Iqbal, Mohammad Babul, Salahuddin, Aman Malik were taken to Jinnah Hospital where they were admitted to further treatment. In the meantime Shah Latif Town Police were also moved in this regard and the offence was registered against the respondent No,2 in respect of causing death and injuries by his rash and negligent driving vide F.I.R. No, 83/96 under sections 302/337-G/427, P.P.C. The respondent being legal heirs of deceased who died in road accident filed suits under section 1 of the Fatal Accident Act, it was registered as Suit Nos.391/97, 392/97 and 393/97.
3. ' After service of summons and on failure of appellant to file written statement the appellant was debarred to file the same and the matter was listed for final disposal.
4. ' The appellant then filed an application under section 159 of Sindh Chief Court Rules (OS) read with section 151, C.P.C. For recalling the order, dated 2-11-1993 by which appellant was debarred mfrom filing the written statement. Learned Single Judge vide his order, dated 25-1-2005 dismissed the application holding that application was belatedly filed after about five years and reasons mentioned in it were not justifying or explaining the delay satisfactorily. No appeal against the order was preferred, the matter thereafter listed for final disposal and appellant cross-examined the plaintiff's witness and on 25th August, 2005, learned advocate for the appellant made a statement that the respondent/plaintiff has closed his side and he does not want to lead any evidence, and the matter thereafter was ordered to be fixed for arguments.
5. ' After hearing the learned advocates for the party's suits were decreed against which listed High Court Appeals were filed.
6. ' Heard Mr. Muhammad. Sarfaraz Sulehry learned counsel for the appellants. Mr. Nasir Maqsood learned advocate for the respondent. Mr. Umar Hayat Sandhu, learned DAG of Islamic Republic of Pakistan.
7. ' Mr. Sulehry learned counsel for the appellant questioned the judgment and decree passed by the Court on the following grounds:--
(i) The Court had no pecuniary jurisdiction in respect of claim in Suits bearing No, 391/97 (HCA No,335/05) and No, 393/97 (HCA No,338/05);
(ii) No order for consolidation of Suit were passed by the Court and Suit No,391 and Suit No,393/97 were decreed for Rs,13,30,000 and Rs,15,10,000 by the Court having no pecuniary jurisdiction in the matter.
(iii) Respondent failed to produce Site Report, Examination Report of vehicles.
(iv) Learned Judge granted a sum of Rs,5,00,000 on account of loss of consortium without any justification and funeral expenses of Rs,10,000 whereas respondents have asked Rs,400 on account of funeral expenses.
(v) The accident was occurred due to contribution of negligence on the part of appellant's driver and the van in which respondents were travelling.
(vi) Without framing of issues judgment and decree was passed.
8. ' Mr. Sulehry learned advocate for the appellant in support of his contention on point Nos.1 and 2 argued that High Court can exercise original jurisdiction in Civil Suit only in the matter where Suit has been valued about Rs,3.00 million and suit have valued for the purpose of jurisdiction less than Rs,30,00,000 in Karachi District ought to have been filed before the Civil Court having territorial jurisdiction in the matter. As such in Suits Nos.391 and 393 of 1997 the respondents seek decree for Rs,13,30,000 and Rs,27,31,600 respectively and Court has no pecuniary jurisdiction.
9. Learned advocate contended that the respondent's witness admitted during cross-examination that the driver of the van did not apply brake and as such accident was occurred due negligence of drivers of both vehicles and principle of contribution of negligence attracted accordingly.
10. ' Mr. Nasir Maqsood learned advocate for the respondent in reply argued that the respondents filed suits Nos.391,392 and 393 of 1997 on behalf of their predecessor-in-interest. The suit No,392/97 was valued for the purpose of jurisdiction more than Rs,3-00 million and Court has pecuniary jurisdiction in the matter. It was contended that predecessorin-interest in all the three suits were died due to accident by the trailer owned by the appellant, this Court tried all the three suits together and rightly passed the judgment and decree. It was argued by Mr. Maqsood learned advocate for the respondents that all the three suits were arose from the same cause of action ought to have been tried together to avoid conflict of decision. In reply to the contention of the learned advocate for the appellants even it was contended that all the material evidence were brought on record duly exhibited without any objection the appellant now cannot call in question quantum of damages determined by the learned Single Judge.
11. ' In support of his contention learned advocate relied upon the PLD 1981 (SC) 210, 2004 CLC 1797, PLD 1984 (Q) 92, 1984 CLC 3090, 2002 CLD 1466, PLD 1992 (SC) 822, PLD 1967 (Dacca) 216, 1984 SCMR 573, 2007 SCMR 206, 2006 MLD 521, 1999 SCMR 1149, 2004 MLD 1696 and PLD 1991 (SC) 811.
12. ' We have taken into consideration arguments respectively advanced by the learned counsel for the parties and perused the record.
13. ' We will first deal with the objection raised by the learned advocate for the appellant about the pecuniary jurisdiction of this Court and, that effect of not passing order for consolidation.
14. ' On 18th September, 2002 by Sindh Civil Courts (Amendment) Ordinance, 2002, original jurisdiction of the Court in Karachi Districts in Civil Suits and proceedings was increased up to thirty lacs rupees and all proceedings of the value not exceeding original or appellate pecuniary jurisdiction of District Court pending in High Court immediately before the commencement of Ordinance stand transferred to the concerned District Court for disposal. The respondents filed three suits under Fatal Accident Act, 1855, in respect of fatal accident caused by the appellant's trailer resulting into the death of father of the respondents/plaintiffs. On the date when the suits were instituted same were rightly presented in this Court but after Sindh Civil Courts (Amendment) Ordinance, 2002, being the value of Suit Nos.391/97 and 393/97 were less than rupees three million, same were to be transferred to concerned District Court for disposal.
15. ' Section 15, C.P.C. Provided that every suit shall be instituted in the Court of lowest grade competent to try it. This section is a rule of procedure, not of jurisdiction, and whilst it lays down that a suit shall be instituted in the Court of lowest grade it does not oust the jurisdiction of higher grades which they possess under the Acts constituting them.
16. ' On the day when the suits were instituted the Court has pecuniary jurisdiction in the matter, however, after amendments by Sindh Ordinance No,XXX of 2002 same was transferred to concerned District Judges for disposal. All the three suits filed under Fatal Accidents Act arises out of one accident caused by a trailer owned by the appellant and proceed right from the date of institution till final disposal together. On 22-3-2002 on the pointation of the learned advocates for the parties, it was ordered that the suit No,393/1997 be tagged along with said suit and all the three suits thereafter listed together. A Court of higher grade can, in appropriate matters to avoid conflict of orders, call a file of suit pending before a Court of lower grade to dispose of the same along with suit pending in a Court of competent jurisdiction. Suit No,392/97, in HCA No,337/05 suit was valued for Rs,68,14,000 even after amendment of Sindh Civil Courts (Amendments) Ordinance, 2002, the same was not required to be transferred to District Court and accordingly office instead of transferring the other two suits being Suit Nos. 391/97 and 393/97 to District Court in compliance of order passed to tag all the three suits together, retain the file in this Court. After amendment made in Sindh Civil Courts Ordinance, 1962, evidence was recorded in all the three matters and after hearing the learned counsel for the parties suits were decreed. The appellant at no point of time raised any objection about the pecuniary jurisdiction of Court.
17. ' In the case of Mst. Changi and 4 others v. Bachoo, PLD 1984 Quetta 92, it was held that:- "The proposition of law now stands settled that if a suit if cognizable by a Court of lower grade is filed in a Court of higher grade, may be returned for presentation to appropriate Court if is tried and determined by a Court of higher grade, the decree will be valid and binding, as trial before a Court of higher grade is only an irregularity which does not affect the jurisdiction of the Court."
18. ' In the case of Shahzada Sultan Humayun v. Nasiruddin 1984 CLC 3090 wherein "transfer application was opposed by one of the parties that on transfer respondent would deprive from right of first appeal to the Court of learned District Judge from decree if any passed against. Him, after repealing contention being illusory learned Judge further observed that, "basic grievance in the suits is one and the same therefore in order to avoid likelihood of contradictory decision of two Courts it would be in the interest of justice that the suit pending in Civil Court be transferred to High Court."
19. ' In the case of Malik Jehangir Khan v. Banking Tribunal No,1, Karachi Division, Karachi and 4 others 2002 CLD 1466, after observing that the disputes and the issues which require determination in both the suits are identical and common it was held that:-- "This clearly established the principle that when a Court is conferred pecuniary jurisdiction at a higher stage or level then it will continue to have jurisdiction to proceed with suits or matters involving subject-matter of the value less than the minimum pecuniary jurisdiction conferred on it."
20. It was further held:- ". ..That the greater includes the less which will be applicable on the facts and circumstances of the case and would sufficiently meet the objection raised by Mr. Rowan Ahmed Sodium regarding fixation of the minimum limit of jurisdiction of this Court."
21. ' We are of the view that to avoid the contradictory judgments, files of Suits Nos. 391 and 392 of 1997 were rightly retained along with Suit No392/97 in which Court has pecuniary jurisdiction and proceeding together without specific order of consolidation is just irregularity and does not invalidate the decree.
22. ' For the foregoing reasons, objection raised by the learned advocate for the appellant has no force.
23. ' Coming to the contention of Mr. Sulehry that Site Report, Examination Report are not produced and a sum of Rs,5,00,000 was granted for loss of company and funeral expense of Rs,10,000, we have gone through the impugned judgment as well as evidence on record carefully. The respondents filed affidavit-in-evidence of one Muhammad Iqbal as eye-witness of accident, which took place on 17 August, 1996 between coach bearing No, PE-0628 and appellant's trailer bearing No,829-050 on National High Way. Respondents filed in all the three suits separate affidavit-in-evidence of their witness in support of their claim and were cross-examined by the learned advocate for the appellant and also produced affidavit in evidence of one Muhammad Iqbal as eyewitness, and was cross-examined by the learned advocate for the appellant, though the written statement was not filed by the appellant. It appears that appellant's advocate on 25th August, 2002 made a statement that the respondents have concluded their evidence and does not want to lead any evidence. After admission of the accident heavy burden lies upon the appellant to prove that accident was not caused due to his or his employee's negligence which appellant failed to discharge. Merely because examination report of the vehicle was not produced, F.I.R. Was registered in the matter giving details of the accident was duly exhibited. The non-production of Site report etc. Does not affect merits of the case in any manner to disentitle the respondents from the relief granted to them. Regarding grant of Rs,10,000 on account of funeral expenses cannot be said unjustified.
24. ' Coming to the last contention of the learned advocate for the appellant about the contribution of negligence, Mr. Sulehry mainly relied upon a statement of respondent's witness that driver of the vehicle in which deceased were travelling not applied the brake at the time of accident. We have gone through the evidence on record. From the evidence on record, it appears that Van in which deceased were travelling on the National High Way was running on an average speed and accident was caused all of a sudden when appellant's trailer was running on a high speed and driver lost its control on the trailer. The trailer hit the van in question on the other side of the road.
25. From the evidence on record it appears that accident was caused due to negligence of the appellant's driver and there is no evidence in rebuttal that driver of the van contributed towards accident.
26. ' In the case of KESC v. Syed Iqbal Hassan, 2004 MLD 1696, it was held that "appellant will not interfere with the quantum of damages awarded by the trial Court unless it could be shown that the latter applied a wrong principle of law in assessing damages.
27. ' For the foregoing reasons, appeals have no merit, which are dismissed in limine with no order as to costs.