AMIN-UD-DIN KHAN, J.---Through this appeal, order dated 22-9-2004 pass'ed by learned Addl: District Judge, Lahore, has been assailed, whereby the case was remanded to learned trial court.
2. The facts, in brief, are that the respondent-plaintiff on 21-5-2002 filed a suit for recovery of Rs,41,94,345.05. On the application under Order VII, Rule 11 of the C.P.C. Filed by the appellants- defendants that suit is barred by law, the plaint was rejected on 8-9-2003 by learned trial court.
The respondent- plaintiff preferred an appeal before learned District Judge, Lahore, which was entrusted to learned Addl. District Judge, Lahore. The same was allowed vide order/judgment dated 22-9-2004 ignoring the fact that the lower appellate court has no pecuniary jurisdiction to entertain and decide the appeal.
3. Learned counsel for the appellants-defendants mainly emphasizing on the point of pecuniary jurisdiction of learned lower appellate court and argued that the court was not having jurisdiction to entertain and decide the appeal. While relying upon "2005 SCM R 1388 (Munawar Hussain and 2 others v. Sultan Ahmad)" argues that even the consent or acquiescence by the parties cannot invest the jurisdiction with the court when the court suffers from want of inherent jurisdiction, hence no question of waiver or estoppel is attracted in such like circumstances. While relying upon "2004 SCM R 1622 (Maulvi Aziz-urRehman v. Ahmad Khan and others)" argues that even by the consent of parties jurisdiction cannot be conferred upon the court. Learned counsel further states that mistake of the counsel for mistaken advice also does not give any concession to the indolent party. In this context reliance is placed upon "2000 SCM R 1889 (Idris Ahmed Rizwani v. Federal Public Service Commission through Secretary, Chughtai Plaza, Blue Area, Islamabad and 3 others)". While relying upon "2000 SCM R 1657 (Khooshamonai Tribe of Samagole, Tehsil Morkeh, District Chitral through Representative v. Provincial Government of N.W.F.P, Home and Tribal Affairs Department, District Courts, Peshawar and 3 others)" learned counsel argues that litigant cannot confer jurisdiction upon the court or tribunal which otherwise is not possessed by it. On merits learned counsel for the appellants has also referred to the law that the period consumed by the plaintiff-respondent before Wafaqi Mohtasib cannot be condoned under section 14 of the Limitation Act, 1908. In this regard reliance is placed upon "1999 CLC 364 (Shifaatullah. Qureshi v. Federation of Pakistan through Secretary/Chairman, Railways, Ministry of Railways Islamabad)". It has been further argued that as the suit has been filed for recovery of amount in lieu of work done which is governed by Article 56 of the Limitation Act, 1908 and period of limitation is three years. Learned counsel has relied upon "1997 CLC 893 (Sualeh Sons (Private) Limited v. Karachi Development Authority)".
4. On the, other hand, learned counsel for the respondent-plaintiff could not advance any arguments supported by any law that the lower appellate court was having jurisdiction or it cannot be set aside on the basis of jurisdictional defect and also remained unable to show any defect in order rejecting the plaint passed by learned trial court.
5. I have heard the learned counsel for the parties at full length and also gone through the case- law referred to by learned counsel for the appellants as Well as record minutely with their able assistance.
6. Admittedly, the jurisdictional value fixed by the plaintiff was Rs,41,94,345.05 and when the~ plaint was rejected under Order VII, Rule 11 of the C.P.C., plaintiff-respondent himself preferred an appeal before learned District Judge, Lahore. The upper limitation of pecuniary jurisdiction of learned District Judge is rupees twenty five lac and value of the appeal was more than pecuniary jurisdiction of learned District Judge, who therefore was having no jurisdiction to entertain and decide the appeal. In the light of case-law referred to by learned counsel for the appellants the decision of appeal by learned first appellate court whereby the appeal was accepted and matter was remanded to learned trial court, is nullity in the eye of law on the basis of jurisdictional defect only.
7. So far as the legal contentions are concerned. For recovery of amount in lieu of work done, Article 56 of the Limitation Act is applicable and that the proceedings before Wafaqi Mohtasib are concerned. As Wafaqi Mohtasib is not a court, therefore the benefit of section 14 of the Limitation Act can also not be given to a person, who A consumes any time before Wafaqi Mohtasib.
Therefore, I fully agree with the arguments advanced by learned counsel for the appellants. I find that benefit of section 14 of the Limitation Act, 1908 cannot be claimed by a person who consumed time before Wafaqi Mohtasib as Wafaqi Mohtasib is not a Court, therefore time consumed there cannot be excluded from the prescribed period for filing of a lis.
8. In the light of above discussion, this appeal is allowed and the impugned order dated 22-9-2004 passed by learned Addl: District Judge, Lahore is set aside.