Kh. Muhammad Nasim, J. The captioned appeal, by leave of the Court, has arisen out of the judgment and decree of the High Court dated 11.07.2018.
2. The facts relevant for disposal of this case are that plaintiff Respondent No. 1, herein, filed a suit under Order XXXVII, CPC before the High Court for recovery of an amount of Rs. 36,00,000/-from the defendant-appellants, herein. After necessary proceedings, the learned High Court through the impugned judgment dated 11.07.2018 decreed the suit and held the plaintiff entitled to receive an amount of Rs. 36,00,000/-from the defendants along with 9% interest per annum from the date of institution of the suit till satisfaction of the decree.
3. At the very outset, Mr. Javaid Iqbal Satti, Advocate, appearing on behalf of Respondent No. 1 raised a preliminary objection regarding maintainability of petition for leave to appeal against the impugned judgment of the High Court. He submitted that under Article 42(11)(d) of the Azad Jammu and Kashmir Interim Constitution, 1974 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 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; direct appeal lies to the Supreme Court. In the instant case, the value of the subject-matter is more than Rs. 50,000/-, hence, direct appeal was competent, whereas, the petition for leave to appeal has been filed which is not maintainable. In support of his contentions, he referred to and relied upon the case reported as Chief Administrator Auqaf vs. Sain Ghulam Ahmed & others [2011 SCR 471].
4. In rebuttal, Ch. Muhammad Ashraf Ayaz, Advocate, the learned counsel representing the appellants filed the written arguments contending therein that for filing the direct appeal before this Court there is no limitation, hence, to meet the ends of justice this Court has got ample powers to treat an appeal as petition for leave to appeal and vice versa. It is further contended that the cases are meant to be decided on merit and the technicalities should be avoided.
5. We have heard the learned counsel for the parties and gone through the record. A direct appeal lies to the Supreme Court under Article 42(11) of the Azad Jammu and Kashmir Interim Constitution, 1974 against the judgment/decree or order of the High Court in the following circumstances: --
(a) If the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to imprisonment for life; or, on revision, has enhanced a sentence to a sentence as aforesaid; or
(b) If the High Court has withdrawn for trial before itself any case from any Court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid; or
(c) If the High Court has imposed any punishment on any person for contempt of the High Court; or
(d) 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 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 judgment, decree or final order of the Court immediately below; or
(f) If the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.
In view of the proposition involved in the matter in hand, the provisions of Article 42(11)(d) of the Constitution are attracted which provide that a direct appeal shall lie to the Supreme Court when two eventualities are met i.e., (i) 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; and
(ii) the judgment, decree, or final order appealed from has varied or set aside the judgment, decree, or final order of the Court immediately below. As the respondent has filed the suit for recovery of Rs. 36,00,000/-, before the High Court, hence the first eventuality for direct appeal before the Supreme Court that the amount or value of the subject matter should not be less than Rs. 50,000/-is meted out, however, the question arises about the occurrence of the second eventuality. This Court in a number of cases has held that for attraction of Article 42(11)(d) both the aforementioned requirements should be fulfilled simultaneously i.e., the amount or value of the subject matter should not less than Rs. 50,000/-and the High Court should have varied or set aside the judgment, decree, or final order of the Court immediately below, whereas, in the instant case the proposition is quite different. The requirement of setting aside or varying the judgment, decree, or final order of the Court immediately below cannot be fulfilled as the High Court has passed the judgment being the Court of original jurisdiction, thus we have to resort to the provisions of CPC dealing with the appeals against original decree. Sub-section (1) of Section 96. of the Code of Civil Procedure, 1908 provides that: "96. (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 authorized to hear appeals from the decisions of such Court."
In view of the above, against the original decree of any Court, an appeal lies to the Court authorized to hear the appeals from the decisions of such Court. In this case, the Court exercising original jurisdiction is the High Court, hence, a direct appeal even otherwise lies to the Supreme Court and it becomes immaterial whether the second eventuality mentioned in Article 42(11)(d) of the Constitution is fulfilled or not. Furthermore, keeping in view the peculiar facts of this case, the condition of setting aside, varying or modifying the judgment, decree or final order of the Court immediately below is impossible.
6. In view of the above, we are constrained to hold that against the impugned judgment and decree passed by the High Court a direct appeal lies to the Supreme Court under Article 42(11)(d) of the Constitution, hence, the petition for leave to appeal was incompetently filed by the appellants.
7. So far as the request made by the learned counsel for the appellants for treating the petition for leave to appeal as appeal is, concerned, the same could only be allowed if the request is properly made within prescribed period of limitation, whereas, in this case, the period of limitation has already been expired, hence, the request made by the learned counsel for treating the PLA as appeal, is turned down. The case law cited by him in the written arguments, being distinguishable, is not attracted.
8. The other objection of the learned counsel for the appellants that for filing direct appeal before the Supreme Court, no limitation is provided; is also devoid of any force. Rule 1, Order XII of the Azad Jammu and Kashmir Supreme Court Rules, 1978 speaks that: "1. Civil appeal under clauses (d) & (e) of sub-section (11) of Section 42 of the Constitution shall be lodged within sixty days from the date of judgment, decree or final order of the High Court and appeals in the cases under clause (f) sub-section (11) ibid, within thirty days from the date of grant of certificate by the High Court: Provided that the Court may for sufficient cause extend the time."
Thus, a direct appeal under Article 42(11)(d) of the Constitution lies to the Supreme Court within sixty days from the date of judgment, decree or final order of the High Court. Perhaps, the learned counsel for the appellants is not aware of the substitution and insertion made in the Rules vide Notification No. SC/2288-98 dated 14.02.2017. We deem it proper to refer for his guidance, the Azad Jammu and Kashmir Supreme Court Rules, 1978 (as amended upto 2017) which are also printed/incorporated as Index in Supreme Court Recorder for the year 2017.
For the reasons, stated hereinabove, this appeal is dismissed. No order as to costs.