' This appeal filed by the Government of the North-West Frontier Province, which originally was filed in this Court as a revision petition but was by order dated 3-12-1983 of this Court converted into an appeal, is directed against the judgment and decree dated 13-6-1983 passed by the learned District Judge, Kohat on original side in a civil Suit bearing No. 143/1 instituted on 19-5-1980 in the Court of Senior Civil Judge, Kohat. How the suit came to be tried on original side by the Court of the learned District Judge,Kohat would be found from the narration of facts hereinafter mentioned, but whether such an exercise was lawful or not was the only question which was agitated before me in this appeal and required determination.
2. Mir Ahmad Shah instituted this suit against Government of the North-West Frontier Province and 3 others for a permanent injunction to the effect that the defendants should supply to him cement at the rate of Rs.36 per bag plus 5$ storage charges in connection with the work which he had undertaken to execute for the defendants. The suit was instituted in the Court of Senior Civil Judge, Kohat where it was registered at No. 143 in Register No.
1. The plaintiff had also made an application for the grant of interim injunction to the effect that till the disposal of the suit the defendants should keep on supplying cement to him at the aforesaid rate. The interim relief was allowed by the learned Senior Civil Judge. The defendants were not happy over it. They, therefore, went up in appeal to the District Court. The appeal was heard by the learned Additional District Judge,Kohat, who, while dismissing the appeal, in his order dated 13-7- 1980 observed that since at the time of execution of the contract the rate of cement under Schedule B was Rs.36 per bag plus 5% storage charges, the Department concerned "must honour its commitment made in the agreement in order to save the Contractor from the loss which was unprovided for". The case was then sent back to the learned trial Judge for further proceedings in the matter. On receipt of the record from the appellate Court the learned Senior Civil Judge, instead of proceeding further in the case, straightaway decreed the suit on the basis of the observations contained in the order of the learned Additional District Judge touching the merits of the case. The defendants, aggrieved as they were by the order of the learned trial Judge, went up in appeal to the Court of District Judge, which Court, by then, came to be presided over by the learned Additional District Judge who had earlier disposed of appeal against the interim order.
Having already expressed his mind on the merits of the case, the learned District Judge thought it advisable to get the appeal transferred to some other District Judge for disposal. He accordingly approached the High Court and the appeal was transferred for disposal to the District Judge at Peshawar. It had not yet been disposed of when the District Judge, Kohat was transferred and the District Judge at Peshawar sent back the appeal to the District Judge, Kohat, of course through the High Court for disposal. While seized of appeal against a decided case the learned District Judge, having formed the view that the procedure adopted by the learned Senior Civil Judge was unlawful, instead of accepting the appeal and remanding the case to the learned trial Judge for further proceedings, decided to convert the appeal into suit and proceeded with it. Issues were framed in the case by the learned District Judge and after recording evidence of the parties the learned District Judge decreed the suit. Paragraph 13 of the judgment reads as follows:- "Consequently all the issues framed in this case are decided in favour of the plaintiff. This appeal fails. The suit is decreed. It is ordered that the plaintiff would be entitled to receive his balance amount from the Department (if withheld by way of security) alongwith its security and the Department would be bound to pay the balance if so withheld. Parties shall bear their own costs."
' The aggrieved defendants then filed revision petition in this Court which was converted into an appeal, as already said.
3. Mr.Amirzada Khan, Advocate-General appeared on behalf of the appellants and Mr.Afridi Khan, Advocate appeared on behalf of the respondent. Their arguments were heard and the record gone through with their assistance.
4. The only point pressed by the learned Advocate-General before me was that the action taken by the learned District Judge in converting appeal into a suit had no backing of law and from that stage onwards all proceedings held in the Court of the learned District Judge were without jurisdiction. being in complete disregard of clause (b) of subsection (1) of section 24 of the Code of Civil Procedure. His main contention was that since there was no suit pending in the Court of Senior Civil Judge, Kohat, having already been disposed of, nothing could be transferred by the learned District Judge to this Court for disposal. The learned counsel for the respondent, however, argued that section 24 of the Code was not applicable in this case and that section 107 thereof was the real section which was invoked by the learned District Judge while taking the impugned action. He contended that the action taken by the learned District Judge was not contrary to law, hence unassailable.
5. I have considered the arguments of the learned counsel for the parties. 1 find much substance in the argument of the learned Advocate-General. Section 24, C.P.C. is the relevant provision in the Code whereunder even suo motu powers can be exercised by the Courts mentioned therein for the transfer of appeals, suits or other proceedings. But the power vesting in the Court thereunder can be made use of only in respect of pending matters. Once a suit is decided on merits by the lower Court then the District Court cannot invoke powers under section 24 of the Code until appeal is accepted by it and the to the trial Court for further proceedings wherefrom as pending matter, it can then be transferred to the District Court for disposal. It is nowhere provided in the Code that an appeal pending in the District Court can be converted into a suit and disposed of as such by the District Court. I do not appreciate the anxiety of the learned District Judge in early bringing to an end, at his level, the litigation between the parties, but in doing so he forgot that the action being taken by him had no backing of law, rather it was in disregard of the procedural law contained in the Code. The judgment and decree made by him, being illegal, are, therefore, not maintainable.
6. In the result, this appeal is accepted, the judgment and decree passed by the learned District Judge are set aside and the case is remanded to the learned Senior Civil Judge, Kohat for further proceedings. The learned Senior Civil Judge may adopt the issues already framed by the learned District Judge and after affording to the parties an opportunity of producing such evidence as they may like to produce, he would dispose of the suit in accordance with law. Uninfluenced by the judgment of the learned District Judge and the reasoning adopted therein. Costs shall follow the event.
' Appeal accepted.