1. Facts necessary for the decision of this appeal, in brief are:- Afzal Ahmad a displaced person from the territory of Islamabad was allotted land measuring 100 Kanals in Chak No. 2251WB. Tehsil Lodhran by Provincial Government. On 19-5-1973, he entered into an agreement to sell the allotted land, to Muhammad Amin the present appellant. It was agreed that after obtaining proprietary rights, the aforenoted land would be transferred to the plaintiff for a sum of Rs.20,000 out of the sum agreed to be paid Rs.19,000 were paid in advance, while the balance amount of Rs.1,000 was to be paid at the time of execution and registration of the sale- deed. Since the defendant, after proprietary rights were conferred on him, did not honour the terms of the agreement, plaintiff instituted a suit for specific performance against him in the Court of Civil Judge at Lodhran. It was averred that in case relief of specific performance could not be granted to the plaintiff, he was entitled to receive a .Sum of Rs.66,000 from the defendant No.l on account of various items enumerated in plaint. Meanwhile, defendant No.l alienated the suit land to Bashir Ahmad for a sum of Rs.1,50,000. Subsequent transfere was impleaded as defendant in the civil suit.
2. In written statement, several defences were raised. Those are; (i) suit was barred under section 12, 21 (A), and 27(B) of the Specific Relief Act; (ii) sale agreement contravened the mandatory provisions of section 19 of the Colonization of Government (Punjab) Lands Act, 1912; (iii) plaintiff himself had assessed his claim in damages as an alternative relief, therefore, suit for specific performance could not proceed; (iv) Bashir Ahmad being a bona fide transferee for value without notice, and was protected under law. Apart from the objections raised above, claim on merits was also controverted.
3. Alongwith plaint an application under Order XXXIX, rules 1 and 2 of the Code of Civil Procedure for restraining the defendants from interfering with plaintiff's possession and alienating the suit land pendente lite was also moved. This petition was seriously resisted by the defendants. Civil Judge Ist Class Lodhran vide order dated 26-11-1980 not only dismissed the petition for interim relief but also proceeded to order partial rejection of the plaint. In a lengthy order, the Court found that the claim so far as it related to relief of specific performance, on the grounds given in the order, was not available to the plaintiff. In brief, it was observed that agreement to sell was hit by provisions of section 19 of the Colonization of Government Lands Act, 1912, claim for a sum of Rs.66,000 in the alternative, debarred the plaintiff from seeking specific performance of agreement to sell and that the defendant No. 3 was a bona fide transferee and suit against him could not proceed. These were the grounds which weighed with the trial Court for ordering partial rejection of the plaint. In support, Court referred to certain provisions of the Specific Relief Act and the two precedents to be found in PLD 1977 Kar. 191 and PLD 1979 Lah. 865. Net result of the order dated 26-11-1980 was that suit as regards relief for specific performance was found unmaintainable but with regard to the recovery of Rs.66,000 it was ordered to proceed. In consequence of the above-noted order, plaintiff was directed to file amended plaint. Aforenoted order was brought under challenge in two separate appeals before learned Additional District Judge, Multan. Both the appeals, one against refusal of interim relief and the other directing partial rejection of the plaint were adjudicated upon by a single order. The Court found that the value of the subject-matter in dispute was beyond its pecuniary jurisdiction. In the result the memoranda of appeals were returned to the appellants for presentation to proper Court. It is in this background that the second appeal (Regular Second Appeal No. 16 of 1981) has come to be instituted in the High Court. It is directed, both against the order dated 26-11-1980 of the Civil Judge and 23-2-1981 of learned Additional District Judge, Multan.
4. On behalf of the appellant, following contentions were raised:
(1) Plaint cannot be rejected in part.
(2) Section 19 of the Colonization of Government Lands (Punjab)
5. Act, 1912 did not operate as a bar to the entertainment of suit for specific performance. Reference was made to Mst. Khurshid Begum and 7 others v. Inam Rabbani and another 1979 CLC 570 and Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others 1980 SCMR 314.
(3) Under Order VII, rule 11(a), Code of Civil Procedure, plaint could not be rejected. For ordering rejection of the plaint, averments in the plaint alone had to be looked into. Defence offered by the opposite party could not be noticed and taken into consideration. Contents of the plaint did disclose cause of action and the fact that the plaintiff may ultimately not succeed to substantiate the averments of plaint was in itself not a valid ground to reject the plaint qua relief of specific performance. Court in view of the conflict between the parties and nature of the pleadings was bound to frame issues on the material propositions of facts and law asserted on one side and denied by the other and after affording an opportunity of leading evidence, decide the suit on merits. Summary guillotining of the suit in the circumstances of the present case was not a permissible course under Order VII, rule 11(a) of the Code.
(4) Defendant No.l had agreed to sell the suit land for a sum of Rs.20,000. Relief for specific performance in terms of section 7 (xi) of the Court Fees Act was valued both for purposes of court- fee and jurisdiction at Rs.20,000 i.e. The price agreed to be paid for the land to be transferred. There were two claims in the plaint, one for specific performance and other for recovery of Rs.66,000.
6. Later claim was in the alternative. Relief for specific performance alone was refused when the plaint was rejected in part. As regards the rest the suit was allowed to continue. Value of subject- matter In dispute on appeal was a claim for specific performance only. Appeal, therefore, was rightly taken to the Court of District Judge. Relied on Haji Gul and others v. Mst. Aisha PLD 1973 Kar.
653. Court of appeal had juris--diction and in the result of the impugned order it refused to exercise jurisdiction which clearly vested in it.
(5) In case High Court was of the view that appeal was not competent before District Judge, this appeal, Regular Second Appeal No. 16 of 1981 should be treated as a first appeal against order of the Civil Judge.
7. In reply, respondents urged:-
(1) Court, if it was of the view that the relief claimed was separate and could not be granted, could competently order rejection of the plaint in part. Agreement to sell was hit by section 19 of Punjab Act X of 1912. From the averments made in the plaint itself it appeared that the suit was barred under the provisions of Punjab Act V of 1912. The Court, therefore, legitimately invoked its powers under Order VII, rule 11(a) of the Code to order rejection of the plaint partially. Referred to Mirza Muhammad Ahmad v. Mirza Amjad Beg PLD 1979 Lah. 865, Wajid Ali and 2 others v. Board of Revenue Punjab and 2 others PLD 1982 Lah. 716 and Hakim Ali and another v. Atta Muhammad and others 1981 SCMR 993.
(2) Plaint was assessed at Rs.66,000 for court-fee and jurisdiction. First appeal was not competent in the Court of District Judge as the plaint, for purpose of choosing a forum of appeal, could not be bifurcated.
(3) Order of Additional District Judge returning memorandum of appeal was appealable under Order XLIII, rule 1 of the Code of Civil Procedure and second appeal, therefore, was not maintainable.
(4) Averments in plaint when read together did not disclose any cause of action as the suit was barred not only under several provisions of the Specific Relief Act such as sections 19, 12, 21 and 27
(b) but also under section 19 of Punjab Act V of 1912.
8. Points raised on both the sides have been noticed and considered. Pivotal question that falls for consideration and decision in view of the proposed valuation in the plaint is about forum of appeal.
9. Plaintiff claimed two reliefs i.e. Decree for specific performance and in the alternative claimed sum of Rs.66,000. It is correct that the land was agreed to be sold for Rs.20,000. Plaint, in terms of section 7(x) Court Fees Act read with section 8 of the Suits Valuation Act, could for purposes of court-fee and jurisdiction be rightly assessed at Rs.20,000. Since, claim for recovery of Rs.66,000 was also laid, it being a larger relief, the plaint was valued at Rs.66,000 for both the purposes of court-fee and jurisdiction also. Two parts were not separately assessed. Forum of appeal is provided in section 18 of the West Pakistan Civil Courts Ordinance, 1962 (Ordinance II of 1962). Section 18, so far as it is relevant for the present purpose reads:- "Appeal from the Civil Judges.-- Save as provided, an appeal from a decree or order of a civil Judge shall lie-
(a) to the High Court if the value of the original suit in which the decree or order was passed exceeds fifty thousand rupees.
(b) to the District Judge in any other case.
10. Appeal, therefore, did not lie to the District Judge. Claims clubbed together i.e. Specific performance and recovery of Rs.66,000 could not be bifurcated for purposes of forum of appeal.
11. Value of the original suit alone had to form the basis, which when applied to the facts of the case show clearly that appeal lay to the High Court only and not the District Judge. View of law taken by learned Additional District judge, therefore) appears to be unexceptionable. I, now, turn to the second question whether second appeal was at all competent against the order of Additional District Judge directing return of the memorandum of appeal. Though in view of the order I propose, this question does not arise at all, yet since the counsel have addressed q arguments, I will be failing in my duty if the point raised is not adverted to. In Pehlwan v. Abdul Sattar and others 1974 Law Notes 758 a decision by this Court with which I respectfully agree, provide a complete answer. Such an order cannot be appealed from under Order XLIII, rule 1 of the Code. Only a revision lies. This ends the discussion on the point whether appeal was competent or the order was revisable. Stage has now been reached to consider whether regular second appeal could be treated as first appeal against decision, dated 26-11-1980 of civil Judge ordering rejection of plaint in part, if so, was it in time and was properly stamped also. If not can the bar of limitation be condoned under sections 5 and 14 of Limitation Act, 1908 and deficit court-fee paid.
12. As regards the point whether regular second appeal could be treated as first appeal, I see no bar in law against such a course. Law lays emphasis on substance and not the form. This appeal, therefore, is being treated as appeal against the rejection order. Now comes the questions of limitation. Order was passed on 26-11-1980. Application for copy was moved on 29-11-1980. Copy was supplied the same day-- Period of 90 days is available for appeal to the High Court under Article 156 of Limitation Act. Appeal was presented in the High Court on 11-3-1981. Deducting the days taken in getting the copies the appeal was barred by 14 days only. Appeal was first taken to the District Judge and was filed in his Court on 23-12-1980. It was returned on 23-2-1981. Can appellant in these circumstances rely on section 5 or for that matter section 14 of the Limitation Act for seeking condonation of delay? I think he can. Civil Judge passed a curious order. He rejected the plaint in part and allowed the suit to continue with regard to the claim made in the alternative.
13. It is this curious order which placed appellant in a fix. Plaintiff was in the hands of Advocate who under a bona fide mistake of law was convinced that value qua relief of specific performance alone was to be considered, in determining the forum of appeal. He may have arrived at this decision bona fide. Point was not free from difficulty. Therefore, taking view of the entire circumstances in which the appeal has reached this Court, and the nature of the impugned order, I have decided to condone the delay and treat the appeal in time after giving appellant the benefit of time spent in the District Court. Now comes the question of court-fee payable on the memorandum of appeal. Section 7 of the Court Fees Act is a charging section which shows how the court-fee payable on various claims is to be computed. Article I of Schedule I provides a supplement to it. When subject-matter of the suit and the appeal is identical court-fee payable on appeal remains the same which was paid on the plaint. However, when the two are different, court- fee payable is to be calculated on the value of subject-matter in dispute in appeal. What is the value of subject-matter in dispute in this appeal? Is it the same or different from the plaint. Short answer is that value of the subject-- matter in appeal is confined to relief of specific performance which relief was refused to the plaintiff when his plaint was partially rejected.) Karachi High Court in Haji Gul and another v. Mat. Aisha PLD 1973 Kar. 653 on this observed:- "No doubt if the 'subject-matter' both in the original suit and in appeal is the same, the court-fee on the memorandum of appeal would be the same as on the plaint, but if the relief claimed in the suit and appeal are different or the 'subject matter' in the appeal differ and the court-fee has to be paid ad valorem basis, the court-fee payable on the memorandum of appeal would be different from the one paid on the plaint and would have to be determined in accordance with the 'subject- matter' and the relief claimed by the appellant."
14. In the instant case, relief claimed, is setting aside that part of the order whereby plaint was partially rejected and this alone was the subject-matter in dispute in appeal. Court-fee, therefore, was payable on the sum of Rs.20,000, the price agreed to be paid for the land to be sold. Suit was instituted on 6-3-1980. Claims to the extent of Rs.25,000 were exempted from payability of court- fee. Court-fee, therefore, was not deficit.
15. I propose now to advert to the merits which should not detain me long. Rule 11(a) of Order VII of Code does not contemplate partial rejection of the plaint. It was not a point of first impression, rather, field was convered by judicial precedents. In Rao Bahadur and another v. Secretary of State and others AIR 1931 Mad. 175, National Bank of Pakistan Karachi v. Faqir Muhammad Malik and another PLD 1977 afar. 256, Feroze Din and another v . Master Muhammad Sher Khan 1979 CLC 742 and a decision from post-partition Indian jurisdiction to be found in AIR 1962 Pat. 189, it was ruled that the plaint cannot be rejected in part. Where the plaint earns its rejection under Order VII, rule 11 of the Code, it must be rejected as a whole and not partially. I am, therefore, in safer company, in holding that the no decision taking contrary view was brought to my notice. Plaint could not be rejected in part I. Impugned order, to say the least, was on the face of it illegal. Rather it was a strange and a curious order not warranted by law. Yet another point needs consideration. Could the plaint be rejected even in part on the defence offered in the written statement? Answer is emphatic no. To see whether the plaint discloses a cause of action, averments in the plaint alone had to be looked into and defences offered cannot be examined. Plaintiff has a right in law to have a fair trial of his case, to produce evidence and have the judicial opinion of the Court on merits of his cause. Plaint can only be rejected when allegations made in the plaint when accepted in mode and form does not entitle the plaintiff to a relief claimed. Summary guillotining of the civil proceedings as has been done in this case can hardly earn approval from the Superior Courts. In the result of the order passed by Civil Judge, parties have suffered both in time and expense. It has also wasted the public time of the Courts. In the result, appeal is allowed, impugned order, dated 26-11-1980 is set aside and the suit is remanded to the file of learned Senior Civil Judge, Multan for its decision afresh in accordance with law. Costs to be borne as incurred. Parties to appear before the learned Senior Civil Judge on 1-7-1985. If either of the parties does not appear on the date fixed, learned Senior Civil Judge shall issue notice.