NAZIR AHMED BHATTI, J.-Haji Khudai Nazar, respondent herein is a Government contractor. He was granted by the Executive Engineer, Pat Feeder Canal Division, appellant No. 3 herein, the work of earth filling on the left bank of the Pat Feeder Canal from R. D. 235 to R. D. 343 vide contract executed in the year 1973. The said work was executed and completed by the respondent to the entire satisfaction of the competent authorities. During the period of contract the prices of goods increased whereby labour charges etc. Also considerably increased and the Government by general order had allowed escalation charges of 115 % for all ongoing works. The respondent was thus also entitled to escalation charges on the work in hand, at the aforesaid rate. The respondent had quoted his rates on 20-10-1973 and this date falls within the period in respect of which escalation charges of 115 % were allowed and paid to all the contractors. It is noteworthy that period of escalation was 1-3-1973 to 31-12-1973. The respondent made representations to the respondents to honour their commitments and arrange to pay to him the balance amount calculated on the basis of the said escalation charges. However, the respondent allowed him escalation charges at the rate of only 20 % instead of 115 %. The respondent, therefore, filed a suit on 20-3-1983 in the Court of District Judge, Sibi camp at Jhatpat, which was transferred to Additional District Judge, Sibi Division at Jhatpat. The respondent claimed the following relief in the suit :- "(a) The plaintiff is entitled to escalation charges at the rate of 115 above instead of 20 %.
(b) The defendants are liable to make the payment to plaintiff calculating his dues on the basis of 115 % as escalation charges ;
(c) -and for requiring the defendant to make payment of the balance of 95 %.
(d) such other relief that may be deemed appropriate be awarded in favour of the plaintiff and against the defendants with costs."
The suit was contested by the appellants herein and it was mentioned by them in their written statement that the suit was barred by time and was not maintainable. On facts it was contended in the written statement that the Government had allowed escalation to the ceiling rate of 115 % on composite schedule of rates of 1967 on unexecuted portions of all ongoing works between 1-3-1973 to 31-12-1973 and the tenders for this work were called on 20-11 1973 and the work was started on 18- 11-1973 as such the respondent was not entitled to any escalation because his quoted rates were already 225 % above composite schedule of rates. He obtained 20 escalation charges over and above his rates due to misrepresentation and this amount was also to be recevered from him. The order for the recovery of this amount was made in December 1974 and the suit is barred by limitation and the respondent was bound to return an amount of Rs. 1,77,519 to the appellants. The pleadings of the parties gave rise to the following issues: - "(1) Whether the suit is not maintainable in law?
(2) Whether the suit is barred by time?
(3) Whether the demand was made within the prescribed period notified by the Government of Baluchistan?
(4) Whether the plaintiff is entitled for escalation charges?
(5) What should the decree be?"
2. The respondent was the only witness from his side whereas D. W. 1 Muhammad Ibrahim, Sub- Divisional Clerk was the only witness of the appellants. The suit was ultimately tried by Mr. Muhammad Akbar, Additional District Judge, Sibi Division at Jhatpat, who vide his judgment dated 31-10-1984 decided all the issues in favour of the respondent and decreed his suit. During the evidence it was brought on record by the appellants that the respondent had also filed a suit of the similar nature and against all the appellants herein in the Court of Senior Civil Judge, Quetta as well. That Suit No. 289 was instituted on 3-9-1978 and was ultimately tried by Additional District Judge 11, Quetta, who dismissed the same on 16-10-1983 by closing the evidence of the respondent under the provisions or Order XVI1, rule 3, C. P. C. The respondent aggrieved from the dismissal of his suit filed R. F. A. No. 33 of 1984 in this Court, which was accepted by judgment dated 20-8-1985 and the case was remanded to the trial Court with the direction to consider the evidence already on record and after giving opportunity to the respondents therein to produce evidence. The present R.
F. A. No. 1 of 1985 has arisen as a result of the judgment dated 31-10-1984 made by Mr. Muhammad Akbar, Additional District Judge, Sibi Division at Jhatpat.
3. We have heard the learned counsel for the parties at great length who also led us through the record of both the suits.
4. Although the appellants herein had not in their written statement taken up the plea under section 10, C. P. C. That an earlier suit was also pending with regard to the same matter but this circumstance was brought to notice of the Court at the time of evidence and copies of the plaint in the previous suit and written statement were also filed. The perusal of the plaint in Suit No. 289 instituted on 3-9-1978 would show that the present respondent was a plaintiff therein along with one other person Gul Muhammad, and appellants Nos. 2 and 3 herein are defendants Nos. 2 and 3 in that suit. Although Government, which is appellant No. 1 herein, was not a party in that suit yet Assistant Accounts Officer was defendant No. 1 therein. The perusal of the contents of the plaint in Suit No. 289 would show that the plaintiff therein had claimed the same relief on the same grounds and with regard to the same subject-matter, which are the relief, grounds, and subject-matter of the Suit No. 13 instituted on 20-3-1983. The previous Suit No. 289 having been instituted on 3-9-1978 operated as a bar - under section 10, C. P. C. To the present Suit No. 13 instituted on 20-3-1983.
When this fact was brought to the notice of the A learned Additional District Judge. Jhatpat, he should have immediately stayed further proceedings till the decision in the previously instituted Suit No. 289 as is clear from the provisions of section 10, C. P. C. The result is that the previously instituted suit was dismissed by the trial Judge on 16-10-1984 while the later Suit No. 13 of 1983 was decreed by the Addi--tional District Judge, Sibi Division at Jhatpat on 31-10-1984 Conflicting judgments were made by both the Courts with regard to the same subject --matter based on the same circumstances and relief.
5. Since the appeal in the previously instituted Suit No. 289 has already been accepted by this Court vide judgment dated 20-8-1985 and I pending trial before the Additional District Judge-11, Quetta we are of the considered opinion that the provisions of section 10, C. P. C. Are attracted to the present Suit No. 13 of 1983.
6. A preliminary objection was raised by Mr. Basharatullah learned counsel for the respondent that the present appeal filed in this Court was incompetent and it should have been filed before the District Judge. In this respect his contention was that the Additional District Judge tried the original suit as a civil Court and under the provisions of West Pakistan civil Courts Ordinance, 1962 (hereinafter referred to as the Ordinance) as contained in sections 17 and 18 thereof, the District Judge was competent to hear this appeal. In this respect he has relied upon Bharat Bank Ltd. v. Ch. Rehmatullah etr. (PLD 1975 Lah.37), Sadar Din v. Elahi Bakhsh and another (PLD 1976 Lah.l), Sanaullah v. Muhammad Akhtar and ll others (1979 CLC 578), Messrs Suleman do Co. v. Islamic Republic of Paki,tan and 2 others (1980 CLC 2183), llahi Bakhsh and others v. Mst. Bilquees Begum (PLD 1985 SC 393) and Rizwan Hussain v. Rehm Din (1986 CLC 527).
7. We have given our anxious thought to this contention of Mr. Basharatullah. It is admitted that the suit was tried on the original side by the Additional District Judge. Under section 3 of the Ordinance the Court of the District Judge, the Court of the Additional District Judge and the Court of the Civil Judge are the civil Courts. Under the provisions of section 6 the Government is empowered to appoint as many Additional District Judges as may be necessary and an Additional District Judge shall discharge such functions of the District Judge as the District Judge may assign to him, and in the discharge of those functions he shall exercise the same powers as the District Judge. Under the provisions of section 17 o the Ordinance appeal from a decree or order of District Judge o Additional District Judge, exercising original jurisdiction, lies to the High Court and under section 18 of the Ordinance appeal from a decree or order of the Civil Judge lies to the High Court if the value of the original suit in which the decree or order was made exceeds fifty thousand rupees and the District Judge in any other case.
8. It shall thus be seen that the powers of the Additional Distric Judge are co-extensive with that of the District Judge and in the performance of his function he exercises the same powers as are exercised by a District Judge. Although all the aforesaid three Courts are civil Courts for the purposes of the Ordinance but whenever any civil case is tried on its original side by an Additional District Judge appeal shall lie to the High Court and not to the District Judge as provided by section 17 of the B Ordinance. The Additional District and District Judge exercise co-extensive jurisdiction as laid down under subsection (2) of section 6 of the Ordinance. It is unthinkable that appeal would be heard by a District Judge from a decree or order of Additional District Judge exercising original jurisdiction had the suit been tried by a Civil Judge and the valuation of the suit for the purposes of jurisdiction was less than fifty thousand rupees appeal would have been heard either by the Additional District Judge or by the District Judge. It shall also be seen that the cases relied upon by Mr. Basharatullah pertain to classes of civil Courts only and the question of jurisdiction of Court which was competent to hear appeal from a decree, or order of the Additional District Judge made in a suit tried by him on original side was neither considered nor raised therein.
9. For the aforesaid reasons we are unable to agree with the contention raised by Mr. Basharatullah and we discard the preliminary objection.
10. As a result of our finding that the provisions of section 10, C. P. C. Were attracted to the present Suit No. 13, we would accept this appeal, set aside the impugned judgment and decree of the Additional C District Judge, Sibi Division at Jhatpat. The Suit No. 13 is transferred to the Court of District Judge, Jhatpat. Suit No. 289 pending trial in the Court of Additional District Judge-1, Quetta is also transferred to the file of the District Judge, Jhatpat and he is directed to first decide Suit No. 289 instituted in the year 1978 and stay the proceedings in Suit No. 13 instituted on 20-9-1983. There shall be no order as to costs. The court-fee paid by the appellants in the present R. F. A. No. 1 of 1965 shall be refunded to them according to law.
11. The above are the reasons for our short order of even date.