This appeal has arisen out of a suit brought by the appellants, Sultan A.I and others; against the respondents, Rashid Ahmed and others. Its valuation for the purpose of court-fee was Rs.6,330. It was being heard by Mr. Yaqoob A.I Khan, Civil Judge 1st Class, Shakargarh, District Sialkot, when he was replaced by a Civil Judge 3rd Class, Mr. Muhammad Munir Bhutta, who had then the pecuniary jurisdiction to hear suits of the value not exceeding. Rs. 5,000. For the first time, the suit came up before Mr. Muhammad Munir Bhutta on 25th September, 1978, when it was noted by him that as it was a 2nd class case he had no jurisdiction in the matter. It was also pointed out by him that reference had been made to the District Judge, Sialkot, in this regard but no reply had been received. Thereafter, he continued adjourning the case to wait for reply of the learned Judge. His reply was still awaited when 3rd Class Civil Judges were . Empowered to hear cases or the value not exceeding Rs. 10,000. After this. Development, therefore, the appellants' case having jurisdictional value of Rs.6,330 could be heard by Mr. Muhammad Munir Bhutta even as a 3rd Class Civil Judge. Accordingly, on 8th January, 1979, when the case came up before . Him, he passed order to the effect that m view of his enhanced powers he could hear the suit and proceeded with its trial. The suit was ultimately decreed by Mr. Muhammad Munir Bhutta on 14th July, 1980.
On this, respondents went in appeal before the learned District Judge and in pursuance of an objection by the respondent, it was held by the learned District Judge that Mr. Muhammad Munir Bhutta had no jurisdiction to hear the suit. As a result, the appeal was accepted, judgment and decree passed by Mr. Muhammad Munir Bhutta set aside and the suit remanded to Khawaja Muhammad Sharif, Civil Judge 1st Class, Shakargarh, for re decision, after taking out fresh proceedings from the stage when hearing of the suit was started by Mr. Muhammad Munir Bhutta.
This appeal is directed against the order of remand passed by the learned District Judge.
2. View taken by the learned District Judge was that with the replacement of Mr. Yaqoob A.I Khan, Civil Judge 1st Class by Mr. Muhammad Munir Bhutta, Civil Judge 3rd Class, the Court presided over by Mr. Yaqoob A.I Khan stood abolished to the extent of 1st Class and 2nd Class suits. Consequent upon abolition of the Court as aforesaid, according to the learned District Judge, the suit filed by the appellants stood transferred to him (District Judge) and thus it was not on the file of Mr. Muhammad Munir Bhutta when he proceeded to hear it.
3. It was contended by learned counsel for the appellants that the learned District Judge had fallen in error in holding that the Court presided over by Yaqoob A.I Khan had been abolished qua the suit giving rise to this appeal and thus his successor, Mr. Muhammad Munir Bhutta had no jurisdiction to hear and decide the suit. It was also urged by him that plea of want of jurisdiction raised by the respondents before the learned District Judge could not be entertained because it was not advanced before Mr. Muhammad Munir Bhutta prior to the decision of the suit by him. In this connection, reliance was placed by him on Raja Khizar Hayat and others v. Saleh Muhammad (PLD 1986 Lahore 242), Ch. Sir Muhammad Zafrullah Khan and others v. The Custodian of Evacuee Property, West Pakistan and Karachi and others (PLD 1964 Supreme Court 865), Pakistan v.
Muhammad Abdul Kuddus, Income Tax Officer, Chitagong (PLD 1961 Dacca 616), Katamberi Bhagavvati Amma's owner. Uralan and Manager Samanthan Kharakkattiathil Kammaran Nambiar and others v. Valia Bamunni and others (A.I.R. 1938 Madras 257 and Wazuddin and others v. Abdul Syed Zahoorul Ashraf and other (A.I.R.1931 Calcutta 327).
4. On the other hand, submission made by learned counsel for the respondents was that on his posting at Shakargarh, it was appreciated by Mr. Muhammad Munir Bhutta himself that he had no jurisdiction to hear the suit and as such he could not try it ev6n after subsequent enhancement of his pecuniary jurisdiction. Learned counsel for the respondents supported the reasoning of the learned District Judge that the suit stood transferred to the learned District Judge in consequence of the reference made to him and thus Mr. Muhammad Munir Bhutta was not seized of the suit when he proceeded with its trial. It was also maintained by him that the question of jurisdiction could be raised before the appellate forum even if it is not raised before the Court of first instance.
He cited Muhammad Afzal v. Board of Revenue, West Pakistan and another (PLD 1967 Supreme Court 314), Jagdish Chander v. Salehon and others A.I.R. 1941 Lahore 313) and Municipal Council, Nellore v. Muhammad Sabash Khan Saheb, (A.I.R. 1942 Madras 481) to support his arguments.
5. None of the cases cited at the Bar is on all fours with the facts of the present case which is of an extraordinary nature. Admittedly, the question of jurisdiction was not raised before Mr. Muhammad Munir Bhutta when he proceeded with the trial of the suit. Assuming, without conceding, that plea in this regard could be advanced before the learned District Judge, at the stage of appeal, the said plea appears to be devoid of force. Reasons given by the learned District Judge in support of the view that Mr. Muhammad Munir Bhutta had no jurisdiction to hear the suit are hardly convincing.
Normally, when a Court. Is abolished an order to this effect is made by the High Court. Admittedly, no such order was issued by the High Court at the time of the transfer of Mr. Yaqoob A.I Khan from Shakargarh. Concept of partial abolition of the Court (to the extent of suits other than 3rd Class suits which could be heard by his successor, Mr. Muhammad Munir Bhutta) is to say the least, unheard of; and no law or other authority has been cited in support thereof. It is generally known that in the state of affairs arising out of transfers of Civil Judges like those of Mr. Yaqoob A.I Khan and Mr. Muhammad Munir Bhutta cases pending before a Civil Judge which cannot be heard by his successor are entrusted to other Civil Judges in the District who are competent to hear them but the Court experiencing such transfers is not thereby abolished, wholly or partially. I, therefore, do not agree with the learned District Judge that on the replacement of Mr. Yaqoob A.I Khan by Mr. Muhammad Munir Bhutta the Court presided over by the former was abolished except to the extent of 3rd Class shits.
6. Argument of the learned District Judge that the suit was not on the file of Mr. Muhammad Munir Bhutta when he proceeded with its trial is equally fallacious. The fact of the matter is that Mr. Muhammad Munir Bhutta never parted with the file of the suit in question and it remained- on his hands all through till the suit was decided by him. He did not send the file to the learned District Judge alongwith the reference made to him in regard to cases which could not be heard by him at the time of his posting at Shakargarh. If any suit is to be withdrawn from a Civil Judge, the District Judge has to pass an order, under section 24 of the Punjab Civil Courts Ordinance, 1962. Admittedly, no such order was made by the learned District Judge in respect of the suit decreed by Mr. Muhammad Munir Bhutta. Learned counsel for the respondents also did not cite any authority for the proposition that on the posting of Mr. Muhammad Munir Bhutta at Shakargarh or on the making of the reference by him the suit stood automatically transferred to the learned District Judge. I do not, therefore, approve of the view of the learned District Judge that the suit was not on the file of Mr. Muhammad Munir Bhutta when the proceeded with its trial.
7. What emerges from the above discussion is that on his posting at Shakargarh, as Civil Judge 3rd Class, Mr. Muhammad Munir Bhutta did not have pecuniary jurisdiction to hear the suit in question.
Being fully conscious of this difficulty, therefore, he abstained from hearing the suit and brought the matter to the notice of the learned District Judge by means of a reference. He continued adjourning the suit, from time to time, to await orders of the learned District Judge. It is, however, regretted that the learned District Judge did not act till 3rd Class Civil Judges were allowed, by law, to hear cases of the value not exceeding Rs. 10,000. With this change in the law, Mr. Muhammad Munir Bhutta, despite being Civil Judge 3rd Class, became competent to hear the suit in question which was valued at Rs.6,330. Thereafter, on 8th January 1979, behaving like a conscientious officer, he proceeded with the trial of the suit wherein no progress had been- made after the transfer of his predecessor although it continued to be on his hands throughout. It was wrongly observed by the learned District Judge that the suit was. Not on the file of Mr. Muhammad Munir Bhutta when he proceeded with its trial on 8th January, 1979. As indicated earlier, the suit was not transferred by the learned District Judge to his own Court or to the Court of any other Civil Judge nor did Mr. Muhammad Munir Bhutta part with the file of the suit otherwise. Reference made by him to the learned District Judge did not entail automatic transfer of the suit from the Court of the former to that of the latter. The learned District Judge did not act for months together and his inaction in this regard did not debar Mr. Muhammad Munir Bhutta from proceeding with the trial of the suit, when he was permitted by law to do so. Learned District Judge was therefore, in error in holding that Mr. Muhammad Munir Bhutta had no jurisdiction to try the suit even after the enhancement of his powers.
8. Although the record is silent in this behalf yet it appears that the parties were also agreeable to the hearing of the suit by Mr.. Muhammad Munir Bhutta on the enhancement of his pecuniary jurisdiction. Had the position been otherwise, the respondents would have objected to his so doing.
Admittedly, they did not do so.
9, For 'the above reasons,. I am unable to agree with the learned District Judge that. The judgment and decree passed by Mr. Muhammad Munir Bhutta were without jurisdiction and as such the suit deserved to be decided afresh. This appeal is, therefore, accepted and the order of remand passed by the learned District Judge set aside. Since the learned District Judge did not go into the merits of the appeal it will have to be sent back to him for its decision on merits. The appeal is, accordingly, remanded to the learned District Judge with the direction that he shall now decide it on merits after hearing the parties. Looking at the peculiar nature of this case, I make no order as to the costs.
H.B.T. S-553/L