1. The only question, which needs consideration in this second appeal, is whether the suit of appellant filed by him against respondent for the recovery of Rs. 498.67 in Union Council, Kot Najibullah was competent? The trial Judge dismissed the declaratory suit of respondent against the decree of Union Council. But in appeal filed by him before District Judge, Hazara lie succeeded and hence this second appeal by defendant-appellant.
2. The perusal of the plaint filed by appellant in Union Council Kot Najibullah would show that he had claimed therein the recovery of Rs. 498.67 from respondent on account of occasional purchases of provisions made by him from his shop. And this allegation was denied by respondent in his written- statement. The learned trial Judge, who does not seem to have adverted to the competency of the suit filed by appellant in Union Council, dismissed the suit. But in appeal this question was pointedly raised before and considered by the learned District Judge. The finding reached by the learned District Judge was that the suit of appellant before Union Council was incompetent under Section B, Part I of the Schedule attached to the Conciliation Courts Ordinance, 1961 (hereinafter called the Ordinance) and hence the entire proceedings were coram-non judice.
3. Section 3 of the Ordinance says that notwithstanding anything contained it the Code of Civil Procedure, 1908, all cases falling under Part I of the Schedule shall, save as otherwise expressly provided, hereinafter be referred to conciliation and no civil Court shall have jurisdiction to try any such case. Section B of the Schedule is covered by Part I thereof and thus cases falling thereunder would be covered by section 3 (ibid). But in order to appreciate the contention of the learned counsel, it would be proper to reproduce that section : "Section B-Civil Cases 1.
4. Suit for the recovery of money due on contracts, receipts or other documents.
5. 2.
6. Suit for the recovery of movable property, or for the value there-of.
7. 3.
8. 4.
9. The learned counsel concedes before me that in regard to purchase of provisions on loan by respondent front his client there existed no written --contract, receipts or other documents. If this be so, then the suit filed by his client in Union Council was entirely incompetent, for suits in regard to oral contracts would not be covered by the expression "contracts receipts or other documents" appearing in clause (1) of Section B of Part I of the Schedule. In point of fact, this question has been finally decided by the Supreme Court of Pakistan in the case of Zamiruddin Ahmad v. Havas Khan (PLD 1969 SC 57) in which their Lordships also disapproved a contrary judgment of a Division Bench of Dacca High Court in Reference No. 1 of 1965 (PLD 1966 Dacca 465).
10. The learned counsel, however, contended that the suit of his client would be competent under clause (2) of Suction B (ibid). But he is incorrect. By he very language in which this clause is worded, it would be clear that it refers to only those suits in which the plaintiff would be able to ask for the recovery` of movable property or in the alternative for its value. It is true that the expression "movable property is comprehensive enough to include all property which is not immovable. But all the same it would not include grocery and kitchen provisions. Had the appellant alleged in the plaint` filed by him in Conciliation Court that respondent had obtained from him an loan, say, furniture or movable goads of which he could still he found in possession, perhaps his suit would have been competent. But what he had alleged in the plaint was that respondent had taken on loan from him ---SODA SALAF--- for the marriage of his son and had refused to pay him the due amount. "SODA SALAF" is a term of general application. And in order to prove that the items purchased from him on loan by respondent included movable property of which he was still in possession, it would be his duty to specify these items in his plaint. However, his plaint's entirely vague and silent on this point. And consequently this omission mist go against him.
11. A perusal of the plaint would rather show that appellant has a grocery hop, because what he has alleged therein is that respondent had obtained on loan from him provisions for the marriage of his son but had refused to pay him the price. By their very nature, items of grocery cannot be said to be "movable property" within the meaning of clause (2) of Section B (ibid). For after their purchase, they must have been consumed. Obviously, therefore, the suit of appellant was wholly incompetent. For if he could not claim relies' for the recovery of those items, he would also be debarred to claim their value under clause (2) of Section B of the Schedule attached to the Ordinance.
12. This appeal fails and is dismissed with costs.
13. S. A. H.