CH. MUSHTAQ AHMAD KHAN J.- Mustaq Ahmad Qadir who is petitioner before this court filed a suit seeking a decree for specific performance of contact on the basis of an agreement for sale dated 2.2 1985 in respect of House No.M/1610,969 Mohallah Amarpura Rawalpindi and for grant of a decree for permanent injunction, against alienation of the house in question. The consideration of the house as mentioned in para (1) of the plaint is Rs.70,000/-, wheres valuation of the suit for the purposes of jurisdiction as mentioned in para No. (6) thereof is Rs. 23000/-. This suit was being tried by a learned civil Judge 1st Class who had fixed the case for recording of evidence. Subsequently said learned Civil Judge was transferred and his place Mr. Mustafa Tanvir Salwat learned Civil Judge third class was posted. File of the case was placed before the learned civil Judge on 29-9- 1986. The suit was dismissed in default. The petitioner filed an application seeking restoration of the suit on the date of seeking restoration of the suit on the ground that on the date of hearing i.e.1986 the case had ben adjourned and the next date of hearing was fixed as 15-10-19S6 and then 18-10- 1986 on which date he was told that the court had no jurisdiction therefore, the case shall be placed before the learned District Judge for appropriate orders but when on 18- 10-1986 he found that the file has not been produced before the learned District Judge, it came to this notice that the suit has been dismissed in default on 29-9- 1986. The application has been contested.
On the basis of the pleadings of the parties, learned trial court settled the following issues:-
1. Whether sufficient ground exist to restore the suit?
2. Relief.
The application seeking restoration of the suit has been dismissed by Yar Muhammad Walana Civil Judge Rawalpindi vide order dated 29-7-1989 who is also of third class civil Judge. This order was challenged by the petitioner in appeal, the same has been dismissed by the learned District judge Rawalpindi vide o{der dated 3-6-1990 on the ground that petitioner has failed to prove sufficiency of cause of action. The of the suit as well as the application seeking restoration of the suit, passed by the learned lower court, and the order passed by the learned District Judge dismissing the appeal have been challenged in this civil revision by the plaintiff.
3. Mr. Habib Wahab Alkheri, Advocate has appeared on behalf of the petitioner whereas Muhammad Siddiq Advocate, has appeared on behalf of the respondent.
4. Learned counsel for the petitioner has argued that the initial order of dismissal of the suit was without jurisdiction inasmuch as the learned lower court who dismissed the suit enjoyed third class powers whereas the suit as framed was not triable by him inasmuch as pecuniary jurisdiction of the learned civil Judge was Rs. 15000/- and admittedly as per paragraph No.(6) of the plaint jurisdictional value was of Rs. 23000/-. It is further contended that the order of dismissal of the application seeking restoration of a suit is also without jurisdiction as the learned civil judge who dismissed the said application was also third class Civil Judge, therefore, had no jurisdiction to decide the petition. Hence both the orders are liable to be set-aside and the suit is liable to be restored. In support of his arguments learned counsel for the petitioner has placed reliance on case of Govt, of Sindh vs. Saiful Haq Hashmi and others (1993 SCMR 956 at page 968).
5. As against the above arguments, learned counsel for the respondent has argued that as per provision of Section 11 of the Suit Valuation Act, at no stage of the proceeding, the objection was raised by the respondent with regard to the pecuniary jurisdiction of the lower courts, therefore, the objection the is not available to the petitioner before this court. In support of his arguments learned counsel has placed reliance on cases of Raja Khizar Hayat and others vs. Saleh Muhammad" (PLD 1986 Lahore 242) and "Najmul Hassan Farooqui and t others vs. M/S United Carpets Ltd. (1990 ADD.412) It is further contended by the learned counsel for the respondent that the sufficiency of cause of action as alleged by the petitioner in the application is not proved and since two courts below have concurrently held that the sufficiency of cause of action of the petitioner is not proved on record, therefore, in exercise of revisional jurisdictional this court cannot interfere with the findings of facts rendered by the two courts below.
6. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Admittedly the consideration BS contained in agreement for sale is Rs. 70,000/-therefore, valuation of the suit for the purpose of court-fee and jurisdiction in this case is Rs. 70,000/-.However, even in the plaint jurisdictional value is recorded as Rs. 23000/-.
Consequently, the learned civil Judge IIIrd class had no jurisdiction to dismiss the suit, even if the petitioner had not appeared before him and the only course open to the learned- civil Judge was to transmit the file to the learned District Judge for transfer of this suit to a court of competent jurisdiction. Order of dismissal of the suit passed fy the learned Civil Judge 111 class is therefore, patently without jurisdiction. Similarly, the order of dismissal of the application seeking restoration of the suit is also without jurisdiction on the above account. Both the orders being without jurisdiction, are liable to be set aside. In appeal, the learned first appellate court has not even adverted to this aspect of the case. Even if the petitioner has failed to prove the sufficiency of cause of absence as alleged in the petition, the impugned order of dismissal*of the suit being without jurisdiction alone is sufficients ground directing setting aside thereof and restoration of a suit, inasmuch as no body can suffer due to act of the court which id corum-non-judice. It has been held in case of"Govt of Sindh and others vs. Saif id Haq Hashmi" (1993 SCMR 9556 AT page 968 of the report) as under:- "From a bare perusal of the plaint it is clear that the value of the goods, the subject-matter of the suit was at least Rs. 1,08,050, as declared by the plaintiff whereas the Criminal Court had ordered for furnishing bond in the sum of Rs.2,08,000, Whatever may have been the value of the goods cither Rs. 108,050 or Rs. 2,08,000, the fact remains that in the face of such valuation as disclosed in the plaint the suit could not have been entertained by a Court of the Senior Civil Judge, Karachi.
This value was beyond the pecuniary jurisdiction of the Court and any Civil Judge exercising jurisdictions deligently and reasonably with proper care and knowledge of law which is expected of a judicial officer and particularly on objection to jurisdiction being raised, he would refuse to proceed with the case, But; in the present case not only that the declared value in respect of which permanent injunction was being sought, was ignored but passing of the order and exercise of jurisdiction was justified which was completely untenable . And palpably wrong".
Law declared by their lordships of the Supreme Court of Pakistan leaves no doubt that the Court is to act diligently and an order passed beyond pecuniary jurisdiction shall be a nullity in the eyes of laws. The objection raised by the petitioner in this civil revision being of legal nature and going to the root of the case, can be allowed to be raised in this revision petition. Judgments referred to by the learned counsel for the respondent are distinguishable on facts and are not at all attracted to the case in hand. It is not a case where the petitioner had opportunity to raise an objection to the jurisdiction of the Court and he waived that objection. It is a case where a lis was being tried by a Court of competent jurisdiction and subsequently the Court of incompetent jurisdiction dismissed it in hts absence. Hence, I hold that the order of dismissal of the application seeking restoration of the suit are without jurisdiction, hence the same are non-existant in the eyes of law.
Resultantly, this civil revision is accepted.-The order of dismissal of the suit, the application seeking restoration thereof and the appeal filed by the petitioner, are set aside and the suit is restored to be tried don merits by the learned, trial court in accordance with law. As agreed by the learned counsels for the parties, the suit shall be sent to the court of learned Senior Civil Judge, Rawalpindi, who shall try the same himself. No order as to costs.