' This is second appeal filed under section 100, C.P.C. Against the judgment and decree dated 20-3- 1991 (Civil Appeal No,42 of 1990) by IVth Additional District Judge Larkana, dismissing the first civil appeal preferred against the judgment of II Senior Civil Judge who was pleased to dismiss the suit of appellant.
2. At the very outset Mr. Muhammad Nawaz Chandio has raised objection on the maintainability of this appeal on the ground of pecuniary jurisdiction. It was contended that the suit which was filed for possession and mesne profit by the appellant/plaintiff was valued at Rs,55,000 which was dismissed by the learned trial Court vide its judgment dated 18-4-1990 against which the appellant filed 1st appeal before the Court of IVth Additional District Judge, Larkana. It is argued by Mr. Chandio that in view of section 102(b) of the Civil Procedure Code, no second appeal lies in a suit when the amount of value of the subject-matter of such suit does not exceed Rs,50,000. It is pertinent to note that by an amendment vide Act VI of 1996 the valuation in sub-clause (b) to section 102, C.P.C. Was enhanced from Rs,50,000 to Rs,1,00,000. After the amendment per Act IV of 1992 (PLD 1992 Central Statutes 226) the amount of valuation of Rs,1,00,000 was enhanced to Rs,2,50,000 (See Ordinance XXX of 1994 PLD 1994 Central Statutes 312). Earlier to these amendments, in the years 1980 per Ordinance X of 1980, the valuation was enhanced from Rs,2,000 to Rs,50,000.
On 10-5-1990 when the 1st Civil Appeal (42 of 1990) was filed by the appellant before the District Judge, admittedly the pecuniary jurisdiction of the District Judge, was Rs,50,000 while the value of the present suit was Rs,55,000. It is, therefore, contended that the first appeal should have been filed in the High Court and thus second appeal is patently barred by virtue of section 102(b), C.P.C.
In support Mr. Chandio has referred to the case of Muhammad Yousuf and others v. Mst. Mumtaz Bibi Tarin 1984 SCMR 874, Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3 others PLD 1994 Supreme Court 462 and the case of Sharaf Faridi and 2 others v. M.A. Shahani and 16 others PLD 1975 Karachi 59. It is settled law that the forum of appeal is to be determined not on the basis of sale price or the market value of the land, but it is to be determined on the basis of value of original suit. If any reference is needed see Babu Jan Muhammad and another v. Dr. Abdul Ghafoor and others (PLD 1966 Supreme Court 461) and the case of Illahi Bux and others v. Mst. Bilqees Begum PLD 1985 Supreme Court 393.
3. It was contended by Mr.Mohan Lal, learned counsel for appellant that if this Court comes to the conclusion that this second appeal is not maintainable then the same may be converted into civil revision. He further contended that the other course available to this Court is to remand the case to the 1st Appellate Court with the direction to return the memo. Of appeal to the appellant for presenting the same before the competent Court having jurisdiction to hear and decide the first appeal. He has referred to the case of Ghulam Mohy-uh-Din Khan and others v. Barkat Ali and others 1984 CLC 1171, Suba Khan v. Rahmat Din and 2 others 1980 CLC 589 and the case of Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 Supreme Court 331. It was strenuously argued by Mr. Mohan Lal that the parties by consent cannot confer jurisdiction in the Court which otherwise is not available and, therefore, even if the appeal was heard and decided by the Appellate Court any order passed in such circumstances would be void.
This proposition is disputed by Mr.Muhammad Nawaz Chandio, Advocate for respondent, that a void order would be when the same is obtained through misrepresentation or fraud. In the instant case, according to the learned counsel for respondent the 1st appeal was filed by the appellants knowingly fully well that the District Judge, has no pecuniary jurisdiction and that it was argued at length by the parties whereafter judgment was also announced on merits. According to learned counsel, it is too late in the day for the appellant to make a "U" turn and to say that the learned Additional District Judge was having no pecuniary jurisdiction, and therefore, this appeal can be either converted in revision or be treated as 1st appeal. It was argued by Mr.Chandio that the time prescribed for filing 1st appeal or civil revision has already expired.
4. In the case of Muhammad Yousuf 1984 SCMR 874 the Honourable Supreme Court declined to grant leave to appeal on the grounds that both the parties have agreed before the District Judge, Lahore, that it has jurisdiction to hear and decide the appeal in view of the rule laid down in Saddaruddin v. Illahi Bux and another PLD 1976 Lahore 1. In the present case, this question of pecuniary jurisdiction was never raised or decided. The case of Moolchand PLD 1994 Supreme Court 462 is not relevant for the purpose of deciding the present controversy. In the case of Sharaf Faridi PLD 1975 Karachi 59 the former Chief Justice of this Court Tufail Ali A. Rahman, J. Held after referring to the case of R. Subra v. S. Vinkatrao AIR 1918 Privy Council 188, held that the Court Fees Act was passed not to arm litigant with a weapon of technicality against his opponent and that section 12 of the said Act enables a Court of Appeal to correct any error as to the violation. The case of Chief Settlement Commissioner (PLD 1975 Supreme Court 331) as referred by Mr.Mohan Lal, defines one of the characteristic of a void order by disclosing that if an order made by a Court, Tribunal or other authority acting without jurisdiction as regards subject-matter pecuniary value or territorial limits is a void order and that an order patently obtained by fraud is not void but only voidable. It was further held that an order obtained from the Court or Tribunal by practising fraud can be suo motu rescinded or recalled by such Court or authority. In the case of Suba Khan 1980 CLC 89, a learned Single Judge of Lahore High Court Aftab Hussain, J. (as he then was), held that the concession or admission extended by a party cannot confer a jurisdiction in a Court nor it can take away jurisdiction from the Court.
5. In Ghulam Mohy-ud-Din Khan and others 1984 CLC 1171 a learned Judge of Lahore High Court, Muhammad Muneer Khan, Judge (as he then was ) remanded the case with the consent of the parties and accepted the appeal filed against the judgment of Additional District Judge and after setting aside the same remanded the matter to the Additional District Judge, with the direction to return the memo. Of appeal to the appellants to present it before the Court of competent jurisdiction. It was done as the suit was valued at Rs,50,000 and appeal filed against the decree of trial Court dated 19-11-1981 was beyond pecuniary jurisdiction of the District Judge. In this case civil revision was filed and not the second appeal as in the instant case. In the reported case both the counsel have agreed on this legal question while in the present case Mr. Muhammad Nawaz Chandio has vehemently opposed such request.
6. Besides the above-cited cases there are other reported cases where similar questions including matter of pecuniary jurisdiction were considered. In the case of Province of Sindh and 3 others v.
Muhammad Sabir Khan 1987 CLC 668 an award was adjourned through a declaratory suit which was declared to be illegal by the trial Court. Against this order an appeal was filed before the High Court. The valuation of such suit was above Rs,50,000 therefore, the learned District Judge, Thatta after admitting the same to regular hearing recalled his order and returned the memo. Of appeal to the appellants for presentation to this Court which was again challenged. A learned Single Judge of this Court Saeeduzzaman, J. (as he then was) opposed the decision of the learned 1st Appellate Court.
' In Muhammad Ameen v. Afzal Ahmad alias Afzaal Ahmad and another 1986 CLC 126 a learned Single Judge of Lahore High Court treated the regular second appeal filed against the order of District Judge as first appeal on the ground that the Ist appeal filed before the District Judge was not maintainable. Yet in another case the same Judge of Lahore High Court in Ghulam Mustafa v.
Taj Muhammad and another, followed the rule laid down in the case of Ghulam Mohy-ud-Din (supra) and set aside the judgment and decree of the Ist Appellate Court, remanded the same with the direction to return the memo. Of appeal to the appellants for presentation to the Court having jurisdiction. Following is the relevant observation:-- .Since the Court of Appeal had no jurisdiction, any adjudication made by it would be an act of total nullity. Absence of jurisdiction being apparent, its non-noticing by the Court of Appeal either at the instance of the appellant or respondent would notcure illegality. There is marked difference between total lack of jurisdiction and erroneous exercise of jurisdiction. The present case falls in the forner category. In this view of the matter, I find myself in respectful agreement with the view taken by this Court in Ghulam Mohy-ud-Din and others v. Barkat Ali and others and pass a similar order as was made in aforenoted precedent...."
8. In the case of Saat Malook v. Rozi Khan 1979 SCMR 593 a Full Bench of Honourable Supreme Court of Pakistan approved the view of Justice Gul to be correct in Bahadur v. Mirza Abdul Qayoom and another PLD 1969 Lahore 636 that where the lower Appellate Court entertained an appeal which does not lie to the Court a second appeal is competent against the decision of that Court. In this view of the matter leave petition was converted and the case was remanded to the trial Court for production of evidence by the respondent. In another case Ali Muhammad alias Ali Ahmad and others v. Mahbub Ahmad 1987 SCMR 1263 the question involved was maintainability of second appeal in High Court as the value given in the plaint for purposes of jurisdiction and court-fee was Rs,5 only. The appellant before Lahore High Court prayed for conversion of the appeal into revision which was refused as the said prayer was made at very belated stage, i,e, at the end of the arguments. The Hon'ble Full Bench of Supreme Court reiterated the rule laid down in the case of Karamat Hussain v. Muhammad Zaman and others PLD 1987 SC 139 that normally the High Court should allow conversion of second appeal into revision but in certain circumstances it can refuse permission in exercise of its judicial discretion. However, order of the Lahore High Court was maintained and the appeal was dismissed.
9. This second appeal was filed on 6-6-1991 against order of IVth Additional District Judge dated 20-3-1991 dismissing the first appeal which means that it was filed within 90 days, therefore, the question of limitation would not arise, in case this second appeal which is admittedly not maintainable in law is converted into civil revision. This view further gets support from the fact that the learned Additional District Judge, has exercised jurisdiction while deciding first appeal which jurisdiction was not conferred upon him by any law. This fact is sufficient to warrant interference by this Court. Accordingly, this second appeal is converted into civil revision and the judgment, dated 20th March, 1991 passed by learned IVth Additional District Judge Larkana in Civil Appeal No,42 of 1990 is set aside with the further direction that the said Court will return the memo. Of appeal to the present appellant for presentation to the court having competent jurisdiction according to law. The respondent shall be free to raise legal plea including question of limitation and maintainability once appeal is presented before the Court having competent jurisdiction.