1. ' Serial Nos. 1 to 3:
(1) For orders on office objection regarding deficit Court Fees.
(2) For Katcha Peshi.
(3) For hearing of objections on Appeal ' On 12-12-1993, in the presence of the learned counsel for the parties, I had occasion to pass the following order:- "The controversy in this First Appeal is based on a suit, numbered as 1241 of 1985 in the Court of the learned IInd Senior Civil Judge, Karachi (South), which came to be dismissed on 22-8-1988. The reliefs of possession and mesne profits thus having been declined to the plaintiff, he preferred Civil Appeal No,256 of 1988 before the District Judge, Karachi South, which coming to be placed before the learned VIth Additional District Judge, Karachi (South), the Memo. Of Appeal on 28-10-1992 was directed to be returned for presentation to the proper Court. Thereupon, the appeal was represented in this Court on 29-11-1992.
2. ' At the trial the plaintiff's valuation of the suit at Rs,50,000 was rejected and he was required to make-up deficit court-fee on a valuation of Rs,1,00,000 which had been found to be the correct valuation. Consequently and, apparently, subscribing to this altered valuation the learned VIth Additional District Judge, Karachi (South), referring to section 18(1)(a) of the Civil Courts Ordinance, 1962, which provided for an appeal directly to this Court in matters where valuation of the suit exceeded Rs,50,000 has returned the memo. Of appeal which, as said, has been represented here.
3. In the result a plea of limitation has also been raised by the respondent: ' Further complications seem to arise when resort is made to the Sindh Civil Courts (Amendment)
4. Ordinance (VII of 1991), promulgated on 29-6-1991 (followed by Sindh Act III of 1992) whereunder, upon an amendment in section 18(1)(a) in the Civil Courts Ordinance, 1962, the pecuniary value of the appellate jurisdiction of District Judges stands extended up to Rs,2,50,000 in substitution of Rs,50,000 which was the pre-amendment position. It, therefore, has been pointed out that, on 28- 10-1992, when the Memo. Of Appeal was ordered to be returned by the Additional District Judge that learned Judge, obviously, had himself come to have jurisdiction to entertain such an appeal even if the value of the suit from which the appeal arose was more than Rs,50,000 but less than Rs,2,50,000. Further, if the appeal was to be represented a relevant question that may arise would be whether in view of enhancement of jurisdiction, as contemplated by the amendment version of section 18(1)(a), the representation would have been required to be made in the same Court because on the date of the representation it is that very Court which could entertain such an appeal.
5. If the only questions raised were such as have been highlighted above there would not be much difficulty in resolving the same. Thus, the basic principle, which should have governed a situation of this character, would be that in determining pending controversies the law which has to be applied to such controversies is the law which prevailed at the time the proceedings came to be instituted and subsequent changes in the law, unless mere changes of procedure, would not affect pending matters, Since it may be argued that the alteration in the pecuniary limits of the appellate jurisdiction, affecting forum, was not a mere change in procedural law and, in all probability, a change of a mixed character, involving procedural and substantive law, the next question should be as to what was the law when the suit was decided and the initial appeal was preferred for it is the law prevailing then that would, in the circumstances, determine the forum of appeal and all proceedings to follow thereafter. Plainly that was the unamended law. It would, consequently, appear that the law which, in turn, had to be applied for returning the Memo. Of Appeal would also be the law which applied to the suit at the time of its disposal and to appeal following upon that disposal. At that time, obviously, an adverse finding in the suit, on a valuation of such exceeded Rs,50,000, would have given rise to an appeal directly in this Court. In such context, no intervening alteration of law would have any bearing. Likewise, representation of the returned appeal could not be in the same Court from where the Memo. Was returned because the law for representation would be the same as the one which applied to the original presentation of the appeal and commensurate with the law the appeal should have been filed in this Court, intervening conferment of jurisdiction to another Court, being of no significance. Some difficulties, at this point, may have been encountered if the forum of such an appeal had been altered in a way, whereby the original forum itself stood abolished but that situation fortunately does not arise here and need not be dealt with. The normal principle is that a subsequent conferment of jurisdiction on a Court, which initially did not possess it, would not cure the jurisdictional defects, which pending proceedings may have carried. For the foregoing propositions Mr. A. R. Mirza, appearing for the respondent, cites Nasim Silk Industries v. Vth Sindh Labour Court 1977 PLC 489 and Tahir Hussain v.
6. Khan 1993 PLC 2161, in support. In this view of the matter the return of the Memo. Of appeal and the representation here appear to have been lawful and in consonance with law.
7. ' If this were all on the subject, the next question that would arise should be as to whether the period of time which was lost by the appellant in pursuing the remedy before the District Court can be excluded and there the principles are well-established, as reiterated by the Supreme Court in Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102.
8. ' However, that is not all on the subject. The basic question which remains is as to how an appeal, in matters of the kind involved, is to be valued that is to say whether the valuation is to be governed by the value fixed by the plaintiff at his own instance and discretion in the suit or the jurisdictional value for appeal is to be determined on the basis of the valuation arrived at upon an adjudication in the suit. If the plaintiff or for the matter of that his adversary were to accept the valuation arrived at the trial there would be no problem and the appeal can be valued on the basis of the adjudication in the suit but what if the plaintiff or his adversary insists upon the original valuation in the suit and maintains that the contrary finding is not in accordance with law? Would in such cases also the aggrieved party be bound by the valuation determined by the trial Court? The answer is not difficult to find. The valuation for the purposes of an appeal against such a finding has to be that of the plaintiff himself and the jurisdiction of the appellate forum is to be determined on the basis of that valuation alone for if such was not the legal position the result will be to accord finality to an order determining the valuation of the suit, a course clearly impermissibleat law.
9. ' However, it has been shown to me that in the plaint itself, the plaintiff valued the property in dispute at Rs,50,000 and also claimed a definite amount of accrued mesne profits together with mesne profits pendente lite. The plaintiff also paid additional court-fee on an amount of little less than Rs,2,000 in the way of accrued mesne profits, which was in addition to the value of Rs,50,000.
10. Thus, on the plaintiff's own valuation, which exceeded Rs,50,000, the appeal did not lie to the learned District Judge at all and, on the state of law as it prevailed at the time, such could only have been filed in this Court.
11. ' This, therefore, throws up the question of limitation. The appellant would be entitled to condonation under section 5 of the Limitation Act, 1908, if sufficient cause within the meanings of that provision was shown and would not be so entitled if such cause was not shown. We have already seen that at the time the suit was decided and the initial appeal was preferred there was no ambiguity as to the forum where the appeal lay. The forum was this Court and the appeal was not brought here. The above-referred amendment intervened only later and had no bearing. The choice of the appellate forum, therefore, lacked due care and caution and was wanting in 'good faith', as defined. In this situation, I am of the view that the appellant has not been able to establish sufficient cause for condonation of delay in preferring the original appeal, the time spent by the appellant in pursuing the remedy before the learned VIth Additional District Judge, Karachi (South), having been spent without the exercise of due care and caution. In fact, in so doing, an element of negligence also cannot be ruled out.
12. ' Accordingly, this First Appeal is liable to be dismissed, as beyond time. However, I have also examined the decision of the learned Civil Judge on the merits of the controversy and ex facie it would appear that the findings may involve elements of refusal to exercise jurisdiction, exceeding in the exercise of jurisdiction and committing material irregularities in that exercise and, if so, a question arises as to whether this First Appeal may not be treated as a suo motu revision calling for exercise of due powers under section 115, C.P.C. For which, of course, there is no period of the limitation prescribed by law.
13. ' Since the last is a new question, I would allow learned counsel to address the Court on the same on an adjourned date. To come up on 14-12-1993."
14. ' At this stage and today appellant, Nazeer Ahmed, and respondent, Muhammad Ismail, have jointly stated that they have entered into an out of Court settlement whereby and in terms whereof this First Appeal can be disposed of without effecting its conversion into a Civil Revision. According to the settlement the respondent-defendant may retain the property in question provided that, within a period of one year, he makes payment of Rs,1,00,000 to the appellant-plaintiff failing which, for every month of default, the respondent would be liable to pay mesne profits at the rate of Rs,1,000 per month, the principal amount and such mesne profits being recoverable in execution of the consent decree. Simultaneously, the respondent is to be declared the undisputed owner of the property with full rights, title and interest therein of an owner and free to deal or dispose of the same in the manner he chooses provided always that he clears the above created encumbrance on the property. Meanwhile, the appellant undertakes to have the property redeemed from the Bank where he has mortgaged it as soon as the respondent makes the above payment. Necessary documentation for registration of the decree to be passed shall then follow and expenses thereof would be borne by the respondent.
15. ' The foregoing appear to be lawful terms and I see no impediment in disposing of the appeal in accordance therewith.
16. ' In such terms, as recorded hereinabove, and without any order as to costs this First Appeal is disposed of.