Let it be considered as admitted case.
2. Brief facts of the instant Civil Revision are that respondents Nos. l to 3 filed a suit for partition of a shop and claimed that they are owners of shop in dispute to the extent of 44/72 share and whereas the petitioners are shareholder to the extent of 28/72 share and respondent No.4 is owner to the extent of 14/72 share and respondent No. l claimed that her real son respondent No.4 has transferred his share to her and to the extent of share of her son she claimed her share as a shareholder. The suit was contested by filing written statement on the basis that shop in dispute has already been partitioned in the life of their father. Following issues were formulated on the pleadings of the parties:-- (i)Whether the suit is incorrectly valued for the purpose of court-fee and jurisdiction? O.P.D.
(ii)Whether the plaintiffs are not in possession of disputed shop? If so, its effect? O.P.D.
(i.e)Whether the suit is based on mala fide intentions and is collusive between the plaintiffs? O.P.D.
(iv)Whether the plaintiffs are estopped by their words and conduct to bring the suit? O.P.D.
(v)Whether the plaintiffs have not come to the Court with clean hands and are not entitled for the relief prayed for? O.P.D.
(vi)Whether the plaint is liable to rejection under Order 7, Rule 11 C. P. C.? O. P. D.
(vii) Whether Mst. Shamim Akhtar is not necessary party? O.P.D
(viii) Whether the suit property has already been partitioned through family settlement and the plaintiffs have no concern whatsoever with the suit property? O.P.D.
(ix)Whether the plaintiffs are entitled to a decree for possession through partition to the extent of 44/72? O.P.P.
(x)Relief.
3. Parties led their oral as well as documentary evidence and the trial Court passed a preliminary judgment and decree, dated 31-7-1995 in favour of respondents/plaintiffs and against the petitioners/defendants and fixed the pecuniary jurisdiction as Rs.8,00,000 in the decree-sheet.
Petitioners filed an appeal before the District Judge which was fixed for hearing before the Additional District Judge; Sialkot who vide judgment and decree, dated 15-5-1997 dismissed the appeal and affirmed the findings in preliminary decree passed by the trial Court. The instant civil revision challenges the impugned judgments and decrees, dated 31-7-1995 and 15-5-1997 passed by the trial Court and Appellate Court respectively.
4. At this stage learned counsel for the petitioners has argued that learned Additional District Judge had no jurisdiction to entertain the appeal as pecuniary jurisdiction was fixed as Rs.8,00,000, therefore, the judgment passed by the learned Appellate Court is nullity in the eye of law.
5.. Without touching the merits of the instant civil revision this Court has to decide whether the appeal incompetently filed before the learned District Judge who had no pecuniary jurisdiction to entertain the appeal had rather heard and decided the case on appeal is nullity in the eye of law.
Relies on Muhammad Ramzan and 4 others v. Mst. Masooda Hasan and 2 others PLD 1993 Quetta 88 and Mst. Noor Jahan v. Mst. Roshan Jahan etc. 1994 SCMR 2265 where a distinction -is made in the jurisdiction of a Court where there is absence of jurisdiction an order is made in the absence of jurisdiction by a Court it is held that the order would be nullity in law and where a Court has jurisdiction and it has exercised in an irregular manner the order would be with jurisdiction but the irregularity would be examined by the competent Court. It is also held in this judgment that incompetent appeal before the District Judge, respondent is not objecting about jurisdiction of the Court adverse order having been passed against the respondent it did not lie in their mouth to say that District Judge had no authority at all to hear and decide the matter before him. In this judgment Supreme Court set aside the order of the High Court under section 115, C.P.C. And converted the leave petition into appeal allowing appeal and setting aside the judgment of High Court.
6. Learned counsel for the petitioner has relied on Kama] Athar and others v. The State and others 1992 SCMR 282 and Abbas Hussain and others v. The State and another 1992 SCMR 320, the former judgment relates to an objection to the jurisdiction in a Hudood case and is not relevant to the present case. Abbas Hussain and others v. The State and another 1992 SCMR 320 is also about an objection to jurisdiction of special Court for Speedy trial under the Special Court for Speedy Trial Ordinance (XXV of 1991), section 5(2) where it is held objection pertaining to jurisdiction of Court or Tribunal has to be taken first of all before the same Court or Tribunal for its decision. Khizar Hayat and others v. The Additional Sessions Judge, T.T. Singh and others 1993 SCMR 724, this is also an objection to jurisdiction exercised by the learned Additional Sessions Judge.
7. It is admitted by learned counsel for the parties that learned District Judge had no pecuniary jurisdiction to entertain the appeal placed before him A Specially when the value of suit was beyond the pecuniary jurisdiction of the Court who was exercising the jurisdiction there was a duty by virtue of law caused upon the Court who was exercising the jurisdiction to act diligently, reasonably and with knowledge of law that he had no pecuniary jurisdiction to entertain the appeal. He could either refuse to proceed with the case, return the A memo of appeal to the parties or dismiss the same. He could not dispose of the appeal on merits. This is a judgment which is nullity in law and the law as held in Full Bench judgment Mst. Noor Jahan v. Mst. Roshan Jahan etc. 1994 SCMR 2265 is very clear on the subject.
8. Civil revision to the extent that learned Additional District Judge had no pecuniary jurisdiction to entertain the appeal is accepted, impugned judgment, dated 15-5-1997 is set aside, the memo. Of appeal is returned to the petitioners to do the needful.