' This appeal under section 96, C.P.C. Is directed against the judgment and decree, dated 28-2-1997 passed by learned Additional District Judge, Sibi whereby the suit filed by the respondents was decreed.
2. At the very outset Mr. Basharatullah, Advocate for the respondents raised objection that since the subject-matter of the suit was less than Rs.20,000 and the suit was decided by learned Additional District Judge, Sibi on original side; in the capacity of Civil Juge; thus, appeal before this Court is not competent. The learned counsel further contended that before deciding the appeal on merits the preliminary objection raised by him be decided first.
3. Mr. Muhammad Noor Miskanzai, learned Assistant Advocate General opposing the contention of Mr. Basharatullah, Advocate contended that the case was transferred by the District Judge, Sibi to the Court of Additional District Judge, Sibi exercising powers under section 15 of the Civil Courts Ordinance, 1962 (hereinafter referred to as the Ordinance). The learned counsel further contended that the learned Additional District Judge decided the matter in the capacity of Additional District Judge as envisaged under section 6 of the Ordinance. The learned counsel argued that the case was filed before the Civil Judge but before transferring the case to the learned Additional District Judge, Sibi the case was pending before Civil Judge-III, Quetta who transferred the same to the Court of District Judge vide order, dated 13-6-1996 wherein the learned Judge stated that since the Civil Judge-III has no power to try the suit in which Government is a party; thus, on the question of jurisdiction the case was transferred to Additional District Judge. The learned counsel further argued that under section 23 of the Ordinance the learned Additional District Judge was competent to try the suit on original side in the capacity of Additional District Judge, thus, the appeal filed before this Court was competent: The learned counsel contended that the jurisdiction of the Civil Judge and Additional District Judge on original side was concurrent; thus, there was no bar on the powers of Additional District Judge to try the said pecuniary jurisdiction of which is less than Rs.20,000.
4. I have heard the arguments of the learned counsel for the parties and have also perused the relevant law.
5. The argument of Mr. Basharatullah, Advocate for the appellant, has no substance. The learned District Judge is empowered to transfer a case to any Court under section 15 of the Ordinance and under section 23 of the Ordinance in absence of competent Court the District Judge can transfer the case to any civil Court in the same District. Admittedly, at the relevant time there was no civil Court First Class posted at Sibi; thus, the case was transferred to the Court of Additional District Judge, Sibi; which tried the same on original side in the capacity of Additional District Judge. Thus under, the Ordinance, the power of District Judge and Additional District Judge are the same and under section 15, C.P.C. The suit shall be instituted in the Court of lowest grade competent to try but there is no bar for the higher Courts to entertain Civil Suits; hence the appeal filed before this Court is competent. In this regard reliance is placed on the following case law:--
(i) Ghulam Nabi v. Syed Muorab Hussain and 3 others, PLD 1974 Karachi 408.
(ii) Ghulam Ali v. Nawaz Ali and 2 others PLD 1975 Karachi 1090. In the former case it was held as below:-- "I have not thought it necessary to decide this question because it seems to me upon a consideration of the other argument advanced by the applicant, this case must be decided against him anyhow. He conceded that, the District Court is a Court of unlimited Civil jurisdiction and would, therefore, ordinarily have jurisdiction to entertain a suit of value of which the present suit bears, if, for example, therefore, there was no Court of Civil Judge First Class in Karachi undoubtedly the suit would have to be filed in the District Court and in no other Court. It was argued, however, that by reason of section 15 of the Code of. Civil Procedure the Additional District Judge had no jurisdiction to try this case.
' Now section 15 reads thus:- "Every suit shall be instituted in the Court of the lowest grade competent to try it."
Now I have found myself entirely unable to accept the argument; section 15 directs, in effect, that where there is more than one Court competent to try a suit then that suit shall be instituted in the Court of lowest grade competent to try it. Obviously, therefore, it enforces a choice between Courts of competent jurisdiction and I, therefore, find it quite impossible to infer from the section that all Courts other than the Court of lowest grade mentioned in the section is by the section itself deprived of jurisdiction. Exhypothesi the choice is being made between Courts of jurisdiction and the section is a procedural section which directs as to which of several Courts of jurisdiction shall be chosen by the plaintiff to file his suit in. It cannot have the plaintiff to file his suit in. It cannot have the effect of depriving any other Court of jurisdiction."
6. In the latter case while deciding a similar question as the one raised in this case, it was held by the Division Bench of Karachi High Court:- "The administrative orders of the District Judge to which we have above referred purport to have been made under section 23 of the West Pakistan Civil Courts Ordinance, 1962. In our view, it is not this section, but sections 14 and 15 which enable the District Judge to distribute the Civil suits cognizable by the Court of First Class Civil Judge among other Civil Courts under his control including the Courts of the Additional District Judges. Section 23 empowers the District Judge to assign the work of one Civil Judge to another Civil Judge in case of vacancy of the kind mentioned in section 23 end in circumstances specifically mentioned therein. Though the administrative orders of the District Judge referred to section 23 but they should be deemed to have been made under sections 14 and 15 read with section 6 of the Ordinance, as a mistaken reference to a section of the Ordinance would not invalidate the orders if the District Judge is otherwise vested with jurisdiction to assign civil work among the Courts under his control. In this view of the matter there was undoubted jurisdiction with the District Judge to assign the Civil Cases recognizable by the Court of the First Class Civil Judge at Hyderabad to the Court of the Additional District Judge particularly because the District Judge himself has unlimited jurisdiction in original civil suits and under section 6 he is competent to assign such of his work as he may determine fit to the Additional District Judges under him. Therefore, the first order by which the petitioners were refused temporary injunction was the order of the Additional District Judge and consequently no appeal thereagainst was maintainable before the District Judge. An appeal against the order could lie only to the High Court under section 17 of the Ordinance. In view of this legal position the District Judge at Hyderabad by entertaining the appeal and then deciding it exercised jurisdiction which did not vest in him, and therefore, his order was subject to challenge to the High Court under section 115 Of the Civil Procedure Code."
7. Thus, in view of the above discussion, there is no force in the objection l8 raised by Mr. Basharatullah, Advocate; the same is dismissed.
8. Office is directed to fix this case for regular hearing.
Objection overruled.