1. ' The present appellant has impugned the Judgment, dated 20-8-1997, passed by the VII- Additional District Judge, Karachi South whereby decreed the Suit of the respondent/plaintiff in the sum of Rs,2,64,925 with no order as to costs and interest.
2. ' At the very outset Mr. Akhlaq Ahmed Siddiqui, learned counsel for the appellant has contended that the Suit for recovery for an amount of Rs,2,64,925 was filed by the respondent/plaintiff against the appellant/defendant, Judgment has been passed by the VII-Additional District Judge, Karachi, South having no jurisdiction over the matter and the amount of Rs,2,64,925. Such a Suit for the recovery of such amount is to be decided by Senior Civil Judges and not by the District Judges or by Additional District Judges and thus, the Impugned Judgment is corum non judice; when asked, as to whether this point was agitated before the learned VII-Additional District Judge, South, that, Court of VII-Additional District Judge South has no jurisdiction, the learned counsel for the appellant has very frankly stated that the point of jurisdiction was not raised before the learned VII- Additional District Judge South, however, it can be agitated before this Court and in this respect he has placed reliance on the case of Pir Sabir Shah v. Shahad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. Reported in PLD 1995 SC 66; wherein the Hon'ble Supreme Court has held that Question of jurisdiction is very important and fundamental in nature. If forum has no jurisdiction, same cannot be conferred upon it by consent of parties. Question of jurisdiction is to be considered by Court even though not raised by parties.
3. ' He has also placed reliance on Board of Intermediate and Secondary Education Lahore through Chairman and another v. Mst. Salma Afroze and 2 others (PLD 1992 SC 263-265-q); wherein the Hon'ble Supreme Court has held, "----Judge must wear all the laws of the country on the sleeves of his robe---Failure of counsel to properly advise Judge was not a complete excuse in the matter".
4. ' According to Mr. Akhlaq Ahmed Siddiqui, learned counsel for the appellant although this point was not raised before the learned VII-Additional District Judge South but it was the duty-of that Court to send the matter to the Court of Senior Civil Judge having jurisdiction in the wake of the amount viz. Rs,2,64,925.
5. ' On the other hand, Mr. Abbas Pishori, learned Counsel for the respondent has placed before me a Circular of this Court wherein bulk of cases i.e, serial No,1 to serial No,107 suits having been transferred to the District Court Karachi, South. In this respect the learned counsel for the respondent has referred section 24, C.P.C. With regard to General Power of Transfer and Withdrawal, which is reproduced as follows:
24. General Power of transfer and withdrawal.---(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage.
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and
(i) try or disposal of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or
(iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn.
(2) where any suit or proceeding has been transferred or withdrawn under subsection (1), the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either re-try it or proceed from the point at which it was transferred or withdrawn.
(3) For the purpose of this section, Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court.
6. ' In support of his contention, Mr. Abbas Ali Pishori, learned counsel for the respondent has placed reliance on 1993 CLC 3140; PLD 1982 SC (AJ&K) 62 and PLD 1986 Lah.
7. 148.
8. ' In a case of Muhammad Akbar v. Faizah Begum (PLD 1982 SC (AJ&K) 62, the Hon'ble Supreme Court of Jammu and Kashmir has held that "Appeal to Supreme Court---Estoppel---Argument abandoned by appellant before District Court and High Court---Rule of equity and good conscience prevents appellant to agitate such argument before Supreme Court" Held, appellant cannot be allowed to turn a volt face at late stage.
9. ' He has further cited Ordinance VII of 1991, section VII of Original Jurisdiction of the Court of District Judge.
10. ' However, Mr. Abbas Pishori, learned counsel for the respondent has conceded that the suit for recovery for an amount of Rs,2,64,925 is triable by Senior Civil Judge.
11. ' I have heard Mr. Akhlaq Ahmed Siddiqui, learned counsel for the appellant, Mr. Abbas Pishori, learned counsel for the respondent and have gone through the material available on record and the authorities cited by them.
12. ' Admittedly in Circular issued by this Court Suits from serial Nos.1 to 107 (a bulk of Suits) have been transferred to the District Court Karachi South, but nowhere in the said Circular it is mentioned that these suits will be tried by District Judges. Admittedly the point of jurisdiction has not been raised by the learned counsel for the appellant before the learned VII-Additional District Judge Karachi, South and I am being fortified by the cases of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly N.-W.F.P. (PLD 1995 SC 66) and Board of Intermediate and Secondary Education Lahore through Chairman and another v. Mst. Salma Afroze and 2 others (PLD 1992 SC 263265q); ' Learned counsel for the respondent has also conceded before this Court that Suit for recovery for an amount of Rs,2,64,925 is triable by Senior Civil Judges. The laws cited by the learned counsel for the respondent are distinguishable from the facts of the present case and is of no help to him; Circular issued by this Court nowhere mentions that all the Suits are to be triable by the District Judges.
13. ' In view of the above discussion, I am of the considered view that it was the duty of the learned VII- Additional District Judge, Karachi, South to point out that such Suits are triable by Senior Civil Judges and he could have made reference to the District Judge, South in this regard. I remand the 1st Appeal No,77 of 1997 to the Court of VII-Additional District Judge, South Karachi with directions to determine the point of jurisdiction in the wake of the amount of Rs,2,64,925 and also to consider that whether the Suits for recovery within Rs,2,64,925 are triable by District Judges or by Senior Civil Judges and also to look into the Circular issued by this Court wherein bulk of Suits have been transferred to District Court, Karachi South and if learned VII-Additional District Judges, Karachi, South comes to the conclusion that the Suit for recovery of an amount of Rs,2,64,925 is triable by Senior Civil Judge, he is directed to send the case file to the concerned Senior Civil Judge, Karachi, South, having the jurisdiction over the matter and to dispose of the case in accordance with law.