1. This Revision Application is directed against the judgment and decree, dated 27-10-1999 passed in Civil Appeal No.199 of 1996 by VIIth Additional. District and Sessions Judge, Karachi East dismissing the appeal against judgment and decree, dated 6-8-1996 in Suit No.1628 of 1985 by VIIIth Civil Judge, Karachi East.
2. The facts of the case are that applicant filed Civil Suit bearing No.3474 of 1980 renumbered as Suit No.1628 of 1985 for accounts and injunction. Respondents defended the suit and objected to the maintainability of the suit. In addition to other grounds pertaining to facts calling for adjudication evidence laid down by the parties and the finding of trial Court which was also upheld in appeal by the learned Appellate Court on the first issue is that subject-matter of suit is beyond the pecuniary limits of jurisdiction of the trial Court.
3. On 4-1-2000 following observation was made by this Court:-- "Upon perusal of the impugned judgment it has transpired that Issue No.1 regarding the maintainability of the suit was answered in the negative on the basis of lack of pecuniary jurisdiction of the learned trial Court. In my view once the learned trial Court has itself come to the conclusion that the suit was not maintainable which was upheld by the learned Appellate Court then there could not be any question answering the other issues on merits. In the circumstances tentatively I am of the view that the learned trial Court should have returned the plaint under Order 7, Rule 10, C.P.C. for the purpose of filing in the Court having jurisdiction and as it was not done and the matter went in appeal, this was the dutyof the learned Appellate Court. Consequently in my view at this stage let pre-admission notice go to the respondent for 17-1-2000."
4. Suit was filed for accounts and injunction pertaining to the extent of share of the plaintiff from the sale proceeds of Property bearing No.172/E, Block-2, P.E.C.H.S., Karachi gifted to the plaintiff by his deceased father jointly with other and utilization of sale proceed thereof towards purchase of Property No.118, Bahadurabad, Street No.7, Karachi and for the profits accruing on the balance amount of the sale proceeds of the aforesaid joint property as such the appellant/applicant is legally competent to ask for the accounts and to join him as co-owner. The plaint is signed by the brother as next friend of the plaintiff.
5. The learned counsel for the both parties have argued the case at length. This application can be decided on the short legal point that after arriving at the conclusion that the suit was not maintainable on the ground of jurisdiction by the trial Court, the Court had no jurisdiction to proceed further with the issues and acted beyond its jurisdiction. He further argued that the concurrent findings of the two Courts do not bar this Court in cases involving points of law and jurisdiction. In support of his arguments, learned Advocate for the applicant placed reliance on the case of Elahi Bux v. Noor Muhammad PLD 1985 SC 41 where Honourable Supreme Court was pleased to uphold the order of the learned Single Judge setting aside the concurrent finding of lower Court.
6. The learned counsel for respondent has supported the impugned judgment and decree and has placed reliance on the law laid down in the case of Muhammad Ali v. Muhammad Shafi PLD 1996 SC 292. This case involved the point of law pertaining to entertaining of an objection as to jurisdiction of the trial Court or Lower Appellate Court founded on the ground of over valuation or under valuation unless such objection in the case of the Court of first instance, was raised by the party at or before the hearing of the case when the issues were settled in the case, and in the case of Lower Appellate Court the objection had been raised in the memo. of appeal and the application of provision of section 11 of Suits Valuation Act under the circumstances. When the Appellate Court arrives at a conclusion that the trial Court had no jurisdiction to proceed with the matter. The Honourable Supreme Court as result of this decision was pleased to remand and restore the decision of First Appellate Court whereby it had remanded the case to trial Court. In the present case it is not the Appellate Court that has come to a different conclusion that subject-matter was beyond the jurisdiction of Trial Court but the Trial Court itself framed an issue as Issue No.1 and recorded its findings that it had no jurisdiction as the subject-matter of the suit was beyond the pecuniary limits of the jurisdiction of the Court. These are not disturbed in appeal by the learned Appellate Court.
7. The action has to be taken under such circumstances as provided under Order 7, Rule 10 of Civil Procedure Code which reads:-- "Return of plaint.--- (1) The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.
(2) Procedure on returning plaint.--- On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it."
8. It has been held in Twaha v. M.V. Asian Queen PLD 1982 Kar. 749:-- "There is yet another reason for which suit could not have been dismissed. It is that under Order VII, Rule 10, C.P.C. it was the duty of Court to have returned the plaint for presentation to proper Court but it was not returned. It is again settled that a party should not suffer on account of the mistake of the Court."
9. In view of the above in a case-law where the trial Court at any stage of the suit arrives at a decision that suit should have been instituted in any other Court having jurisdiction the mandatory procedure proceeded under Order 7, Rule 10 of the Civil Procedure Code, 1908 is attracted. The duty of the Court is to return the plaint for presentation to the proper Court. This course prescribed by law has not been followed in this case. Nor by the learned Appellate Court. The Court, thus, acted and exercised jurisdiction beyond that vested by law and with material irregularity.
10. Accordingly impugned judgment and decree of the trial Court on the remaining points in issue is without jurisdiction, This revision application is allowed. The impugned judgment and decree, dated 27-10-1999 passed in Civil Appeal 91 of 1996 is set aside. It is further ordered that the plaint may be returned for presentation before the Court of competent jurisdiction. With no order as to costs.