1. This revision application under section 115, C.P.C., is directed against the judgment passed by learned VIth Additional Sessions Judge Karachi, East, in Civil Appeal No. 136 of 1990, dated 13-10-1991 and the decree, dated 2-11-1991.
2. The relevant facts giving rise to this revision application are that Respondent No.1/plaintiff Aftab Ahmed filed suit for declaration and permanent injunction under section 42 of the Specific Relief Act, read with section 53-A, Transfer of Property Act, praying as follows:-- "It is, therefore, prayed that the Hon'ble Court may be pleased to pass judgment and decree as under:-- (i)That the transfer caused in favour of defendant No.3 is illegal and the transfer documents executed, in favour of plaintiff by the defendant No. 1 are intact and operative.
3. (ii)That the General Power of Attorney Annexure 'D' is operative and irrevocable and debars the defendants Nos. 1 and 2 to cause the transfer of the suit property in favour of anyone-else except the plaintiff.
4. (iii)That the plaintiff is entitled to the transfer of the suit property in his favour by the defendant No.2 and further that the plaintiff is entitled to continue in possession of the suit-land.
5. (iv)That the defendant No.3 be permanently restrained to claim possession or the transfer of the suit property as the defendant No. 1, is legally estopped to cause the transfer of the suit property in favour of defendant No .3.
6. (v)To grant cost to the plaintiff; and/or (vi)To grant any other relief deemed necessary."
7. It was stated in the plaint that the defendant No. 1/Respondent No. 1, was allotted a Plot bearing No.A-1, Block 3, K.D.A. Scheme No.24, Gulshan-e-Iqbal, Karachi, measuring 273 Sq. Yds. Vide allotment order dated 27-11-1971 of NHQ Letter No.WE/0904/70, dated 27-2-1971. It was alleged in the plaint that on oral agreement between the Respondent No.1/ plaintiff and Respondent No.2/Defendant No. 1, the latter agreed to surrender his right in favour of the Respondent No.1/plaintiff and two letters were addressed to the Assistant Officer Land and Estates Department (Gulshan-e--Iqbal) K.D.A. Karachi. It was further averred that the Respondent No.2/Defendnt No.1, acknowledged receipt of Rs.24,000 as a consideration for transferring his right over the suit property. He also executed Irrevocable General Power of Attorney, in favour of Respondent No. 1/Plaintiff, which was duly registered before the Sub-Registrar T-Division Karachi. A notice was also published in daily Jissarat, dated 16-9-1979, under the caption Ittila-e-Aam. No objection or claim was received in response to the above notice. According to Respondent No.1/Defendant No.1, he delivered all original documents to the plaintiff which included Letter No.WE/0904/70 dated 27-2- 1971 and allotment order issued by K.D.A. Dated 27-11-1971. The respondent No.2/Defendant No.1, assured of all cooperation in getting the suit property transferred in the record of K.D.A., the Respondent No.3. It was further averred that the Respondent No.2, who was originally serving in Pakistan Navy, joined Merchant Navy and left for abroad on 21-1-1980 and thereafter was not traceable. The transfer of record with Respondent No.1, was therefore, delayed. It was further stated in the plaint that the Respondent No.2, handed over physical and constructive possession of the suit property at the time of receiving the sale consideration. It was still held by the Respondent No. 1.
8. It was further averred in the plaint that about a week before the filing of suit, it transpired that the Respondent No.2/Defendant No. 1 surreptitiously and fraudulently entered into a deal with applicant/Defendant No.3 on terms and conditions not known to the Respondent No. 1. The respondent No. 1, learnt that some digging was going on the suit property at the instance of applicant. On further inquiry it transpired that the Respondent No.2, in collusion with Respondent No.3, K.D.A. Got the suit property transferred in favour of applicant/Defendant No.3. It was contended that the General Power of Attorney executed in favour of Respondent No. 1, was persisting as no notice of cancellation was given to the Respondent No. 1 and therefore, the suit property was not available for transfer in favour of any party except the Respondent No. 1. It was pleaded that the transfer in favour of applicant by the Respondent No.3, was mala fide and illegal.
9. It was stated that the Respondent No. 1, performed his part of the contract with the Respondent No.2 and the Respondent No.2 in collusion with Respondent No.3, failed to perform his part of the contract. For the purpose of valuation the suit was valued at Rs.24,000 and for injunction at Rs.200, on which court-fee was paid.
10. The applicant/Defendant No.3, in his written statement denied the transaction alleged in the plaint and contended that he had no notice of the same. He submitted that he purchased the disputed plot as bona fide purchaser for value and without the knowledge of the alleged agreement between the Respondent No.1/plaintiff and Respondent No.2/Defendant No.1. He further averred that, when he entered into sale agreement with Respondent No.2/Defendant No.1, he was informed that the Respondent No.2 had already revoked the General Power of Attorney in the name of Respondent No. 1/plaintiff and that said power of attorney was never utilized. He produced registered deed of revocation. He denied all other contents of the plaint and specifically denied the delivery of possession of the plot to the Respondent No.1. He alleged that the Respondent No.2/Defendant No.1, was put in physical possession of the disputed plot on 3rd June, 1982, by the officials of Respondent No.3/Defendant No.2, K.D.A. And the Respondent No.2, delivered plot on the very next day to the applicant/Defendant No.3 and since then he was in exclusive possession of the same as a transferee of the plot. He produced copy of the acknowledgement of possession dated 3-6-1982. He further stated that after obtaining possession of the disputed plot he constructed boundary wall around the plot and also affixed an iron gate in the month of August, 1982 and thereafter, constructed a Jhuggi on the plot. He further denied that any surreptitious and fraudulent deal was made with Respondent No.2. He contended that he purchased the plot openly and also got the public notice published in daily Nawa-i-Waqt, inviting objections from public and no objection from any quarter was notified to the K.D.A. And, therefore, the Respondent No.3, K.D.A.
11. Transferred the plot in his favour vide letter, dated 15-7-1982. He alleged that the Respondent No.2, transferred all rights in the disputed plot in his favour and a joint application accompanied by affidavit was submitted before the K.D.A. And thereafter, he is in possession of the plot in his own title and right. He specifically pleaded that he was lawful transferee of the disputed plot and was admittedly in possession of the same: The respondent No.1 /plaintiff' was not entitled for any relief and the suit was hit by the provisions contained in section 42 of the Specific Relief Act, and was not maintainable in law. He further pleaded that the suit was rendered infructuous as the disputed plot was already transferred in his name and General Power of Attorney was cancelled before its utilization. He pleaded that the disputed plot was purchased by him and he was a bona fide purchaser for value without notice or knowledge of the alleged previous transaction and that there was nothing on the record of the K.D.A. To show that the respondent No.2, handed over/surrendered his rights of the plot in favour of anybody. He further contended that the Respondent No.3/Defendant No.2, K.D.A. Never informed him about any defect in the title of Respondent No.2 and he purchased the plot after taking every precautionary measure purchased the plot in good faith and for value, as such his rights were not effected in any way. The territorial jurisdiction of the Court was also challenged. It was further contended that the suit was under-valued and, therefore, the plaint was liable to be rejected or returned under Order 7, rules 10 and 11, C.P.C.
12. The Respondent No.3/Defendant No.2, K.D.A. Also filed written statement. Preliminary objections were raised to the effect that the suit was incompetent for want of Mandatory Notice required under Article 131 of the K.D.A. Order V of 1957 and that the suit was bad under section 42 of the Specific Relief Act. It was stated that the Respondent No. 2, Muhammad Nawaz Khan, allottee of the disputed plot submitted an application dated 5-1-1982 alongwith attested copy of his N.I.C. And deed of revocation of his Power of Attorney executed before Sub-Registrar T-Division-I, vide Registration No.1169, dated 5-10-1981. It was further stated by the K.D.A. In its written statement that the Respondent No.2, furnished certificate of Release and an Indemnity Bond, to the effect that he is allottee of the plot, stating that he has revoked General Power of Attorney, which was executed in favour of Respondent No. 1, Aftab Ahmed. On receipt of this revocation deed a letter under registered covered was sent to the Respondent No.1, Aftab Ahmed, at his address B-44/11 Malir Extension Colony, but the same was received back undelivered. It was further stated that the K.D.A.
13. Was not in the know of any oral agreement alleged by Respondent No.1/plaintiff Aftab Ahmed and no documents were on the record of K.D.A. Containing the fact of surrendering of the disputed plot in favour of Aftab Ahmed. It .Was, however, admitted that two applications dated 28-5-1977 and 5- 10-1980 were available on the file of K.D.A. Wherein Muhammad Nawaz, allottee of the plot had requested for handing over physical possession of the plot to Aftab Ahmed and also informed that he has appointed Mr. Aftab Ahmed, as his attorney. The letter was accompanied by photostat copy of the General Power of Attorney in favour of Aftab Ahmed. It was further stated in the written statement that the Respondent No.2, Muhammad Nawaz, the original allottee of the disputed plot applied for issuance of certificate true copy of the documents of plot on 8-5-1982, stating that the documents were left in a taxi while coming from Station. It was contended that the physical possession of the suit plot was taken over by Muhammad Nawaz, the Respondent No.2, on 3-6- 1982 and it was not in physical possession of Respondent No. 1, Aftab Ahmed. The K.D.A. Further stated in the written statement that after revocation of General Power of Attorney, in favour of Respondent No. 1, the Respondent No. 2 Muhammad Nawaz, sold the plot to the applicant Wajahat Hussain for lump sum sale consideration of Rs.2,60,000 and executed sale agreement on 5-10-1981 and after completion of requisite formalities, plot in question was transferred in favour of the applicant Wajahat Hussain -under normal rules. It was further stated that the suit was under valued.
14. The respondent No.2, Muhammad Nawaz Khan, did not appear and the suit proceeded ex parte against him.
15. On the pleadings of the parties the following issues were framed by the trial Court:-- (1)Whether the defendant No. 1 agreed to sell suit Plot No.A-1, Block-3, Gulshan-e-Iqbal, Karachi to the plaintiff and received a sum of Rs.24,000 in full and final payment of the sale consideration thereof vide receipt dated 25-12-1997? If so to what effect?
16. (2)Whether the defendant No. 1 executed an irrevocable General Power of Attorney dated 27-12- 1979 in favour of the plaintiff in respect of the suit plot and got the same registered before Sub- Registrar, Karachi on 31-12-1979? If so, to what effect?
17. (3)Whether the defendant No. 1 in pursuance of the sale agreement and execution of the irrevocable General Power of Attorney handed over original documents of title of suit property to the plaintiff? If so, to what effect?
18. (4)Did the defendant No. I handed over physical and constructive possession of the suit land to plaintiff?
19. (5)Whether the defendant No. 1 informed the defendant No. 2 about the execution of irrevocable General Power of Attorney in favour of the plaintiff? If so, to what effect?
20. (6)Whether the defendant No. 1 could revoke the irrevocable General Power of Attorney? If not what is the effect of execution of the deed of revocation power of attorney dated 5-10-1981?
21. (7)Did the defendant No.2 after receipt of deed of revocation and application from defendant No.1 for transfer of suit plot in favour of defendant No.3 serve any notice upon the plaintiff? If so, to what effect?
22. (8)Is the transfer of the suit plot by the defendant No.2 in favour of defendant No.3 illegal and void ab initio?
23. (9)Is the plaintiff entitled to specific performance of the sale agreement and to the transfer of the suit plot in his favour by the defendant No.2?
(10) Is the plaintiff entitled to the possession of the suit plot?
(11) Is the plaintiff entitled to the relief of permanent injunction against defendant No. 3 as prayed for?
(12) Whether the defendant No.3 is a bona fide purchaser of value without notice of the alleged agreement between the plaintiff and defendant No. 1?
(14) Whether this Court has pecuniary and territorial jurisdiction 'in the matter?
(15) What is the market value of the suit property?
(16) Whether the plaintiff is in possession of the suit property?
(17) Whether the suit is not maintainable under proviso of section 42 of the Specific Relief Act?
(18) Whether the defendant No. 1 could transfer the suit property in favour of the plaintiff without the permission of defendant No.2. If not, what is its effect?
(19) Whether, the plaintiff and defendant No. 1 are in collusion with each other and want to deprive the defendant No.3 from the suit property?
(20) What should the decree be?"
24. The parties led their respective evidence on the above issues. However, learned trial Court treated the following 5 issues as preliminary legal issues and disposed of the suit by giving findings thereon instead of considering the factual aspect and the law applicable to the facts:--- Issue No. 1.
25. Whether the suit is not maintainable under section 42 of Specific Relief Act?
26. Issue No.2.
27. Whether the plaintiff is in possession of the suit property?
28. Issue No.3.
29. Is the plaintiff entitled to the possession of suit plot?
30. Issue No.4.
31. Whether this Court has pecuniary and territorial jurisdiction in the matter?
32. Issue No.5.
33. What should the order be?
34. The learned trial Court discussed the Preliminary Issues Nos.1, 2 and 3 together and held that the plaintiff was not in possession of the disputed plot and during long period of the pendency of suit neither amended the plaint nor prayed for possession of plot in question and did not implead the person as party in the suit, who is in Dossession of the suit plot and therefore, the suit as framed was not maintainable under section 42 of the Specific relief Act.
35. So far the Preliminary Issue No.4, is concerned which pertains to the pecuniary jurisdiction, the learned trial Court accepted the plea of plaintiff's Advocate that the plaintiff has alleged to have purchased suit plot from Defendant No.1, for a sum of Rs.20,000 and has not sought any relief of possession of .The said plot, therefore, valuation of the plot for the purpose of jurisdiction and court-fees does not require any consideration. The plea raised on behalf of Defendant No.3, that it was purchased by him for Rs.3,00,000 and, therefore, the plaintiff should have paid court-fees at Rs.3,00,000 was repelled. Consequent to the findings on Preliminary Issues Nos. 1, .2 and 3 to the effect that suit as framed was not maintainable, it was dismissed with no order as to costs. The suit was disposed of on 26-8-1990.
36. Being aggrieved with the dismissal of suit the plaintiff preferred irst appeal being Civil Appeal No. 136 of 1990. The learned VIth Additional district Judge Karachi; East, set aside the judgment and decree of the trial court and decreed the suit on 13-10-1991. Th learned First Appellate Court formulated following points for determination:-- "(1) Whether the defendant/respondent No. I agreed to transfer the suit plot to the plaintiff/appellant after receiving total sale consideration and handing over the title documents of the suit plot. If yes, whether ' it was legal.
37. (2)Whether the revocation of irrevocable Power of Attorney by the Defendant No. 1, in favour of the plaintiff/appellant was valid and legal?
38. (3)Whether the transfer of the suit plot by K.D.A. In favour of respondent No.3 is legal?
39. (4)Whether the respondent No.3 is a bona fide purchaser of the suit plot for valuable consideration without notice to the previous agreement?
40. (5)Whether the appellant/plaintiff is entitled for the specific performance of the contract?
41. (6)Whether the suit as framed can be decreed for specific performance of the contract?
42. (7)Whether the appellant/plaintiff was handed over physical possession of the suit plot by the respondent No. 1 at the time of execution of sale agreement? If yes, whether he was in possession of the same at the time of filing the suit?
43. 'The learned First Appellate Court observed - that' the learned Advocate .For the parties submitted before him that although the learned trial Court has not discussed each and every issue framed by it and has discussed the suit on the point of maintainability but entire evidence produced by the parties was available before the appellate Court, therefore, Vie appellate Court may dispose of the entire suit instead of remanding the suit to the trial Court for its findings on all the remaining issues.
44. The learned First Appellate Court, accepted the submission and proceeded on to decide the points for determination framed " y him on merits, in pursuance of the power vested in appellate Court under Order 41, Rule 23, C.P.C.
45. The learned First Appellate Court held that the plaintiff was not in possession of plot at the time of filing the suit and, therefore, the suit filed for declaration -and injunction was not maintainable, however, mere reason that consequent relief by way of possession was not claimed should not result in dismissal of suit. By placing reliance on the judgment in the case of Ahmed Din v.
46. Muhammad Shafi and others, (PLD 1971 SC 762), the learned First Appellate Court held that in such cases the plaintiff should be allowed to amend plaint by adding prayer for possession and after payment of appropriate ad volerem court-fee, the Court may grant relief of possession even though it was not specifically asked for. The Court further held that though the suit was for declaration and injunction only a decree for specific performance can be awarded. The learned First Appellate Court placed reliance in this behalf on the judgment in the case of Muhammad Mustafa and another v. Bashir Ahmed Choudhry and another reported as PLD 1991 Lahore 400. He ultimately held that Muhammad Nawaz Khan, the original allottee has not contested the suit as well as the appeal and, therefore, there is no denial on his behalf, as such the suit can be decreed for the specific performance of the contract against him. The learned First Appellate Court held that the plaintiff is entitled for specific performance of the contract notwithstanding the fact that there is no prayer for specific performance of the contract and that the plaintiff/appellant Aftab Ahmed can obtain physical possession of the plot in question by way of execution of the decree of specific performance without any specific prayer for possession on payment of ad volarom court- fees as per market value of the plot which was not less than Rs.2,60,000, which is the consideration on which Respondent No.3, Wajahat Hussain, purchased the plot in question. The plaintiff/appellant Aftab Ahmed was directed to pay court-fee on amount of Rs.2,60,000 in First Appellate Court within 30 days. The First Appellate Court further directed respondent Muhammad Nawaz Khan to get the name of appellant Aftab Ahmed mutated in the record of K.D.A. Failing which the Respondent No.2, K.D.A. Would transfer the plot in question in favour of the appellant.
47. Being aggrieved with the impugned findings of the First Appellate Court, the applicant Wajahat Hussain, preferred civil revision before this Court under section 115, C.P.C.
48. The K.D.A. Also preferred revision application against the judgment of First Appellate Court being R.A. No.73 of 1992. During the pendency of revision applications the Respondent No. 1, filed applications .Under section 151, C. P. C. Read with sections 115 and 102, C. P. C. Being C. M. A. No. 1225 of' 1996 (in Civil Revision Application No. 62 of 1991 and C. M. A. No. 1226 of 1996 in Civil Revision Application No.73 of 1992). The contentions raised in both the applications were common to the effect that the decree prepared by the appellate Court in Civil Appeal No. 136 of 1990, was in accordance with the court-fee leviable on the Memorandum of Appeal determined by the Appellate Court at Rs.2,60,000. It was submitted that as per amendment in Schedule I of the Court Fee Act, 1870, introduced under the Sindh Finance Act, 1974, where the revision application is for the revision of an appellate decree, the court-fee payable shall be levied on the Memorandum of Appeal. Thus, the court-fee on the revision application was payable on the value of Rs.2,60,000. It was averred that the applicant filed Revision applications without payment, of court fee and thus in the eye of law, there was no Revision Application properly filed before High Court and as such it was not maintainable under the law and that the Revision Applications merited dismissal. The applicant Wajahat Hussain filed objections contending that the decree of First Appellate Court was drawn up in pursuance of its judgment suo motu awarding the relief of specific performance of the alleged contract in favour of Plaintiff/Respondent No-1 on the price agreed upon by the applicant Wajahat Hussain. In the absence of relief for specific performance and possession prayed for or claimed, no court-fee was paid either on the plaint or in Civil Appeal No. 136 of 1990 and as such the provision contained in Schedule I of the Court Fee Act, was not applicable to the Revision Application. Some other pleas were also taken and the applicant Wajahat Hussain undertook to pay the requisite court-fee as and when called upon by this Court. Another application being C.M.A. 892 of 1997 was submitted by applicant Wajahat Hussain praying for condoning the delay in paying court-fee on the Memorandum of Revision Application upon determination of the valuation of the subject matter, or prior thereto, as may be considered proper, just and expedient in the interest of justice particularly in the circumstances that non-payment of court-fee was not out of any contumacy or wilful negligence or, disobdience of any order, but due to oversight, inadvertence or misunderstanding, for the reason that no court-- fee was originally paid on the plaint because the suit was valued at Rs.24,000 only and no objection was raised regarding payment of court-fee even by the office of High Court at the time of scrutiny of the Memorandum of Revision Application. It was further stated in the affidavit in support of application under section 28 of the Court Fees Act, read with section 149, C.P.C., that the decree for specific performance and delivery of possession was passed at the appellate stage subject to payment of court-fee by the Respondent No. 1, at value fixed at Rs.2,60,000 arid the said valuation was beyond pecuniary jurisdiction of the original as well as the Appellate Court. Accordingly, an objection to the said valuation and pecuniary jurisdiction of the First Appellate Court was raised and argued by the parties before the High Court. It was further submitted that the correct determination of the valuation of suit property at the relevant time is still pending final decision and is under consideration of the High Court and therefore, the accurate amount of court-fee if leviable would depend upon the determination of correct valuation of the plot by the High Court. It was further contend that the application for payment, of Court-fee as determined may be allowed and such payment of court-fee be treated according to law as if paid at the time of presenting the Civil Revision Application. It was further pleaded that on payment of court---fee as directed the institution of the Revision Application will not suffer from any consideration of bar of limitation. The applicant further submitted that he was prepared to pay the amount of court-fee as and when called upon and that he may not be victimized by the instrument of technicality which is not the purpose of Court Fees Act or policy of law.
49. The applications submitted by respondent Aftab Ahmed, in both the revision applications and on behalf of applicant Wajahat Hussain, were heard by a learned Single Judge of this Court on 15-4- 1998.
50. After hearing learned Advocates for the parties and perusal of the case law cited at bar the learned Single Judge held that the court-fee payable in revision is same as determined by the Appellate Court as per decree, which was Rs.2,60,000, and therefore, the applicant in Revision Application 286 of 1991 should have paid the court-fee amounting to Rs.7,225. It was further observed that the applicant had the knowledge of valuation as well as the court-fee paid by the Respondent No. 1, but even then he did not pay the same which shows that he was not only negligent only but also contumacious and keeping in view, the prejudice likely to be caused to each party, there was no reason to deprive the Respondent No.1. Of the valuable 'right of limitation by allowing the application for extension of time. It was further held that, "this Court in exercise of its revisional jurisdiction cannot extend time for payment of court-fee even in exercise of its discretionary power as it is not covered by either of the three clauses of section 115, C.P.C."
51. Consequent to above findings the application submitted by respondent seeking dismissal of revisional application for non-payment of court-fee was allowed and the application submitted on behalf of applicant seeking condonation of delay in paying court-fee was dismissed. The result was that the revision application was dismissed with costs. It was observed that in connected Revision Application No.73 of 1992 filed by K.D.A. No objections were filed by the applicant to the application of Respondent No. 1 and, therefore, the said revision was also dismissed with costs.
52. The applicant Wajahat Hussain, being aggrieved with the above findings and dismissal of revisional application preferred appeal before the Hon'ble Supreme Court of Pakistan, which was heard on 29-1-1999 and was disposed of by short order which reads as follows:-- "For the reasons to be recorded later on, the petition is converted into appeal, the judgment of the learned Judge in Chamber set aside, and the case is remanded to the High Court with the direction to proceed with the Civil Revision Application No. 288 of 1991. It will be open for respondent No.1 to agitate the question of limitation before the learned Judge. As regards Civil Revision No.73 of 1992 which was filed by the K.D.A. And which was dismissed and in respect of which no petition for leave to appeal has been filed before us, the matter stands concluded. The High Court may expedite the disposal of the same. "
53. The Hon'ble Supreme Court set aside the judgment of learned Single Judge and remanded the case to High Court with the direction to proceed with the Civil Revision No. 286 of 1991. As is evident from the short order of the Supreme Court it was observed that no petition for leave to appeal has been filed by the K.D.A. Against dismissal of Civil Revision 73 of 1992 therefore, the matter stands concluded. It has been reported by the Assistant Registrar of the Supreme Court of Pakistan, Karachi, that no detailed order has been passed by the bench of the Hon'ble Supreme Court in Civil Petition No.577-K of 1998 and, therefore, the short order dated. 29-1-1999 may be treated as final order.
54. The learned Advocates for the applicant and Respondent Nos.1 and 3 have been heard. The main arguments have been addressed by the learned counsel for the applicant and the learned counsel for the Respondent No.1. The learned counsel for the applicant has argued at length, mainly dilating on the merits and giving the history of the case. However, the main plank of arguments on behalf of Respondent No.1, is that the learned First Appellate Court held that the Respondent No.1, was entitled for the specific performance of the contract and the suit was decreed with costs accordingly. The respondent Muhammad Nawaz Khan was directed to get the name of Respondent No.1, mutated in the record of K.D.A. Failing which the respondent K.D.A., would transfer the plot in question in favour of the appellant. The First Appellate Court further held that the Respondent No.1 was entitled for the possession of the plot in question and if the respondent Haq Nawaz filed to comply with the direction, the Respondent Nos.1 (appellant before the First Appellate Court) can get relief by way of execution of decree. According to learned counsel for the Respondent No. 1, the revision application preferred by the K.D.A: against the above judgment and decree was dismissed by Single Judge of this Court on 15-4-1998, on account of non-payment of court-fee at Rs.2,60,000 and no petition for leave to appeal was filed before Hon'ble Supreme Court and in view of the observation of Hon'ble Supreme Court that the matter as regards Civil Revision 73 of 1992 filed by K.D.A. Before High Court stands concluded, the K.D.A. Is bound to transfer the plot in question in favour of Respondent No. 1. He has further contended that the result would be that with the transfer of plot by K.D.A. In favour of-Respondent No. 1, as directed by the First Appellate Court the issue between the parties shall attain finality and the revision preferred by applicant Wajahat Hussain shall be rendered infructuous.
55. I have given my careful consideration to the contentions raised by learned Advocates for the parties and the entire material available on record. In view of the findings to be given by me presently, I am of the opinion that no findings are required to be given at this stage on merits as well as on the points of law and technicalities raised from time to time and ultimately during the course of final arguments.
56. Before giving my findings, I would like to observe that whenever any matter comes for adjudication before any Court, the first and foremost duty of the Court is to see if the Court has the jurisdiction to adjudicate upon the matter brought before it. The reason being, that, by now it stands established principle of the administration of justice that any judgment or order without jurisdiction is nullity in the eye of law. There is no dearth of judgments on the point that an order/judgment without jurisdiction being nul and void can be just ignored. The principle is so firmly entrenched in the system of administration of this country that I need not to dilate on this point in any detail.
57. Now coming to the facts of the present case in the light of above principle, I find that the question pertaining to the pecuniary jurisdiction of the trial Court was raised in the written statement and an issue being Issue No. 14 was also framed as follows:-- "Whether this Court has pecuniary and territorial jurisdiction in the matter?"
58. The said issue was included in the preliminary issues as well, being Issue No.4 and the findings of trial Court on Issue No.4 (page 11 of the judgment) show that the Advocate for Respondent No. 1/plaintiff took plea before the trial Court that he has not sought any relief of possession of the plot as such the valuation of the plot for the purpose of jurisdiction and court-fee is not to be considered and, therefore, the trial court has the pecuniary jurisdiction in the matter. The learned trial Court held that the admitted position is that the plaintiff has not sought any relief of possession of the suit property, therefore, he is not liable to pay any court-fee. The issue was decided accordingly. However, when the matter came before the First Appellate Court the points for determination were formulated which have already been re-produced in earlier part of this judgment and, therefore; I need not to reproduce the same. It appears that everybody including the Court remained oblivious, that notwithstanding the principle laid down by the HoN'ble Supreme Court of Pakistan in the case of Pramatha Nath Choudhry and others v. Kamir Mondal and others, (PLD 1965 SC 434), to the effect that if the material on all the issues is available before the Appellate Court, the Appellate Court should decide itself all the questions instead remanding suit, under Order 41, Rule 23, C.P.C., the other provisions contained in Civil Procedure Code shall remain intact. The view taken by the learned First Appellate Court that, the Appellate Court was empowered to dispose of the entire matter in place of remanding the suit to the trial Court for its findings on all the remaining issues is not open to any exception because of provisions contained in Order 41, Rule 24 which reads as follows:-- 'Where evidence on record is sufficient, appellate Court may determine case finally.' Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary. Finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."
59. However, while exercising jurisdiction under Order 41, Rule 24, C.P.C. And finally determining the suit, the First Appellate Court failed to take notice of the provisions in Order 41, Rule 31 which provides that the judgment of Appellate Court shall inter alia state in writing the points for determination.
60. There can be no cavil to the proposition that the expression "point for determination" refers to all the questions involved in the case including the question of jurisdiction vested in the trial Court as well as the Appellate Court. The learned First Appellate Court further adverted to the provisions contained in Order 41, Rule 33, C.P.C. Which reads as follows:-- "33. Power of Court of Appeal.---The Appellate Court shall have power-to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties; although such respondents or parties may not have filed any appeal or objection: [Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.]"
61. The principle which can be deduced from the above provisions is that an appeal being the continuation of original suit, the Appellate Court can pass any order which can be made by a trial Court. This principle is contained in unambiguous term in subsection (2) of section 107, C.P.C.
62. Subsection (2) of section 107 reads as follows:-- "(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
63. The Hon'ble Supreme Court while examining the scope of section 107(2), C.P.C. Has held; "section 107(2) was enacted to fill the gaps in the procedure, whereunder, Appellate Court has the same powers and burdened With the same duties, as conferred and imposed on the trial Court. North-- West Frontier Province Government, Peshawar v. Abdul Ghaffor Khan (PLD 1993 Supreme Court 418)".
64. Accumulative effect of the provisions referred to above is that the Appellate Court can exercise same powers and jurisdiction as vested in the trial Court. Thus, if trial Court has no jurisdiction in respect of any matter the Appellate Court cannot exercise the jurisdiction while sitting in appeal.
65. Again reverting to the facts of the present case I find that the trial Court had framed issue on the point of pecuniary jurisdiction of the trial Court and had held on the plea taken by the Advocate for Plaintiff/respondent No. 1, that the relief of possession was not sough;, therefore, ad volerem court- fee on the value of plot was not required to be paid and the suit valued for the purpose of declaration and injunction at Rs.24,000 was proper and the trial Court had the pecuniary jurisdiction. It would be appropriate here to state that the original civil suit was filed in the year 1982 and by virtue of the provisions contained in section 7 of the Civil Court Ordinance, 1962, the pecuniary jurisdiction of a Senior Civil Judge at Karachi was limited upto Rs.50,000. The original suit was decided on' 26-8-1990 and by virtue of amendment made by Sindh Civil Courts (Amendment)
66. Ordinance, 1991, issued on 26th May, 1991 and published in the Official Gazette on 29th June, 1991, the pecuniary jurisdiction of Senior Civil Judge was enhanced to, rupees five lacs. The provision was retained in Sindh Civil Courts (Amendment) Act, 1991 (Sindh Act III of 1992). In section 18 of the Civil Courts Ordinance, 1962, the appellate jurisdiction of District Judge was upto Rs.50,000 and in respect of decree or order in original suit exceeding Rs.50,000 the jurisdiction was with the High Court. By Sindh Act III of 1992, the appellate jurisdiction of the District Judge was enhanced to Rs.2,50,000. Thus, it will be seen that when the suit was instituted and decided the pecuniary jurisdiction of Senior Civil Judge was in respect of suit valued up to Rs.50,000 when the first appeal was decided by the learned VIth Additional District Judge Karachi (East), on 13-10-1991, the appellate jurisdiction of District Judge was up to Rs.2,50,000. It will be seen that when the Senior Civil Judge decided the civil suit his jurisdiction was limited to the suits valued at Rs.50,000 and, therefore, the First Appellate Court while exercising jurisdiction vested in original Court had no jurisdiction to decide any suit having valuation of more than Rs.50,000. However, it can be argued that during the pendency of appeal the Sindh Civil Courts (Amendment) Ordinance 1991 came into force with effect from 29th June, 19,91, enhancing the pecuniary jurisdiction of the Senior Civil Judge at Karachi from Rs.50,000 to Rs.5,000,00 and therefore, by virtue of the principle that the appellate Court can exercise same powers and jurisdiction as vested in the original Court, the jurisdiction was acquired by the First Appellate Court on the date of disposing of the first appeal, because of the reason that question pertaining to the pecuniary jurisdiction is procedural in nature and , shall have retrospective effect and shall be applicable to the proceedings pending adjudication.
67. However, I am of the opinion that an Appellate Court can exercise powers and jurisdiction vested in original Court subject to the condition that the appellate Court itself has the jurisdiction to hear the appeal.
68. The principle that an Appellate Court can exercise all those powers which can be exercised by the original Court is always subject to the condition that the Appellate Court itself has jurisdiction and has valid seisen over the matter. If the appellate Court itself has no jurisdiction then whatever done by it, shall become illegal and void for want of jurisdiction and as such when the appellate Court cannot exercise the jurisdiction itself there is no question of having the authority of exercising jurisdiction vested in the original court.
69. As already discussed the appellate jurisdiction of the District Judge was enhanced during the pendency of first appeal from Rs.50,000 to 2,50,000 and therefore, the learned Additional District Judge, could exercise his jurisdiction in the matters valued up to Rs.2,50,000 and not beyond that.
70. In the present case I have already discussed that the learned Additional District Judge, after converting the suit for declaration and injunction into a suit for specific performance determined the value of suit at Rs.2,60,000 and directed to pay court-fee on such amount and thereafter in exercise of his appellate jurisdiction he allowed the appeal and decreed the suit for specific performance of contract. The learned Additional District Judge, failed to consider that his appellate jurisdiction was originally limited to Rs.50,000 and even after amendment in Civil Courts Ordinance, 1962, the enhanced appellate jurisdiction in respect of matters valued in excess of Rs.2,50,000 vested with the High Court. The result is that the impugned judgment and findings of the learned Additional District Judge to the extent of specific performance of contract and possession has been rendered illegal, valid and non-existent, for want of jurisdiction.
71. At this stage a question arises, whether the dismissal of revision at the instance of K. D. A. Being R. A.
72. No. 73 of 1992 by learned single Judge of this Court and the subsequent non-filing of appeal before the Hon' ble Supreme Court of Pakistan and the observation of Hon'ble Supreme Court of Pakistan in the short order dated 29-1-1999, in Civil Petition No.577-K of 1998 to the effect that" As regards Civil Revision No.73 of 1992 which was filed by the K.D.A. And which was dismissed and in respect of which no petition for leave to appeal has been filed before us, the matter stands concluded", shall have the effect of clothing the impugned direction of -the learned Additional District Judge to transfer the plot in question in favour of Respondent No.1, Aftab Ahmed by the K.D.A. With legality and have binding effect. I am of the considered opinion that once an order is void for want of jurisdiction, it cannot be clothed with legality and cannot be validated by any apellate or revisional authority for the reason that an order/judgment which is without foundation cannot be made to stand by any subsequent appellate or revisional order and has to fall on ground being non-- existent in law. There is no dearth of law on this point also and I would like to refer few judgments by the Hon'ble Supreme Court of Pakistan. It has been held by a larger Bench of Hon'ble Supreme Court "of Pakistan, in the case of Yousuf A.I v. Muhammad Aslam Zia and 2 others, (PLD 1958 SC (Pak.) 104) that, "where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent.. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle, of law recognizing as legal the changed position of the Parties is in operation, fall to the ground because such orders have as little legal foundations the void order on which they are founded".
73. PLD 1971 SC 124) a larger Bench of the Hon'ble Supreme Court, has reiterated the principle as follows-- "It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is riot fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. "
74. PLD 1973 SC 236), it is held as follows:-- "It is no doubt that there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide, then as it has often been said there is jurisdiction to decide either rightly or wrongly, and merely a wrong decision does not render the decision without jurisdiction. To amount to a nullity; an act must be non--existent in the eye of law; that is to say, it must be wholly without jurisdiction or performed in Such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction."
75. It has been held further that; "It is now well-established that where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action' beyond the sphere allotted to the tribunal by law and, therefore, outside the area within which the law recognises a privilege to err', then such action amounts to a 'usurpation of powers unwarranted by law' and such an act is a nullity; that is to say, 'the result of a purported exercise of authority which has no legal effect whatsoever'."
76. "An order is to be treated as void only when it is made by a Court, tribunal, or other authority, which had no jurisdiction either as regards the subject-matter, the pecuniary value or the territorial limits where the dispute arose. Such an order would amount to ' a usurpation of power unwarranted by law', and accordingly it; would be a nullity.'
77. The above authoritative pronouncement by .The Hon'ble Supreme Court leaves no scintilla of doubt in my mind that exercise of jurisdiction by the learned Additional District Judge, vested in the original Court and decreeing the suit for specific performance in respect of a plot which he valued at Rs.2,60,000 was totally without jurisdiction and notwithstanding the dismissal of revision at the instance of K.D.A. By learned Single Judge of this Court and non-filing of appeal by the K.D.A. Before Hon'able Supreme Court shall not have the effect of validating an order which is patently without jurisdiction. I am of the considered opinion that a complete answer has been provided to the objection raised by Mr. Khalilur Rehman Advocate for Respondent No. 1, that with the dismissal of revision filed by K.D.A., and non-filing of appeal before the Hon'ble Supreme Court coupled with the observation that the matter between the K.D.A. And the Respondent No. 1 stands concluded, shall have the effect of rendering revision at the instance of applicant as infructuous and that K.D.A. Is bound to transfer the plot in question to .The Respondent No. 1.
78. However, it is still not the end of matter, because the original suit which was for declaration and injunction only was valued at Rs.24,000 only and the learned Additional District Judge had the jurisdiction to hear the appeal and to pass appropriate order including the remand of case to the trial Court for framing of any .Other issue including the consideration of point whether the suit can be converted into a suit for specific performance of contract. If the learned Additional District Judge would have remanded the case back to the Senior Civil Judge with the direction to consider the issue whether the suit can be converted into a suit for specific performance of contract and in the case of affirmative finding to give opportunity to the plaintiff to amend the plaint and to fix the Court-fee accordingly and then after giving the parties an opportunity of being heard including producing of evidence if so desired on the point of specific performance of the contract, there would have been no illegality because when the learned Additional District Judge decided the appeal the original jurisdiction of the Senior Civil Judge was enhanced to Rs.5,00,000. Thus, one part of the impugned order of the learned Additional District Judge to the effect that the Court has the authority to convert suit for declaration and injunction is not open to any exception, however, the second part, whereby he has himself exercised the jurisdiction which was beyond his pecuniary, limits is without jurisdiction. In such circumstances a guidance is available in the judgment of Hon'ble Supreme Court in the case of Brig. (Retd.) F.B. A.I and another v. The State, (PLD 1975 SC 506). It has been held by Hon'ble Mr. Justice Hamoodur Rehman, C.J, as follows:-- "There can be no doubt if a Tribunal or a Court acts wholly without jurisdiction, its action would be a nullity but it does not necessarily follow from this that even what it does with jurisdiction will also be rendered void, because, the Tribunal or Court has at the same time done something which was without jurisdiction. In my view, if it is possible to separate what has been done with jurisdiction from that which has been done without jurisdiction without any prejudice to anyone, then what is done with jurisdiction cannot be invalidated or declared null and void, at least, in the writ jurisdiction as held in the case of Khizar Hayat. "
79. Taking guidance from the above dictum laid down by the Hon'ble Supreme Court, it is held that the learned Additional District Judge, was fully competent to consider if a suit for declaration and injunction can be converted into a suit for specific performance of contract, however, as soon as he determined the value of plot at Rs.2,60,000 he ceased to have jurisdiction to decide the issues pertaining to the specific performance of contract and the ancillary issues. After coming to this conclusion he should have remanded the case to the trial Court for deciding the issue because by the time the appeal was disposed of the jurisdiction of Senior Civil Judge was enhanced from Rs.50,000 to Rs.5,00,000, and therefore, Senior Civil Judge was fully empowered to decide all the issues competently and with jurisdiction and thereafter any party feeling aggrieved could have preferred first appeal before High Court.
80. Some issues still remain to be considered. The first point is whether the observation of Hon'ble Supreme Court in the order dated 29-1-1999, remanding the revision to the High Court, that it will be open for Respondent No. 1 to agitate the question of limitation before the High Court requires any finding. I am of the opinion that since the impugned judgment of learned Additional District Judge, has been held to be void and without jurisdiction, therefore, no question of limitation is required to be considered for assailing a non-existent order. The second point is whether the applicant is required to pay court-fee at an amount of Rs.2,60,000 I' am of the considered opinion that in the Memo. Of Revision no plea was taken on the point of jurisdiction and the applicant has conceded in his application which has been referred in the earlier part of this order that he was required to pay Court-fee on an amount of Rs.2,60,000, therefore, the court-fee on the amount of Rs.2,60,000 should be paid by the applicant by 30th of April, 2001. The third point for consideration is whether the Respondent No.1/plaintiff who has already paid Court-fee in the First Appellate proceedings should be made to pay court-fee again on remand of case to the Senior Civil Judge. In this regard I am of the considered opinion that nobody should be penalised for mistake of Court: If the learned Additional District Judge, would have remanded the case to the Senior Civil Judge which was an appropriate order, the Respondent No. 1/plaitniff would have paid the court-fee on the amended/enhanced valuation of the suit in original proceedings since the Appellate Court purported to exercise original jurisdiction, which was though without jurisdiction, the Respondent No. 1/plaintiff should not be put to double jeopardy.
81. Consequent to the above findings it is held that the impugned judgment of the learned Additional District Judge, deciding the issue pertaining to the specific performance of contract is without jurisdiction and thus suffers from jurisdictional error. The learned Additional District Judge has exercised jurisdiction in this behalf which was not vested in him. The findings to the effect that suit can be converted from the declaration and injunction to suit for specific performance is with jurisdiction and not open to any exception. The said finding is hereby upheld. In the facts and circumstances of the case the impugned judgment is partly upheld and party declared void and without jurisdiction as held above. The case is remanded back to the Court of learned First Senior Civil Judge Karachi (East). With the direction that the parties may be heard on the point if the suit may be allowed to be converted into a suit for specific performance of contract and if the trial Court comes to the conclusion that it is a fit case in which the suit may be allowed to be converted into a suit for specific performance, the Respondent No.1/plaintiff, Aftab Ahmad shall be allowed to amend the plaint accordingly. However, the court-fee already paid by the plaintiff in first appeal on an amount of Rs.2,60,000 shall be deemed to have been paid in the original proceedings and no further court-fee shall be required to be paid to the extent of Rs.2,60,000. The defendant shall be allowed to amend their written-statements. The Respondent No.2, Muhammad Nawaz Khan, who is Defendant No. 1 before the trial Court is outside the country and the proceedings were taken ex parte against him, therefore, in order to save the further loss of time the suit shall proceed ex parte against him. The trial Court shall be at liberty to frame the fresh issues on the basis of amended pleadings of the parties. The parties shall be at liberty to produce fresh evidence if so desired. In view of the fact that the proceedings are pending since,1982 the trial Court shall try to dispose of the suit expeditiously and as soon as possible on priority basis.
82. The revision is allowed as above with no orders, as to costs.