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-- S. 28 (2) read with West Pakistan (Adaptation of Courts Acts), Order, 1955 and West Pakistan Civil Courts Ordinance (tI of 1962), Ss. 17 & 28-Appellate jurisdiction of Civil Courts-Judgment and decree of Assistant Judge in matter valued less than five thousand rupees---Appeal from such decree pending before District Judge at time of promulgation of Ordinance-Held, District Judge not competent to hear such appeal which stood transferred to High Court by virtue of S. 28 (3), (4) of Ordinance.-[Jurisdiction].

A. A. Fazeel for Appellant. Makhdoom Abdul Wali for the State.

Dates of hearing : 9th and 10th December, 1981.

This second appeal under section 100, C. P. C. arises under the following circumstances as stated :-

1. On 6-7-1960, the appellant filed a suit, being Suit No. 49 of 1960, for declaration and injunction in the Court of First Class Sub-Judge, Nawabshah. The appellant valued the suit for the purpose of Court fee at Rs. 200 for declaration and at Rs. 10 for injunction.

2. In the suit the appellant sought declaration that withholding the result of the appellant in the Revenue Qualifying Examination held in May, 1957, was illegal and without jurisdiction and that the Memo No. SETT-22/5/57, dated 2-4-1959, was illegali ultra vires, void and inoperative and did not bind or affect the appellant and inter alia, prayed that be declared to have duly passed the Revenue Qualifying Examination in May, 1957 and as such he was entitled for all benefits accruing to him by such successful result.

3. The suit was ultimately beard by Mr. Muhammad Youspf C. Khawaja,

Assistant Judge, Sanghar, who by the Judgment dated 11-5-1961, decreed the suit with costs and granted the following relief to the appellant :-

"56. The Plaintiff has established his claim and he is entitled to the relief of declaration. I accordingly grant declaration to the Plaintiff that the order of the Government made on the recommendation of the West Pakistan Public Service Commission disqualifying the plaintiff for the Revenue Qualifying Examination held in May, 1957 and debarring him from appearing in the examination for a period of two years is illegal, without jurisdiction, unjustified and a nullity and not enforcible and . the plaintiff is deemed to have passed the said examination in 1957. The West Pakistan Public Service Commission is accordingly directed to notify forthwith in the Government Gazette that the plaintiff had passed the said examination held in May, 1957. The plaintiff is also entitled to the costs of the suit. Suit decreed accordingly."

4. Aggrieved by the judgment and decree of the Assistant Judge, the respondent on 5-8-1961 filed an appeal in the High Court, but the same was returned for presentation to the District Judge. The respondent accordingly, presented the appeal on 26-4-1962, before the District Judge, Tharparkar at Mirpurkhas, alongwith an application under section 5 of the Limitation Act for condonation of the delay, which was condoned by the order dated 6-7-1962.

The appellant raised the objection that the District Judge had no jurisdiction and that the appeal was time-barred.

5. Thereafter, the District Judge transferred the appeal to the Additional District Judge, Tharparkar, at Mirpurkhas, by the order dated 5-4-1964. The appellant dissatisfied with the order filed a revision application in the High Court, but in the meantime the post of Additional District ,Judge was abolished and the revision had become infructuous. Thus the appeal was beard by the District Judge, Tharparkar at Mirpurkhas, who by Judgment dated 31-5-1968, set aside the judgment and decree of the Assistant Judge, Sanghar. I may reproduced here the last but one paragraph of the judgment of the learned District Judge

"9. 1 am accordingly of the view that the learned Assistant Judge could not entertain a suit of this nature nor could he interfere with the exercise of discretion for debarring or disqualifying a candidate found to have used malpractices at the examination. That is a matter which should be left for decision to the Public Service Commission alone so long as the order is not mala fide nor is proved to be against the principles of natural justice."

6. Therefore, the appellant has come up in this second appeal.

7. I have heard Mr. Ali Ahmed Fazeel, Advocate for the appellant and Mr. A. W. Makhdoom, Advocate for the respondent. Mr. Ali Ahmed Fazeel has raised the following points :

(i) That the District Judge had no jurisdiction to entertain the appeal.

(ii) That the appeal was barred by limitation.

(iii) That no show-cause notice was given against the penalty imposed,

(iv) That in view of the finding of mala fide of the order arrived at by the Assistant Judge, Sanghar, which was not disturbed by the District Judge, the decree ought to have been maintained.

(v) That the order impugned in the suit was against the principles of natural justice, as the appellant was entitled to show-cause notice and personal hearing, which were not given.

(vi) That the Public Service Commission or the Provincial Government were not competent to punish the appellant for using the alleged unfair means.

(vii) That the finding of the Public Service Commission against the appellant on the question of using unfair means were perverse and based on conjectures and surmises for the reason that the appellant was already exonerated by Razi-ur-Rehman, C.S.P., who was appointed as enquiry officer.

8. 1 am of the opinion that it is not necessary to go into and deal with all these grounds for, in my opinion, the appeal is entitled to succeed on the first ground alone which is purely a legal ground.

9. I would, therefore, propose to deal with the first ground only. It is an admitted position that the judgment and decree in the suit was passed by Mr. Muhammad Yousuf C. Khawaja, Assistant Civil Judge, Tharparkar at Mirpurkbas. Under section 28(2) of the Sind Courts Act, 1926 (hereinafter called "the 1926 Act") which was then in operation, as adapted by the West Pakistan (Adaptation of Courts Acts) Order, 1955, appeal against a decree or order passed by an Assistant Judge in his original jurisdiction was appealable and the appeal was to lay to the then Chief Court of Sind or the District Court according to the amount or value of the subject-matter exceeded or did not exceed five thousand rupees. I may reproduce section 28 of the Sind Courts Act, 1926 in its original for-m, which reads as follows

"28.-(1) Save as provided in sections 8, 26, 33, 34 and 36 in any case where a decree or order of. a subordinate Court is appealable, the appeal shall lie to the District Court.

(Z) Whereas decree or order passed by an Assistant Judge in his original jurisdiction is appealable the appeal shall lie to the Chief Court, or to the District Court, according as the amount or value of the subject matter exceeds, or does not exceed five thousand rupees."

I may also here reproduce the adaptation made in section 28 by the West Pakistan (adaptation of Courts Act) Order, 1955:--

SCHEDULE

No.

Year of Short title Provision adapted Provision made

Act

1 2 3 4 5

1926 VII The Sind Sections 3, 4, 7, 9, Omit.

Courts Act. 10, 11, 12, 14, 16,

19 and 20.

Section 28 . For subsection (1) substi-

tute the following:--

(1) (i) save as otherwise

provided by any

enactment for the time

being in force, an

appeal from a decree

or order of a District

Judge or a Joint Judge

exercising original

jurisdiction shall lie to

the High Court ;

(ii) an appeal shall not

lie to the High Court

from a decree or order

of a Joint Judge in

the decree case in which,

the decree or order had been

made by the District Judge, an

appeal would not lie to the High

Court.

(iii) save as aforesaid an

appeal from a decree

or Order of a subordi-

nate Court shall lie---

(a) to the District Judge

where the value of the

original suit in which

the decree or order

f was made did not

exceed five thousand

rupees ; and

. (b) to the High Court in

any other case.

It is worth mentioning

that section 2 of section 28

of the 1926 Act

remained unaffected.

I1. However, on 8-1-1962, West Pakistan Civil Courts Ordinance, 1962 (hereafter called the Ordinance) was promulgated whereby the 1926 Act was repealed and following provisions were made for an appeal therein :

17, Appeals from District judges or Additional District Judges.--(I) Save as otherwise provided by any enactment for the time being in force, an appeal from a decree or order of a District Judge or Additional District Judge exercising original jurisdiction shall lie to Court. the High

(2) An appeal shall not lie to the High Court from a decree or order of an Additional District Judge in any case in which, if the decree or

. order had been made by the District Judge an appeal would not lie to that Court.

And in relation to the repeal of the 1926 Act following previsions were made in section 28 of the Ordinance

28. Appeal and savings.-(I) The enactments specified in the Schedule are hereby repealed to the extent mentioned in the fourth column thereof.

(2) ..................

(3) On the commencement of this Ordinance, if any suit or appeal is pending in the High Court or any other Civil Court, which under this Ordinance is to be tried or heard by some other Court, such suit or appeal shall stand transferred to the Court competent under this Ordinance to try or bear the same.

(4) (i) The District Judge ;

(ii) The Additional Judges, the Joint Judges and the Assistant Judges ; and

(iii) the First Class Subordinate Judges, the Second Class Subordinate Judges, the Subordinate Judges, the Joint Subordinate Judges and Civil Judges.

Appointed under any of the enactments repealed under subsection (1) shall, on the commencement of this Ordinance, become District Judges, Additional District Judges and Civil Judges respectively under this Ordinance; and exercise powers and jurisdiction as such.

(5) Notwithstanding the repeal of the enactments mentioned in the Schedule, everything done, action taken, obligation, liability, penalty or punishment incurred, inquiry or proceeding commence, officer appointed or person authorised, jurisdiction or power conferred, rule made and order issued under any of the provisions of the said enactments shall, if not inconsistent with the provisions of this Ordinance, continue in force and, so far as may be, be deemed to have been respectively done, taken, incurred, commenced, appointed, authorised, conferred, made or issued under this Ordinance.

Therefore, in accordance with the provisions of section 28(ii) of 1926 Ac the appeal against the judgment and decree of the Assistant Judge should have been filed in the District Court for the value of the subject-matter was less than five thousand rupees but it was wrongly filed in the High Court.

12. Accordingly on promulgation of the West Pakistan Civil Courts Ordinance, 1962, by virtue of the provisions of subsections (3) read with subsection,(4) of section 28 thereof the appeal pending before the District Judge would have stood transferred to the High Court if it had been duly filed to the District Court for an Assistant Judge under subsection (4) clause (ii) was equated with Additional District Judge and against his order or decree appeal was required to be filed in the High Court by virtue of the provisions of section 17 of the Ordinance. It, therefore, follows, that the District Judge was not competent to hear the appeal against the decree of the Assistant Judge, who was to be treated as Additional District Judge in view of the provisions of section 28 of the Ordinance.

However, it is argued by Mr. Abdul Wahid Makbdoom that under subsection (5) of section 28 (ibid) jurisdiction and power of the Court are saved but the argument overlooks the other provs'sions contained in the same subsection that the jurisdiction and power are saved if the same are not consistent with the provisions of the Ordinance and inconsistent provisions a

mentioned herein before are contained in subsection(3) wherein it is provided that on commencement of this Ordinance if any suit or appeal is pending in the High Court or any other Civil Court, which, under the Ordinance, is to be tried or heard by some other Court, such suit or appeal shall stand transferred to the Court competent under this Ordinance to try or hear the same.

I have, therefore, come to the conclusion that the learned District Judge was not competent to hear the appeal on or after 8-1-1962 on promulgation of the Ordinance. Accordingly, his judgment and decree are without jurisdiction and are therefore, hereby set aside. However, on the facts and circumstances of this appeal, I leave the parties to bear their own costs.

S. Q. Appeal allowed.

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