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Second Appeal No. 93 of 1978, decided on 13th March, 1986.

‑‑‑S. 100‑‑West Pakistan Civil Courts Ordinance (I1 of 1962), S.18‑ Second appeal‑‑Competency of‑‑First Appellate Court patently lacking jurisdiction in appeal against order of Trial Court, entertainment and decision of same by First Appellate Court, held, was not maintainable‑ Defect of jurisdiction irrespective of fact that objection to maintainability of such appeal was not raised either by office of Appellate Court or by respondents would not be curable‑‑Decision in first appeal being wholly without jurisdiction, second appeal against appellate judgment was equally incompetent.‑‑[ Jurisdiction].

Mr. S.S. Akbar for Appellant No.l.

Asad Ali Bilgrami for Respondent.

Date of hearing: 13th March, 1986.

This second appeal under section 100, C . P. C . is filed by the appellants against the appellate order of 5th Additional District Judge, Karachi in Civil Appeal No. 440 of 1976.

2. The Respondents instituted Suit No. 459 of 1975 for specific performance of an agreement of sale, dated 19‑8‑1969 against the appellants. The subject‑matter of the suit was Rs.50,000 and the suit was decreed by the trial Court by judgment, dated 25th October, 1976. The appellant who was defendant in the suit filed First Civil Appeal No. 440 of 1976 to the District Judge, which has been disposed of on 4‑2‑1978. Against the judgment of the first appellate Court, dated 4‑2‑1978 the appellant has filed this second appeal in this Court. A preliminary question which arises in this appeal that whether the First Civil Appeal 440 of 1976 filed by the appellant before the District Judge, was maintainable against the judgment and decree of the trial Court. The appellate jurisdiction exercised by the District Judge in appeal arising from the judgment and decree of the civil Court is governed under section 18 of the West Pakistan Sind Court Ordinance, 1962; which reads as follows:‑‑

"Appeals from Civil Judges.‑(1) Save as aforesaid, an appeal from a decree or order of a Civil Judge shall lie‑‑

(a) to the. High Court if the value of the original suit in which the decree or order was fade exceeds twenty‑five thousand rupees; and

(b) to the District Judge in any other cases

(2) Where the function of receiving any appeals which lie to the

District Judge under the last preceding subsection has been assigned to an Additional District Judge, the appeals may be preferred to the Additional District Judge.

(3) The High Court may, by notification, direct that appeals lying to the District Judge from all or any of the decrees or order passed in any original suit by any Civil Judge shall be referred to such other Civil Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly and the Court of such Civil Judge shall be deemed to be a District Court for the purposes of all appeals so preferred."

It is not disputed by the learned counsel for the appellant that on the day the First Appeal No. 440 of 1976 was presented by the appellant before the District Judge that Court had no jurisdiction to entertain the appeal in view of section 18 of Ordinance 2 of 1962. It is however, contended by the learned Counsel that no objection was raised to the maintainability of the appeal at any stage and it was not only entertained but it was also decided by the said Court. The fact that no objection was raised by the office of the District Judge or that the respondents did not object to the maintainability of the appeal could not cure the defect of jurisdiction in the Court to entertain the appeal. The Court of District .Judge patently lacked jurisdiction in an appeal arising from a civil suit of which the value exceeded Rs.25,000. In these circumstances the entertainment and decision of the Appeal No. 440 of 1976 by the District Judge and its subsequent transfer and disposal by the 5th Additional District Judge, was wholly without jurisdiction. The decision in the first appeal being wholly without jurisdiction the present appeal filed under section 100, C.P . C. against the appellate judgment was equally incompetent. I accordingly dismiss this appeal as not maintainable. However, the appellant will be at liberty to approach the first appellate Court if it is still available to him in law for return of the memo of appeal. There will be no order as to costs.

H. B. T. Appeal dismissed.

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