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--Ss. 96, 100 & 102--First/second appeal--Right of--Right to prefer First or Second appeal, held, was not merely matter of procedure but substantive vested right- appeal being continuation of suit, parties on date of institution of suit having right of appeal, would have right to prefer same, in spite of subsequent bar to filing of such appeal Institution of suit would imply that right of appeal, then in force, would be available to parties till the end.

---Ss. 100, 102 & 115--Second appeal--Right of--Conversion of revision into second appeal--At time of institution of suit party having right to prefer second appeal, held, would have such right intact in spite of subsequent amendment of -S. 102, Civil Procedure Code, taking away right of second appeal--Revision filed by party under misapprehension of such right converted into second appeal by High Court.-- [Revision (civil)].

---S. 7(iv)(a) & (c)--Specific Relief Act (I of 1877), S. 42--Gift--Denial of--Suit based on denial of gift, held, could not be regarded as suit for declaration as to right in or title to immovable property--Such suit would be chargeable to court-fee under S. 7(iv)(c) of court-fees Act, 1870--Section 7(iv)(a), court-fees Act, 1870, therefore, would not be applicable in circumstances.

---S. 7(iv)(c)--Court-fees, deficiency of--Jurisdictional value placed by plaintiffs to their suit, held, would remain the value for purposes of payment of court-fee in appeal--In case of deficiency of such court-fees party could be called upon to make up such deficiency.

---S. 7(iv)(a) & (c)--Civil Procedure Code (V of 1908), S. 100--Second appeal--Court-fees misconception of--Effect--First Appellate Court's finding on court-fees based on misconception of provisions of Court Fees Act, 1870, was set aside by High Court in second appeal--Case remanded to first Appellate Court with direction to apply S. 7(iv)(c) instead of S. 7(iv)(a) of Act V11 of 1870 with regard to payment of court-fees.

M. Aftab Iqbal Chaudhree for Appellant.

Sh. Naveed Shahryar for Respondents.

Date of hearing: 8th October, 1985.

This is a revision petition filed by Mst. Ghulam Fatima and others, petitioners, against the judgment of a learned Additional District Judge of Gujrat, dated 22-6-1980, dismissing their appeal, on the ground that the same was deficiently stamped with court-fee and as the period of limitation had expired, there was no appeal in the eyes of law.

2. The brief facts of the case are that on 27-3-1971 Fazal and others, plaintiffs-respondents, filed a suit for declaration with consequential relief for possession of land. It was averred that the suit land mentioned in para. 1 of the plaint belonged to Budha, who had died without leaving any male issue about 40 years ago, and according to the Customary Law the said land was mutated in favour of his widow Mst. Noor Begum as limited owner. That on 21-1-1963 Mst Ghulam Fatima defendant-petitioner had got a decree for possession in her favour against her mother Mst. Nur Begum covering the suit land. The collusive decree was based on a Hibba purported to have been made by Mst. Nur Begum widow of Budha. The said Mst. Nur Begum widow died in 1969 and according to the Shariat Act, Mutation No. 517, dated 23-8-1969 was sanctioned in favour of Mst. Fatima Bibi Mst. Ghulam Fatima and Mst. Hussain Bibi, the three daughters and Fazal. Plaintiff No.1 residuary of Budha. Since Mst. Ghulam Fatima defendant-petitioner, had got a decree for possession in her favour from the civil Court on the basis of a collusive and illegal Hiba, it was prayed that the said decree was illegal, void and inoperative and the execution of that decree was illegal, not duly constituted and the Hiba under the garb of that decree by Mst. Noor Begum in favour of Mt. Ghulam Fatima, defendant, was illegal, void and inoperative upon the right of the plaintiffs-respondents and as consequential relief a decree for possession of the suit land should be passed in their favour. The suit was contested by the defendants-petitioners, on grounds averred in their written statement. Upon the pleadings of the parties, issues were framed and evidence was recorded. The learned trial Court passed a' decree, as prayed, in favour of the plaintiffs-respondents, vide judgment and decree, dated 24-5-1976. Mst. Ghulam Fatima and others, defendants-petitioners, preferred an appeal on 28-6-1976 against the aforesaid judgment which was put up before an Additional District Judge of Gujrat on 22-6-1980, before whom for the first time, during arguments, an objection was taken as regards deficiency of court-fee, who held that the court-fee should have been fixed by the defendants-petitioners on the principle laid down in section 7(iv-a) of the Court Fees Act. However, without giving any opportunity to the defendants-petitioners to make good the same, the learned Additional District Judge held that as the period of limitation had expired, there was no appeal in the eyes of law and he, therefore, dismissed the same. Being aggrieved by this decision, the defendants-petitioners have now preferred the present revision petition.

3. During the arguments an objection was taken on behalf of the plaintiffs-respondents that the revision was not competent as the decree had been executed and a regular second appeal lay. Accordingly, on 3-11-1980, the learned counsel for the defendants-petitioners filed an application (C.M. 6674/C of 1908) for permission to convert the present revision petition into a regular second appeal and another application (C . M . 6669/ C of 1580) for condonation of delay in filing the said regular second appeal. On 30-11-1980, the plaintiffs-respondents filed their replies to these miscellaneous petitions.

4. I shall first take up these two Miscellaneous Petitions (C.M. 6670/C of 1980 and C.M. 6669/C of 1980).

5 The suit was instituted on 27-3-1971. The valuation for the purposes of court-fee and jurisdiction was stated to be Rs.200. A fixed court-fee of Rs.15 was affixed by the plaintiffs respondents on the plaint. When the defendants-petitioners preferred their regular first appeal on 18-6-1976, they valued their appeal for the purposes of court-fee and jurisdiction at Rs.206 and affixed a court-fee of Rs.15 on the memorandum of appeal.

6. On the date when the suit was instituted on 27-3-1971 the parties had a right of first appeal.

7 What remains to be determined is whether on the date of institution of suit, the parties had a right of second appeal. On 27-3-1971, all suits of a civil nature, except those excepted under the Second Schedule of the Provincial Small Causes Courts Act, 1887, if their value did not exceed two thousand rupees, were cognizable by Courts of Small Causes and under section 102, C.P.C. as then existing, second appeals in all such Small Causes Court suits were barred, if the value of the subject matter of such suits did not exceed five hundred rupees. Under subsection (1) of section 15 of the Provincial small Cause Courts Act, 1887 Courts of Small Causes were debarred from taking cognizance of suits specified in the Second Schedule, they being suits declared as "excepted" from the cognizance of Courts of Small Causes. Under subsection (2) of the same section,, subject to the exceptions specified in the Second Schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value did not exceed two thousand rupees were cognizable by. Courts of Small Causes. The very first subsection excluded suits listed in the Second Schedule from cognizance of Small Causes Courts and referred to the suits specified in that Schedule "as suits excepted from the cognizance of Courts of Small Causes. Under items 4 and 19 of the Second Schedule, suits to obtain possession and a declaratory decree were both excepted from the cognizance of Courts of Small Causes in these circumstances, section 102, C .P . C . , as then existing, was not applicable to the instant case. See Maung Po Kyun v. Ma Shwe A I R 1935 Rang. 386. Thus, on the date of the institution of the suit, parties had a right of preferring a regular second appeal. It is an accepted principle of law that a first appeal or a second appeal is not merely a matter o'' procedure but a substantive vested right. An appeal is a continuation of a suit. The institution of a suit carries an implication that all rights of appeal then in force are available to the litigants till the end. If any authority is required for this view, Mst. Sardar Begum v. Muhammad llyas 1.983 f, L C 1570 may be referred.

8. In the instant case, before any decision could be given on the regular first appeal preferred by the defendants-petitioners, the Law Reforms Ordinance, X11 of 1972, was enacted on 14-4-1972, taking away, as from that date, the right of preferring a second appeal in respect of suits of the nature referred to in section 102(b) of the Code of Civil Procedure unless their value exceeded rupees two thousand. On 26-3-1980, by section 12 of the Code of Civil Procedure (Amendment) Ordinance, X of 1980, this value was raised to rupees fifty thousand. But since, as earlier stated, the right of second appeal was available to the parties on the date of institution of the suit and the amendments did not affect the same retrospectively, the same survived to the defendants-petitioners and they had a right of preferring a second appeal after their first appeal was dismissed on 22-6-1980. Mst. Sardar Begum's case (Supra) is in point.

9. This revision petition was instituted on 9-8-1980, much within the time required for preferring a regular second appeal. With the recent enactment of the Code of Civil Procedure (Amendment) Ordinance, X of 1980, on 26-8-'1980 raising the value of the subject-matter of suits from rupees two thousand to rupees fifty thousand for the purposes of second appeals, confusion prevailed in the minds of both lawyer's and parties whether a revision petition was competent or a regular second appeal. Considering that the present revision petition was filed with the utmost speed and despatch, this petition is allowed to be converted into a regular second appeal. The delay in the submission of the application is condoned. Both the miscellaneous petitions are, therefore, accepted.

10. The only question that now remains is whether the appellate, judgment can be sustained. The plaintiffs-respondents' suit being one decree, based on the denial of the gift and the setting aside of the collusive decree, it cannot be said that the suit was for a declaration as to right in or title to immovable property so as to invite section 7 (iv-a) of the Court-fee; Act. The declaration rather was as regards the non-existence of the gift and the decree as appearing in the eye of law. The suit was chargeable to court-fee under section 7(iv-c) of the Court--fees Act, 1870. If any authority is required for this view. Muhammad Sharif v. Mst. Azra Parveen 1979 C 1. C 867 may be referred. Even otherwise under the law, the jurisdictional value placed by the plaintiffs-respondents to their suit would remain the value for the purposes of payment of court-fee in appeal. In case the court-fee of Rs.15, as affixed on the memorandum of appeal, is short by any amount, even after applying section 7 (iv-c) of the Court Fees Act, 1870, to the case, the defendants-petitioners can always be called upon by the appellate Court to make good the deficiency. The impugned judgment being against the law deserves to be set aside.

11. For the foregoing reasons, this regular second appeal is accepted and the judgment of the learned Additional District Judge, dated 22-6-1980 is set aside. The regular first appeal is remanded to the appellate Court for consideration of the court-fee on the appeal, on the principle laid down in section 7(iv-c) of the Court Fees Act. 1870, and should be heard from that point onward and decided, in accordance with law.

12. The defendants-petitioners shall be entitled to their costs.

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