Noor ul Basar vs Mian Adnan Bacha

2013 C L C 1510

[Peshawar]

Before Malik Manzoor Hussain, J

NOOR-UL-BASAR----Petitioner

Versus

Mian ADNAN BACHA and another----Respondents

Review Petition No.65 in Civil Revision No.111 of 2007, decided on 15th April, 2013.

(a)Civil Procedure Code (V of 1908)---

----Ss. 96 & 115---Appeal/revision---Pecuniary jurisdiction---Determination---Evaluation mentioned in the heading of the plaint was to be seen while filing appeal as well as revision--- Conduct of parties were also to be taken into consideration.

(b)Civil Procedure Code (V of 1908)---

----Ss. 96 & 115---Appeal/revision---When a suit was tried by court on merits and judgment delivered, same should not be liable to be reversed on technical grounds unless that had caused failure of justice.

Muhammad Hussain's case 2004 SCMR 1947 ref.

(c)Civil Procedure Code (V of 1908)---

----S. 114---Review---Scope---Decree passed in revision---Petitioner for review had failed to point out any discovery of new fact or important matter or evidence after the exercise of due diligence, which could not be produced by him when the decree was passed in revision---Review was dismissed.

Abdur Raziq Khan for Petitioners.

Muhammad Fahim Wali and Zahid Yousaf A.A.-G. for Respondents.

Date of hearing: 15th April, 2013.

JUDGMENT

MALIK MANZOOR HUSSAIN, J.---Through the instant Revision Petition, the petitioner seeks review of judgment dated 10-5-2010, passed this Court in C.R.No.111 of

2.Brief facts of the case are that respondent No.1 instituted a Suit bearing No.299/1 for specific performance of agreement to sell dated 28-2-2003 and 14-3-2003 on payment of Rs.8,65,625/- and as in alternate relief for recovery of Rs.4,25,000/-. The suit was contested and vide judgment and decree dated 14-9-1965 the same was decreed against the present petitioner. Feeling aggrieved, the petitioner filed appeal, which was dismissed by judgment dated 14-9-2006 passed by the Additional District Judge, Swabi. Still dissatisfied, the petitioner filed C.R.No.111 of 2007 and vide judgment and decree dated 10-5-2010, the same also met the same fate. Now through instant Petition, the petitioner has prayed for the review of the judgment dated 10-5- 2010 passed by this Court. The single ground which was argued by the learned counsel for the petitioner was that the learned Appellate Court has got no jurisdiction to entertain the appeal having no pecuniary jurisdiction to entertain the same. Similarly, this Court while hearing Civil Revision failed to notice this aspect of the case and thus passed a judgment, which was not entertainable. Nothing more was pointed as regarding legal defect in the judgment of this Court sought to be reviewed.

Arguments heard and record perused.

3.It is well-settled law that for the purpose of pecuniary jurisdiction evaluation mentioned in the heading of the plaint is to be seen while filing appeal as well as revision and, also the conduct of the parties are taken into consideration. In the present case it was the present petitioner who preferred appeal before the learned Appellate Court and mentioned pecuniary jurisdiction as Rs.8,65,625/- and the matter was finally decided vide judgment dated 14-9-2006. Similarly, it was the petitioner who preferred Revision Petition before this Court having raised not a single objection about the pecuniary jurisdiction of the Appellate Court in the memo of Revision Petition but surprisingly this plea is taken for the first time in the review petition. When the question is put to the learned counsel for the petitioner that under what circumstances he was unable to point out the jurisdictional defect in the proceedings before the Appellate Court which was filed by him and remained pending from 12-11-2005 to 14-9-2006, as well as before this Court, when he preferred Revision Petition on 13-1-2007 and remained pending adjudication till 10-5-2001 he was unable to reply. It was the present petitioner who mentioned in his memo of appeal as well as the opening sheet of C.R.No.111 of 2007 the value for purpose of jurisdiction as well as Court fee as Rs.8,65,625/-. It is settled law that when a suit was tried by Court on merits and judgment delivered, it should not be liable to he reversed purely on technical grounds unless it has caused failure of justice. It has been held by the august Supreme Court of Pakistan in Muhammad Hussain's case reported in (2004 SCMR 1947) that policy legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to

consideration by an Appellate Court unless it has resulted in grave prejudice on the merits. No objection was taken in the Appellate Court as well in the memorandum of revision, which shows that the present petitioner was satisfied to the evaluation of the suit and had acquiesced in the proceedings which was initiated by him. He himself preferred to chose the forum of appeal as well as forum of revisional jurisdiction and at this stage when the matter has been decided finally on merits he cannot agitate the objection of pecuniary jurisdiction.

4.The petitioner failed to point out any discovery of new fact or important matter or evidence after the exercise of due diligence, which could not be produced by him when the decree was passed in Revision Petition.

Under the circumstances, this petition being devoid of any force is hereby dismissed.

AG/220/P Petition dismissed.