Law:

Section:

(a) Civil Procedure Code (V of 1908)--- ----S. 100---Second appeal---Maintainability and grounds---Second appeal only lay on the ground of error of law, or error in the procedure which affected the decision of the courts below on merits---Impugned decisions, being contrary to law, were based on substantial error or defect in the procedure, as the evidence recorded by the incompetent court had been considered by the subsequent court having jurisdiction, which action of the court was nothing but coram non judice---Conflicting findings of the courts below were based on misreading and non-appraisal of the evidence. Abdul Rashid v. Bashrian and another 1996 SCMR 808 rel. (b) Specific Relief Act (I of 1877)--- ----S. 42---Suit for declaration---Main-tainability---Possession as consequential relief (being inevitable) not claimed---Effect---Suit, was not maintainable, as the plaintiff had sought declaration without claiming consequential relief of possession when the defendant was claimed to have been in possession of the suit property---In absence of any existing right to the suit property and the relief claimed being already time barred, the suit was not maintainable within the ambit of S. 42 of Specific Relief Act, 1877. PLD 2002 SC 403 and 1969 DCL 416 (424 F & G) ref. (c) Civil Procedure Code (V of 1908)--- ----O. VII, R. 11---Return of plaint---Proceedings of court without pecuniary jurisdiction not judicial proceedings, and evidence taken in such proceedings could not be used in retrial---Plaint had been returned for presentation thereof before the court having (pecuniary) jurisdiction---Plaint, having been returned, the suit, for all intent and purposes, was to be treated as a fresh suit and not merely a continuation of the old proceedings in the former suit---Plaintiff was not barred from filing a fresh suit---In the present case, the court having no pecuniary jurisdiction had transferred the suit to competent court instead of returning the plaint as provided under O. VII, R. 10, C.P.C.---Such order of transferring the suit to a competent court, was a nullity. (1935) 153 IC 53; 1980 CLC 589 and 1995 CLC 130 ref. PLD 1981 Kar. 277; AIR 1931 Madras 575 and…

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