PLJ 2006
Present: Maulvi
Anwar-ul-Haq, J.
Mst. GULSHAN PARVEEN--Petitioner
versus
MUHAMMAD TAYYAB--Respondent
C.R. No. 651 of 2005, heard on
16.11.2005.
Suits Valuation Act, 1887 (VII of 1887)--
----S. 11--Specific Relief Act (I of
1877) Ss. 88, 42--Revision--Suit for declaration and possession--Scope--Wrong
valuation of Court fee and jurisdiction of suit--Objection--Judgment and decree
set aside by Appellate Court--Essentials--Civil Judge III Class had no
pecuniary jurisdiction to decide suit, value whereof was 6/7 lacs--Case was referred for entrustment to Civil Judge Ist Class for fresh decision--No objection had been taken
in written statement to pecuniary jurisdiction of Court of Civil Judge Ist Class--Neither in first appeal nor in second appeal,
any objection was taken to pecuniary jurisdiction of trial Court--No objection
was taken to jurisdiction of Civil Judge III Class till such time that suit was
decided--Section 11 of said Act, provided for entertaining of objection by
party to pecuniary jurisdiction of Court in appeal and provided in clear terms
that such objection would not be entertained by Appellate Court under objection
was taken in Court of first instance--Firstly, No objection was taken at any
stage in trial Court to the jurisdiction of Civil Judge III Class, secondly, no
finding recorded by Court of first appeal that there had been failure of
justice on merits of case because of said defect--Impugned order is wholly
without lawful authority and could not be sustained--High Court allowing
revision impugned order set aside--Result would be the first appeal filed by
petitioner would be deemed to be pending before Appellate Court and would be
decided on merit within specified time--Revision allowed. [Pp. 516, 517 & 518] A, B, C & D
Rana Meraj Khalid, Advocate for Petitioner.
Mr. Tariq
Muhammad Iqbal, Advocate for Respondent.
Date of hearing :
16.11.2005.
Judgment
On 6.12.1999 the petitioner filed a suit
against the respondent. For the Order I propose to pass in this case,
I will not be referring to the pleaded facts in much detail. Suffice it to say
that the suit was for declaration that the registered gift-deeds, mentioned in
the plaint, and the mutations attested thereon are illegal and void. Possession
was also sought. In para. 7
of the plaint it was stated that the value of the suit for purposes of
Court-fee and jurisdiction is fixed at Rs. 400. On
11.5.2000 the respondent filed a written statement, inter alia,
it was objected that proper Court-fee has not been paid on the plaint. Issues
including the following Issue No. 5 were framed on 27.9.2000:--
"5. Whether the suit has been improperly
valued for the purposes of Court-fee and jurisdiction, if so then what is the
exact valuation of the suit for this purpose? OPD"
Evidence of the parties was recorded.
Vide judgment and decree dated 8.2.2003 a learned Civil Judge-III Class, Sahiwal proceeded to decree the suit. I may note there that
under the said Issue No. 5 it was held that the plaintiff has admitted that the
value of the suit property is Rs. 6/7 lacs, as such, no Court-fee has
been paid. In para. 6 of the
judgment he directed the plaintiff to pay the Court-fee within 30 days. Against
this judgment and decree a first appeal was filed on 10.4.2003. This appeal was
dismissed by a learned Additional District Judge, Sahiwal
on 13.4.2004. the respondent filed R.S.A. No. 64 of
2004 in this Court. It was allowed on 3.11.2004 and the case was remanded back
to the learned Court of appeal for afresh decision. Vide judgment and decree,
dated 9.3.2005 learned Additional District Judge, Sahiwal
proceeded to allow the appeal and to set aside the judgment and decree of the
learned trial Court on the ground that he being a Civil Judge-III Class had no
pecuniary jurisdiction to try and decide the suit the value whereof was Rs. 6/7 lacs. The case was
referred to the learned Additional District Judge, Sahiwal
for entrustment to a learned Civil Judge Ist
Class, Sahiwal for afresh decision.
2.
Learned counsel for the petitioner contends with reference to Section 11
of the Suits Valuation Act, 1887 that the learned Appellate Court had no lawful
authority to set aside the judgment and decree of the learned trial Court on
the said ground. The precise contention is that no objection was taken to the
jurisdiction of the learned Civil Judge-III Class in the manner prescribed.
3.
Learned counsel for the respondent supports the impugned order with the
contention that an objection as to valuation was taken in the written
statement.
4.
I have gone through the copies of the available records. Now, the suit
was initially filed in the Court of learned Senior Civil Judge, Sahiwal and as per endorsement on the same was entrusted to
a learned Civil Judge Ist
Class. The written statement also shows that it was filed in the Court of
learned Civil Judge 1st Class.
5.
Now, there is no objection, and it could not have been there in the
written statement, to the pecuniary jurisdiction of the Court as it was filed
in a Court of learned Civil Judge Ist
Class. It appears that the case was entrusted to a learned Civil Judge-III
Class in routine. Be that as it may, neither in the first appeal nor in the
said second appeal, I find any objection taken to the pecuniary jurisdiction of
the learned trial Court. Of course, no objection was taken to the jurisdiction
of the learned Civil Judge-III Class till such time that the suit was decided.
6.
Now, Section 11 of the Suits Valuation Act, 1887 provides for
entertainment of an objection by a party to the pecuniary jurisdiction of a
Court in an appeal. Now, it provides in clear terms that such an objection
shall not be entertained by an Appellate Court unless the objection was taken
in the Court of first instance at or before the hearing at which issues first
framed and recorded or that the Appellate Court is satisfied, for reasons to be
recorded by it in writing, that the suit was overvalued or undervalued, and that
the overvaluation or under-valuation thereof has prejudicially affected the
disposal of the suit on its merits. Sub-section (2) further clarifies that even
if the objection was taken in the manner prescribed in Section 11(1)(a) yet if the Appellate Court is not satisfied of the said
conditions it shall dispose of the appeal as there is no defect of jurisdiction
in the Court of first instance.
7.
Now, examining the present case in the light of the said statutory
provisions. In the first instance no objection was taken at any stage in the
trial Court to the jurisdiction of the learned Civil Judge-III Class and in the
second there is no finding recorded by the Court of first appeal that there has
been a failure of justice on merits of the case because of the said defect.
This being so, the impugned order is wholly without lawful authority and cannot
be sustained. The C.R. is allowed. The impugned order, dated 9.3.2005 of the
learned Additional District Judge, Sahiwal is set
aside. The result would be that the first appeal filed by the petitioner shall
be deemed to be pending before the learned District Judge, Sahiwal
in whose Court the parties shall appear on 21.12.2005. The learned District
Judge shall requisition the records and proceed to decide the appeal either
himself or entrust it to a learned Additional District Judge, who shall decide
the first appeal on its own merits preferably within three months of the said
date.
A copy of this judgment be immediately remitted to the learned District Judge, Sahiwal.
(A.S.) Revision allowed.