P L D 2015 Lahore 421

Before Shahid Bilal Hassan, J

Mst. BHARYAN and others---Appellant

versus

HASSAN MUHAMMAD and others---Respondents

F.A.O. No.234 of 2010, decided on 18th June, 2014.

(a) Suits Valuation Act (VII of 1887)---

----S. 3---Civil Procedure Code (V of 1908), S. 6 & O. VII, R. 10---Specific Relief Act (I of 1877),
S. 42---Suit for declaration---Subsequent change in valuation of suit---Effect---Jurisdiction---Civil
Judge Class III decreed the suit against which an appeal was filed wherein valuation of the same
for the purpose of court fee and jurisdiction was conceded as Rs.564,000---Appellate Court
remanded the case to Senior Civil Judge for decision afresh---Validity---Valuation of the suit for
the purpose of court fee and jurisdiction at the time of institution of the same was fixed at Rs. 400
and same continued till passing of judgment and decree by the Trial Court---Said valuation was
within the pecuniary jurisdiction of Civil Judge Class III as same had been determined by the
plaintiffs themselves---Valuation of original suit as determined under S.3 of Suits Valuation Act,
1887 for the purpose of jurisdiction would be the determining factor and not the market value or
sale price of subject matter of suit---Where during pendency of suit the value of subject matter was
found to be more than pecuniary jurisdiction of the court trying the same, such court would not be
deprived from its pecuniary jurisdiction to try the said suit---No objection on pecuniary jurisdiction
was raised during pendency of present suit and such objection was made for the first time at
appellate stage which would not debar the proceedings conducted by the Civil Judge Class III as
provisions of O. VII, R. 10, C.P.C. would apply only where court initially lacked jurisdiction to
entertain and try the suit---No objection with regard to proceedings conducted by Civil Judge Class
III had been raised at appellate stage and same could not be allowed to be taken at revisional stage-
--Impugned judgment remanding case to the court having pecuniary jurisdiction for deciding the
same on merits did not suffer from any material irregularity and illegality---Judgment and decree
passed by Civil Judge Class III would be void and nullity in the eye of law---Appellate Court had
rightly remanded the case to the court having pecuniary jurisdiction for rehearing the parties and
deciding the suit afresh---No illegality, irregularity or wrong exercise of jurisdiction by the
Appellate Court was pointed out---Appeal was dismissed in circumstances.

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Mahmood Khan and others
v. Agricultural Development Bank of Pakistan and others 1998 CLC 790; Messrs Pakistan
Telecommunication Corporation through its Director v. Abdus Sattar and 5 others 1995 MLD
1563; Muhammad v. Mt. Wahab Jan AIR 1935 Pesh. 174; Suba Khan v. Rehmat Din and 2 others
1980 CLC 589; Sankappa Rai and others v. Keraga Pujary and others AIR 1931 Madras 575;
Muhammad Suleman v. Habib Bank Limited, Hyderabad 1988 CLC 969; Mahmood Akhtar and
another v. Ch. Muhammad Hussain Naqshbandi, Addl. District Judge, Rawalpindi and another
1986 CLC 1451 and Muhammad Naseer and others v. Mustafa and others 2001 SCMR 1258 ref.

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Mahmood Khan and others
v. Agricultural Development Bank of Pakistan and others 1998 CLC 790; Messrs Pakistan
Telecommunication Corporation through its Director v. Abdus Sattar and 5 others 1995 MLD
1563; Muhammad v. Mt. Wahab Jan AIR 1935 Pesh. 174; Suba Khan v. Rehmat Din and 2 others
1980 CLC 589 and Sankappa Rai and others v. Keraga Pujary and others AIR 1931 Mad. 575
distinguished.

Mahmood Akhtar and another v. Ch. Muhammad Hussain Naqshbandi, Addl. District Judge,
Rawalpindi and another 1986 CLC 1451; Muhammad Naseer and others v. Mustafa and others
2001 SCMR 1258; Muhammad Ali v. Imdad Hussain 1997 CLC 768; Nasima Faiz's case 1994
MLD 810 and Zahida Parveen v. Muhammad Saleem 2003 CLC 1245 rel.

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

----S. 115---Revision---Scope---Revision had limited scope and only question of illegality,

irregularity and wrong exercise of jurisdiction by the courts below had to be seen.

Muhammad Akhtar for Appellants.

Hafiz Rizwan Aziz for Respondents No.1.

ORDER

SHAHID BILAL HASSAN, J.---On 3-9-1991, one Muhammad Khan son of Taj Khan, predecessor
in interest of the respondents instituted a suit for declaration to the effect that Rustam was the
owner of the disputed land and Mutation No.14 dated 25-5-1954 as well as subsequent mutations
were illegal and void, against the appellants regarding land measuring 47 kanals 15 marlas, Khewat
Nos.17/95, 27, 29, 95, 92 Khatooni No.135, Khasra Nos. 660, 661, 674, 675, 681, 682, 683, 686
(8 patches) presently land measuring 60 kanals 16 marlas Khewat No.149, Khatuni Nos.352 to
355 Khasra Nos. 1349, 1350, 1325, 1308 min, 1358, 1364, 1351, 1309, 1312, 1324 as per
Jamabandi for the year 1987-88, situated at Mauza Badarpur, Tehsil Kasur. On 29-10-1991, the
appellants filed their written statement. On 8-6-1992, the issues were framed. After recording
evidence of the parties, the learned Civil Judge Class III decreed the suit vide judgment and decree
dated 31-3-1994; against which an appeal was preferred before the learned District Judge, Kasur
on 11-4-1994. During hearing of appeal a joint statement of learned counsel for the parties was
recorded by the learned Addl. District Judge, Kasur on 18-6-1995, whereby valuation of suit for
the purpose of court fee and jurisdiction was conceded as Rs.564,000; on the same day, the learned
Addl. District Judge, Kasur returned the appeal to the present appellants for filing before the court
of competent jurisdiction. On 22-6-1995, the appellants filed appeal before this court bearing
R.F.A. No.166 of 1995, along with an application for condonation of delay in filing of appeal. On
10-7-2002, a learned Division Bench of this Court dismissed the said application as well as appeal
as being time barred. Appellants filed a petition for leave to appeal before the august Supreme
Court of Pakistan bearing C.P. No.3262/L of 2003 and on 28-5-2003, the august Supreme Court
of Pakistan, granted leave to appeal and on 9-10-2008, at the time of final hearing of the case, Civil
Appeal No.1143 of 2003 was allowed, judgment of this Court dated 10-7-2002 was set aside and
case was remitted to the learned District Judge, Kasur with the consent of learned counsel for the
parties. After remand, the learned District Judge, Kasur vide impugned judgment and decree dated
17-3-2010 accepted the appeal and while setting aside the impugned judgment and decree dated
31-3-1994 remanded the case to the learned Senior Civil Judge, Kasur for hearing the parties on
the basis of available evidence on record and to decide the case within two months. Hence, this
appeal.

2. Learned counsel for the appellants has inter alia argued that the impugned judgment and decree
dated 17-3-2010 is against law and facts of the case. Adds that while passing the impugned
judgment, learned District Judge has not appreciated that when the trial Court was not competent
to entertain the suit due to lack of pecuniary jurisdiction, how the proceedings conducted/recorded
by it can be termed as valid and legal, rather same were Coram Non Judice. Submits that by holding
the same as according to law, the learned District Judge has erred in law and has failed to follow
the precedents, even the impugned judgment is self contradictory and without application of
judicious mind. Submits that the mandate of law required that plaint should have been returned
under Order VII, Rule 10 of Code of Civil Procedure, 1908 for its presentation before the Court of
competent jurisdiction. Hence, the impugned judgment and decree is not sustainable in the eyes of
law and is liable to be set aside; resultantly, by allowing this appeal, the impugned judgment and
decree dated 17-3-2010 passed by learned District Judge may be set aside and plaint may be
ordered to be returned to the respondents/plaintiffs for its presentation before a court of competent
jurisdiction. Relies on Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584,
Mahmood Khan and others v. Agricultural Development Bank of Pakistan and others 1998 CLC
790-Karachi, Messrs Pakistan Telecommunication Corporation through its Director v. Abdus
Sattar and 5 others 1995 MLD 1563 Karachi, Mohammad v. Mt. Wahab Jan AIR 1935 Peshawar
174, Suba Khan v. Rehmat Din and 2 others 1980 CLC 589-Lahore and Sankappa Rai and others
v. Keraga Pujary and others AIR 1931 Madras 575.

3. On the contrary, learned counsel for the respondents/ plaintiffs, by favouring the impugned
judgment and decree, has prayed for dismissal of the appeal in hand. Relies on Muhammad
Suleman v. Habib Bank Limited, Hyderabad 1988 CLC 969-Karachi, Mahmood Akhtar and
another v. Ch. Muhammad Hussain Naqshbandi, Addl. District Judge, Rawalpindi and another
1986 CLC 1451-Lahore and Muhammad Naseer and others v. Mustafa and others 2001 SCMR
1258.

4. Heard.

5. The moot point in this civil revision is that when the learned trial Court had no pecuniary
jurisdiction, whether the proceedings conducted by it would be considered in accordance with law
or not? In order to address this question, this Court has to see, initially, at the time of institution of
the suit, the valuation of the suit for the purpose of court fee and jurisdiction was fixed at Rs.400
and same continued till passing of the judgment and decree by the learned trial Court, which lies
within the pecuniary jurisdiction of learned Civil Judge Class III, because the valuation of the
original suit has been determined by the respondents/ plaintiffs themselves under section 3 of Suits
Valuation Act, 1887, thus, same would be a determining factor for the purpose of jurisdiction and
not the market value or sale price of subject matter of suit, as agreed by the learned counsel for
parties at appellate stage; in this regard reliance is placed on Muhammad Ali v. Imdad Hussain
1997 CLC 768-Lahore, wherein it has been observed, 'Suit Valuation Act, 1887, S.3---Subsequent
change in valuation of suit---Effect---Jurisdiction---Initial value was within pecuniary jurisdiction
of Trial Court and it rightly entertained such suit---Valuation of original suit as determined under
S.3, Suits Valuation Act, 1887 for purposes of jurisdiction would be the determining factor and
not market value or sale price of subject matter of suit..' Moreover, where during pendency of suit,
the value of subject matter was found to be more than pecuniary jurisdiction of the Court trying
the suit, such Court would not be deprived from its pecuniary jurisdiction under section 6 of the
Code of Civil Procedure, 1908 to try the suit; in this regard guideline can be sought from
Muhammad Naseer's case 2001 SCMR 1258, wherein it has invariably been held, 'Suit, institution
of---Pecuniary jurisdiction of Court---Scope---Where during pendency of suit, the value of subject
matter was found to be more than pecuniary jurisdiction of the Court trying the suit, such court
would not be deprived from its pecuniary jurisdiction under S.6 of C.P.C. to try the suit.', but in
the present case no such specific objection on the pecuniary jurisdiction was raised during
pendency of the suit, mere an objection was raised that valuation of the suit was not properly made
and it was for the first time at appellate stage when both the learned counsel for parties conceded
the valuation of suit for purpose of court-fee and jurisdiction as Rs.564,000, which does not debar
the proceedings conducted by the learned Civil Judge Class III, because the provisions of Order
VII, Rule 10 of C.P.C. would apply only where Court initially lacked jurisdiction to entertain and
try civil suit. At appellate stage, as is evident from the impugned judgment, no objection regarding
proceedings conducted by learned Civil Judge Class III has been raised, therefore, at this revisional
stage, no such objection can be allowed to be taken, because this has limited scope and only the
question of illegality, irregularity and wrong exercise of jurisdiction by learned lower Court has to
be seen at present. Moreover, the question whether any prejudice was caused to the appellants by
proceedings and decision of the suit on merits by the learned Civil Judge Class III was not agitated
before the learned Appellate Court; therefore, impugned judgment, remanding the case to the Court
having pecuniary jurisdiction for deciding the same on merits after hearing the learned counsel for
parties by considering the material available on record, recorded by learned Civil Judge Class III,
does not suffer from any material irregularity and illegality. In this regard reliance is placed on
Nasima Faiz's case 1994 MLD 810-Lahore, wherein it has been observed, 'O.XLI, R.23---Remand
order---Validity---First Appellate Court had remanded case on the ground that valuation of suit for
purposes of court-fee was beyond the jurisdiction of Trial Court---Case on remand was entrusted
to the Court having pecuniary jurisdiction in the matter---Remand order passed by First Appellate
Court was thus, legal and did not suffer from any material irregularity.' However, the
order/judgment and decree delivered by learned Civil Judge Class III would be void and nullity in
the eye of law and the learned appellate Court has rightly remanded the case to the Court having
pecuniary jurisdiction for rehearing the learned counsel for parties and deciding the suit afresh. In
this regard reliance is placed on Zahida Parveen v. Muhammad Saleem 2003 CLC 1245-Lahore,
wherein it has been observed, 'Pecuniary jurisdiction---Court lacking pecuniary jurisdiction,
order/judgment passed by such Court would be void.' Even in Mahmood Akhtar and another's case
1986 CLC 1451-Lahore, it has been held, 'Entrusting of suit to another Court wherein after
payment of deficient court-fees, subject matter of suit exceeded pecuniary jurisdiction of Court
would not render such Court to be totally bereft of jurisdiction ..'

6. In view of above discussion, the case-law relied upon by learned counsel for the appellants, with
utmost respect, has no relevance to the peculiar facts and circumstances of the present case;
therefore, same does not render any assistance or help to the appellants' cause; because each and
every case has its peculiar facts and circumstances and the Courts have to evaluate the same with
independent mind, so as to administer safer justice to the litigant public without being prejudiced
or biased.

7. The crux of discussion above is that this Court finds no illegality, irregularity or wrong exercise
of jurisdiction, committed by learned Appellate Court in remanding the suit to learned Senior Civil
Judge for hearing the parties on the basis of available evidence on record and to decide the case
afresh, rather same is up to the dexterity and based on appreciation of law on the subject;
resultantly, the instant appeal being devoid of any force is hereby dismissed. No order as to costs.

AG/B-24/L Appeal dismissed.