1986 PLP 1182 (MLD)

AKHTAR HASSAN, J.‑‑This Regular First Appeal is directed against the decree, dated the 24th of September, 1981 of the learned Civil Judge 1st Class, Kharian, whereby the appellant‑plaintiffs suit for pre‑emption was dismissed with costs for want of payment of requisite court‑fee in time.

2. Land measuring 160 Kanals 8 Marlas was sought to be pre‑empted on a valuation of Rs. 1,12,967.55 for court‑fee as also jurisdiction. The respondents‑vendee without filing written statement adopted a short‑cut of moving a miscellaneous application under sections (i) 151, Cr.P.C., (ii) 3 of the Limitation .Act and (iii) 6 of the Court Fees Act, 1870, praying for rejection of the plaint for want of proper court‑fee. They maintained that while the plaintiff had evaluated a part of,the land yielding net profits 'at fifteen times thereof, he failed to evaluate the other part from which no such profits accrued during the preceding year and was leviable on the market value. This deficiency, according to them, was deliberate, result of gross negligence amounting to wilful default and could not be made up beyond limitation to help save a suit of predatory character. 3 The trial Court, equally unmindful of its duty to insist for raising these objections in a formal written statement, fell in line ‑in taking proceedings upon the application. In his reply the appellant denied the alleged deficiency etc. observing that no particulars of the land incapable of yielding net profits were, given. The trial Court framed the following issue: "Whether the value for the purposes of court‑fee and jurisdiction is incorrect for the reasons given in .the application and if so whether the plaint is under stamped? O.P.D."

4. After taking the parties' evidence for and against, the Court accepted the respondents' contention holding that the correct valuation for both, the purposes was Rs. 1,52,324.48 and taking a view that failure to pay proper court‑‑fee thereon within the prescribed limitation was Contumacious, dismissed the suit.

5. The appellant acting upon the valuation for jurisdiction determined by the lower Court preferred the instant appeal before this Court but the respondents in their effort to nip the same moved Civil Miscellaneous No. 122/C of L983 again invoking (i) section 151, C.P.C., (ii) section 3 of the Limitation Act and (iii) section 4 of the Court Fees Act, 1870 demanding its dismissal for deficiency in court‑fee stamp on the memo. This time their plea was that fifteen times of net profits accruing during the year preceding the institution of the appeal from the cultivated area came 'to Rs.99,762.30 whereas the market value of the remaining area on the aforesaid date on the basis of five‑yearly average was Rs.1,04,896.23. The total of these sums viz. Rs.2,04,658.53 according to them, formed tht .valuation of the appeal requiring the maximum court‑fee worth of Rkt:15',000 as against Rs.11,425 actually paid on it. They claimed that the deficiency was deliberate, attributable to gross negligence of the appellant who after the lapse of limitation was precluded to make it good and that the obvious result was dismissal of the appeal. In consummation of the same frantic bid to stifle the appeal, the respondents further moved Criminal Miscellaneous No. 4795/C of 1984 objecting to its maintainability here on the ground of jurisdictional value of the suit which according' to thirty times of the land revenue came to Rs.2,643.05 making it amenable to the Court of District Judge. They sought support for this objection from para. 9(b) of the memo. of appeal where allegedly applicability of the rule of thirty times of the land revenue to the present case was conceded. They insisted for disposal of this petition first as it affected the competence of this Court to hear the appeal.

6. The petition was completely silent as to what amount of revenue was assessed and on what precise area particularly in the wake of controversy raised by the resp6ndents themselves before the trial Court that a chunk of the land being not assessed to such revenue required valuation either at fifteen toes of the net profits or the quinquennial average. This was a sudden spurt on the part of respondents exposing ' their own. inconsistency. They, however, relied upon para. 9(b) of the Memo. of appeal which to their reading contained an admission on the part of the, appellant that the entire land being assessed to revenue was worth Rs.2,643 on the basis of thirty times thereof. We candidly think it is not so. All that it reads is: ". that a suit for ... pre‑emption is valued differently for court‑fee and jurisdiction. The value ......for... court‑fee is . . under section 7(5) of the Court Fees Act, 1870' at fifteen times of the net profits ... while ... for jurisdiction under the Suits Valuation Act, 1887 and the Rules ... at thirty times of annual revenue." And nowhere accepts that thirty times of the annual revenue of the land in question came to Rs.2,643, Instead it makes reference to the abstract rule providing for such suits without conceding that. by applying it to the land in question, the result was in the shape of the above‑noted valuation. Further, the para. cannot be read in isolation of other contents of ‑ the Memo, which in para. '4 unmistakably re‑affirmed the initial valuation of Rs.1,12,967.55 as against Rs.1‑,52,324.48 determined by the Court. These two sums were being juxtaposed and there was absolutely no concept of conceding the third figure .of Rs 2,643 as jurisdictional value. How could a plaintiff abandon his own valuation right or wrong shown in the plaint without a formal order of its amendment? The suggestion .was preposterous, besides being out of step as also context and' looked more like a deliberate misreading than an honest or subjective presentation. 7.There is yet another aspect. Presumably out of anxiety, the respondents, one of whom is a veteran lawyer, adopted a novel procedure in contesting the suit. They did not wait to file written statement to raise all possible objections, and instead made an application invoking deficiency in court‑fee and limitation. They missed to assail the jurisdictional value or even to state that it was Rs.2,

643. Apparently, it is difficult to allow them to raise it in appeal. Haji Ghias Muhammad for the respondents debating this part seriously observed that regardless of the fact that a plaint gave a different value, or gave no value, or the trial Court determined it differently, it was always open to the appellate Court to determine the real, true and correct value under the Suits Valuation Act, 1887 and the Rules framed there under. He placed reliance in this behalf on Daim Shah v. Maya Das 1920 L L J 300 wherein, the High Court finding the real value for jurisdiction to be Rs.615 as against Rs.5,500 shown in the plaint, had returned the Memo. of Appeal for presentation before the District Judge. He added that fixation of the value was the job of the Court without giving any discretion to the parties, and cited Suba Khan v. Rehmat Din etc. 1980 C L C 589 and Gunga Sahai etc. v . Sheo Lal and others 132 P R 1894 p.500 for this view. Likewise, according to him, in a case where no value was shown in the plaint, it could be determined by the appellate Court in virtue of the ratio of Ajiruddin Mondal etc. v. Rehman Fakir etc. P L D 1961 S C 349, Noor Muhammad etc. v. Mst. Kaniz Fatima etc. P L D 1980 Lah. 471 and Ghulam Hussain Shah v. Hidayatullah Khan P L D. 1981 S C (A J & K 55). Referring to section 11 of the Suits Valuation Act, 1887, he maintained that it had no application to the present case inasmuch as the trial Court was not incompetent. He relied upon a number of authorities including Muhammad Shah etc. v. Abdullah Shah A I R 1920 Lah. 112 and Ghulam Akbar Khan v. Mst. Bakhat Bibi and another A I R 1915 Lah. 185.

8. No doubt, these decisions bear out the argument that correct and real value may be determined by the appellate Court, but the latest pronouncement made in Illahi Bakhsh etc. v. Mst. Bilquees Begum P L D 1985 S C 393 seems to have radically changed the entire complexion. Although it puts emphasis on determination of such value under the relevant Rules yet it equally lays down that if no objection is taken t the valuation stated in the plaint, it could not be subsequently assailed. The respondents here did not raise any objection to it as they did no care to file the written statement within "ninety days" prescribed by Proviso to rule 1 of Order VIII, C.P.C., nor did they include it i their application, dated 15‑5‑1980 which they preferred promptly t call in question on the value for court‑fee. The trial Court acted wrongly in having included this element in the issue primarily framed on the point of court‑fee. Moreover, the jurisdictional value although articulated by Rules was described in the aforementioned case of Illah Bakhsh to be essentially "notional or artificial" indeed attracting disapprobation of the Supreme Court. It involved certain questions of fact too, e.g. whether the land is revenue‑paying, if so, permanent o temporary, or it yielded any profits in the preceding year and how much. No ascertained or designated amount is fixed by the Rules t represent such Valuation in each given case and, therefore, to bring home factual evidence to meet the said points, a formal objection ha to be raised in the written statement. This appears to be the reason why the august Supreme Court was pleased to rule that if no objection is taken as to the valuation mentioned in the plaint, it shall determin the forum of appeal. The added reason may be that no inquiry may be undertaken before the appellate Court requiring examination of witnesses or production of documents to prove questions of fact In this case, lot of confusion subsisted as to whether or not the whole of the land was included in the statement of net‑profits or deductions on accounts of certain charges e.g. Tanda or Bhusa, were allowed or not. The two statements P.1 and D.2 widely differed. There was much need to examine the Patwari to reconcile them but owing to the device adopted by the respondents, the trial Court recalled the relevant order even though it was upheld by this Court in revision. The genesis of sticking to the valuation originally shown in the plaint was founded on the salutary principle of avoiding such quibbling at appeal stage.

9. Omission to dispute the jurisdictional value in the Court of first instance may well involve waiver so as to preclude a party from attacking it at any subsequent stage. In Mabood Bakhsh and another v. Mst. B Mahmoodan and others A I R 1920 Pat. 92, a Division Bench ruled that waiver of objection to local jurisdiction cannot vest jurisdiction‑in Court but waiver of objection to valuation does. Considering from this angle, it is not open to the respondents to raise the point before this Court.

10. Section 11 of the Suits Valuation Act may not be in terms applicable as it was not a case decided by a Court of incompetent jurisdiction. In fact; it covers a case of the worst type where the Court deciding the case may have no jurisdictional competence. Such a decision, even though otherwise coram non judice has not been allowed to be thrown overboard merely because later the trial Court may have been found lacking pecuniary competence. Section 11 saves it by imposing two conditions before assailing it in appeal. One of them is that the objection should have been raised right before the trial Court itself and the second is that there should have been some prejudice caused the party concerned. Comparing such a faulty decision with the on made by a Court of competent jurisdiction, there may be ample justification to assume that the latter stands on relatively better footing. Correspondingly, there may have been no objection to the jurisdictions competence of the trial Court nor any prejudice to a party's case. The analogical deduction from this comparison would be that‑'practically the objection to jurisdictional value may not be allowed to be raised in appeal if it is not conformable to the conditions provided by section

1. The respondent objection does not qualify this test and cannot be allowed in appeal.

11. Apart from the fact that the respondents are precluded to rais this objection to the so‑called under‑valuation, the trial Court had in way determined it. It was held to be the same as for court‑fee making the appeal amenable to this Court under section 18 of the Civil Court Ordinance, 1962. For all practical purposes, this valuation has to accept to determine the forum of appeal, particularly when no prejudice was established. We, therefore, proceed to dismiss the relevant petition.

12. The next C.M. Petition No. 122‑C of 1983 was directed against deficiency in court‑fee on the Memo. of Appeal. Ordinarily, a plaint and a Memo. of Appeal are treated alike for the purposes of taxing court‑fee. Article 1 of Schedule I to the Court Fees Act, 1870, as amended by the Punjab Finance Act, 1973, may be referred to. The appellant fixed Rs. 1,12, 967.55 in the plaint as valuation for court‑fee while the respondents claimed it to be Rs. 1,52,324:

48. The trial Court accepted the latter and rejected the plaint due to deficiency in court‑fee The respondents somehow did not stick to their own valuation state before the trial Court and increased it materially in the context appeal. This time they adopted net‑profits of the year and average five years immediately preceding the institution of the appeal rather than the suit. It was not explained how they could abandon the valuation calculated by them earlier and why they chose altogether a new point of time for fresh calculation. This was opposed to Article 1 of Schedule to the‑Act referred to above, and could not be permitted especial when it involved evidence at appeal stage. Assuming there was sort deficiency in relation to the Memo. of Appeal, a special adjournment will have to be given to supply it. Although the rule of such a obligatory adjournment was applicable to a plaint yet in the precedes case of Siddique Khan .v. Abdul Shakur etc. P

1. D 1984 S C 289 was extended even to appeals and the appellate Court was equal under an obligation to grant time for making good the deficiency. The appeal could not be dismissed straightaway without observing formality and the prayer made in the Criminal Miscellaneous Petition that effect cannot be acceded to. However, this eventuality would n arise here as we do not find the Memo. of Appeal deficient in court‑fee This petition, too, is rejected.

13. Next comes the rejection of plaint by the trial Court. On contest, it did hold an inquiry though incomplete inasmuch as to Patwari once summoned was not allowed to be examined to reconcile to difference in the two statements of net profits. The valuation for court‑fee calculated by the respondents was accepted by the trial Court. The rejection of plaint on an assumption that the deficiency was deliber or contumacious, was open to serious exception. Reliance upon M Walayat Khatoon v. Khalil Khan etc. P L D .1979 S. C 821 was rather misplaced because the law on the point has undergone considers change. In the aforecited case of Siddique Khan, it was unambiguous ruled that even if initially there was any deficiency in court‑fee, o adjournment in terms of Order VII, Rule 11(c), C.P.C. read wise section 28, Court Fees Act, 1870, was rather an obligation impose upon the trial Court in order to allow the party concerned to make up. In this case, this obligation was totally disregarded. The Court in so far as it refused the appellant this obligatory adjournment under Order VII, Rule 11, C.P.C. acted illegally and, therefore, to impugned order cannot be sustained.

14. As a result we accept the appeal, set aside the judgment/decree under appeal and remand the case to the learned trial Court to decided it afresh in accordance with law. The respondent's failure to file written statement in time as prescribed by Proviso to rule 1 of Or VIII, C.P.C., will have to be kept in, view. The costs shall follow event. A.A Appeal accept