1930 PLP 589 (CLC)

The facts of this case are that a suit for pre-emotion was filed by the respondents before the Civil Judge, Pindi Gheb, on 21st February, 1975. The jurisdictional value of the suit exceeded Rs. 7.000, but the Civil Judge had jurisdiction only 'over cases up to the value of Rs. 5,

000. Without adverting to this point at that stage, the learned Judge passed an order of deposit of `tare-a panjam' by 21st March, 1975. On the latter date the suit was dismissed under section 22 of the Punjab Pre-emotion Act for failure of the respondents to make the necessary deposit. The respondents fled a review petition on the ground that they had mistaken the date of deposit as 25th March, 1975, and for this reason the deposit could not be made in time up to the 21st March, 1975. This petition was allowed by the learned Judge on 8th May, 1975. At that stage he found that since the property in dispute was only one-half of the property sold, and the value of that property was only Rs. 6,500, the plaintiff could be directed to deposit Rs. 1,300 only, He, therefore, altered the order of deposit of 1/5th of the pre-emotion money.

2. The learned Judge at this stage took cognizance of the fact that the value of the suit exceeded his pecuniary jurisdiction. He, therefore, referred the case to the learned District Judge for: its transfer.

3. The learned District ,fudge returned it again to the same Judge with the observation that though according to the amendment of the Court Fees Act by Finance Act, 1973, the valuation for the purpose of court-fee could either be the market value of the property or 15 times of the mesne profits for the year preceding the suit but the valuation for the purpose of ,jurisdiction had not undergone any change. Thai valuation could be 30 times of .the fixed land revenue, if any. He directed the learned trial Court to consider the question of incompetence o!' the suit in view of these observa tions.

4. The petitioner on the other hand had filed an appeal against the order of review. The learned District Judge partly allowed this appeal and partly dismissed it. He found that the malt? reason for review by the learned trial Court was that he had exercised his jurisdiction in respect of a matter which was beyond the scope of his pecuniary jurisdiction. He held that this was a good ground for review and there was sample just for annulment of the order of rejection of the plant. He-did not take this finding to its logical conclusion. But, on the other hand, he maintained the review order. 1n fact once he had come to the conclusion that the Court had no pecuniary jurisdiction, he should have declared all the orders as ultra wires and set aside the orders of review. The order of the learned district judge therefore, self-contradictory and is not sustainable.

5. It appears that during the pendency of the appeal before the learned District Judge, for F. M. Khalid was transferred and another Civil Judge who exercised 2nd class powers took over at Pindi Gheb. 1n view of this the learned Court observed that it would be open to the learned Judge to pass a fresh appropriate order about the deposit of money.

6. It is established law that if a suit is filed before an incompetent Court no order of transfer to a competent Court can be passed. The learned) counsel for the petitioner, therefore, argued that having held that the suit was beyond the pecuniary jurisdiction of the trial Court, the plaint should have been returned to the plaintiffs for presentation to the proper Court.

7. The learned counsel for the respondents however argued that the suit was within the pecuniary jurisdiction of the learned trial Court. He referred to the order of the learned District Judge dated 22nd May, 1975, wherein he laid down the rule of guidance for the trial Judge for determining the jurisdictional value according to the Suits Valuation Act and then to make a reference for transfer if he found that the matter was beyond his pecuniary jurisdiction.

8. The law of court-fees has now undergone a change by the Finance Act of 1973. Section 7(v) of the Court Fees Act deals with the assessment of valuation for the purpose of ad valorem court-fee. Clause (vi) of section 7 provides that in suits to enforce a right of pre-emotion the amount of fee payable shall be computed according to the value computed in accordance with paragraph (v) of the section on the land, house or garden in respect of which the right claimed. Clause (v) as it stood originally -provided that -where the land formed an entire state, or a definite share of an estate, paying annual revenue to Government or formed part of such an estate and was recorded in the Collector's register as separately assessed with such revenue and such revenue is permanently settled, the court-fee would be payable on ten times the revenue so payable. Similarly where the land formed as an entire estate, or a definite share of an estate, paying annual revenue to Government, or formed part of such estate and was recorded as aforesaid and such revenue was settled, but not permanently, the value for-court-fee should be assessed on five times the revenue so payable. Where the land pays no such revenue, has been partially exempted from such payment or is charged with any fixed payment in lieu of such revenue and net profits have arisen from the land during the year next before the date of presenting the plaint the value for payment of court-fee would be fifteen times such net profits but where no such net profits have arisen therefrom, the amount at which the Court shall estimate the land with reference to the 'value of similar land in the neighbourhood. In other case it would be payable on the market value of the land.

9. By the Finance Act, 1973, only two criteria are left for computing the valuation for the purpose of court-fee. It provides that where the subject-matter is land and where net 'profits have arisen from the land during the year next before the date of presenting the plaint, the value fort payment of court-fee would be fifteen times such net profits and where no' such net profits have arisen from the land, it would be the market value of such land.

10. The jurisdictional value is computable according to the 'rules framed under section 3 of the Suits Valuation Act by the Provincial Govern ment. The rules so framed provide the valuation to be 60 times of the land revenue where such revenue is permanently settled 30 times where land revenue is payable but it is hot permanently settled, 15 times of the net profits for the preceding year where no land revenue is payable and net profits have arisen from the land during the year next from the date of presenting the plaint and the market value where no such net profits have arisen.

11. There has been no change either in section 3 of the Suits Valuation Act or the Rules framed thereunder. In these circumstances the jurisdictional' value where land revenue is payable would be cither 60 times or 30 times of the land revenue, as the case may be.

12. On going through the record I find that in the present case the land revenue is payable and it is Rs. 13.14 per year for the entire khala, consisting of a number of khatoni.v. If the property in dispute is a share of the khata, the land revenue would be less than this amount. Multiplying by 30 or 60 which ever provision may be applicable, the valuation in any case would be less than Rs. 1,000, and the matter would be within the jurisdiction of even a Civil Judge IV Class. The finding about the jurisdictional value exceeding the pecuniary jurisdiction was not correct.

13. It may be sated that the learned counsel for the petitioner only argued that since the respondents themselves valued the suit at a sum of Rs. 7,000, which was beyond the pecuniary jurisdiction of the Civil Judge III Class, they cannot be allowed to plead otherwise in defence of this petition.

14. This argument has not impressed me since neither such a concession or admission can confer any jurisdiction upon the Court where it has none, noncan take away the jurisdiction from the Court where it vests. ' If there' is evidence on record to prove the ratio on which the valuation can be assessed, it will become the duty of the Court to discover the valuation in order to find out whether it has really any jurisdiction over the matter or -not. .

15. The next question is whether the learned Civil Judge had any authority to review the order of rejection of the plaint under Order XLVII, rule 1, C. p. C. I agree with the argument of the learned counsel that no case was made out of any error apparent on the face of the record in sc far as the question of default was concerned. The default could not condoned in exercise of the review jurisdiction unless there had been no apparent on the face of record as provided by Order XLVII, rule

1. But, this is not helpful to the petitioner. It is clear from the plaint that the respondents had not filed the suit for the entire land which was subject matter of the sale in favour of the petitioner and had been transferred to him for a sum of Rs. 13,

000. The respondents- were directed to deposit Rs. 2,600, as `tare panjum' assuming that the suit was for the entire property sold, which was not a fact The suit being for a lesser amount of property, it was incumbent upon the Court to fix the proportionate value payable by the respondents for that property if they ultimately succeeded in the suit aid then to find out its I/5th in order to pass an order under section 22 of the Punjab Pre-emption Act, 1913. He later on found this value to be Rs. 1,300, on the assumption that the property which was sought to be pre-empted wdi only half of the property sold. His successor-in-office on the other hand after the order was set aside by the learned Additional District Judge made an attempt to find out the proportionate amount arid he was of the view that the `tare panjum' amounted to Rc. 2.080 as one-fifth of the value of the properly in suit assessed by him as Rs. 10,400, 16. *It is, therefore, clear that in any case the amount of Rs. 2,600,1 fixed by the learned trial Court originally as are panjum' was based on and error apparent on the face of the record. The learned trial Court was therefore, justified in reviewing the order. If once it is held that the initial order was not justified, the order of the rejection of the plaint could not be maintained. In this view of the matter 1 am of the view that the learned trial Court had exercised the jurisdiction of review to that extent in accordance with law.

17. The result is that ultimately the order of the learned District Judge cannot be set aside though I am not in agreement with some of the findings and reasoning in the impugned order.

18. The petition is, therefore, dismissed but I would leave the parties to bear their own costs.

19. The learned counsel for the respondents has drawn my attention to the fact that the suit is based only upon the ground of tenancy. If it is so, an action may be taken by the learned trial Court under the Provisions of Land Reforms (Amendment) Act. 1976. M. A. K Petition dismissed.