1986 PLP 128 (MLD)

(3) Whether averments in paras. Nos. 4, 5 and 6 of the plaint are true? (4) Whether averments in paras. Nos. 4, 5 and 6 of written statement are true. (5) Whether defendants Nos. 1 and 2 forcibly removed share of plaintiff of Rabi 1964‑65 of suit land? If yes, to what extent. (6) Whether plaintiff is in possession of any share of property in suit? (7) Whether plaintiff has not shown all the property liable to be affected in present suit? (8) Whether plaintiff is entitled to partition and separate possession of any share in suit property. (9) Is the suit maintainable in present form. (10) Is the suit property valued and stamped. (11) Whether the suit is time‑barred. (12) Whether this Court is not competent to hear this suit? (13) What should the decree be?" The suit was decreed with cost and a preliminary decree was passed for partition of house and settlement of account and mesne profit. The respondent filed an appeal and the learned First Appellate Court considered issues Nos.10 and 12 and remanded the case for recording further evidence and finding on these issues. On the basis of the additional evidence recorded, the Trial Court by its judgment, dated 27‑2‑1971 held that the valuation, of the share of the respondent is beyond the pecuniary jurisdiction of the Trial Court. The learned Appellate Court orders for additional evidence of S.D.O. Building who has valued the urban property atRs.94,000.23, which was accepted by it. In this background the learned Court heard the arguments again and observed in the impugned judgment that the learned counsel addressed only on issues Nos.10 and 12 and other issues were not raised or argued by them. The learned Appellate Court came to the conclusion that in view of section 11 of the Suits Valuation Act no prejudice has been caused to the appellants and therefore, on question of jurisdiction the plaint cannot be rejected or suit cannot be dismissed. The appeal was, therefore, dismissed. Mr. Kishanchand the learned counsel for the appellant has contended that as the learned Trial Court as well as First Appellate Court had come to the conclusion that the value of respondent's share in joint property was more than the pecuniary jurisdiction of the Trial Court, the plaint should have been rejected or dismissed and the judgment passed by the learned Trial Court was without jurisdiction and illegal. The learned First Appellate Court has taken note of the fact that no specific plea challenging the pecuniary jurisdiction of the Court was raised in the written statement. A perusal of the written statement will show that although the objection to jurisdiction was taken, it was too vague to be taken into consideration. By mere saying that the Court has no jurisdiction, one cannot be expected to make roving" inquiries as to how the Court has no jurisdiction. The learned appellate Court also came to the conclusion that no evidence was led to establish the value of the property or to show that it was beyond the pecuniary jurisdiction of the Trial Court. So far the court‑fee is concerned it was stated that the amount regarding mesne profit is not correct. If issue No.10 related to valuation of the property and payment of proper court‑fee the appellants did not lead any evidence before the Trial Court for proving the valuation. It was only produced when the case was remanded by the First Appellate Court. As regards issue No.12 nothing has specifically been pleaded and the issue had been framed on the basis of vague pleading. It is the duty of the parties upon whom the burden lies to discharge it. At least before the Trial Court the appellant had remained completely unconcerned with these issues. The plea seems to have been agitated during the appeal and specific finding was given on the valuation of the property and pecuniary jurisdiction of the Trial Court. The question, therefore, is whether in these circumstances the decree could be set aside on the ground that the learned Trial Court did not have the pecuniary 'jurisdiction. Mr. Abdul Fateh Memon the learned counsel for the respondent has contended that as the appellant has not raised any specific issue regarding lack of pecuniary jurisdiction of the Trial Court and judgments have been passed by two Courts below and in particular the judgment passed by the first appellate Court which has held that no prejudice has been caused to the appellant in view of section 11 of the Sui, Valuation Act, the decree cannot be set aside. The learned counsel has referred to Gul Khan v. Syed Hasin Shah and another P L D 1968 Pesh. 148 and Mst. Habib and another v. Abdul Qadir and 2 others P L D 1985 Kar.

18. On the other hand Mr. Kishanchand has placed reliance on Muhammad Siddique and another v. Haji Ahmed & Co. P L D 196; Kar.

468. The facts of this case were completely different and distinguishable. There an ex parte decree for Rs. 1,75,500 with interest was passed by the High Court. The application under Order IX, Rule 12, C . P. C . was dismissed and letters patent appeal was compromised. The appellant filed suit before the Civil Judge 1st Class for setting aside the decree as it was obtained by fraud and the Letters Patent Appeal was got compromised fraudulently. The plaint was returned and appeal against that order was dismissed. The Revision Application filed was also dismissed. The appellant then filed a second suit before the Civil Judge First Class for declaration which was dismissed as the same was barred by res judicata. Against this order Civil Appeal was filed before the Additional District Judge who granted in injunction restraining the respondent from executing the decree which was pending before the learned Single Judge for execution. The order of the learned Single Judge was attacked before the learned Bench on the ground that the sale of the attached Mill should not have been ordered after the injunction had been issued by a civil Court of competent jurisdiction. In these facts, it was observed that "the learned Additional District Judge having no jurisdiction in the matter any order passed by him is without jurisdiction and is void in law. There the applicability of section 11 of the Suits Valuation Act was neither raised nor considered. In Gul Khan's case P L D 1968 Pesh. 148 question as in the present appeal came up for consideration. There specific plea was taken that the plaint was not properly valued for the purposes of court‑fee and jurisdiction and a specific issue namely, whether the suit was properly valued for purposes of court‑fee and jurisdiction was also framed. The Trial Court came to the conclusion that proper court‑fee has been paid and decreed the suit. The finding of learned Trial Court was upheld by the learned Additional District Judge. In second appeal before the High Court the same question regarding court‑fee and jurisdiction was again agitated. After examining several authorities it was held:‑-- "The combined effect of sections 12 and 28 of the Court Fees Act is that if indeed there is any deficiency in the court‑fee leviable in this suit it can be ordered to be made good even in second appeal, and when that is done, the plaint shall be taken to have been properly stamped right from the beginning. However, the other question raised in this behalf by Mr. Pir Bux Khan then requires consideration namely that the appellants have been seriously prejudiced on merits by the suit having been tried and the appeal having been heard by Courts not having jurisdiction in the matter. In this connection, section 11 of the Suits Valuation Act comes to the rescue of the plaintiffs so as to save proceedings taken by the Trial Court as by the lower appellate Court, unless it is held that the under‑valuation of the suit has indeed prejudicially affected the disposal of the suit or appeal on its merits. There is a string of authorities laying down the proposition that the trial of a suit or the hearing of an appeal by a Court of inferior jurisdiction does not by itself raise a presumption that the decision was prejudicially affected on the merits. It has also been held that no prejudice on merits is to be presumed by reason of the fact that instead of bringing a second appeal, a first appeal might have been brought to the High Court so as enable both questions of law and fact to be examined. The view of the authorities appears, to be that in such a case the provisions of section 103 of the Civil Procedure Code might, at best, be pressed into service‑ by the High Court so as to satisfy itself that the findings on questions of fact recorded by the lower appellate Court are correct. Reference in this behalf may be made to Kalu Achan and others v. Pheriva Nethivar and others A I R 1924 Mad. 6, Narasimham v. Subramanian and others AIR 1927 Mad. 201, Mt. Illahi Jan v. Rahman Ullah and another A I R 1928 Lah. 670, Allah Bux v. Shivji Mehraj A I R 1939 Lah. 451, B. Kanahaiya Lal and others v. Hamid Ali A I R 1940 Oudh 164, Bhim Raj Debi Bakhsh v. Gava Prasad Sahu and others A I R 1941 Pat. 532 and Kamedo Singh and others v. Raj Narain Singh and another A I R 1949 Pat.

278. The contrary view expressed in Mamraj Agarwala and others v. Ahmed Ali Mahmad A I R 1919 Cal. 984 was taken note of and it was observed:‑-- "As against the authorities mentioned in the preceding paragraph, the learned counsel for the appellants drew my attention to Mamraj Agarwala and others v. Ahmed Ali Mahmad A I R 1919 Cal. 984(2) in which a Division Bench expressed the view that where a suit which had been under‑valued was tried by Munsif's Court the defendant could reasonably say that he had been prejudiced by the case being tried by a Court which had no jurisdiction to try it. These observations are not supported by any reasoning, and the learned Judge who delivered the judgment of the Bench seems to have been influenced by the fact that as he was remanding the case for retrial on another ground, he was unwilling to accept the respondent's contention based on section 11(2) of the Suits Valuation Act. The view expressed in this case runs contrary to the view taken by most of the High Courts, and speaking with great respect, does not appear to be in conformity with the object underlying section 11 which is clearly to provide a machinery for curing the original lack of jurisdiction in the trial or the first appellate Court. If indeed the mere fact of trial by a Court of incompetent jurisdiction were to lead to a presumption of prejudice on the merits, then clause (2) of section 11 of the Suits Valuation Act would be tendered meaningless. It seems to me, therefore, that in deciding whether party has indeed been prejudiced on the merits of the case no presumption of prejudice is to be drawn from the mere fact of lack of jurisdiction on the contrary, something more must be shown to lead to an inference of prejudice. In the case before me the learned counsel for the appellants was not able to point to any such circumstances present on the record." In Mst. Habib's case taking note of section 11 of Suits Valuation Act the aforesaid Judgment of Anwarul Haq, J. (as he then was) was followed. In the present case the appellants had not raised any specific plea for challenging the pecuniary jurisdiction of the Trial Court nor any evidence was produced by them on the issue relating to jurisdiction as framed by the learned Trial Court. In these circumstances, the learned Trial Court proceeded with the matter and had given its finding on merits. It is only after the remand that the learned Trial Court C recorded evidence on these issues (issues Nos.10 and 12) and held that it did not have the pecuniary jurisdiction. In these circumstances, the provision of section 11 of the Suits Valuation Act can be pressed in service. It provides remedy for curing lack of pecuniary jurisdiction in the trial or First Appellate Court. The learned First Appellate Court has observed that the appellants did not address the arguments on other issues. In fact this observation has been made twice with an element of surprise and astonishment. The learned 1st Appellate Court has observed that although no other issues were argued on behalf of the appellants it has examined the entire case and has not found any prejudice caused to the appellant due to under valuation. Section 11 provides protection and cures lack of pecuniary jurisdiction of the trial or the First Appellate Court. But objection to pecuniary jurisdiction will be entertained by the appellate Court if it comes to the conclusion that over‑valuation or under valuation has prejudicially affected the disposal of the suit or appeal on its merits. The Court is required to record its finding in writing before coming to such a conclusion. Such a finding has been given by the 1st Appellate Court. In the memo. of appeal no ground has been taken challenging the finding of the learned Additional District Judge. Except issues Nos.10 and 12 the appellant has not raised any objection on the merits of the case before me. In these circumstances section 11 will protect the proceedings before both the Courts below. Mr. Kishanchand the learned counsel then contended that as the value of the share of the appellant in the property is Rs.32,000 appeal should have been filed in the High Court and not before the District Judge as provided by section 18 of the West Pakistan Civil Courts Ordinance, 1962. The appellant had filed appeal before the District Judge and after the remand when finding was given by the Civil Judge which was transmitted to the First Appellant Court, no such objection was raised by the appellant. Even in the memo of appeal filed in this Court no such objection has been raised. The appellant is, therefore, not entitled to challenge the jurisdiction of the First Appellate Court. More so as they had filed the first appeal invoking the jurisdiction of the District Judge and proceeded with the matter before him twice till the end. The appeal is dismissed with cost. A.A Appeal dismissed.