P L D 1959 (W (PLP)

(d) to obtain an injunction, (e) for a right to some benefit (not herein otherwise provided for) to arise out of land, and (f) for accounts‑ according to the amount at which the relief sought is valued in the plaint or memorandum of appeal". In addition, section 8 of the Suits Valuation Act states that the value for jurisdiction shall be the same as the value for Court‑fees. The plaintiff contends that section 7 (iv) of the Court Fees Act gives him the sole power of valuing his suit, and that power cannot be controlled by the Court. The defendant on the other hand claims that Order VII, rule 11 can be applied to cases falling under section 7 (iv) Court Fees Act. That rule, so far as is relevant, states:‑ "Order VII rule

11. The plaint shall be rejected in the following cases: (b) where the relief claimed is undervalued, and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so ; " There are conflicting views upon this subject, but before I come to those conflicting views, I shall mention two cases of the Privy Council. The first is the case of Rachappa Subrao Jadhav Desai v. Shidappa Venkatrao Jadhav Desai (A I R 1918 P C 188). I think that this case really has no bearing upon the present case. In dealing with the "tangle of litigation" their Lordships I think decided the case on the point that the Court fee payable was partly, at least, a fixed fee and, therefore, any question of notional value could not displace the real value for the purposes of jurisdiction, and hence they held that a suit filed in the Court of the First Class Sub‑Judge was filed in his Court in his ordinary jurisdiction as a First Class Sub‑Judge and, therefore, the appeal lay not to the District Judge but to the High Court. . The next case is that of Faizullah Khan and another v. Mauladad Khan and others (A I R 1929 P C 147 [better reported in 31 Bom. L R 841]). In that case during the course of arguments, Lord Tomlin made certain observations and certain Courts in India have relied upon these observations as given in the Bom. L. R. "In section 7 the amount of fee is to be computed, in suits for accounts, according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. If, therefore, the appellant values the relief in the memorandum of appeal and pays a fee thereon, that is the amount of fee properly payable. Of course if the appellant recovers more, he pays the extra fee under section 11 of the Act. But you cannot complain that the amount valued in the memorandum of appeal is not the proper amount. In suits for accounts, it is impossible to say at the outset what exact amount the plaintiff will recover. The Legislature, therefore, leaves it open to him to estimate the amount. That is the scheme of the Act". These remarks, however, were not repeated by Lord Shaw in delivering the judgment. There their Lordships held that the plaintiff's valuation in appeal was correct. It was not stated in the judgment that the Court had the power to revise the appellant's valuation, but equally it was not stated that the Court had no power to revise the plaintiff's valuation. It appears to me that this case left the matter open. We then come to the view of the High Courts in India. On the one side we have the Full Bench decision of Nagpur High Court in Kashinath Oke and others v. Tukaram Nilkanth Oke and others (A I R 1956 Nag. 195). This is a very learned judgment in which there is a full discussion of the matter. The importance of this case to my mind is that the history of legislation is there set out. It points out that as clause (iv) of section 7, Court Fees Act originally stood, the last portion was as follows: "In all such suits the plaintiff shall state the amount at which he values the relief sought and the provisions of the Code of Civil Procedure section 31, shall apply as if, for the word `claim' the words `relief sought' were substituted". Section 31, C. P. C. referred to was section 31 of Act VIII of 1859 which gave the power to the Court to reject a plaint if the Court considered that the claim was improperly valued and the plaintiff refused to correct his valuation. In Act X of 1877 this section was recast, but the substance was retained the word `claim' was substituted by the words `relief sought'. And now rule 11 of Order VII contains materially the same provisions. In 1891 Act XII of 1891 was passed and from section 7 (iv) of the Court Fees Act the last sentence was deleted, but as the Nagpur High Court points out the preamble of that Act made it clear that no change in the law was intended; the words were repealed because that portion had become unnecessary on account of the changes made in the Civil Procedure Code. This view had also been taken in the Calcutta Full Bench case of Narayangunj Central Co‑operative Sale and Supply Society Ltd. v. Mafizuddin Ahmed and another (A I R 1934 Cal. 448). In this Full Bench case, though the Full Bench held that the Courts had the power to correct a valuation of the plaintiff, yet they point out that the Courts themselves had no standard by which they could‑correct the plaintiff's valuation. Jack, J., however added:‑ "There may be cases in which the valuation is perfectly obvious on the face of it and in that case it would be open to the Court to correct a clearly wrong valuation even before the framing of the rules. Otherwise until rules are framed under section 9, Suits Valuation Act, the Court would be in a practical difficulty and unable to take necessary action". In the Full Bench case of Lakhomal v. Deepchand (A I R 1937 Sind 241), Davis, J. C. was of the opinion that absence of rules under section 9 was no bar to the exercise of the powers conferred by Order VII, rule 11, and that the question as to what is the proper valuation depends upon the circumstances of each suit and the judicial discretion of the Court. Another Full Bench case is that of Deoji Goa and others v. Tricumji Jivan Das and others reported in (A I R 1935 Pat. 396), upholding the same view. The cases on the other side cited by Mr. Lakhani are based upon the Madras, Rangoon, Lahore and Peshawar decisions. He does not contend that in any of these cases the history of the legislation has been set out, and some of these cases depend upon the remarks of Lord Tomlin in Faizullah's case. As I have pointed out these remarks were uttered in the course of arguments and have not been reproduced in the judgment. To my mind it is impossible to overcome the argument arising from the course of legislation if, as seems clear, in 1870 the Courts under the Civil Procedure Code had the right to correct the plaintiff's valuation, I can see nothing which has changed that position. It is true as the Calcutta High Court pointed out that it may be difficult for the Court to arrive at a correct valuation and that may well be a reason why the Court would not over‑rule the A discretion which is initially at least vested in the plaintiff, but here in the present case we have a declaration of assets and so far as the plaint goes he is claiming a half share in the assets worth over Rs. 6 lacs. It appears to me, therefore, that the valuation must be over Rs. 25,000 and, therefore, the Court of the First Class Sub‑Judge had no jurisdiction. The plaint cannot be rejected for want of a proper stamp unless the plaintiff has been given an opportunity of stamping it. Since, however, I am deciding that the First Class Sub‑Judge Karachi had no jurisdic tion to deal with this case, the proper order in revision appears to me that the plaint should be returned to the plaintiff for presentation to the proper Court, namely, the High Court at Karachi, and it will be the High Court at Karachi which will be competent to determine the proper valuation. Mr. Iqbal has no objection if costs of this revision are made costs in the cause. The costs shall be ordered accordingly. The plaint should be returned to the plaintiff for presentation to the proper Court. K. B. A. Petition accepted.