2001 PLP 791 (CLC)

Date of hearing: 17th May, 1999. The appellants purchased land measuring 51 Kanals, 4 Marias5 situated in Chak No.213/GB, Tehsil Samundri, District Faisalabad, vide Mutation No.483 attested on 23‑3-1973. The respondent claiming to be the collateral of the vendors filed a suit on 12‑3‑1974 for possession of the said land by pre‑emption. in para. 9 of the plaint it was stated that value of jurisdiction is fixed at Rs.1,262.40 being 30 times of the land revenue to which land is assessed. For purposes of court‑fee the value was fixed at Rs.1,300 with a note that the deficiency, if any, will be made out as and when directed by the Court. This suit was put up before a learned Civil Judge on 14‑3‑1974 who summoned the appellants for 11‑4‑1974. It appears that on 10‑9‑1974 the learned Civil Judge passed an order observing that the court‑fee has not been correctly paid. He was of the opinion that the court fee payable is either 15 times of the net profits for the year preceding the suit or on the market value of the land. Since the plaint does not disclose the amount of net profits, therefore, .he is fixing the value for purposes of court fee at Rs.42,

000. This order was passed in presence of the learned counsel for the respondent and appellants. He directed the respondent to file an amended plaint fixing the value for purposes of court‑fee and jurisdiction at Rs.42,000 and also to make up deficiency in the court‑fee by 22‑10‑1974. The objection regarding limitation was reserved. The respondent complied with the said direction and filed an amended plaint on 21‑10‑1974 containing the said amendments and also bearing the court‑fee according to the said valuation. In para, 9 of this amended plaint the value for purposes of court fee, and jurisdiction was fixed at Rs.42,

000. The learned Civil Judge thereafter, framed issues and after recording the evidence of the parties proceeded to dismiss the suit vide judgment and decree, dated 30‑10‑1976 in view of findings recorded on Issue No.4 whereunder he held the suit to be time‑barred because of late filing of the court‑fee. It may be noted here that under Issue No.2 the learned trial Court held that the suit land was purchased for Rs.72,000 and not Rs.42,000 as mentioned in the mutation.

2. The respondent feeling aggrieved of the said judgment and decree filed an appeal in this Court which was registered as R.F.A. 13 of 1977. The appeal was filed in this Court obviously for the reason that at the relevant time the pecuniary jurisdiction of the District Judge was limited to hear the appeals in matters value whereof was not more than Rs.25,

000. The appeal was admitted to regular hearing vide order, dated 19‑1‑1977. During the pendency of the R.F.A. the pecuniary jurisdiction of a District Judge was enhanced to hear cases of value up to Rs.50,000 by amending section 18 of the Civil Courts Ordinance, 1962 vide Punjab Ordinance No.XX of 1978 w.e.f, 20‑9‑1978. In these circumstances, the R.F.A. was remitted to the learned District Judge, Faisalabad, who entrusted it to a learned Additional District Judge. It appears that on 19‑4‑1980 an application was filed by the present appellants calling upon the Additional District Judge to return the appeal as girding to the application the value for purposes of court‑fee and jurisdiction was Rs.72,000 as the same was the consideration determined by the learned trial Court. This application was resisted and was rejected by the learned Additional District Judge on 23‑4‑1980. After hearing the parties the learned Additional District Judge proceeded to allow the appeal and the result was that he passed a decree in favour of the respondent for possession of the suit land subject to payment of Rs.42,

000. Hence, the present. R.S.A.

3. Ch. Hamid‑ud‑Din, learned counsel for the appellants very candidly and fairly stated that he will not be pressing Issue No. 4 in the light of the several judgments pronounced by the Supreme Court of Pakistan on the subject to the effect that it is the Court which has first to determine the valuation of the suit for purposes of court‑fee and the amount of court‑fee payable and thereafter in case the court‑fee on the plaint is found to be deficient to give an opportunity to the plaintiff to make up the deficiency. He has submitted that in the light of the said judgments the respondent had, in fact, made up the deficiency within the time allowed to him under Order VII, Rule 11, C.P.C.

4. Learned counsel has, however, pressed with vehemence his objection that the R.F.A.. filed by the respondent in this Court, was not competent. In support of this contention he has relied upon a judgment in the case of Ellahi Bukhsh v. Bilquees Begum PLD 1985 SC

393. It has been laid down in the said authority that in land suits, the value for purposes of jurisdiction is to be fixed in accordance with the rules framed under section 3 of the Suits Valuation Act, 1887 which is 30 times of the land revenue and regardless of the value for purposes of court‑fee, it is this later value which determines the forum of appeal. According to the learned counsel the R. F. A. was to be filed in the Court of the District Judge concerned. Its filing in this Court was not competent. By the time the R.F.A. was put up before the learned District Judge the same had become barred by time. The learned counsel further submits that the appeal was liable to be returned by this Court for filing in the proper Court and thereafter the matter of limitation was to be decided by the learned Additional District Judge.

5. Malik Noor Muhammad Awan, Advocate, learned counsel for respondent, on the other hand, has contended that his client is not at all at fault. He was directed by the learned Civil Judge to amend the valuation for purposes of court‑fee as well as jurisdiction which was done accordingly. The decree‑sheet prepared by the learned Civil Judge also narrates that value for purposes of jurisdiction is Rs.42,

000. He also relies on Ellahi Bukhsh's case (supra) for the proposition that the value for purposes of court‑fee and jurisdiction is as stated in the plaint or as ordered to be amended by the learned trial Court. In this view of the legal position the respondent had no choice but to file the appeal in this Court.

6. I have gone through the record with the assistance of the learned counsel for the parties. The factual position emerges to be the same as narrated above. There is no cavil with the proposition pressed by the learned counsel for the appellants. It is settled law that in the land suits the value for purposes of jurisdiction is 30 times of the land revenue to which the suit land is assessed which in the present case came to Rs.1,262.40. The R.F.A., therefore, had to be filed in the Court of the learned District Judge concerned. However, I also feel inclined to agree with the learned counsel for the respondent to the effect that the fault does not lie with his client. As stated above, the learned Civil Judge invented a mode of valuation of his own which does not find support from any provision of Court Fees Act, 1870 and as also the Suits Valuation Act. The respondent complied. with it and as a result of the same was constrained to file the appeal in this Court. Since this was an R.F.A. and the records or their copies are not available at the time of limine hearing, nobody could possibly point out the defect to the Court and consequently, the same could not have been pointed out to the parties. This is, thus, a clear case of a wrong committed by a Court and one cannot overlook the maxim actus curiae nominem gravabit (an act of Court shall cause no wrong to a party). In somewhat similar circumstances the matter came up before the Supreme Court of Pakistan in the case of Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR

584. Mr. Justice Muhammad Afzal Lone (as his Lordship then was) after recapitulating several precedents observed that where a lis is filed in a wrong forum, the first duty lies on the Court to point out to the appellant that the matter has been filed in a wrong Court and it should be returned to him. His Lordship quoted with approval the following passage from East Suffolk Rivers Attachment Board v. Kent and another 1941 AC 74 by Lord Atkin:‑‑

"I treat it, therefore, as established that a public authority whether doing an act which it is its duty to do, or doing an act which it is merely empowered to do, must in doing the act do it without negligence, or as it is put in some of the cases must not do it carelessly or improperly. Now quite apart from a duty owed to a particular individual which is the question in this case I suggest that it would be difficult to lay down that a duty upon a public authority to act without negligence or not carelessly or improperly does not include a duty to act with reasonable diligence by which I mean reasonable dispatch." . His Lordship was further pleased to quote the following observations of Lord Cairns, L.C. in Rodger v. The Comptoir d'Escompte de Faris (1871) 3 PC 465:‑‑ "One of the first and highest duties of all Courts is to take care that the act of the Court does not cause injury to any of the suitors and when the expression 'the act of the Court', is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case."

7. I, therefore, feel that the respondent cannot be made to suffer for the wrong committed by the learned Civil Judge and thereafter by omission of this Court to make a timely note of the defect in presentation of appeal. The objection of the learned counsel for the appellant is accordingly overruled. No other point was raised. The R.S.A. is accordingly, dismissed without any orders as to costs. H.B.T./H‑12/L Appeal dismissed.