1989 PLP 1776 (MLD)

Mr. Lari contended that the judgment and decree are without jurisdiction and are nullity in law as the Court has no jurisdiction. In support of his contentions, he placed reliance on PLD 1971 S.C. 124, PLD 1962 S.C. 199 and PLD 1987 Lahore

268. On the other hand Mr. Jamil Raza submitted that the judgment and decree are not without jurisdiction. His submission is that the applicants themselves valued the property in suit at Rs. 8,

000. I have heard the learned counsel for the parties and persued the record. The respondent in his plaint valued the property in suit at Rs. 18,

000. This valuation was challenged by the applicants in their written statement and stated that value of the property was at Rs. 1,00,

000. The trial Court did not frame any issue regarding the valuation of the property. The Applicants did not take any step for framing of the issue of valuation. The petitioners filed appeal against the judgment and decree but the ground of valuation was not taken before the appellate Court also. The applicants themselves filed Suit No. 2576 of 1985. (Old No. 3975 of 1984) against the Karachi Development Authority and the respondent. The applicants themselves for the purpose of court-fee and jurisdiction valued the, property in suit at Rs.18,

000. In order to appreciate the respective contentions of the learned counsel for the parties, it is advantageous to reproduce Section 11 of Suits Valuation Act, 1887 which reads as follows: 11.

(1)Notwithstanding anything in Section 99 of the Code of Civil procedure, an objection that by reason of the over-valuation or under-valuation of a suit or appeal a Court of first instance or lower appellate Court which of had not jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an appellate Court unless: (a) The objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower appellate Court in the memorandum of appeal to that Court, or (b) The appellate Court is satisfied, for reasons to be recorded lay it in writing, that the suit or appeal was over-valued or under-valued and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on merits. (2) if the objection was taken in the manner in clause (a) of subsection (1), but the appellate Court is not satisfied as to both the matters mentioned in clause (b) of that subsection and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance or lower Appellate Court. (3) If the objection was taken in that manner and the appellate Court is satisfied as to both those matters and has not those materials before it, it shall proceed to deal with the appeal under the rules applicable to the Court with respect to the hearing of appeals but if it remands the suit or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, it shall direct its orders to a Court competent to entertain the suit or appeal. (4) The provisions of this section with respect to an appellate Court shall, so far as they can be made applicable, apply to a Court exercising revisional jurisdiction under section 115 of the Code of Civil Procedure or other enactment for the time being in force. (5) This section extends to the whole of Pakistan and shall come into force on the first day of July, 1887. In Rachappa Subargo Jadhav Sesai v. Shidappa Venkatrao Jadhev (AIR 1918 P.C. 188), the Privy Council held that the objection which, was "most technical of technicalities" was not taken in the Court of first instance and that the Court could not be justified in assisting an objection of that type and that it was also untenable. Before conclusion it observed: "The Court Fees Act was passed not to arm a litigant with a weapon of technicality against his opponent, but to secure revenue for the benefit of the State. This is evident from the character of the Act and is brought out by section 12, which makes the decision of the First Court as to value final as between the parties, and enables a Court of appeal to correct any error as to this, only where the First Court decided to the detriment of the revenue. The defendant in this suit seeks to utilise the provisions of the Act not to safeguard the interests of the State, but to obstruct the plaintiff, he does not contend that the Court wrongly decided to the detriment of the revenue but that it dealt with the case without jurisdiction. In the circumstances this plea, advanced for the first time at the hearing of the appeal in the District Court, is misconceived, and was rightly rejected by the High Court." In Sardar Khan and others v. Mst. Aisha Bibi and others (ILR 6 (?) 105) decided by a Full Bench of Five Judges, the following observations were made: -- "Section 11, however, provides an exception to the general rule and lays down that a party, who has not taken objection as to the pecuniary jurisdiction of the Court at the time specified in clause (a) cannot be allowed to dispute that jurisdiction afterwards. It appears that the object of the legislature in enacting this provision was to ensure that the time and labour spent by a Court in deciding a case should not be wasted if the party concerned has joined issues and gone to trial upon the merits without raising objection to the pecuniary jurisdiction of the Court at the earliest opportunity. It will be observed that similar rule has been enacted by the new Code of Civil Procedure in order to cure a defect of territorial jurisdiction. Section 21 of the Civil Procedure Code of 1908 provides that no objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice." On a perusal of section 11 of the Suits Valuation Act, 1887, it is clear that it was the duty of the defendant to press his case in respect of pecuniary jurisdiction of the Court at the first instance before the trial Court or before the lower Appellate Court. On a perusal of the judgment in suit No. 2613 and the appeal preferred by the applicants, it is clear that the issue about, the pecuniary jurisdiction was not taken by the defendants/applicants either before the trial Court or before the lower Appellate Court. The applicants themselves it, their 1wn suit also valued the property at Rs. 18,

000. The applicants/defendants submitted to the jurisdiction of the trial Court and allowed the suit being proceeded in the trial Court without raising the issue of pecuniary jurisdiction of the trial Court. In view of Section 11 (1) (a) of the Suits Valuation Act read with action 99 of the Code of Civil Procedure, the defendants is not allowed to raise he question of pecuniary jurisdiction for the first time in the execution proceedings under Section 47, C.P.C. The respondent valued the property in suit at Rs. 18,

000. When the trial commenced before the Civil Judge, it was open to the defendants/applicants to rely on the statement in the plaint and dispute the jurisdiction of the Court. Had lien been done, the plaintiff/respondent might have asked for amendment and perhaps satisfied the Court by evidence that the market value had been overestimated or under-valued in the plaint. The applicants did not raise any question as to want of jurisdiction arising from the allegation in the plaint. And by is conduct and silence, he treated the market value to be of the amount efficient to give jurisdiction to the Court. He dispensed with proof on the question by his tact admission, and thus the principle of law laid down in section of the Evidence Act came into operation and prevented the result of the statement of the market value in the plaint. Mr. Lari contended that parties cannot by consent give jurisdiction where none exists. That is no where the law confers no jurisdiction. Here the consent is not given to jurisdiction where none exists. Here the consent related to the question of market value. To bring that law into operation, the market value must determined by evidence, where it is in issue. If it is not in issue and is taken to Rs. 18,000 there is no jurisdiction and parties by consent cannot give it. But ere it is not in issue and parties agree, expressly or by conduct, to treat the suit none for property of the value of R.18,000, the maxim of law does not apply. The law does not prevent parties from waiving inquiry by the Court as to facts necessary for the determination of the question as to jurisdiction, where that question depends on the facts to be ascertained. In view of this factual and legal position, the decisions PLD 1962 SC (?)) PLD 1971 SC 124 and PLD 1987 Lah. 268 are not applicable to the facts of this case. The other question namely whether the disposal of the suit was prejudicially affected on merits, the meaning of the expression "Prejudicially affected the disposal of the suit or appeal on its merits" concurring in Section 11 of Suits Valuation Act means the prejudice contemplated by the Section is something different from the fact of the suit or appeal having been heard in a forum which would not have been competent to hear it on a correct valuation of he suit as ultimately determined. The prejudice on the merits contemplated by section 11 must be directly attributable to over-valuation or under valuation. An error in a finding of fact reached on consideration of the evidence cannot possibly be said to have caused by over-valuation or under-valuation. Mere errors in the conclusions on the point for determination cannot, therefore, be held to be prejudice without with the meaning of that Section. The learned counsel for the applicants contended that if there was no proper hearing of the suit or appeal or that had resulted in injustice, that would be prejudicial within Section 11 of Suits Valuation Act, I am unable to agree with him. I have gone through the entire judgment of the trial Court and appellate Court and I am satisfied that no prejudice was caused to the defendants/applicants on merits. There was a fair and full hearing of the parties. The trial Court as well as the first appellate Court gave their decision on consideration of the merits evidence in the case and no injustice is shown to have been resulted in the disposal of the matter. The executing Court was justified in ejecting the objection. The learned Additional District Judge rightly dismissed the appeal. I see no error of jurisdiction in the appellate order of the learned additional District Judge. In the result, the revision petition fails and is hereby dismissed consequently C.M.A. 972/88 has become infructuous. In the circumstances of the case, the parties shall bear their costs. M.Y.H./M-790/K Petition dismissed.