P L D 2005 Lahore 310 (PLP)

(i) to get the rebate/claim to the extent of Rs.7,000,000 in the total lease amount ; (ii) to get declaration of order dated 12‑6‑1998 demanding further amount by the respondent as illegal and unlawful; (iii) to get consequent mandatory injunction against the respondent -defendant to adjust Rs.7,000,000 in the accounts of the petitioner‑plaintiff and also to refund of the balance outstanding amount; and (iv) to get a perpetual injunction restraining the respondent‑defendant from claiming the notice/ordered amount of Rs.5,227,730 per memo. dated 1‑6‑1998.

5. The pleadings and the prayer in the plaint show that the petitioner‑plaintiff claimed and sought a decree for the adjustment of Rs.7,000,000 and for the refund of further balance, if any and also a restraint decree against the respondent‑defendant from claiming Rs.5,227,

730. This claim of course had to be adjudicated upon by the learned trial Court in order to commence the process of adjudication, the written statement was sought from the respondent‑defendant. The same was submitted. However, the respondent‑defendant failed to raise any objection as to the incorrect valuation of the suit or qua the arbitrariness of the plaintiff in determining the value of the suit at Rs.25,

000. The reply to Para. 17 in the written statement was that the contents of plaint's Para. 17 were legal. In absence of any objection to the valuation of the suit for the purposes of jurisdiction and the court‑fee, no issue was framed by the learned trial Judge. On recording the evidence, the learned trial Judge dismissed the suit of the petitioner‑plaintiff through judgment and decree dated 29‑5‑2000. The petitioner filed an appeal there-against before the learned Additional District Judge on the basis of the valuation of the suit at Rs.25,000 and its notation in the decree. The learned Additional District Judge as the first appellate Court returned the memo. of appeal on the ground that it was the claim in the plaint and the prayer made therein that determined the forum of appeal and not the valuation of the suit, as made by the petitioner‑plaintiff in the present case.

6. As per the learned counsel for the respondent, this order was accepted by the petitioner and the memo. of appeal was received back by the petitioner‑plaintiff. The petitioner as the plaintiff and the appellant was thus estopped from questioning the impugned order dated 29‑5‑2000 in the present civil revision.

7. The simple question requiring decision is as to whether the valuation fixed in the plaint by the petitioner‑plaintiff was relevant to determine the appellate forum or the claim made in the plaint by the petitioner‑plaintiff.

8. The law is well‑settled. The Hon'ble Supreme Court of Pakistan in the case of "Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others" (1999 SCMR 394) settled the legal position by observing that the A forum of appeal was to be determined on the valuation of the suit as mentioned in the plaint and not as per the price fixed for the disputed property by the learned trial Court in its judgment and decree the Hon'ble Supreme Court of Pakistan observed as under:‑ "In order to resolve the controversy in hand, it will be advantageous to reproduce section 18 of the Civil Courts Ordinance, 1962, which reads as under:‑ "

18. Appeals from Civil Judges.‑‑(1) Save as aforesaid, an appeal from a decree or order of a Civil Judge, shall lie‑‑‑ (a) to the High Court if the value of the original suit in which the decree or order was made exceeds five hundred thousand rupees; and (b) to the District Judge in any other case." The important aspect is to note `value of the original suit' occurring in the above provision. `Value' has been defined in clause (h) of section 2 of the aforesaid Ordinance, which says that with reference to a suit, it means the amount or value of the subject‑matter of the suit. Plethora of case‑law discussed by the High Court in the impugned judgment fortifies the view that the forum of appeal is to be determined according to the value of the suit as mentioned in the plaint and the fixation of the price of the disputed property by the trial Court is totally irrelevant, because the judgment is yet to attain finality. In this view of the matter, we are also of the view that the Additional District Judge erroneously returned the memo. of appeal."

9. Following the above judgment, this Court in the case of "Muhammad Younas v. Surya Bibi and another" (2003 MLD 168) held that the valuation of the suit for the purpose of jurisdiction as fixed by the plaintiff in the plaint determined the forum of the appeal wherefor the learned Additional District Judge was wrong in considering the claim in the suit as the relevant fact. In the case of "Nazir Ahmed and another v. Muhammad Tahir and another" (PLD 1992 Lahore 89), it was adjudged that the learned District Judge could not take exception to the suit value fixed by the plaintiff in the plaint for determining the appellate forum.

10. In view of the law settled by the Hon'ble Supreme Court of Pakistan in the case of "Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others" (1999 SCMR 394), any observations made in the case of "M/s State Life Insurance Corporation and 3 others v. Fazal Muhammad and 3 others" (1982 CLC 1162) or "Adamjee Paper and Board Mills Ltd v. Maritime Agencies. Ltd." (1984 CLC 440) relied upon by the learned counsel for the respondent cannot be given preference. In 'these cases, however, the question of arbitrariness of fixation of the court‑fee was under adjudication by the Court. In the present case, no question of arbitrariness was raised before the learned trial Court by the respondent as defendant. Furthermore, in the above referred case reported as 1984 CLC 440, it was observed that the Court had the power to direct the plaintiff to correct the valuation of the suit in the pleadings of the plaint. No such direction was made in this case. Instead the memo. of appeal was wrongly ordered to be returned to the petitioner by the learned Additional District Judge.

11. In view of what has been discussed above, I am of the opinion that the impugned order dated 1‑9‑2000 of the learned Additional District Judge, Gujrat has been passed on wrong interpretation of the law on the subject. The same is thus unsustainable for having been passed without jurisdiction. The impugned order dated 1‑9‑2000 is therefore set aside.

12. Upon setting aside the impugned order dated 1‑9‑2000, the natural consequence is to hold the appeal filed by the petitioner as pending. The learned counsel for the respondent informed the Court that the memo. of appeal on return was received by the petitioner as per the g directions of the learned Additional District Judge in the impugned order. In my opinion, receipt of memo. by the petitioner does not affect petitioner's right or the remedy before the proper appellate Court. The impugned order dated 1‑9‑2000 has been held to be without jurisdiction and unlawful, therefore, any administrative or managerial act undertaken pursuant thereto is also illegal. Furthermore, the receipt of the memo. of appeal upon the order of return by the learned first appellate Court was an involuntary act of the petitioner. He did not voluntarily withdraw the appeal under the principals of Order XXIII read with Orders XLI & XLHI of the Civil Procedural Code. Instead he sought adjudication from the first appellate Court by filing his appeal within the period of limitation. The memo. of appeal was ordered to be returned upon wrong interpretation of the law by the learned Additional District Judge, Gujrat. This order placed the petitioner under an unwanted compulsion which was neither caused nor was consented to by the petitioner. As such return by the registry of the learned first appellate Court of the memo. of appeal to and its receipt by the petitioner could not attract the principles of estoppel against the petitioner to deny him of his vested right to the remedy of an appropriate appeal.

13. The appeal shall, ' for the above reasons, be deemed to be pending before the learned first appellate Court. The memo. of appeal, as per the learned counsel for the petitioner, was filed along with the present civil revision. The same shall be returned to the petitioner urgently and without loss of further time. The petitioner shall represent the same before the learned first appellate Court for consideration and decision of the appeal in accordance with the law. The reasonable time consumed by the petitioner in receiving the original memo. of appeal back from the office and representing the same before the learned Additional District Judge shall not be held against the petitioner. Interest of justice requires an expeditious decision of the appeal.

14. This civil revision is accepted in above terms with no order as to the costs. S.A.K./M‑852‑L Revision accepted.