1979 PLP 578 (CLC)

2. The facts are that respondent No. 1 filed a suit for possession of land measuring one kanal situated in Khasra No. .67/28, Chak No. 557/BB, Tehsil and District Vehari along with the shops constructed on it. The plaintiff is the owner of the land. His father had entered into a contract with the defendants for the lease of the said property for a period of 10 years with permission to construct shops over it. It was agreed upon that after the date of the termination of the lease the lesser will be entitled to restoration of possession of the land along with malba thereon on payment of the market value of the malba. Respondent No. 1 valued the land at a sum of Rs. 1,000 and the malba at a sum of Rs. 8,000 for purposes of jurisdiction and payment of court-fee.

3. The suit was contested by the petitioner not only on the valuation of the superstructure but also the valuation fixed for the purpose of jurisdiction and court-fee by plaintiff -respondent No.

1. The learned trial Court found that the word 'malba' in the lease deed meant the superstructure as constructed, market value of which was Rs. 1,00,

000. As the petitioner had already received a sum of Rs. 8,000, he passed a decree in favour of the respondent subject to payment of Rs. 92,000 as the balance of the value determined before 30-9-1977 and also directed to pay court-fee on the market value of the property as determined which was short by Rs. 6,

500. He gave undue concession to the plaintiff by allowing them to deposit this amount at the time of execution instead of passing an order as required by Order VII, rule 11, C. P. C. fixing a definite date for payment of the court-fee and for rejection of the plaint in case the court-fee was not paid by that date.

4. Both the parties felt dissatisfied with this judgment. The petitioner's case is that the market value was not correctly assessed and was on the low side. He, therefore, filed R. F. A. No. 194/78 in the High Court, which is pending. Respondent No. 1 on the other hand filed a revision petition before the learned District Judge treating the valuation to be Rs. 9,000 as originally fixed in the plaint.

5. An objection was taken by the petitioner about the competence of the learned District Judge to hear the revision petition but he did not agree with the contention of the petitioner about the maintainability of that petition before him. The petitioner, therefore, filed Writ Peti tion No. 4534/1978 which was dismissed by the High Court on 25-9-1978 by a short order. It appears that Mr. Munir Ahmad learned counsel for the respondents put in appearance on the first date and submitted that the respondents had moved the District Judge for treating the civil revision as an appeal. The High Court observed that "the question whether an appeal from the judgment and decree of the trial Court lay before the District Judge or in this Court ought to be adjudicated in the ordinary civil Court. In the circumstances I am most reluctant to interfere with the) proceedings pending before the District Judge in writ jurisdiction of this Court. Accordingly I dismiss this writ petition In limine.

6. Sana Ullah petitioner filed in the Supreme Court C. P. S. L. A. No. 526/1978 but that was also dismissed on 12-10-1978 with an observation that if after the final order of the learned District Judge, the petitioner feels aggrieved, he will have the appropriate forum. There was no justification for decision of the subject-matter in a petition under Article 199 of the Constitution.

7. As stated by Mr. Munir Ahmad the respondent filed an application for allowing the revision petition to be treated as an appeal, which was allowed by the learned District Judge by his order dated 7th December 1978.

8. The petitioner again raised a contention before the learned District Judge against the maintainability of the appeal in view of the valuation of the suit being Rupees one lac, but in view of his earlier order dated 6-7-1978 which as stated above had been challenged before the High Court in the writ petition, he repelled this contention.

9. It maybe stated that the learned counsel for the respondents raised two preliminary objections. Firstly he argued that since the Supreme Court had left the matter to be decided by the District Judge by a final order, this petition is premature. He argued that final order in the circumstances would mean a final decree to be passed by him. This contention is not tenable. It is clear that their Lordships of the Supreme Court were merely justifying non-interference with the interim order of the learned District Judge in exercise of the writ jurisdiction of the High Court. Moreover if they had meant to observe that objection to valuation could be taken in an appeal against the final decree of the District' Judge, they would have made it clear that this point could be raised after. such decree only.

10. The learned counsel also argued that the question of court-fee is not a question to be decided in exercise of the revisional jurisdiction. I agree that if the matter pertains only to court-fee it may not be worth while to allow the same to be challenged in a revision petition before this Court. But here the question is of the jurisdiction of the District Judge, to entertain an appeal. If once it is found that he had no jurisdiction over the matter, the impugned order will be treated to have been passed in exercise of the jurisdiction not vested in that Court and this would brine into effect the provisions of section 115, Cr. P. C. This argument is also, therefore, repelled.

11. The only question left to be considered is whether this appeal should have been filed before the High Court or the District Judge. Section 18 of the West Pakistan Civil Courts Ordinance, 1962, as ;it stood on the date of filing of the appeal provided that appeals from a decree or order of a Civil Judge shall lie to the High Court if the value of the original suit in which the decree or order was made exceeds twenty-five thousand rupees and to the District Judge in any other case. Now the amount is raised to Rs. 50,000 by the Civil Courts (Amendment) Ordinance, 1978. The word 'value' is defined in section 2(h) of the said Ordinance as meaning with reference to a suit, the amount or value of the subject-matter of the suit.

12. According to the learned counsel for the respondents the words 'value of the original suit' wean the value as fixed by the plaintiff originally in a suit and not the value as found by the Court. The argument of the learned counsel for the petitioner is the adverse of this. According to him the value as fixed by the plaintiff would be superseded by the value as determined by the Court.

13. In all the three Statutes, via. C. P. C., Suits Valuation Act and the Court Fee Act, the Court has been vested with powers to find out the correct valuation of a suit for purposes of jurisdiction and court-fee: Order VII, rule 11, C. P. C. provides that the plaint shall be rejected inter alia when the relief claimed is under-valued, 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 and where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped and the plaintiff on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court fails to do so.

14. These provisions authorise the Court to correct the valuation for the purpose of jurisdiction as well as of court-fee.

15. In the Suits Valuation Act section I1 makes it clear that point about under-valuation of a suit should be raised before the trial Court and if it is so raised and has not been adjudicated upon by that Court, the appellate Court can decide it either on the material before it or if it has no material, it can remand the- suit to tile Court competent to entertain it.

16. There are several provisions in the Court Fees Act. Section 9 empowers the Court to issue a commission to make local or other investiga tion as may be necessary if it sees reasons to think that the annual net profits or market value of any such land, house or garden as is mentioned in section 7, paragraphs V and VI, has been wrongly estimated. Section 10 provides that if as a result of such investigation, the Court finds that the net profits or market value has been wrongly estimated, the Court in its discretion if the estimation has been excessive, refund the excess paid as such fee, but if the estimation has been insufficient, the Court shall require the plaintiff to pay so much additional fee as would have been payable had the market value or net profits been rightly estimated. 'In such case the suit shall be stayed until the additional fee is paid, and if the additional fee is not paid within such time as the Court shall fix, the suit shall be dismissed.

17. It is worth noting that the refund of the excess court-fee is within the discretion of the Court but it is incumbent upon the Court to call for payment of any deficit court-fee and this is because it is in the interest of the revenues of the country.

18. Section 11 deals with suits mesne profits account when amount decreed exceeds the amount claimed. The additional court-fee is payable if the amount in excess is found out at the time of the decree, Then comes section 12 which provides that every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit.

19. If the expression "the value of the original suit" in section 18(1)(a) of W. P. Civil Courts Ordinance, 1962 is interpreted in the narrow sense as the learned counsel for the respondents would like it to be interpreted, that would lead to absurdity since it would make all the said provisions meaningless. In fact from the numerous authorities cited by the learned counsel it is clear that so far as suits for mesne profits or accounts are concerned, the valuation in the plaint is always to be taken as tentative and if the Court finds that the mesne profits of the amount payable a to the plaintiff' exceeds the amount on which 1.4 has valued the suit he must not only pay the court-fee but the forum of the appeal will also be governed by the valuation so found by the Court. Kalu Ram v. Hanwant Ram (151 1 C 641), Maman Mal v. Abdul Aziz (58 P R 1902), Manna Lai v. Samandu (46 P R 1906) and Budha Mal v. Rallia Ram (A I R. 1928 Lah. 157).

20. The learned counsel relied upon Mahdo Das v. Ramjl Patak (1 L R 16 All. 286), Goswami Sri Raman Lalji Mahraj v. Bohra Desraj (I 'L R 32 All. 222), Muhammad Abdul Majld v. Ala Bux alias Allan (A I R 1925 All. 376), Ishwarappa v. Dhanji Bhanji (AIR 1938 Bom. 111), Kannayya Chettt v. Venkata Narasayya (A I R 1918 Mad. 998) and Bidvadhar Bachar v. Manindra Nath Das (I L R 53 Cal. 14).

21. Except the Calcutta High Court case all the other cases had been dissented from by the Full Bench of the Lahore High Court since it was held in those cases that notwithstanding the amount found payable to the plaintiff, the forum of appeal will be determined by the value as originally fixed by the plaintiff in the suit. I L R 53 Cal. 14 a Full Bench case also lays down similar principle but it is contrary to the view taken by he Calcutta High Court in ljjatulla Bhuyan v. Chandra Mohan (34 Cal. 954') and Gulab Khan v. Abdul Waheed (31 Cal. 365) ratio of which has been approved by the Lahore High Court in the above Full Bench case.

22. The learned counsel also relied upon Iftikhar Ali and others v. Thakar Singh (A I R 1931 Oudh 58) and Mumtaz Begum v. 'Ch. ZuJfiqar Ali (P L D 1960 Lah. 1088) but these cases are distinguishable since the point in those cases, is that in a suit for pre-emption the value for the purpose of appeal is not determined by the pre-emption amount payable but by the value of the suit if it is determined on 30 times of the land revenue or on 15 timer, of the mesne profits for the preceding years.

23. There are some cases which go slightly to support the learned counsel for the respondents. Pitam Singh and another v. hishun Narain and others (A I R 1931 Oudh 58) and Goswaml Sri Raman Laljf Maharaj v. Bohra Desraj (A I R 32 All. 222) are two such cases. In A I R 1931 Oudh 58 it was held that for the purposes of determining the proper appellate Court in a civil suit, what is to be looked to is the value of the original suit, that is to say, the amount or value of the subject-matter of the suit. Such amount or value of subject matter of the suit must be taken to be the value assigned by the plaintiff in his plaint and not the value of the suit as found by the Court unless it appears that either purposely or through gross negligence, the true value of the suit has been altogether misrepresented in the plaint. It was a suit for possession and mesne profits. The value of the suit raised by the plaintiff himself was Rs. 2,08996 which as found by the Court was Rs. 5,748.20. It was held on the above principle relying upon Madho Das v. Ramjia Patack (1 L R 16 All. 286) and Nilmony Singh v. Jagabandhu Roy (1 L R 23 Cal. 536) that the appeal ought to have been filed before the District Judge.

24. Now I L R 16 All. 286 upon which reliance was placed in the Oudh case had been dissented from by the Full Bench of the Lahore High Court referred to above. Moreover the option should be either about the value determined by the plaintiff initially or about the value as determined by the Court. The Oudh Chief Court agreed in this case that the value as determined by the Court can decide the forum of appeal. If it is so I do not see how it would be possible to fall back in some cases upon the valuation put by the plaintiff despite determination to the contrary by the Court. This will amount to using two standards. The principle that value determined by the plaintiff should be ignored only if it is to capricious, is itself arbitrary and without legal support. I am, therefore, respectfully in disagreement with this principle.

25. In Muhammad Sharif v. Naivab Din and another (P L D 1957 Lah. 283) it was argued that under section 39 of Punjab Courts Act an appeal shall lie to the District Judge in a case where the value of the original suit is not more than Rs. 5,

000. It was observed by B. Z. Kaikaus, J. that "I am prepared to accept this argument subject to a reservation. This reservation is that if an order which arises out of a suit, awards a sum of not less than Rs. 5,000 then although the value of the original suit as initially fixed was less than Rs. 5,000 an appeal shall lie not to the District Judge but to the High Court.

26. This observation makes it -clear that His Lordship had interpreted the words "value of the original suit" as meaning the value as modified by the Court.

27. I may also refer to Goswami Sri Raman Lalji Maharaj v. Bohra Desraj (I L R 32 All. 222). In that case it was laid down as a principle of law that if the value of the original suit is modified by the Court and that value is accepted by the plaintiff, that would be the value for the purpose of determining the forum of appeal but if the value is not accepted by the plaintiff, the forum of appeal will be determined by the value as originally fixed by the plaintiff. This principle is contrary to the principle laid down by High Court of Lahore. In Kaluram v. Hanwantram although it related to the tentative valuation. It was held by the Full Bench of the Lahore High Court dissenting from a number of cases that the valuation determining the forum of appeal is the one which is ultimately found by the Court. But otherwise also this does not take into consideration the principle of section 12 of the Court Fees Act which provides that decision of question on valuation for the purpose of court-fee by the Court would be final as between the parties.

28. Faced with this situation the learned counsel for the respondent, contended that section 12 will not apply to a case under the Suit Valuation Act. I agree it will 'not apply where the valuation for the purpose of court-fee is distinct from the one for the purpose of jurisdiction. But this objection will not help where, as in the present case, in a suit for possession of the shops, the value for both the purposes would be identical. In such a case if the valuation is final regarding court-fee, it will obtain finality on account of its being identical in regard to the jurisdiction also.

29. I may refer at this stage to Sri Ram v. Sohan Lai etc. (A I R 1938 Lab. 311) which clinches the matter, In that case it was held that once a Court determined the market value the forum of appeal depended upon that finding especially in a case where the plaintiff did not challenge the finding on the market value. This case was cited by the learned counsel for the respondents in order to lay emphasis on the words "especially in the case where the plaintiff did not challenge the finding on the market value" but the principle laid down in the first portion is clearly applicable to this case since it says that "once a Court has determined the market value the forum of appeal will depend upon that value". I am also of the view that the forum of appeal will be determined in a case where the valuation is not change by the Court, by the value as fixed by the plaintiff but in a case where such a valuation has been changed by the Court after determining the real market value of the property, it will be that valuation which will b deemed to be the value of the original suit within the meaning of section 1 because the word 'value' means the value of the subject-matter of the suit. I am also of the view that in such a case whether the plaintiff contest the valuation arrived at by the Court or acquiesced in it, in either case the form for appeal will be determined by the valuation so found.

29. In the present case the valuation has been found to be Ra. 1,00,000 and for prima facie good reasons. The plaintiff had valued the suit for building constructed over the land as if the same had been demolished or should be demolished since according to him the valuation was of 'malba' and not of the superstructure as it stands. Even if Pitam Singh v. Bdshan Narain (A I R 1931 Oudh 58) is applied, the value as fixed by the plaintiff was prima facie too arbitrary. I am, therefore, of the view that the appeal should have been filed before the High Court.

30. Before closing this case I may observe that the learned District Judge instead of relying upon the earlier order of his predecessor which was passed in revision petition should have decided the case afresh since it was conceded before him by the respondent himself that the revision petition was not competent. In this view of the matter that order did not bold the field at all.

31. I, therefore, allow this petition, without any. Order as to costs, set aside the order dated 18-1-1979 and direct the learned District Judge to return the memorandum of appeal to the respondent for presentation to this Court. If the record had been before me, I would have returned the memorandum of appeal to the respondent to enable him to file the same with an application under section 14 of the Limitation Act before the High Court. But I have to give this direction to the learned District Judge since the file is not before me. Revision accepted.