P L D 19 (PLP)

"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 make‑s 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." The question as to whether the High Court, under section 115 of the Code of Civil Procedure, could revise an order; with regard to the valuation of the suit, which was in favour of the plaintiff, was not dealt with in this case, but the general obser vations made by their Lordships indicate that, in such a case, unless the plea had been raised at the earliest opportunity, no interference should be made.

4. The learned counsel for the petitioner did not dispute the propositions of law laid down in the above‑mentioned authorities. In fact, he himself referred to a case decided by a Full Bench of the Patna High Court, reported as Ramkhelawan Sahu v. Bir Surendra Sahi (I L R 16 Patna 70), in which it was held that where a decision, on the question of Court‑fee was in the favour of the plaintiff, it was not open to the defendant to apply to the Court for revision. He, however, contended that as the objection raised before the trial Court was not merely of insufficiency of Court‑fee, but was also that that Court had no jurisdiction to try the suit, the case is not covered by the authorities referred to above, and the, order in question is reviseable. To support this contention, he referred to a case of the Privy Council, reported as Joy Chang Lal Babu v. Kamalaksha Chaudhury and others (AIR 1949 P C 239 : P L D 1949 P C 114). In this case it was held] that although error in a decision of a subordinate Court did not, by itself, involve that the subordinate Court had acted illegally, or with material irregularity, so as to justifv Inter ference, in revision, under subsection (c) of section 1 15 of the Code, nevertheless, if the erroneous decision resulted in the a subordinate Court exercising a jurisdiction not vested in it by law, or failure to exercise a jurisdiction so vested, a case for revision arises under subsection (a) or subsection (b)l of section 115 of the Code. The learned counsel for they respondent very frankly, conceded that if the Court in which this suit was pending at the relevant time was not competent to try it, the objection, as to jurisdiction. could be raised in a revision petition and such an order can be revised under section 115 of the Code. If, therefore, the Court in which this suit was pending at the relevant time could not try it, because of want of pecuniary jurisdiction, the order passed by it is reviseable under section 1 15 of the Code.

5. I was shown a notification issued under the authority of the Lahore Bench of the West Pakistan High Court, on the 9th September, 1958, by means of which powers of a Civil Judge of fourth class were conferred on the presiding officer of the trial Court, namely, Mr. Shafi‑ur‑Rehman. The order. which is being challenged by this revision petition was passed within two weeks of the aforesaid notification, and it has not been shown that in between the date of the aforesaid notifica tion and the date of the order in question any other notification, enhancing the pecuniary limits of jurisdiction of the presiding officer, was issued by the High Court, or the Provincial Government. That being so, if the value of the property in dispute was more than Rs. 1,000, Mr. Shafi‑ur‑Rahman had no jurisdiction to try the suit and the order passed by him can be revised by this Court. The preliminary objection raised by the respondent, for reasons given above, is therefore, overruled.

6. Coming now to the merits of the case, as stated above, for its decision the trial Court relied on a case of the Oudh Chief Court, reported as Mehdi v. Gajadhar. It was i held in this case that in a suit for a possession by a usufructuary mortgagee the subject‑matter is to be valued, for Court‑fee purposes, at the amount of mortgage money and that, in such a case, the words "market value" in section 7 of the Court fees Act mean the market value of the subject‑matter of the suit, namely, the mortgagee's interest in the property. The trial Court also referred to a case of the Sind Chief Court, reported as Tyabali A. Mandaviwalla v. Parpatibai and others (A I R 1932 Sind 73), in which it was held that where in a suit brought for possession of a house the defendant was in possession only of the rooms on the upper floors, the value of possession, which the plaintiff sought, was not the value 'of the whole property and the plaintiff could value toe relief at 12 times the monthly rent which the portion in the occupation of the defendant would yield.

7. For the opposite side, reference was made to a case decided by a Division Bench of the Oudh Chief Court, which has been reported as Sheo Ram Singh and others v. Barkau Singh and another . (A I R 1931 Oudh 366). In this case it was held that there was no justification for reading into clause (v) of section 7 of the Court‑fees Act the word " proprietary ", qualifying the nature of the possession, and that suits for possession of land, houses and gardens, whatever may be the nature of possession, proprietary, under‑proprietary lessee's possession, tenant's pos session, or mortgagee's possession, should be treated as "suits for possession" within the meaning of the said clause, and that clause (ix) of section 7 of the Court‑fees Act was inapplicable to such cases.

8. Clauses (v) and (ix) of section 7 of the Court‑fees Act, referred to above, read as follows : ‑ "(v) In suits for the possession of land, houses and gardens according to the value of the subject‑matter ; and such value shall be deemed to be (a)* ** x (b) (c) * * * * * * (d) * * * * * :x * (e) where the subject‑matter is a house or garden according to the market‑value of the house or garden ;" "(ix) In suits against a mortgagee for recovery of the property mortgaged. and in suits by a mortgagee to foreclose the mortgage, or, where the mortgage is made by conditional sale, to have the sale declared absolute‑according to the principal money expressed to be, secured by the instrument of mortgage :" In Mahdi v. Gajadhar, relied upon by the, trial Court, it was not held that such suits are governed by clause (ix) of section 7 of the Act, but the Court came to the conclusion that the words "market value " meant the market value of the subject matter of the suit, namely, the mortgagee's interest in the property and not the "market value' as that expression is generally understood. In my opinion, this view of the law does not appear to be correct. The view taken by a Division Bench of the Oudh Chief Court, subsequently, in the case reported as Sheo Ram Singh and others v. Barkau Singh and another seems to be correct and is supported by the language of the relevant clauses. Even if this authority had not been there, I would have been inclined to hold that the expression "market value" occurring in clause (v) above could not be construed to mean the value of the mortgagee's rights if the suit was by a mortgagee for possession of the property mortgaged with him. Clause (ix) of section 7 of the Act applies to a suit against a mortgagee for recovery of the property mortgaged and if the intention of the Legislature had been that even such suits for possession by mortgagees should be valued in accordance with the amount of principal money expressed to be secured by the instrument of mortgage, that intention would have been made clear by using appropriate words in clause (ix). This clause covers only two kinds of Wits by mortgagees, one to foreclose the mortgage, and the other to have a mortgage by conditional sale declared absolute, but the Legislature refrained to include, in this clause, suits for possession of the mortgaged property by a mortgagee. Such suits are governed by sub‑clause (e) of clause (v) of section 7 of the Act, and for determining the value of the subject‑matter of such suits the principle underlying clause.(ix) cannot be applied. The market value of the subject‑matt r in such a suit has, therefore, to be the value of the property involved, even though the plaintiff does not claim full proprietary rights in that property.

9. The case decided by the Sind Chief Court, which has been reported as Tyabali A. Mandaviwala v. Parpatibai and others, can have no application to the facts of the present case, because the market value of a portion of the property which was being claimed by the plaintiff was fixed arbitrarily at 12 times the monthly rent, though the suit was for possession and was not a suit by a landlord for ejectment of the tenant, falling within the purview of clause (xi) of section 7 of the Act. The principle laid down in this reported case does not appear to be a sound one and cannot be applied generally in such cases.

10. For reasons given above, I am of opinion that the' subject‑matter of the suit. which consists of a part of the property mortgaged, should have been valued in accordance with its prevailing market value and not in accordance with the amount of the mortgage money secured by the instrument of mortgage. The revision petition is, therefore, accepted. The order dated the 24th September, 1958, is set aside and the case is returned to the Court concerned for re‑decision in accordance with law, in the light of the remarks made above. In the peculiar circumstances of the case, I make no order as to costs. Petition accepted.