1990 PLP 1891 (CLC)

This first appeal has been filed by the present appellants challenging the final decree passed by the learned Senior Civil Judge, Sukkur in F.C. Suit No.97/1981 (old No. 81/69 whereby the suit of the present respondents was decreed for an amount of Rs.2,23,299 only. The facts leading to present appeal are that the present respondents were given a contract of Wahid Gul forest lots Nos.7 and 8 by the present appellant for a sum of Rs.1,35,000 and Rs.20,200 respectively and also the lot No.l of Gundak Forest and lot No.2 Rountee Forest for Rs. 61,000 and Rs.44,100 respectively. These contracts were given through public auction. The present respondents cut the trees as per the terms of contract and then on their application they were allowed to remove the said material to Sukkur on condition that the entire material brought to Sukkur will be pledged with the Divisional Forest Officer Sukkur and the same will be released on payment of the value and that the chowkidar will be appointed by the D.F.O. Sukkur at the cost of the present respondents. Such pledge was executed by the present respondents. It is also the case of the present respondents in the suit that they had made some payment before the execution of the said pledge and proportionate material was released by the present appellant No

3. It is further the case of the respondents that on some occasions the respondents were allowed to remove the material on payment of proportionate amount but thereafter the present appellant No.3 did not allow them to remove the stock. The present respondents, therefore, filed the present suit for accounts and damages. The present appellants did not file their written statement but in spite had been seeking adjournments for considerable long time as such the learned Senior Civil Judge ordered the suit to proceed ex parte against them and ultimately the preliminary decree was passed on 31‑3‑1970 whereby the suit of the present respondents was decreed for settlement of accounts. However, it was observed that the damages if any will be determined after settlement of accounts. An appeal, Civil Appeal No. 134/1970, was filed against the said preliminary decree which was dismissed on 23‑2‑1971. The Commissioner was appointed who had taken the accounts and submitted his report whereby he found that the present respondents were liable to pay an amount of Rs.1,36,711 to the present appellants being balance of contract value. As against this he found that the present respondents were not allowed to remove the pledged material for no fault of theirs and that the present appellants had prevented them for taking their material, the value of which the Commissioner ascertained to be Rs.3,60,

000. From this the report of the Commissioner shows that the present appellants were liable to pay amount of Rs.2,23,299 to be due against the present appellants. The objections were filed by the present appellants to the said report and the learned Senior Civil Judge after hearing the advocates for both the sides was pleased to uphold the report of the Commissioner and passed the final decree. It is against this final decree that the appellants have filed the present appeal. Learned counsel for the respondents has also moved an application under Order 7 Rule 10, C.P.C. read with section 151, C.P.C. being C.MA. 149/1990 with the prayer that the appeal be returned to the appellant for presentation before the District Judge as the value of the suit is less than Rs.50,000 and the same would fall within the jurisdiction of District Judge. I have heard Mr. Muhammad Siddiq Kharal, Additional Advocate‑General Sindh for the appellants and Mr. Abdul Latif Memon, learned counsel for the respondents. Learned Additional Advocate‑General Sindh has mainly contended that the lower Court has erred in confirming the report of the Commissioner and that the Commissioner, while taking accounts has not taken into consideration the amount of penalty imposed by the present appellants which the respondents were liable to pay and had to be adjusted from the amount found due to them. He has further submitted that since the final decree is for an amount of Rs. 50,000 the appeal would lie before the High Court as provided under section 18 of the Civil Courts Ordinance, 1962. As against this Mr. Abdul Latif Memon, Advocate has submitted that the liability to render accounts as against the present appellants stood established when the preliminary decree was passed and the preliminary decree has attained finality and the same cannot be reopened now in the present appeal as the appeal filed against the said preliminary decree has been dismissed and no further appeal or civil revision was filed. The learned District Judge observed it. "There will, however, be no charge for the wood that has not been supplied to the respondents". However, without going into merits at this stage I would first take up the plea raised by the learned counsel for the respondents with regard to pecuniary jurisdiction involved in the present appeal. Mr. Abdul Latif Memon, learned counsel for the respondents has submitted that section 18 of the Civil Courts Ordinance 1962 as amended upto date provides that where the value of the original suit is less than Rs. fifty thousand, an appeal would lie before the District Judge. It will be advantageous to reproduce the relevant section which reads as under: "Appeals from Civil Judges.‑‑(1) Save as aforesaid an appeal from a decree or order as 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 fifty thousand rupees, and (b) to the District Judge in any other case. (3) ..................... The learned counsel for the respondents has placed reliance on the case of Muhammad Nawaz v. Sher Muhammad (P L D 1987 SC 284) wherein the Rule laid down by the Hon'ble Supreme Court in the case of Illahi Bux and others v. Mst. Bilquees (P L D 1985 SC 393) has been held to govern the case. Relying on the above two cases the learned counsel for the respondents has submitted that this is a fit case where the appeal should be returned to the present appellants for presentation before the Court of District Judge. As against this Mr. Muhammad Siddiq Kharal, Additional Advocate‑General has submitted that the above‑cited two cases pertain to the pre‑emption suits and the subject‑matter involved in the said cases was agricultural land. Whereas the present suit is for accounts in which the amount finally found due is above Rs. 50,000, therefore, this should be the value of the suit. I have given anxious consideration to the submissions of the learned counsel and also the case‑law cited as above. It may be observed that the words "original suit" as appearing in subsection (1) clause (a) of section 18 are very pertinent. It clearly shows that the value of the original suit is to be taken into consideration while determining pecuniary jurisdiction of the appellate Court. In the above‑cited case of Illahi Bux v. Mst. Bilquees (P L D 1985 SC 393), the point under consideration was valuation of the land and the suit being for pre‑emption was valued under section 7 (v) and (vi) of the Court Fees Act, wherein the valuation was to be done in accordance with the value of the land according to the formula as provided in the above clauses of section

7. It may also be pertinent to note that in the same judgment my Lord Mr. Justice Nasim Hasan Shah has observed that the suit for pre‑emption is a suit for possession of agricultural land and valuation is to be made on the basis of Land Revenue as provided in clause (v) of section 7 Court Fees Act and not to be computed or calculated on the basis of its market value. However, it has been further observed: "It may, however, be observed that we have not been able to appreciate the wisdom, of the Legislature in fixing a notional value of purposes of court‑fee and jurisdiction in the case of pre‑emption suit for possession of agricultural land. The fixation of such a value for suits for possession of land simplieiter is perhaps understandable but the extension of the principle to pre‑emption suits does not appear to be reasonable and the instant case is an apt example of its unreasonableness. Herein admittedly the market value of the land was Rs. two lacs, but on account of the artificial rule governing the matter its value for purposes of court‑fee was fixed at Rs. 1,520 and that for jurisdiction Rs.4,560.30. Remedial legislative action is obviously desirable. In fact, this has already been pointed out by this Court in Shahana Khan v. Aulia Khan (P L D 1984 SC 157) Civil Appeal No.184 of 1980, decided on 21st November, 1983 wherein it was observed, inter alia: "If a pre‑emptor is ready to pay the price paid by the vendees or whatever is determined by the Court as the price payable by him, he should be ready to pay the court‑fee accordingly (if, of course, on principle the court‑fee is made leviable at the limit of the value concerned)." We expect the Ministry of Justice to give due consideration to the above aspect and direct that a copy of this judgment be forwarded to the Secretary, Government of Pakistan in the Ministry of Justice, Islamabad for this purpose." The similar view has been taken by the Hon'ble Supreme Court in the other case of Muhammad Nawaz v. Sher Muhammad (P L D 1987 SC 284). With all respect to the above‑cited decisions of the Hon'ble Supreme Court, I may humbly observe that the present suit being a suit for accounts is on different footing and is to be valued under the provisions of section 7 (iv) (f) of the Court Fees Act which provides:

7. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows: (i) ................. (ii) Iv In suit‑ (a) ................ (b) ................. (c) ................. (d) ................. (e) . (f) for accounts‑‑ according to the amount at which the relief sought is valued in the plaint or memorandum of appeal; In all such suits the plaintiff shall state the amount at which he values the relief sought." From the above provisions it is obvious that the choice in such suit is that of the plaintiff to value his suit according to amount as shown by him. In the present case the valuation of the suit is made by the plaintiff in clause 12 of the plaint wherein he has shown the two reliefs of accounts and damages to be valued at Rs.200 each. It is from this that the original value of the suit is determined by plaintiff which is Rs.

400. However, in the same clause 12 the plaintiff further said that the said value is tentative and he will pay court‑fee when the exact amount of damages is ascertained by the Court. In the present suit as stated above the B plaintiffs have not given any fixed value in suit but have valued the suit only tentatively with undertaking that they will pay further court‑fees stamps when the final amount is determined which amount in the present case is determined at Rs.2,23,299 and, therefore, this should be the amount which can be said to be value of the original suit. Not only this but learned Senior Civil Judge while passing the final decree should have called upon the present respondents/plaintiffs to pay the further court‑fees stamp as required under Court Fees Act as the suit for accounts is to be valued ad valorem. In the case of Kala Ram v. Hanwant Ram and others (A I R 1934 Lahore 488), a Full Bench of the Lahore High Court comprising of 5 Judges have observed:‑ "From what has been stated above it follows clearly that in suits for recovery of money on unsettled accounts the "value as determinable for computation of Court‑fee" is the value as given in the plaint unless it is enhanced by an adjudication of the Court that a higher sum is due, in which case it is this latter sum which becomes the value on which court fee is computed and which therefore is also the proper value for purposes of jurisdiction. But there is no variation of value as originally fixed in the plaint if the amount found due is less than that claimed or if the suit is dismissed, the plaintiff being held entitled to nothing. In the last mentioned classes of cases the value for computation of court‑fee is also the value for purposes of jurisdiction. Applying this rule to the present case, it must he held that the "value of the subject‑matter of the original suit" is Rs. 8,000 as stated in the plaint, and not 3,375‑4‑6 for which the subordinate Judge had passed a decree and therefore under S. 39 (1) Punjab Courts Act, appeals against that decree, whether instituted by the plaintiff for enhancement of the decretal amount or by the defendant for the total dismissal of the suit, lie to this Court." Same principle has been followed by the Full Bench of Lahore High Court in the case of Ganga Ram v. Hakim Rai and another (A I R 1934 Lahore 545 (2). From the above discussion it may be observed that in the case of suit for accounts where the value of the original suit is enhanced by an adjudication on taking accounts and finding a higher sum to be due then in that case the latter sum becomes the value on which the court‑fee is to. be computed and which thus is the proper value for the purposes of jurisdiction and the jurisdiction of the Court to which the appeal would lie is also to be determined in accordance with this latter value. In the case in hand the amount found due is above Rs.50,000 and, therefore, I am of the view that the appeal lies before the High Court and not before the District Court. Now I proceed to consider the appeal on merits. Mr. Muhammad Siddiq Kharal, the learned Addl. A.‑G. has submitted that the learned lower Court while passing the order and final decree has ignored to take into consideration the objections filed by the present appellants to the Commissioner's report. He has submitted a copy of the objections which is on the record. The learned Addl. A.G. has submitted that the preliminary decree in the suit shows that the suit was decreed only for settlement of accounts and it was ordered that the damages, if any, would be determined after the settlement of accounts but the impugned order in final decree does not show if any such damages have been determined. He has further submitted that the report of the Commissioner shows that the amount which is found due against the present appellants is the loss and damage which the present respondents/plaintiffs have sustained. It is also the contention of the learned Addl. A.‑G. that even the Commissioner himself has not taken into consideration the objections raised before him by the present appellants. The learned Addl. A: G. has pointed out that in the objections the appellants from their accounts have shown the quantity of wood which was left at the place of storage at Sukkur by the present respondents which was taken over by the present appellants on account of failure by the present respondents in payment of the due instalments within time. The said objections also show that such seized quantity of wood was put to auction and an amount of only Rs. 52,000 was realized from the said wood which facts were to be taken into consideration. The learned Addl. A.G. has further submitted that as per the terms of agreement between the parties the respondents had to pay the contract money by way of instalments by the dates as mentioned in the contract and having failed to pay the said amounts it was the present respondents who were guilty of the violation of the contract and not the present appellants. He has further submitted that the learned lower Court while passing the order on the Commissioner's report has not taken into consideration all these abovementioned facts but has simply confirmed the report of the Commissioner without assigning any reasons. Mr. Abdul Latcef Memon, the learned counsel for the respondents has not been able to meet the above submissions of the learned Addl. A.‑G. The impugned order passed by the learned lower Court on the Commissioner's report shows that the Commissioner's report has simply been confirmed without taking into consideration the objections filed by the present appellants. In these circumstances I would allow this appeal, set aside the final decree passed by the lower Court and remand the case back to the Court of Senior Civil Judge, Sukkur to pass a fresh order after giving due hearing to the advocates for the parties and taking into consideration the facts mentioned by the appellants in their objections filed to the report of the Commissioner. However, there will be no order as to costs. H.B.T./G‑207/K Appeal Allowed.