2011 PLP 748 (CLC)

SHER MUHAMMAD KHAN, J.

Petitioners in Civil Revision No. 137 of 2010, hereinafter called the plaintiffs, filed Suit No.209/1 of 2001 against respondents, hereinafter called defendants, in the Court of Senior Civil Judge, D.I. Khan, for rendition of accounts, declaration, perpetual mandatory and directory injunction and possession to the extent of 1/2 shares, with regard to their joint business and property fully mentioned in the heading of the plaint which was entrusted for disposal to learned Civil Judge-V, D.I. Khan.

2. In the averments of the plaint, the plaintiffs stated that plaintiff No. 1 was Government servant as Sub-Engineer in D.I. Khan since 1965 till 1973, who afterwards resigned from his service. During that period, he developed friendly relationship with predecessor-in-interest of defendants Nos.1 to 3 namely Khadim Hussain, who at that time was serving with his co-villager namely Ghulatn Qadir Khan, in his Medical Store known as Mangla Medical Hall. Khadim Hussain was honest, trustworthy and confidence-inspiring person, who quit his service with Ghulam Qadir and became jobless. Being experienced in business, plaintiffs entered into a contract with him for carrying out joint business. According to verbal terms of contract, the entire capital was provided by plaintiffs and it was mutually agreed that Khadim Hussain would run the business and render services, which would make him entitle to receive half share in the profit of the business. Consequently, business between the parties started in the name of Lahore Medical Store in rented Shop No.C/4842'situated in Commissionery Bazar (Bhatia Bazar), D.I. Khan. There were few Medical Stores in D.I. Khan, therefore, the business of the parties flourished successfully and it was mutually decided to jointly purchase landed property with the profit of the business.

3. It is further alleged in the plaint that sufficient agricultural, commercial and residential property was purchased by the business partners through registered sale-deeds either in their own names or in the names of Benamis (Muhammad Ramzan defendant No.9 and Pir Ghulam predecessor of defendants Nos.10 to 17) the detail of which is fully described in the heading of the plaint. The plaintiffs' claim was that they are entitled to recover initial ingested capital to the tune of Rs.4,00,000 over and above from the assets and in the remaining they are entitled to 1/2 shares.

4. According to averments of the plaint, the defendants were time and again asked for rendition of accounts and to admit claim of the plaintiff but they denied, therefore, the filing of suit was necessitated.

5. Defendants were summoned by the trial Court, who filed their respective written statements, except defendants Nos.10 to 17 (legal heirs of Pir Ghulam), rest denied the claim of plaintiffs on various legal and factual grounds, the divergent stances were reduced into as many as 14 issues by the trial Court. Parties lead their respective evidence as they wished and the learned trial Court vide judgment/decree dated 23-5-2008 passed preliminary decree in favour of plaintiffs for rendition of accounts regarding business of Lahore Medical Centre since 1967 till 1998; for rents of the Lahore Market with effect from 1-1-1984 till June, 2000; for Kamran Medicine Company since its establishment till the date of decree, declared the plaintiffs owners to the extent of 1/2 shares in the property mentioned in the heading of the plaint along with consequential relict of perpetual-cum-mandatory injunctions and possession. The firm in question was dissolved.

6. During proceedings in the trial Court, receivers were appointed to collect the rent and other income of the disputed properties; therefore, they were directed to deposit the collected rent and value of produce in the Court within one month. Their services were terminated for future.

7. Petitioners (Defendants Nos.1 to 3) and respondent No.11 in C.R. No. 109 of 2010 preferred Appeals Nos.31 of 2009 and 32 of 2009 respectively against the judgment/decree passed by learned Civil Judge-V, D.I. Khan, before the District Judge, D.I. Khan who was pleased to entrust the same to the learned Additional District Judge-II, D.I. Khan.

8. The same petitioners, on 24-10-2009 filed separate application before the appellate Court for framing additional issue regarding the value of the suit. The contention in the application was that the plaintiffs have not properly valued the suit for the purpose of jurisdiction and court-fee, in spite of the fact that petitioners have agitated the same in their respective written statements.

9. The learned appellate Court, after hearing the arguments of learned counsel of the parties, passed an order on 13-2-2010 and allowed the application of petitioners by framing the following issue:-- Whether the plaintiffs have properly valued their suit in the valuation clause of the plaint?

10. The learned appellate Court after framing the above mentioned issue in the same order held that it is not competent to entertain both the appeals on merits and instead of deciding the additional issue itself, remanded the case back to the trial Court for framing and deciding such additional issue. The appeals filed before it were returned to respective appellants for presenting the same to the Court of competent jurisdiction.

11. Petitioners in C.R. No.109 of 2010, (defendants Nos.1 to 5) have challenged the judgments/decrees passed by learned appellate Court as well as trial Court with the prayer to remand the case back to the learned trial Court for framing issue with regard to proper valuation of the suit and thereafter to decide the case afresh on merits, in alternative it is prayed that by setting aside the impugned order dated 13-2-2010 passed by learned appellate Court, the appeal filed by them be deemed pending before it and simultaneously by framing of additional issue, the trial Court be directed to decide the same after recording evidence and to return the evidence along with findings/reasons thereon in terms of Order XL!, Rule 25, C.P.C. to the appellate Court.

12. Plaintiffs are also aggrieved with the order of the learned appellate Court; therefore, they have filed independent Revision Petition No.137 of 2010 with the prayer that the impugned order passed by the appellate Court be set aside and as a consequential relief, the appeal be sent back to it for adjudication on merits after hearing the parties.

13. As the appeal of petitioners in C.R.No. 109 of 2010 was returned to them by appellate Court; therefore, the same has been filed before this Court under Serial No. 19 of 2010.

14. By this single judgment I propose to decide the above mentioned revision petitions and R.F.A. No. 19 of 2010.

15. Learned counsel for the petitioners in C.R.No.109 of 2010 argued that the learned trial Court failed to frame issues in accordance with divergent pleadings of the parties, therefore, the matter was brought into the notice of the appellate Court through application which was though accepted but wrongly returned the appeal for lack of jurisdiction. The appeal should-have been accepted and the suit dismissed for being filed in wrong forum or else the learned appellate Court should have framed issue regarding valuation of the suit and then returned the suit to the trial Court for recording evidence on the same issue and to send it back to the appellate Court for decision in accordance with Order XLI, Rule 25, C.P.C.

16. The plaintiffs' counsel argued that the petitioners in C.R. No.109 of 2010 did not agitate seriously the issue of valuation before the trial Court; even they did not plead it before the appellate Court, in memorandum of appeal. It was argued that in fact to deprive the plaintiffs from the fruits of the decree obtained through long protracted litigation the application was filed before the appellate Court at belated stage to further increase their agonies. Their contention was that by over valuing or less valuing the suit, no prejudice has been caused to the defendants therefore, under section 11 of the Suit Valuation Act, 1887 the application filed before the appellate Court should have been dismissed. It was also urged that plaintiffs are the sole arbiter to value their suit according to their own valuation. Once the suit is decided by the trial Court and the issue of valuation, if decided otherwise than the valuation of the plaintiffs, even then the forum of appeal will be determined on the basis of valuation made by the plaintiffs; therefore, the issue framed by the appellate Court is only a futile exercise. They lastly argued that the learned appellate Court should have decided the appeal' on merits instead of returning it to the appellants.

17. From perusal of the plaint it transpires that basic prayer of the plaintiffs in the suit is rendition of accounts which has been valued at Rs.2000, for the purpose of jurisdiction. Rest of the prayers is consequential in nature. In the case of Muhammad Afzal Khan v. Muhammad Hayat Khan 2000 MLD 1616 the honourable Supreme Court of Azad Jammu and Kashmir held that when specific relief claimed in a declaratory suit was either surplusage or consequential relief, same would flow from original relief of declaration claimed in plaint and suit would thus fall under Schedule-II, Article 17 (iii) of Court Fees Act, 1870, but if consequential relief was not outcome of original declaratory relief, then suit would fall out of ambit of above provision of law and would fall under section 7(iv)(c) of Act ibid. No doubt, some of the defendants disputed, the valuation of the plaintiffs but the learned trial Court failed to frame issue regarding correct value of the suit. The defendants also did not raise any objection for not framing issue regarding the valuation in the trial Court during seven long years. They even did not agitate the same in memorandum of appeals and only raised the same issue after more than fourteen months from filing of the appeal.

18. In the case of Government of Pakistan v. Messrs Allah Bakhsh 2000 CLC 1598 the honourable Lahore High Court, held that, "the plaintiff, according to section 7(iv)(t) of Court Fees Act, 1870, was entitled to fix notional value for the purpose of court-fee which according to section 8 of the Suits Valuation Act, 1887 would also be The value for jurisdiction and not the value which plaintiff was required by Order VII, Rule 2, C.P.C. to state an approximate amount which according to him would be payable by defendant. Forum of appeal, was held to be dependent not on amount mentioned under Order VII, Rule 2, C.P.C. but on valuation fixed by the plaintiff for purposes of court-fee and jurisdiction. "The same principle was also followed by this Court in the case of Mahtab Khan v. Faiz Muhammad PLD 2003 Peshawar 46 in line with the judgment of the apex Court delivered in the case of Akbar Khan v. Mst. Khair Khanu.m 1999 SCMR 399.

19. I do not see any reason that due to wrong valuation of the suit, any prejudice has been caused to the defendants. They remained silent spectators for more than seven years without any explanation. Anyhow, when the learned appellate Court, on the application of defendants, felt it necessary to frame issue regarding correct valuation of the suit, it was then incumbent upon it to see that whether the issue, so framed requires any further evidence or not because under Order XLI, Rule 24 of the Code of Civil Procedure the appellate Court is empowered where the evidence upon the record is sufficient to enable it to pronounce judgment, it may after settling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some grounds other than that on which the appellate Court proceeds. This course of action curtails the prolongation of the agony of the parties and the appellate Court should prefer the above course of action. Both the parties have exhausted all their opportunities to produce their respective evidence, necessary for just decision of the case and the issue of valuation of the suit, seems covered in the evidence of both the parties.

20. In the case of Habibullah. v. Azmatullah PLD 2007 SC 271 the august Supreme Court ruled that remand of case under Order XLI, Rule 23, C.P.C. could only be ordered, when Court from whose decree an appeal was preferred had disposed of the suit upon a preliminary point and the decree was reversed. Remand of case under Order XLI, Rule 23, C.P.C. was justified only when Court considered retrial of suit necessary. Under Order XLI, Rule 25, C.P.C. appellate Court could retain file on its record and might remit the case to trial Court for decision of issues not determined and return the findings to the appellate Court. It was further held that remand of case should not be lightly ordered and if evidence on record was sufficient, then appellate Court should have decided the case itself. The object of the above mentioned procedure is that the Courts administering justice had to bear in mind that an order of remand could reopen another chain of litigation, which not only would entail unnecessary expenses of parties but would also delay disposal of cases. Similar view was followed by this Court in the case of Shah Wazir Khan. v. Abdur Razaq PLD 2004 Peshawar 109 where on accepting the revision petition, the impugned order of the appellate Court remanding the case back to the trial Court was set aside and the learned appellate Court was directed to decide the appeal on the available evidence on record.

21. The order of the learned appellate Court is self-contradictory, on the grounds that on one side it framed issue and issued directions to the trial Court for its determination and subsequently, in latter part of the same order, it returned the appeals to the appellants for want of jurisdiction. When a forum lacks jurisdiction, it cannot pass any other order except for return of the plaint or appeal.

22. Resultantly, I allow both Revision Petitions Nos.109 of 2010 and 137 of 2010, set aside the judgment/order of the appellate Court passed on 13-2-2010 and remand the case back to it for deciding the issue framed regarding valuation of the suit itself along with other issues decided by the trial Court because it falls in exclusive jurisdiction of the District Appellate Court according to the valuation of the plaint by the plaintiffs.

23. If the appellate Court, alter hearing arguments of the parties, feels that evidence on the file of the trial Court is deficient for deciding the issue of valuation of the suit, it may retain the file on record and direct the trial Court for recording evidence on the issue and after that the case file along with recorded evidence should be sent back to the appellate Court for decision.

24. As the above mentioned revision petitions have been accepted, therefore, R.F.A. No.19 of 2010 is returned to the appellate Court for decision on merits. The parties are directed to appear before the appellate Court on 4-1-2011.

25. As the learned trial Court at the time of passing the impugned judgment/decree has relieved the receivers appointed from their duties, therefore, the learned appellate court is further directed to pass appropriate order to secure interest of all the parties. A.R.K./59/P???????????????????????????????????????????????????????????????????????????????????????? Order accordingly.