1986 PLP 942 (MLD)

4. It was, inter alia, averred in the plaint that the respondents Nos.l and 2 defendants Nos.l and 2 out of the said land unauthorisedly disposed of 26,400 sq. yards to respondents/ defendants Nos.3 and 4 for a total sale consideration of Rs.10 lacs and executed a sale‑deed which was duly registered on 14‑1‑1965, in their favour. It was further stated that the market price of the land in the area is manifold, higher than that of the rate at which the portion of the plot has been sold away by the said respondent /defendants Nos.l and 2 to respondents NOs.3 and

4. It was further alleged that the respondent /defendant No.2 was stated to have been offered Rs.50 lacs for the said portion of plot, as against Rs.10 lacs, agreed to be paid by the respondents/ defendants Nos 3 and 4 in instalment. The conduct of the said defendants was therefore, questionable for disposing of the trust land at such low rate thereby causing serious loss to the trust which gave cause of action to file the suit. 5: The respondents/ defendants filed their written statement and controverted the allegations of the appellants /plaintiffs. Some legal and preliminary objections were also taken by the said respondents and, therefore, the following four preliminary issues were framed:‑‑ (1) Whether this Court has jurisdiction to entertain ,the suit? (2) Whether the suit has been properly valued and the court‑fee is paid thereon? (3) Whether the suit is barred by res judicata? (4) Whether the suit is barred 'by provision of Order II, rule 2, C.P.C.

6. The learned District Judge after hearing the learned counsel for the parties held that the said Court did not have the pecuniary jurisdiction to entertain the suit and that proper court‑fee has not been paid thereon. It was also held by the learned Judge that the suit was barred by res judicata. However, his findings on issue No.4 was in favour of the appellants /plaintiffs that the suit was not barred under Order lt, rule 2, C.P.C. 6‑A . I have heard Mr. ‑ G . H . Abbasi, learned counsel for the appellants and Messrs M.M. Mehmoodi, Abdul Matin, H.A. Rahmani, G.M. Qureshi and Ibrahim Pishori, learned counsel for the respondents.

7. It will not be out of context to mention here that a number of other respondents were brought on record during the pendency of this, appeal by this Court, as respondents Nos.3 and 4 had sold various portions of the said plot to the said newly‑added respondents.

8. The learned counsel for the parties agreed to confine their arguments only on issues Nos.1 and

2. However, if the decision on the point of jurisdiction is against the appellants, it will not be necessary to decide the appeal on the other issues.

9. Mr. G.H. Abbasi learned counsel for the appellants submitted that the lower Court had jurisdiction to entertain the suit inasmuch as the appellants had simply asked for relief for declaration simplicitor and not a consequential relief or cancellation of the sale‑deed dated 14‑1‑1965 as prayed for in prayer (a) of para. 23 of the plaint. He further submitted that the relief cla.med by him will be governed by Article 17(vi) of ‑the Second SchedulE' to the Court Fees Act, 1870 and not section 7(iv) of the Court Fees ket, 1870, as held by the learned judge. In support of his contention Mr. Abbasi referred to a number of decisions reported as (1) Mst. Zebul Nisa and others v. Chaudhry Din Muhammad and others A I R 1941 Lah. 97, (2) E.I. Ry.; Calcutta v. Jot Ram Chandra Bhan A I R 1928 Lah. 163, (3) Ramrup Das and others v. Mohunt Sujaram Das and others 17 I C 92 and Mustafa Hussain and others v. Mt. Hussaini Bandi Bibi A I R 1943 Oudh ;186.

10. The first named case A I R 1941 Lah. 97 relied on by Mr. Abbasi relates .to a trust, in the nature of Waqf "allal sulad under the Islamic Law. The relief claimed in the said case included "(i) a declaration to the effect that the property mentioned in para. 1 of the plaint is wakf; and (ii) secondly that the alienations of the property mentioned in para. 4 of the plaint, are null and void and ineffectual as against the wakf property"‑ The Full Bench after. considering various aspects of the question and also discussing exhaustively the law on the subject came to the conclusion that first part of the relief for declaration "that property is Waqf" was purely declaratory, whereas the second part of the relief that "alienations thereof are ineffectual" tantamount to cancellation of alienation and, therefore, held that the second relief claimed fell under Article 1 of Schedule I to the Court Fees Act, 1870.

11. The second case A I R 1928 Lah. 113 cited by, Mr. Abbasi has, in fact, been referred to by the Full Bench in the case referred to above. It relates to a suit filed under section 92 of the Civil Procedure Code wherein it was, inter alia, observed that "There cannot be any doubt that Art. 17, cl. (vi) Sch. 2, Court Fees Act, applied to cases which are brought under the provisions of S.92, Civil P. C'. If any authority were needed, the case Ramrup Das v. Sujaram Das (1'910) 14 C.W.N. 932=7 I.C. 92=12 C.L.J. 211, clearly lays down that a suit under S.92, Civil P.C. falls within the purview of Art, 17, cl. (vi), Sch. 2, Court Fees Act.."

13. The third case 7 I C 92 also relates to a suit under section 92 of the Civil Procedure Code wherein it was observed that the suit for rendition of accounts to be taken from the trustees fell under Article 17, clause (vi), Schedule II to the Court Fees Act, 1870.

14. In the fourth case A I R 1943 Oudh 113 it was held that the court‑fee was payable in accordance with the Schedule II; Article 17, clause (vi) of the Court Fees Act, 1870. In that case the suit was for the removal of the Mutawalli of a public social trust and for a declaration that plaintiff No.1 as heir of the donor was entitled to be Mutawalli and was also entitled to be in possession of the properties mentioned in the list A and B which vested in him as Mutawalli, but if this relief was not granted then scheme for management might be framed and some suitable Shi'ah may be appointed as Mutawalli.

15. As would appear from the perusal of the above decision, the first case goes against the contention raised by the learned counsel for the appellants, whereas the other three cases are distinguishable inasmuch as in none of them a relief was sought in the nature as prayed for in prayer clause (a) of the case before me.

16. Messrs Abdul Matin and H.A. Rehmani who argued the case on behalf of the newly‑added respondents which were adopted by Messrs M.M. Mehmoodi, G.M. Qureshi and Ibrahim Peshori, learned counsel for the other respondents contended that the court‑fee in this case was not at all payable under Article 17(vi), Schedule II of the Court Fees Act, 1870. They further submitted that the court‑fee was payable under Article 1 of the First Schedule to the said Act. In support of their contention they relied on a number of decisions of the Court reported as (1) Muhammad Siddiq and others v. Haji Ahmad & Co. PLD 1967 Kar. 468 (DB), (2) Badrul Islam v . Qamrul Islam and 4 others P L D 1971 Kar. 682 and (3) Acharya Ad'vendra Prasadi and 2 others v. Tirathdas and 10 others P L D 1972 Kar. 251.

17. In P L D 1967 Kar. 468 both the issues i.e. the pecuniary jurisdiction of the subordinate Courts of Karachi as well as the court‑fee payable in a suit for setting aside an ex parte decree were considered. It was held that:‑‑ "It seems to us that ordinarily in suits‑ falling under section 7(iv) (c) a plaintiff is entitled to put his own valuation but in case the Court comes to the conclusion that it is arbitrarily fixed it can put its own valuation and asked the plaintiff to pay court‑fee on the valuation. We are in respectful agreement with view of Davis, J.C. that absence of the rules under section 9 of the Suits Valuation Act is no bar to the exercise of the power under Order VII, rule 11, C.P.C, and that the question as to what is proper valuation depends upon the circumstances of each suit and the judicial decision of the Court. To held otherwise would mean to give unlimited power to litigants in drafting their prayers so as to include or exclude relief with a view to confer jurisdiction on the Court to try the suit."

18. It may also be stated that in an earlier decision of this Court reported as Zafar Ahmad v. Khaliq P L D 1964 Kar. 396 it was held that according to Full Bench decision reported as Lakhomal Deepchand v. Deepchand Tolaram A I R 1937 Sind 241 the valuation for purposes of court‑fee under section 7(iv) (c) in suit for setting aside a decree should be the amount involved in the impugned decree. In the said decision it was also observed that:‑ "In the present case the petitioner in the suit filed by him neither has put any valuation for purposes of court‑fee nor for purposes of jurisdiction under section 7(iv)(c). On the other hand he has valued the suit separately for ‑purposes of court‑fee treating the suit as falling under Article 17, clause (vi) of Schedule II and for purposes of permanent injunction under section 7(iv) (d) of the Court Fees Act and has paid fixed court‑fee separately on that basis. It is quite correct that on the view taken in the above‑mentioned Lahore Full Bench case the plaintiff should be allowed to fix valuation for purposes of court‑fee and jurisdiction under section 7(iv) (c). But since in this region uptil now the Full Bench decision of the Sind Court reported in Lakhemal Deepchand v. Deepchand Tolaram is followed, I am not inclined to review the case‑law on the subject and disturb the view hitherto followed by this Court. According to the Sind Full Bench decision the valuation for purposes of court‑fee under section 7(iv) (c) in a suit for setting aside a decree should be the amount involved in the impugned decree. I uphold the view of the learned subordinate Court in calling upon the petitioner to pay deficit court‑fee on that uasis. The petitioner is allowed to pay the deficit court‑fee within one month."

19. In the other case P L D 1971 Kar. 682 which was a suit for rendition of accounts of Waqf property and for mandatory injunction directing the Mutawalli to perform his duty it was held that the plaintiff was not allowed to value his claim for relief arbitrarily as in the plaint itself it was stated that the value of the property dedicated to the Waqf exceeded Rs.67,000 the valuation of the reliefs by the plaintiff at Rs 200 was arbitrary and was done deliberately in order to file the suit in the wrong Court. The plaint was, therefore, returned for representation to the proper Court namely the High Court at Karachi.

20. In another case Acharya Advendra Prasadi and 2 others v. Tirathdas and 10 others P L D 1972 Kar. 251 it was observed that the High Court at Karachi is the principal civil Court on original side in Karachi for suits involving subject‑matter of amount or value exceeding Rs.25,000 and that the District Court of Karachi, was not a competent Court for such suit. It was further observed that the payment of fixed Court fees and under‑valuation of reliefs sought for by plaintiffs, in circumstances, was immaterial for the purpose of determination of jurisdiction of the Court.

21. Now, as regards the first issue that the District Court had n pecuniary jurisdiction, suffice it to say that it is itself stated in the plaint that the property in suit is worth Rs.50 lacs. However, the sale‑deed which is sought to be declared as void ab initio and in operative in law was executed in consideration of Rs.10 lacs It is, therefore, apparent that the value of the suit property is far exceeding the pecuniary jurisdiction of the District Court which, at the relevant time, was upto Rs.25,000 only. Relying on the decisions cited by the learned counsel for the respondents and more particularly the decision report in P L D 1971 Kar. 682 I am clear in my mind that the Court o District Judge did not have pecuniary jurisdiction to entertain the suit and the valuation fixed by the appellant at Rs.200 was arbitrary and the suit was filed in a wrong Court.

22. Since it has been held by me that the District Court had n jurisdiction to entertain the plaint, the findings of the learned District Judge on issues Nos.2, 3 and 4 do not arise and will be deemed a void and non‑existent. To my mind, the learned District Judge, after having decided issue No.1 that it had no pecuniary jurisdiction, it was not necessary for him to examine the other issues particularly issues Nos.2, 3 and

4. For this view of the matter, I place my reliance on recent decision of the Supreme Court the Collector, Central Excise and Land Customs and others v. Aslam Ali Shah P L D 1985 S C

82. I this connection the case reported as Chief Settlement Commissioner v. Muhammad Fazil P L D 1975 S C 331 cited by Mr. Abbasi is also relevant in which it was observed that an order is to be treated as void when it is made by a Court, Tribunal, or other Authority which had no jurisdiction 'either as regards the subject‑matter, the pecuniary value or the territorial limits, where the dispute arose.

23. In the result, the appeal is dismissed subject, however, to the observations made by me in para. 22 above, the plaint is to be returned to the appellant to be presented to the Court having jurisdiction, which, in this case, will be the High Court at Karachi. The respondent will, however, be free to take the plea of limitation, or any other legal plea as available to them on such presentation.

24. There will, however, ,be no order as to costs. A.A. Appeal dismissed.