2007 PLP 2456 (YLR)

MAULVI ANWARUL HAQ, J.

For the purpose of this judgment, it will not be necessary to state the pleaded facts in detail, suffice it to say that on 5-3-1996, the petitioners filed a suit against the respondents. They sought a declaration that they are owners of the suit property, mentioned in the plaint, on the basis of a gift made by Ghulam Hussain in their favour and acknowledged in writing on 19-7-1989. In para.9 of the plaint, value of the suit for the purpose of territorial jurisdiction was fixed at Rs.200. This suit was contested only by respondent No.1 while respondents Nos.2 and 3 admitted the suit. The said lady, inter alia, objected that the value of the property is more than Rs.25,000 and court-fee should have been paid accordingly. Issues were framed. Evidence of the parties was recorded. Learned trial Court decreed the suit on 21-6-2001. Under Issue No.4, it was simply observed that the court-fee of Rs.15,000 has since been paid and the issue is answered accordingly. Respondent No.l filed first appeal against the said judgment and decree dated 21-6-2001, on 11-7-2001, in the Court of learned District Judge. Jouharabad. In the memo of appeal the value of the suit for the purposes of court-fee and jurisdiction was stated as Rs.200 and court-fee of Rs.15,000 was paid thereon. Vide order dated 26-10-2002, learned first appellate Court set aside the findings on said Issue No.4 and sent the file to the learned trial Court for recording fresh findings on the said issue. These findings were recorded on 11-12-2002. Learned Senior Civil Judge, Khushab fixed the value for the purposes of court-fee and jurisdiction at Rs.2 million. I may note here that these findings were recorded with consent of the learned counsel for both the parties. These findings were not objected to by any of the parties in terms of Order XLI, rule 25, C.P.C. The petitioners raised objection that at the time of filling of the appeal that learned District Judge had no pecuniary jurisdiction to entertain the same. A plea was taken on behalf of respondent No.1 that she claims only 1/13 share in the suit property and as such the appeal could have been filed and consequently heard by the learned District Judge. Learned ADJ, however, was of the opinion that this would not affect the jurisdictional value as determined by the learned trial Court. He, however, refused to return the appeal on the ground that since in the interregnum pecuniary jurisdiction has been enhanced, it wi_-1 not serve any purpose as ultimately the appeal will be decided by the said Court. This order has been passed on 7-3-2003 which is impugned in this C.R.

2. Mr. Shamim Abbas Bukhari, Advocate, learned counsel for the petitioners contends that the suit was governed by section 7(iv)(a) of the Court Fees Act, 1830 as his clients claim ownership on the basis of a gift and the suit was to be valued for the purposes of court-fee accordingly and its value has been determined with consent of the parties and the same is the jurisdictional value. Learned counsel for respondent No.1, on the other hand, contends that hi s clients is claiming only 1/13 share in the property which is less than Rs.2 lacy. The appeal was properly filed before the leaned District Judge. Respondents Nos.2 and 3 have not turned up despite service. Even otherwise, they are pro forma having admitted the claim of the petitioners.

3. I have examined the records in the light of submissions made by the learned counsel. So far as the matter of court-fee is concerned, there can be no cavil with the said contention of the learned counsel for the petitioners. The facts, however, remains that the appeal was filed in a matter of days. The petitioners had valued the suit for the purposes of jurisdiction at Rs.200. Learned trial Court did not resolve the question of jurisdictional value in the first instance and simply stated that since Rs.15,000 court-fee has been paid, the matter is over. The matter was ultimately determined on 11-12-2002, by which time pecuniary jurisdiction of the first appellate Court, where the appeal in fact was pending, was enhanced to Rs.25,00,

000. Since the grounds do exist for condonation of delay, if any, it will be an exercise in futility to direct the learned Appellate Court to return the appeal to be again entrusted to it for decision on merits. I, therefore, do not find any case being made out for exercise of revisional jurisdiction. C.R. accordingly is dismissed but without any orders as to costs. M.H./.M.273/L??????????????????????????????????????????????????????????????????????????????????? Revision dismissed.