2006 PLP 331 (CLC)

MAULVI ANWARUL HAQ, J.

On 6-12-1999 the petitioner tiled a suit against the respondent. For the order I propose to pass in this case, I will not be referring to the pleaded facts in much detail. Suffice it to say that the suit was for declaration that the registered gift-deeds, mentioned in the plaint, and the mutations attested thereon are illegal and void. Possession was also sought. In para.7 of the plaint it was stated that the value of the suit for purposes of court-fee and jurisdiction is fixed at Rs.400. On 11-5-2000 the respondent filed a written statement, inter alia, it was objected that proper court-fee has not been paid on the plaint. Issues including the following issue No.5 were framed on 27-9-2000:-- "

5. Whether the suit has been improperly valued for the purposes of court-fee and jurisdiction, if so then what is the exact valuation of the suit for this purpose? OPD" Evidence of the parties was recorded. Vide judgment and decree dated 8-2-2003 a learned Civil Judge-III Class, Sahiwal proceeded to decree the suit. I may note here that under the said issue No.5 it was held that the plaintiff has admitted that the value of the suit property is Rs.6/7 lacs, as such, no court-fee has been paid. In para.6 of the judgment he directed the plaintiff to pay the court-fee within 30 days. Against this judgment and decree a first appeal was filed on 10-4-2003. This appeal was dismissed by a learned Additional District Judge, Sahiwal on 13-4-2004. The respondent filed R.S.A. No.64 of 2004 in this Court. It was allowed on 3-11-2004 and the case was remanded back to the learned Court of appeal for afresh decision. Vide judgment and decree, dated 9-3-2005 learned Additional District Judge, Sahiwal proceeded to allow the appeal and to set aside the judgment and decree of the learned trial Court on the ground that he being a Civil Judge-III Class had no A pecuniary jurisdiction to try and decide the suit the value whereof was Rs.6/7 lacs. The case was referred to the learned Additional District Judge, Sahiwal for entrustment to a learned Civil Judge 1st Class, Sahiwal for afresh decision.

2. Learned counsel for the petitioner contends with reference to section 11 of the Suits Valuation Act, 1887 that the learned Appellate Court had no lawful authority to set aside the judgment and decree of the learned trial Court on the said ground. The precise contention is that no objection was taken to the jurisdiction of the learned Civil Judge-III Class in the manner prescribed.

3. Learned counsel for the respondent supports the impugned order with the contention that an objection as to valuation was taken in the written statement.

4. I have gone through the copies of the available records. Now, the suit was initially filed in the Court of learned Senior Civil Judge, Sahiwal and as per endorsement on the same was entrusted to a learned Civil Judge 1st Class. The written statement also shows that it was filed in the Court of learned Civil Judge 1st Class.

5. Now, there is no objection, and it could not have been there in the written statement, to the pecuniary jurisdiction of the Court as it was filed in a Court of learned Civil Judge 1st Class. It appears that the case was entrusted to a learned Civil Judge-III Class in routine. Be that as it may, neither in the first appeal nor in the said second appeal, I find any objection taken to the pecuniary jurisdiction of the learned trial Court. Of course, no objection was taken to the jurisdiction of the learned Civil Judge-III Class till such time that the suit was decided.

6. Now, section 11 of the Suits Valuation Act, 1887 provides for entertainment of an objection by a party to the pecuniary jurisdiction of a Court in an appeal. Now, it provides in clear terms that such an objection shall not be entertained by an Appellate Court unless the objection was taken in the Court of first instance at or before the hearing at which issues first framed and recorded or that the Appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit was overvalued or undervalued, and that the overvaluation or under-valuation thereof has prejudicially affected the disposal of the suit on its merits. Subsection (2) further clarifies that even if the objection was taken in the manner prescribed in section 11(1)(a) yet if the Appellate Court is not satisfied of the said conditions it shall dispose of the appeal as there is no defect of jurisdiction in the Court of first instance.

7. Now, examining the present case in the light of the said statutory provisions. In the first instance no objection was taken at any stage in the trial Court to the jurisdiction of the learned Civil Judge-III Class and in the second there is no finding recorded by the Court of first appeal that there has been a failure of justice on merits of the case because of the said defect. This being so, the impugned order is wholly without lawful authority and cannot be sustained. The C.R. is allowed. The impugned order, dated 9-3-2005 of the learned Additional District Judge, Sahiwal is set aside. The result would be that the first appeal filed D by the petitioner shall be deemed to be pending before the learned District Judge, Sahiwal in whose Court the parties shall appear on 21-12-2005. The learned District Judge shall requisition the records and proceed to decide the appeal either himself or entrust it to a learned Additional District Judge, who shall decide the first appeal on its own merits preferably within three months of the said date. A copy of this judgment be immediately remitted to the learned District Judge, Sahiwal. H.B.T./G-178/L?????????????????????????????????????????????????????????????????????????????????? Revision allowed.