1986 PLP 2575 (CLC)

Mumtaz Ahmed for Respondents. Date of hearing: 16th March, 1986. This revision application arises from the order passed by the Second Additional District Judge, Karachi, dated 29‑10‑1985.

2. The applicant was defendant in a suit which was filed by the respondent No. 1 in the Court of Vth Senior Civil Judge, Karachi for declaration, possession and injunction in respect of plot measuring 400 Sq. yards. The suit was valued at Rs.15,000 according to the value of the plot. The applicant however, raised objection by filing an application under Order VII, Rule 11, C.P.C. since the applicant had by then constructed a building on the plot, and the suit according to the applicant, should have been valued according to the value of the building as well. After such application was rejected by the learned Civil Judge, the applicant filed Constitutional petition before this Court against the order of the learned Civil Judge, bearing No. D‑41 of 1983. However, the Constitutional petition was also dismissed with the following observations:‑‑ "While dismissing the petition as withdrawn we do express a hope that the Civil Judge will undertake an enquiry into the valuation of the suit and determine the court‑fee that is payable. It will be satisfactory if he does so before any further proceedings are taken."

3. Thereafter, the learned Civil Judge, referred the matter to C . D . C . for ascertaining the market value of the entire property in question including the building, which was accordingly valued. Thereafter, the learned Civil Judge, vide Order, dated 5‑10‑1983 ordered return of the plaint to the respondent to be filed before proper Court. However, the respondent filed an application for review before the learned Civil Judge for recalling the order, dated 5‑10‑1983. Such review application was allowed by the learned Civil Judge, vide order, dated 31‑10‑1984 and the parties were directed to adduce evidence in respect of the market value of the disputed plot only at the time of filing of the suit. Being aggrieved by this order, the applicant filed appeal before the IInd Additional District Judge (East), Karachi, which was also dismissed vide order, dated 29th October, 1985, and hence the instant Revision Application.

4. Pre‑admission notice of this application was sent to the respondent No.

1. Mr. Asghar Hussain and Mr. Mumtaz Ahmed, the learned counsel have been heard on behalf of the applicant and the respondent No. 1 respectively.

5. The .only ground urged by Mr. Asghar Hussain, the learned counsel for the applicant is, that the suit should have been valued according to the value of the whole property, that is to say, the plot as well as the building constructed thereon. Reliance has been placed in this respect on A I R 1946 Mad. 94, wherein it has been held that substance and not form of the prayer should be looked into while fixing the value of a suit. The argument of Mr. Mumtaz, the learned counsel for the respondent No. 1, however, has been that according to Order XLVII, rule 7, C.P.C., the appeal filed before the learned ' Additional District Judge was not maintainable and consequently this revision application is also not maintainable. Reliance has been placed on 1979 C L C 823 and P L D 1960 Dacca 665.

6. However, without going into the legal question raised by Mr. Mumtaz, I think that this revision application is even otherwise not maintainable. The learned Civil Judge in the first order, dated 5‑10‑1983. ordered the return of plaint assuming that the value of the suit had to be fixed according to the value of the entire property but later on the earlier order passed by her was reviewed as according to her, the earlier order was not based on the correct interpretation of the relevant law. Nothing substantial has been shown by Mr. Asghar Hussain, the learned counsel for the applicant to support his contention that jurisdiction has been exercised by the learned Civil Judge with any material irregularity.

7. In view of this, I find no substance in the revision application and dismiss the same in limine. H . B . T . Revision dismissed.