2017 PLP 178 (CLCN)

CH. MUHAMMAD IQBAL, J.

Through this Regular First Appeal the appellant challenged the order dated 03.12.2010 passed by the learned Additional District Judge, Faisalabad, whereby he returned the appeal of the appellant for lack of pecuniary jurisdiction and also questioned the judgment and decree passed by learned Civil Judge, Faisalabad whereby suit for possession through pre-emption of the appellant was dismissed.

2. Brief facts of the case are that the appellant filed a suit for possession through pre-emption in respect of Property No.52, Jinnah Colony, Faisalabad against the defendant/ respondent regarding the land measuring 4-Marlas 102 Sq. Ft. The respondent appeared and filed written statement. Learned trial court framed following issues on 19.09.2006:-

1. Whether the plaintiff has fulfilled the requisite Talabs? OPP.

2. Whether the plaintiff has superior right of preemption qua the vendee? OPP

3. Whether the consideration amount mentioned in the sale deed was not the actual sale price? If so, then what was the actual sale price fixed and paid? OP Parties.

4. Whether the plaintiff is entitled to a decree for possession through pre-emption as prayed for? OPP.

5. Relief.

3. After recording of evidence of both the parties the learned trial Court dismissed the suit vide judgment and decree dated 24.12.2009. The respondent filed appeal against the impugned judgment and decree dated 24.12.2009 before the learned District Judge, Faisalabad on 3.12.2010. The learned District Judge Faisalabad/Appellate Court returned the appeal on the ground of lack of pecuniary jurisdiction, hence this R.F.A.

4. Learned counsel for the appellant submits that the appellant challenged the Sale on the ground that she has superior right of pre-emption qua the respondent on the basis of co-owner of suit property; that the learned Appellate Court without examining the record and facts of the case returned the appeal; that the learned appellate Court has not applied its judicious mind while passing the impugned order; the learned Appellate Court has the jurisdiction to adjudicate upon the matter under the law unless value of the suit for the purpose of jurisdiction mentioned in Para 11 of the plaint is changed, to be treated for the determination of forum of appeal, as such, order passed by the learned Appellate Court is illegal, void ab initio and is not sustainable in the eyes of law. Therefore, this appeal may be accepted and the case may be remanded to the learned appellate court to decide the case afresh.

5. We have given our anxious consideration to the arguments of learned counsel for the parties and have examined the record appended herewith.

6. The appellant mentioned the value of suit as Rs.5,88,000/- in Para 11 of the plaint as under:-

7. The respondent/defendant has not denied the same and replied as under:- Under section 18 of West Pakistan Civil Court Ordinance, 1962, pecuniary jurisdiction of the District Judge was always derived from the valuation in the plaint, Section 18 is as under:- "Sec. 18: Provided that forum of appeal was to be determined on basis of original value of suit and pecuniary jurisdiction of the District Judge was always to be derived from valuation in the plaint"

8. The respondent/defendant never raised any objection in this respect, no procedural irregularity could be taken into account unless objection was raised before the trial court. Under Section 3 of Suits Valuation Act, 1887 pre-emptor had valued in her suit for the purpose of jurisdiction of Rs. 5,88,000/-, as such, impugned order is illegal on the face of it. Reliance is placed on the case reported as Mumtaz Begum v. Ch. Zulfiqar Ali (PLD 1960 (W.P.) Lahore 1088). The relevant portion is as under: "We will, accordingly, hold that in suits for preemption the jurisdictional value of the appeal remains as determined under the Suits Valuation Act and the rules framed thereunder notwithstanding the amount on the payment of which the decree for pre-emption had been passed being far in excess of the pecuniary jurisdiction as so determined". Reliance is also placed on the cases reported as Munawar Hussain and 2 others (2005 SCMR 188), Muhammad Nawaz v. Sher Muhammad (PLD 1987 SC 284), Ilahi Bakhsh and others v. Mst. Bilqees Begum (PLD 1985 SC 393). The learned Additional District Judge, Faisalabad while passing the impugned order dated 03.12.2010 erroneously assumed that the value of the suit has been enhanced on the ground that the appellant deposited Rs.13,33,333/- (1/3 of the sale price). The learned Additional District Judge, Faisalabad has not considered that without any evidence regarding determining the value of the suit the value is based to be derived on the valuation of the suit. Reliance is placed on the case reported as Messrs Voyage De Air, General Sales Agent, Shaheen Air International and another v. Shaheen Air International Pvt. Ltd. (2006 CLC 173). The relevant portion is as under: "The aforesaid view was upheld by the Honorable Supreme Court in the case of Munawar Hussain and 2 others v. Sultan Ahmad 2005 SCMR 1388. In this case, the Honourable Judges have observed that under section 18, West Pakistan Civil Courts Ordinance, 1962 pecuniary jurisdiction of the District Judge was always derived from the valuation in the plaint. An amendment has been made in section 18 of the Civil Courts Ordinance, 1962, wherein it is clearly provided that the appeal against the decree of order of the Civil Judge shall lie to the High Court if the value of the original suit in which the decree or order was made exceeds rupees twenty-five hundred thousand and to the District Judge in any other case. In the instant case, neither the defendants have determined or fixed the original jurisdictional value of the suit nor the trial Court or the Appellate Court had determined the original jurisdiction value and the Court if disagrees with the determination of jurisdictional value of the suit could pass an order fixing the said value but that too after framing an issue and affording an opportunity to the parties for production of their evidence. No such effort was made by the lower Appellate Court to determine the original jurisdictional value of the suit. Without such exercise, the Court could not observe or come to the conclusion that it lacks the pecuniary jurisdiction to hear the appeal. In this view of the matter, the appeal was competently filed by the appellants against the order, dated 11.06.2005 of the learned trial Court and while admitting the appeal the order, dated 20.06.2005 was rightly passed by the learned lower Appellate Court.

9. In view of above the RFA is partially allowed. The order dated 03.12.2010 passed by the learned Addl. District Judge, Faisalabad is set aside. The Office is directed to return the memo of appeal along with its all annexures to the appellant for its presentation before the Court within the period of fortnight. There is no order as to costs. MM/T-8/L Order accordingly.