1980 PLP 972 (CLC)

This Appeal arises out of a suit for. pre-emption filed by the respon dent against the appellant in the Court of the learned Civil Judge Alipur, District Muzaffargarh. The sale sought to be pre-empted was evidenced by the mutation attested on 10th April 1969. The circum stances of the institution of the suit are ; that in the year 1970, the Civil Judge posted at Alipur, held 3rd class powers and was required to remain on tour at Muzaffargarh for a few days, every month for disposal of the civil work. From 9th April 1970 to l9th April 1970, he was out of his headquarters and was stated to be on tour. The arrange ment made for institution of the suits, at Alipur, during the absence of the learned Civil Judge from his headquarters was, that the learned Civil Judge, Alipur, by an office Order No. 46, dated 17th February 1966 (Exh. P. 5) in pursuance of the provisions of Order IV, rule 1, C. P. C., authorized the Ahlmad of the Court to entertain the plaints. He was, however, required to enter such institution in a register and put up the same daily, during working hours, before the S. T. O. for attestation of the entries. In this connection, the learned District Judge also sent Memo. No. 1219, dated 27th May 1966 (Exh. P. 6) to the Deputy Com missioner, Muzaffargarh, which is reproduced below :- "The Civil Judge, Alipur visits Muzaffargarh for the disposal of civil work and therefore, presentation of plaints and applica tions, etc. is required to be entrusted to some officer at Alipur during the period of his absence from headquarters, I would, therefore, request you to authorisz the Tehsildar or Naib Tehsildar, Alipur for the purpose as required under the rules."

2. Thus, according to the practice in vogue, at Alipur, when the Presiding Officer was on tour, the Ahlmad received the plaints, and made entries thereof in the relevant register, and produced it before the Tehsildar for his signatures. The respondent presented the plaint to the Ahlmad of the Court on 9th April 1970 who made the necessary entries in the register, and got it signed from the Tehsildar, Alipur. On his return from the tour, on 9th April 1970, the file was put up before the learned Civil Judge by the Court official. The case was ordered to be put up on 22nd April 1970 after scrutiny. On 22nd April 1970 the learned Civil Judge ordered issue of processes to the appellants, deposit of 1/5th of pre-emption money, payment of deficiency in the Court-fee and adjourned the case to 1st June 1970. In compliance with this order the respondent deposited the pre-emption money and also paid the de ficient Court fee. The case was then adjourned to 27th July 1970. The inquiries made from the office have revealed that in April, 1970, Sardar Muhammad Jahangir, Civil Judge 3rd Class was posted at Alipur. In June, 1970, he was replaced by Mr. Muhammad Zafar Bhatti, Civil Judge, who also held third class powers. It transpires from the plaint that the value of the suit for the purpose of court fee and jurisdiction, was fixed at Rs. 5,970 which did not fall within the pecuniary jurisdiction of third class civil Judge. Consequently, on 27th July 1970, Mr. Muhammad Zafar Bhatti who was seized of the case, passed an order transferring the file to the learned District Judge, for its assignment to a proper Court. The latter by his order dated 5th September 1970, withdrew the suit from the Court of the Civil Judge, Alipur and entrusted it to the learned Administrative Civil Judge, Muzaffargarh.

4. It appears that the appellants, for the first time, appeared in the Court, on 5th October 1970, in pursuance of the processes issued to them by the learned Administrative Civil Judge. Later on, they filed written statement before him, wherein they raised the plea that the suit was barred by time. Subsequently, it was found out during the trial, that this objection rested on the ground, that the Ahlmad was not competent to receive the plaint and thus the suit was not properly filed on 9th April 1970, but was instituted only on 20th April 1970, when the plaint was presented to the learned Civil Judge. In defence the respondent examin ed Hazoor Bakhsh, the Ahlmad of the Court, at Alipur, who produced the relevant register. Besides this, reliance was also placed by him on Exhs. P. 5 and P.

6. The learned trial Court was however, of the view that the power to receive plaints could not be delegated to the Reader or Ahlmad and further maintained that the respondent did not produce any evidence to prove that from 9th April 1970 to 19th April 1970, the Presiding Officer of the Court, was on tour, so as to attract the applica bility of. section 4 of the Limitation Act. Accordingly, the suit was dismissed on 3rd June 1975. 5. 1n appeal, relying on the testimony of Hazoor Bakhsh, P. W. 1, the learned District Judge observed that the plaint was entered in the register, which was duly signed by the Tehsildar as well as by the official of the Court. In his opinion the civil Court at Alipur would be deemed to have remained closed during the period, the Presiding Officer was on tour, and, therefore, the suit was validly filed on 9th April 1970 by pre sentation of the plaint to the Ahlmad. The appeal was, thus, accepted and the suit decreed in favour of the respondent.

6. The validity of the judgment and decree dated 2nd February 1976, passed by the learned first appellate Court, has been called in question through this R. S. A.

7. Only the question of limitation requires adjudication in this appeal. The main submission of the learned counsel for the appellants was that the suit, being beyond the pecuniary jurisdiction of the learned Civil Judge, Alipur, it could not be treated to have been properly insti tuted both on 9th April 1970 as well as on 20th April 1970. In his sub mission, the respondent should have filed the suit in the Court of the learned Administrative Civil Judge, Muzaffargarh, which was not closed. It was argued that as the Court at Alipur lacked jurisdiction to entertain the suit, even if it was closed, that was of no consequence. The learned counsel argued that the expression, "Court is closed", as used in section 4 of the Limitation Act, means a proper Court which has jurisdiction in the matter. It was thus contended that section 4 is not attracted to this case and the learned District Judge took an erroneous view of law in holding the respondents' suit as within time. For his these submissions the learned counsel sought support from Maqbool Ahmad and others v. Onkar Pratap Norain Singh (AIR 1935 P C 85).

8. On the other hand, on behalf of the respondent it was argued that the appellant, having failed to raise the objection regarding pecuni ary jurisdiction, at or before the hearing as which the issues were first framed in the learned trial Court, and so also during the proceedings before the first appellate Court, such as objection could be raised for the first in 2nd appeal. The respondent's learned counsel havily relied on section I1 of the Suits Valuation Act.

9. It is not denied that an objection as to the improper institution of the suit at Alipur, because of Court's lack of pecuniary jurisdiction, ren dering the action barred by tine, was not specifically raised in the written statement. Such an objection was also not raised during the hearing of the first appeal. 1t may be observed that the appellant's learned counsel did not touch the reasoning advanced by the learned trial Court, in holding the suit, as barred by time, but laid emphasis on the non-appli cability of section 4 of the Limitation Act, to the closing of the Court lacking pecuniary jurisdiction to hear the suit. It cannot be disputed that, if the plaint is held to have been validly presented on 9th April 1970, or for that matter on 20th April 1970, there was wrong assumption of jurisdiction by the learned Civil Judge, Alipur, till 27th July 1970, when he transferred the file to the learned District Judge. The learned counsel when asked as to why an objection was not taken up by the appellant in the written statement or at the time of framing and recording of issues or even before the learned first appellate Court, came forth with two-fold plea ; firstly that since at the time of submission of the written statement, the case was being heard by the learned Administrative Civil Judge it was unnecessary to raise this contention at that stage ; and secondly the objection that the suit was barred by time, was taken up in the written statement, which could be sustained in 2nd appeal, by another set of arguments, anchored on improper institution of the suit.

10. Section 4 of the Limitation Act, provides, if the Court is closed on the day the period of limitation expires, the suit may be instituted on the day when that Court reopens. There is no quarrel with the proposi tion that the Court contemplated by this section is the proper Court and the period during which the Court in which the suit was wrongly institut ed, remained closed, cannot be treated as non-existent. Maqbul Ahmad's case cited by the learned counsel for the appellant, therefore, need not be examined in detail: It seems to me, that in such like situation, a litigant commencing action, under a bona fide mistake, in a wrong Court, is not left without a remedy, and the period spent in prosecuting the case before such Court, can be deducted under section 14 of the '1 Limitation Act and not under section 4 of the Act. It is to be noticed that the respondent was cautious enough to engage a counsel and institute the suit through him. The learned Civil Judge in the first instance also assumed jurisdiction, though wrongly and passed order for deposit of 115th of pre-emption money and making goof the deficiency in the Court fee. These orders were complied with by the respondent but later on, the Court expressing its inability to proceed with the suit, for defect of jurisdiction, and sent the file to the learned District Judge. All these facts are not suggestive of any lack of due diligence on the part of the respondent, in prosecuting his cause before the learned Civil Judge, Alipur,

11. Another view of the matter is that the Ahlmad entertained the plaint, in compliance with 'the directive issued by the learned District Judge. Had he returned the plaint to the respondent on 9th April, 1970,s for presentation before the proper Court on that very day, the possibility that he may have filed it in the Court of the Administrative Civil Judge at Muzaffargarh within tim0, cannot be ruled out. 12, I am inclined to agree with the appellants' learned counsel that section 11 of the Suits Valuation Act, on its own terms does not apply to this case. The purpose of first limb of clause a of subsection (1) of section 11, requiring a litigant to raise an objection to the valuation of the suit before the trial Court, is that such Court on finding lack of pecuniary jurisdiction, vis-a-vis the valuation of the suit, should return the plaint to the litigant for its presentation to the proper Court, as envisag ed by Order VI1, rule 10, C. P. C. As the suit has already being heard by the Administrative Civil Judge, such an eventuality could not occur. The object of the latter part of this clause, is that on objection being raised before the 1st Appellate Court, .it may examine as to whether or not the disposal of the suit has been prejudicially affected on account of its valuation. Obviously, the suit was disposed of by the learned Administrative Civil Judge and so far as the trial is concerned possibly no prejudice was caused to the appellants. Despite all this, I feel, that the facts of this case demand that the appellants should have raised an objection in the written statement to the institution of the suit in the wrong Court, to enable the respondent to bring on the file the necessary material, explaining the circumstances under which the suit was filed by him at Alipur. The appellants' failure to raise this objection is fatal to their case. Their learned counsel is not correct in arguing that objection regarding limitation, raised in plaint is comprehensive enough to cover the arguments now advanced before this Court. The entertain ment of such an objection will entail determination of fresh issue of facts, for which there is not sufficient material on the file. The respondent cannot be penalized for the lapse of the appellants. Even if the suit was heard and decreed by the learned Civil Judge, Alipur, in the absence of the appellant's objection, as to his jurisdiction, such a decree was no e ultra vires of the powers of the Court. This view finds support from Nawab Din v. Hussain Bibl (1).

10. For all these reasons I do not find any merit in this appeal and dismiss the same. But in the circumstances of the case, the parties are left to bear their own costs. Appeal dismissed.