P L D 1955 Azad J (PLP)

ABDUL HAMID KHAN, J.-This is a revision petition against the order of Sub-Jud:se, Bagh dated 8th December, 1954 whereby the value of the house in suit for purposes of jurisdiction and Court-fee was fixed at Rs. 1,

526. The plaintiff Mst. Razia Begum ill her suit for possession of the land measuring 31 kanals 1 maila and a house situated in Bhont-kohna, Tehsil Bagh fixed the value for the purpose of Court-fee at Rs. 72-8-0 for the land and Rs.100 for the house i. e. Rs.172-8-0 in all and value for the purpose of jurisdiction at Rs. 435-15-0. Objec tion was taken by the defendants that the value for purpose of Court-fee for the house should have been fixed at Rs. 3,

000. The following issues were framed by the lower Court in this connection :- (a) whether the court-fee should be paid on the, market value of the house built on the land in suit ? O. P. D. (b) In case the issue No. (a) is decided in the affirmative, what is the market value of the house ? ........... O. P. D. The lower Court decided on 13th December, 1954 that the plaintiff should pay the Court-fee on the market value of the' house and amend his suit. On 15th December, 1954 the lower Court appointed Sardar Muhammad Yasin Khan Vakil as Commissioner to assess the market value of the house. On 18th December, 1954 the lower Court after recording the statement of Sardar Muhammad Yasin Khan, Commissioner accepted the market value of the house fixed by the Commissioner at Rs. 1,526 and ordered the plaintiff to pay the Court fee on that and also to fix the value of the suit for the house for purpose of jurisdiction at the same amount. The plaintiff has now come to this Court in revision on the ground that no oppor tunity was given to her to file objections to the report of the Commissioner and to adduce evidence to prove that the market value of the house fixed by the Commissioner, was incorrect. Preliminary objection has been raised that revision petition in this case is not competent. The l earned Counsel for thepetitioner has argued at length that the High court can inter fere in a matter like this under section 115 Civil P. C. The following conditions must exist before the revisional powers of the High Court can be invoked. (i) there must be a case decided by the subordinate Court; (ii) the Court deciding the case. must be subordinate , to the High Court; (iii) the decision must be one in which no appeal lies (iv) the subordinate Court must have in deciding the case exercised a jurisdiction not vested in it by Law or failed to have exercised a jurisdiction vested in it or must have acted in the exercise of its jurisdiction illegally or with material irregularity. In the present case a substantial question in controversy between the parties has been decided and it can he said with out hesitation that the order demanding additional Court-fey does amount to a "case decided". On the question whether revision lies from such order, there is a conflict of decisions The decisions which hold that the order is reviseable proceed on the ground that such ail order amounts to the decision of case within the mealling of section 115 Civil P. C. an further that where a Court passes such an order it virtuall declined to exercise a jurisdiction vested in it by Law, as the implication of the order is that if the additional Court-fee is not paid the Court will not deal with the suit on merits. Contrary view has been taken in other decisions in which it has been held that no revision will lie against such an order. Some of them proceed on the ground that an order requiring more Court-fee is merely an interlocutory order and does not amount to the decision of the case. Others proceed on the ground that the plaintiff having another remedy open namely of preferring an appeal in the event of his claim being dismissed or rejected for non-payment of the required Court-fee, the remedy by way of revision is not open. The view that an order demanding additional Court-fee is revisable appeals to me more. As already remarked a decision of this nature besides deciding a substantial question in controversy between the parties finally disposes of the case because if the orders of the Court are not complied with by the plaintiff the suit would be dis missed. It would be incorrect, therefore, not to call such a decision a case decided". The order demanding additional Court-fee is not appealable as is clear from section 12 Court- fees Act. Nor is there any ether remedy open to the aggrieved party till the plaint is rejected under Order VII Rule

11. To hold in such a case that the revisional powers of the High Court cannot be invoked under section 115 Civil P. C. would be nothing short of denying justice to the aggrieved party. In. this case the subordinate Court by demanding additional court-fee from the plaintiff and till then postponing the decision on the merits of the case has refused to exercise a jurisdiction vested in it by Law. It has also acted in the E exercise of its jurisdiction with material irregularity in not allowing an opportunity to the plaintiff to put in her objections to the report of the Commissioner. It may he added here that in Azad Kashmir section 115 Civil P. C. has been amended under Council Order 256/54 and a clause (d) has been added whereby the High Court has been authorised to interfere in cases in which it thinks that failure of justice has occurred. Thus the amended section 115 of the Civil P. C. of Azad Kashmir gives wider powers of interference to the High Court of Azad Kashmir. The present case is, therefore, a fit case in which the powers of the High Court under section 115 Civil P. C. can ' be invoked by the aggrieved party. The revision petition is, therefore, com petent. The procedure of issuing commissions for local investi gation is laid down in Order XX Rules 9 & 10 Civil P. C. The lower Court should have allowed an opportunity to the parties to file objections, if any, to the report of the Commissioner and to enquire into such objections when filed. The Commissioner in this case was a non-technical man and it was, therefore all the more necessary to allow opportunity to the parties to adduce evidence to show that the conclusion arrived at by the Commissioner was incorrect. I, therefore, accept the revision petition, set aside the order of the Court below dated 18th December, 1954 and direct further enquiry under Order XXVI Rule 10 Sub-Clause 3 Civil P. C. A. H. Petition accepted.