2002 PLP 1592 (YLR)

11. It is also to be noted that when the first appeal of the appellant, came up for hearing before District Judge on 9‑10‑1977, it was not accompanied by the copy of the judgment or decree. Nonetheless the Learned First Appellate Court issued an interim injunction on 9‑10‑1977 whereby the operation of the decree of the trial Court was suspended.

12. The salient points which favour with .the First Appellate Court judgment and decree dated 18‑3‑1987 were as under: (a) that the first appeal tiled by the appellant before the District Judge, was not competent as the appeal was beyond his pecuniary jurisdiction; (b) that the appeal was not competent also for the reason that it was not accompanied by a copy of the judgment and more importantly by a copy of the impugned decree of the trial Court; (c) that the order, dated 9‑10‑1977 whereby the operation of the decree of the trial Court was suspended was coram non judice and without lawful authority; (d) that without a lawful order of suspension of the decree of the trial Court, the failure of the appellant to 'deposit the' decretal amount within the prescribed time would result in the dismissal of his suit.

13. In this regular second appeal, Choudhary Naseer Ahmed, Advocate for the appellant has raised the following legal propositions:‑‑ (a) that the Suits Valuation Act, 1887 is fully applicable to the areas forming part of the former Bahawalpur State. According td him the rule framed under section 3 (ibid) notwith standing that the rules are provincial in nature shall also apply to the Bahawalpur State as the source of power of these rules is the Suits Valuation Act, 1887 which is a Central Statute and which is fully applicable. Continuing his argument, it was submitted that under the said rules the original value of the suit for the purpose of jurisdiction shall be the jurisdictional value for the purpose of appeal also. Referring to the jurisdictional value to be fixed in a pre‑emption suit relating to the agricultural land, it was submitted that this value is thirty times the Revenue payable in respect of the land in question. As this value was less than Rs.25,000, the appeal was correctly filed before the learned District Judge, and was fully maintainable. The learned counsel relied upon Ilahi Bakhsh and others v. Mst. Bilqees Begum PLD 1985 SC 393, Muhammad Nawaz v. Sher Muhammad PLD 1987 SC 284, Sadar Din v. Elahi Bakhsh and another PLD 1976 Lah. 1. (b) that the appellant had applied for the copy of the judgment and decree of the trial Court but the same was not provided by the Copying Agency and as such could not be appended with the metro of the appeal and that in such circumstances, fact that certified copies of the judgment and decree was not appended with the appeal was not fatal; (c) that the order dated 9‑10‑1977 passed by the District Judge was a valid order passed with jurisdiction and had the effect of suspending the order of deposit of the decretal amount within the specified period; (d) that in any event when a pre‑emptor is challenging the quantum of the sale price he is not obliged to deposit the decretal amount. He placed reliance upon the case of Muhammad Ismail v. Muhammad Ashraf PLD 1982 Lah. 197, Shah Wali v: Ghulam Din PLD 1966 SC 983 and Samanda v. Muhammad Sharif and others PLD 1966 (W.P.) Lah. 414; (e) that there was no evidence on the record to prove that the sale price mentioned in the sale‑deed was fixed in good faith or actually paid; and (f) that there was ‑no evidence to prove waiver against the appellant.

14. On the other hand, Mr. M.M. Bhatti, Advocate for respondent contended that the value for the pecuniary jurisdiction of the Appellate Court would be the difference between the ostensible sale price mentioned in the sale‑deed and the one specifically claimed by the pre‑emptor in his suit. According to him this difference exceeded Rs.25,

000. The appeal filed by the appellant before the District Judge on 8‑10‑1977 exceeded the pecuniary jurisdiction of that Court and the appeal before the said Court was incompetent. He further contended that the interim order passed by the learned District Judge on 9‑10‑1977 by which the decree of the trial Court was suspended was without any lawful authority. According to him any order passed by the Court would be ineffective upon the decree of the trial Court. According to the learned counsel for the respondents the appellant did not have the protection of any lawful injunctive order in his favour and his failure to comply with the direction of the trial Court rightly resulted in the dismissal of his suit. As regards the failure of the appellant to append a copy of the judgment and decree of the trial Court, he relied upon the provisions of Order 41, rule, 1, C.P.C. to contend that an appeal in such a situation is no appeal in the eye of law and was got liable to be entertained. Upon merits, the pre‑empted land, it was both the lower Courts have concurrent finding of fact which is to be disturbed in revision.

15. Arguments have been had and record perused.

16. It is correct that upon the strength of The Central Law (Statutes Reform) Ordinance, 1960 as amended through the, Central Laws Statutes Reforms (Amendment) Ordinance, 1961, the Suits Valuation Act, 1887 and the rules framed thereunder are applicable to the area forming the erstwhile Bahawalpur State. This position constituted to operate despite the promulgation of the provisions of West Pakistan (Dissolution) Order, 1970 as envisaged by Article 19 thereof.

17. Applying this principle to the case in hand, there is no difficulty in holding that the original value of the suit for the purpose of jurisdiction is that which is given in the suit and that it is this jurisdictional value which shall govern the forum of appeal. For the jurisdictional value in a pre‑emption suit relating to agricultural land, this value is fixed by the rules under the Suits Valuation Act as under:‑‑

1. Suits for possession of land.‑‑‑In suits for the value of the find for purposes of jurisdiction, stall be held to be as follows:‑‑‑ (a) ...................... (b) Where the land forms an estate, or a definite share of an estate paying annual revenue to Government or forms part of such estate arid is recorded as aforesaid, and revenue is settled, but not permanently, ‑‑‑thirty times the revenue so payable. Explanation:‑‑‑

2. Land assessed to land revenue.‑‑‑ In suits to enforce a right of pre emption in land, the value of the land for the purposes of jurisdiction shall be calculated by the preceding rules."

18. It is thus clear that the jurisdictional value so fixed in the present case is less than Rs.25,000 and the appeal filed by the appellant before District Judge was not incompetent on this score.

19. The next contention raised by the learned counsel for the appellant regarding the effect of non‑filing of the copy of the impugned decree alongwith the appeal, however, is not well‑founded. According to Order 41, rule 1, C.P.C. the memo of appeal shall be accompanied by a copy of the decree appealed from and (unless the appellate Court dispensed therewith) of the judgment on which it is founded. A bare perusal of this provision of law‑makes it obvious that the copy of the decree Appellate Court in an appropriate case may only dispense with the copy of the judgment but not the decree. There is divergence of opinion whether an appeal without being accompanied by a copy of the decree should invariably be dismissed. Even if the more lenient view is adopted i.e. to grant time to the appellant to enable him for furnishing the impugned decree on the record, yet the main question in the present case would be as to the legality and efficacy of an interim order, passed by an appellate Court before such a decree is placed on the record.

20. According to the judgment of the trial Court passed on 28‑9‑1977, the plaintiff/appellant was to deposit the sale price by 10‑10‑1977 failing which his suit shall be deemed to have been dismissed. The appellant chose to file the appeal on 8‑10‑1977 i.e. barely two days from target date. This appeal was admittedly not accompanied by a copy of the impugned judgment and decree. The appeal, so bleu violated Order 41, rule 1, C.P.C. In other words on 9‑10‑1977, the First Appellate Court was not in legal seisin of the appeal. However, the learned First Appellate Court proceeded to pass the following order on 9‑10‑1977:‑‑ "Counsel for the appellant. Learned counsel for the appellant submits that the copies of the judgment and decree have not been supplied in spite of the fact that urgent fee was paid. Copy of the judgment and decree be filed on 23‑10‑1977. The appellant has submitted an application for suspension of the decree appealed against. Notice of the same be issued to the respondent for the date fixed. In the meantime relying on the authorities reported in 1974 SCMR 24, PLD 1973 Lah. 481 and 1976 SCMR 420, the operation of the decree passed by the trial Court shall remain suspended."

21. It is evident from the above, that the First Appellate Court allowed the appellant to place the copy of the judgment and decree on the record on 23‑10‑1977. Simultaneously, an interim order was granted suspending the operation of the decree of the trial Court. It may be true that if the appeal is not properly constituted on the date of institution the defect may be rectified by producing the copy of the decree on the record subsequently. This Court is, however, concerned with the status of the proceeding and the legality of the proceedings taken in between such period.

22. In order to pass any effective order, a Court must act in accordance with the procedure prescribed by the, law which confers the said jurisdiction upon it. It can thus safely be concluded that before an appeal is regarded as a duly constituted proceeding, the Court which is siezed of the same is not competent to pass any effective judicial order in the same. As a sequel, the appellant allowed the target date set by the trial Court for deposit of decretal amount to expire, which resulted in the legal consequence of the dismissal of his suit.

23. The decree in a pre‑emption suit is governed by Order 20, rule 14, C.P.C. The said provision of law is reproduced:‑‑ Decree in pre‑emption suit.‑‑‑ (1) Where the Court decrees a claim to pre‑emption in respect of a particular sale of property and the purchase money has not been paid into Court, the decree shall‑‑ (a) specify a day on or before which the purchase money shall be so paid, and (b) direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid the suit shall be dismissed with costs."

24. Without the production of any lawful injunctive order the decree of the trial Court shall take effect on the prescribed date i.e. 10‑10‑1977 and the suit of the pre‑emptor shall be dismissed with costs.

25. The next submission of the learned counsel for the appellant is that in a suit for pre‑emption where the pre‑emptor challenges the sale price, he shall not be obligated to deposit the pre‑emption amount. For this proposition reliance has been placed upon Muhammad Ismail v. Muhammad Ashraf PLD 1982 Lah.

197. Strength for this proposition is also sought from the case of Shah Wali v. Ghulam Din PLD 1966 SC 983, Samanda v. Muhammad Sharif and others PLD 1966 Lah. 414 and Ahmed Buy, and another v. Khurshid Akbar Khan PLD 1978 Lah. 838.

26. In the cases of Muhammad Ismail v. Muhammad Ashraf, Shah Wali v. Ghulam Din, Samanda v. Muhammad Sharif and Ahmed Bux v. Khurshid Akbar Khan (supra), it was held that upon the filing of an appeal by the pre‑emptor, the date fixed by the trial Court for deposit of pre‑emption money can be varied by the Appellate Court. In the present case, however, on the date when the first Appellate Court suspended the decree or the trial Court, no validly constituted proceedings were before it and the order passed by the first Appellate Court on 9‑10‑1977 was devoid of legal validity.

27. Upon the amount of the sale price, both the learned lower Courts have concurrently found that the sale consideration of Rs.94,888, was actually paid and in this respect reliance was placed upon the agreement Exh.D.1 and Exh.D.2 in respect of the payment of a sum of Rs.35,370 paid as earnest money and the remaining sale price was paid before the Registrar. For coming to this conclusion the statements of Muhammad Hanif, D.W.5 and Muhammad Idrees D.W.6 were relied upon besides the deposition of the scribe Muhammad Akhtar who appeared as D.W.3. The learned counsel for the appellant has not been able to point out any material misreading or non‑reading of this evidence on the record.

28. The learned counsel for the respondent concedes that the evidence on the record is not sufficient to discharge the onus of waiver.

29. As a result of the above discussion, this regular second appeal has no merit and is hereby dismissed. Appeal dismissed. T.A.F./M‑1270/L