1992 PLP 1309 (MLD)

SARDAR SAID MUHAMMAD KHAN, CJ.‑‑‑This appeal has been directed against the judgment and decree of the High Court, dated 1‑10‑1991, whereby the appeal filed by the appellant, herein, was dismissed. Brief facts giving rise to the present appeal are that Muhammad Shafi, plaintiff‑respondent, brought a suit in the Court of Sub‑Judge Mirpur, alleging that he had constructed a house in `Shamilat Deh' in village Pallak, Tehsil Mirpur, in the year 1974 by spending Rs.70,000 as the costs of construction. According to the plaintiff‑respondent, after constructing the house, he left for England and defendant‑appellant, in his absence, forcibly occupied the house and also deprived him of valuables which he had kept locked in the house. The trial Court dismissed the suit of the plaintiff‑respondent but on appeal to the District Judge, the suit was decreed. An appeal to the High Court by defendant‑appellant was also dismissed on the ground that the same was hopelessly time‑barred. It may be stated here that there is no dispute between the parties that the decree passed in favour of the plaintiff‑respondent by the. District Judge was challenged in the High Court after lapse of a period of eight months. The case of the defendant‑appellant in the High Court has been that the judgment and decree of the District Judge were ab initio void because the trial Court had no jurisdiction to try the suit in view of the jurisdictional value fixed in the plaint and thus the question of limitation did not arise. We have heard the arguments and perused the file. It has been contended by Raja Muhammad Siddique, the learned counsel for the appellant, that the trial Court had no jurisdiction to try the suit because the plaintiff‑respondent had not properly fixed the jurisdictional value of the suit. According to the learned counsel for the appellant, the suit was improperly couched as suit for declaration with consequential relief; in fact it was a suit for possession of the house and the relief of the declaration was superfluous and was sought only to avoid the court‑fee. The learned counsel maintained that the declaration in such a case is only essential where the main relief sought in form of possession cannot be granted without seeking the declaration, such as, where there is a written instrument or decree of Court in presence of which the consequential relief or for that matter the relief of possession cannot be given to the plaintiff. According to the learned counsel for the appellant, the plaintiff‑respondent could have brought a simple suit for possession on the basis of title but he has sought declaration with a mala fide intention to avoid court‑fee and also to give jurisdiction to the Sub‑Judge. The learned counsel has cited the following authorities in support of his contention:‑ In 'Muhammad Suleman v. Javed Iqbal' PLD 1985 SC (AJ&K) 1 it was observed that the. Court has to look at substance of the plaint in each case to determine whether the suit is really one for a declaration with a consequential relief or is merely a camouflaged attempt to avoid court‑fee by couching it as a suit for declaration with consequential relief. In Hasan Mirza v. Syed Bakar Husain AIR 1934 Pat. 102, the question pertained to the payment of the court‑fee. It was observed that the question as to the proper payment of court‑fee must be decided on the appreciation of what the appellant really sought without penalising any party who may have asked for declaration which might be unnecessary; at the same time it must be seen that the party concerned does not escape the liability to avoid court‑fee by a vague and indefinite statement of facts or by adopting such expedients as, for instance, bringing what is essentially a title suit in the guise of a partition suit. In (Paluri) Venkatasivaz Rao v. (Bodapati) Venkatanarasimha Satyanarayanamurthyu AIR 1932 Mad. 605, it has been observed that if a person seeks relief with reference to a document to which he was riot a party, he need not seek cancellation of the same for claiming the main relief but if he was party to it, he is bound to have it set aside or cancelled before claiming any relief with reference to such document. Similarly, if there is a decree of a Court which has a binding effect between the parties to the same, it has to be set aside before claiming any relief with reference to such decree but where the party concerned was not party to the decree, he can sue for his rights without seeking the cancellation of such a decree. In `Pyda Ramakrishnayya v. Pydah Peda Seshamma' AIR 1935 Mad. 346, it was held that the suit by a reversioner for the declaration and consequential relief would be governed by section 7(v) (c) and not by section 7(iv) (c). It is evident from the authorities cited by the learned counsel for the appellant that the same pertain to the question of valuation of the suit for the purpose of court‑fee. In the instant case the first point which needs determination is as to whether the objection regarding the jurisdictional value of suit was specifically raised in the trial Court in the written statement. In para. 9 of the plaint it was averred that the valuation for the purpose of jurisdiction and the court‑fee is Rs.1,

000. In the written statement, the objection to the aforesaid para. 9 of the plaint was replied as under:‑ No objection was raised in the written statement about the jurisdictional value which was fixed in the plaint nor there was any objection that the Sub- Judge had no jurisdiction or the suit was wrongly couched as suit for declaration and consequential relief. As the suit was dismissed on merits by the trial Court, the plaintiff‑respondent preferred an appeal to the District Judge but no cross‑objections were filed by the defendant‑appellant against the finding on issue No.4 which pertained to the objection regarding non‑payment of court‑fee. It was for the first time in the High Court that the defendant appellant took the stand that the Trial Court had no jurisdiction to hear the suit because the suit could not be treated as suit for declaration with consequential relief. The High Court repelled the contention of the appellant on the ground that no such objection was taken in the Trial Court and, thus, the same cannot be agitated before it for the first time. The learned counsel for the plaintiff‑respondent has contended that as no objection was raised by the defendant‑appellant in the trial Court, the High Court has rightly held that the same could not be raised at the stage of second appeal. We have given our due consideration to the arguments raised at the Bar. It is settled principle of law that if an objection regarding the wrong valuation of the suit for the purposes of jurisdiction is not raised at the earliest opportunity in the trial Court, the same cannot be permitted to be raised subsequently, especially so when no prejudice is shown to have been caused to the defendant‑appellant. For appreciating the matter in controversy, section 11 of the Suits Valuation Act is reproduced as under:‑ "(1) Notwithstanding anything in section 578 of the Code of Civil Procedure, an objection that by reason of the over‑valuation or under valuation. of a suit or appeal a Court of first instance or lower appellate Court which had no jurisdiction with respect to the suit or appeal exercised jurisdiction, with respect thereto shall not be entertained by an appellate Court unless‑ (a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower appellate Court in the memorandum of appeal to that Court, or (b) the appellate Court is satisfied, fox reasons to be recorded by it m writing, that the suit or appeal, was overvalued or under‑valued, and that the over‑valuation or under‑valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits. (2) If the objection was taken in the manner mentioned in clause (a) of subsection (1), but the appellate Court is not satisfied as to both the matters mentioned in clause (b) of that subsection and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance or lower appellate Court. (3) If the objection was taken in that manner and the appellate Court is satisfied as to both these matters and has not these materials before it, it shall proceed to deal with the appeal under the rules appliccable to the Court with respect to the hearing of appeals; but if it remands the suit or appeal, or frames and refers issues for trial, or require additional evidence to be taken, it shall direct its order to a Court competent to entertain the suit or appeal. (4) The provisions of this section with respect to an appellate Court shall, so far as they can be made applicable, apply to ‑a Court exercising revisional jurisdiction under section 622 of the Code of Civil Procedure or other enactment for the time being in force. (5) This section extends to the whole of Pakistan and shall come into force on the first day of July, 1887." It is evident from the provisions contained in section 11 of the Suits Valuation Act that if a specific objection has not been raised by a party regarding the jurisdictional value of the suit, the same cannot be permitted to be raised at a subsequent stage. The principle envisaged in section 11 of the Suits Valuation Act has been enunciated in various authorities some of which are as under:‑ In `Dwarkanath Mitra Biswas v. Sm. Hamangini Kar AIR 193'7 Cal. 430, it was held that if an objection regarding the jurisdictional value of the suit is not taken at the earliest possible opportunity, the same cannot be raised at appellate or revisional stage. In `Babu Ram v. Munna Lal' AIR 1927 All. 358, it was observed that mere change of forum due to over or under‑valuation of the suit does not imply that prejudice envisaged under section 11 was caused to the party. In 'Malik Muhammad Ashiq v. The Okara Zamindara Co‑operative Society Ltd. PLD 1967 Lah. 75, it has been held that section 11 of the Suits Valuation Act expressly forbids to entertain an objection as to over‑valuation or under‑valuation of a suit or an appeal, except in the manner specified in the said section. It was observed that section 11 requires that objection as to improper valuation of a suit should be raised before the settlement of issues and if the defendant omits to raise objection at the proper stage, he cannot raise it at a subsequent stage. It was opined that section 11 is self‑contained provision complete in itself and no objection as to the value of suit for purpose of jurisdiction can be raised or entertained otherwise than in accordance with the said provision. Section 11 of the Suits Valuation Act lays down the following conditions for raising an objection for under‑valuation or over valuation of a suit or an appeal:‑ (i) that the objection to the jurisdictional value of the suit must be taken before framing or recording of issues or if the case is such that it would not admit raising of the plea in the trial Court, then it must have been taken in the memorandum of appeal; (ii) that the appellate Court shall not consider the objection relating to the jurisdictional value of the suit unless it is so raised; and (iii) that the wrong valuation of the suit or the appeal, as the case may be, has prejudicially affected the merits of the case. In 'Khan Singh v. Chaman Paswan' AIR 1945 SC 340 it was held that the expression "unless the over‑valuation or under‑valuation thereof has prejudicially affected the disposal of the suit or appeal on merits" cannot be availed of on the ground that the case was wrongly decided on facts or a wrong conclusion was drawn. It was observed that prejudice cannot be said to have been caused by mere change of forum and thus no prejudice should be presumed in case of over‑valuation or under‑valuation of a suit or an appeal." The learned counsel for the appellant has failed to show us that assuming for the sake of argument the suit was not properly valued for the purpose of jurisdiction, how the objection can be raised at a belated stage; besides the appellant could not show that the was prejudiced by under valuation of the suit, if any. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs. AA./324/S.CA. Appeal dismissed.