P L D 1984 Peshawar 22 (PLP)

(g) Civil Procedure Code (V of 1908)‑ S. 96‑Appeal before High Court being incompetent, omission of certain grounds from memorandum of appeal would be immaterial. Qazi Abdur Rashld for Appellant. Fazal‑e‑Hussain for Respondent. Date of hearing : 16th August, 1983. The final decree prayed for, in a suit for rendition of accounts, by Ghulam Sarwar (appellant) against the Manager, Muslim Commercial Bank I td. Abbottabad (respondent), was passed in his favour by the Civil Judge, Abbottabad on 17‑1‑1975. The appellant was held entitled to the amount of Rs. 20,656.

2. The appellant feeling aggrieved went in appeal to the Court of the District Judge, Abbottabad claiming a further amount of Rs. 4,500 of which according to him, he was illegally deprived by the learned trial Court. The appeal was filed within time before the District Judge. However, during the hearing of the appeal an objection was taken to the competency of the appeal before District Judge on the ground that the total amount in the appeal involved a sum of Rs. 25,156 including Rs. 20,656 already decreed by the trial Court. The learned counsel for the appellant, labouring under some mistake, requested for the return of the memorandum of appeal for presentation to the High Court. On 18‑7‑1975 the statement of the appellant's counsel was recorded by the learned District Judge and in view of his statement the memorandum of appal was returned to him for presentation before the proper Court. The memorandum of appeal was filed in this Court on 28‑7‑1975 with an application praying for condonation of delay on the ground that the appellant applied for a certified copy of 'the order of the District Judge returning the memorandum of appeal but the copying agency bad fixed 13‑10‑1975 as the date for the delivery of the copy. Therefore, to avoid further delay, the appeal was filed in the High Court without such copy on 28‑7‑1975. Thus it was prayed that the delay in filing the appeal in this Court may be condoned.

3. The learned counsel for the appellant urged that the memorandum of appeal was wrongly returned by the learned District Judge for presentation before the High Court as the matter fell within his exclusive jurisdiction and he could have heard and decided the appeal. It is argued that being an account suit the value for the purposes of jurisdiction, fixed at Rs. 200 in the plaint, would determine the forum of appeal. Or in the alternative the value of the subject‑matter of the suit, which was fixed at Rs. 20,656 by the trial Court, would be the determining factor. By placing reliance on section 18 of the West Pakistan Civil Courts Ordinance, 1962, as it stood at that time, it is con tended that the value of the original suit in which the decree or order was made was to determine the forum of appeal and since the value of the suit fixed by the trial Court was less than Rs 25,000 the appeal should have been heard and disposed of by the learned District Judge. 4: On the other hand the learned counsel for the respondent urged that since the appellant's counsel himself had requested for the return of the memorandum of appeal, he is legally estopped to raise that plea that the appeal was to be heard and decided by the District Judge. It is also contended that in the absence of any mention in the grounds of appeal, this plea could not be taken by the appellant. Further, that the appeal having been filed after 10 days of the return of the memorandum of appeal by the District Judge, it was liable to be dismissed on the ground of limitation.

5. Under section 18 of the West Pakistan Civil Courts Ordinance, 1962, before its amendment, appeals from a decree or order of a Civil Judge were to be filed in the High Court if the value of the original suit in which they decree or order was made exceeded twenty‑five thousand rupees and to the District Judge in any other case. Under section 2 (h) of the said Ordinances the `value' of the suit means the amount or value of the subject‑matter of the suit. In Sadaruddin v. Ilahi Bakhsh and another (P L D 1976 Lah. 1) it was held that :‑ "The account suits are valued on different premises and the same cannot be applied to pre‑emption suits. In such classes plaintiff tentatively fixes the value of the suit for purposes of court‑fee under section 7, paragraph (iv) of the Court Fees Act. However, if the amount decreed in such a suit is more than the approximate value fixed in the plaint the decree cannot be executed as provided in section 11 of the Court Fees Act until the consequent difference in court‑fees is paid. Therefore, in account suits the value fixed in the plaint is the value of the original suit if the amount decree is not in excess of that. If however, the amount exceeds then that amount becomes the value of the suit. The forum of the appeal is to be determined on such value." Similarly in Sana Ullah v. Muhammad Akhtar and others (1979 C L C 578) it was held that:‑ "In fact from the numerous authorities cited by the learned counsel it is clear that so far as suits for mesne profits or accounts are concerned, the valuation in the plaint is always to be taken as tentative and if the Court finds that the mesne profits or the amount payable to the plaintiff exceeds the amount on which he has valued the suit he must not only pay the court‑fee but the forum of the appeal will also be governed by the valuation so found by the Court." It was further held that:‑ "I am also of the view that the forum of appeal will be determined in a case where the valuation is not changed by the Court, by the value as fixed by the plaintiff but in a case where such a valuation has been changed by the Court after determining the real market value of the property it will be that valuation which will be deemed to be the value of the original suit within the meaning of section 18 because the word `value' means the value of the subject‑matter of the suit".

6. Regarding the objection that the appeal could not be heard by the District Judge because it involved an amount of Rs. 25,156 it may be mentioned that the law has not imposed any restriction on the powers of the District Judge preventing him from parsing a decree exceeding tile amount of Rs. 25,

000. It is obvious that once seized of the appeal he could award decree of any amount he deemed proper. The mere fact that an appeal in a case, where the value of the subject‑matter of the original suit did not exceed Rs. 25,000 was to be exclusively heard by the District Judge would not mean that his powers were also limited not to pass any decree exceeding that amount. In the absence of any limitation on his powers in awarding decree, it cannot be said that a decree in excess of Rs 25,000 passed by the District Judge would be without jurisdiction. If an appeal has been presented and entertained by the District Judge, his powers on the decree to be passed are unlimited. It is well‑established that the plaintiff, in a suit for an account, is entitled to place his own value on the relief sought, which must be within the pecuniary jurisdiction of the Court, but the Court can lawfully pass a decree for a sum which exceeds the pecuniary limits of its jurisdiction. Thus it cannot be said that in an account suit the Court is not competent to pass a decree for an amount exceeding the pecuniary limits of its jurisdiction. On the same analogy an Appellate Court would be competent to award decree] of any amount provided it had the jurisdiction at the inception of the filing of the appeal.

7. Since the memorandum of appeal was illegally returned to the appellant and his counsel was labouring under some misconception when he requested for the return of the memorandum of appeal, the delay in filing the same in this Court would be immaterial, for, it is clear that this Court was not competent to hear the appeal. The objection of the respondent in regard to estoppel would also not prevail since no estoppel could be pleaded against the statutory provisions. In regard to the objection that in the absence of any mention in the ground of appeal the plea of the appellant could not be entertained, it may be mentioned that the question raised being a substantial question of law could be gone into even if not raised in the grounds of appeal. Further, the appeal in this Court being incompetent the omission of certain grounds from the memorandum of appeal would be immaterial.

8. For the aforesaid reasons and for the fact that initially the appeal was filed before the District Judge within the prescribed period of limitation the appeal is sent back to the District Judge, Abbottabad, which shall be registered at its original number and disposed of on merits in accordance with law. The parties are directed to appear before the learned District Judge, Abbottabad on 24‑9‑1983. M. Z. M. Case remanded.