P L D 2015 Lahore 421 (PLP)

SHAHID BILAL HASSAN, J.

On 3-9-1991, one Muhammad Khan son of Taj Khan, predecessor in interest of the respondents instituted a suit for declaration to the effect that Rustam was the owner of the disputed land and Mutation No.14 dated 25-5-1954 as well as subsequent mutations were illegal and void, against the appellants regarding land measuring 47 kanals 15 marlas, Khewat Nos.17/95, 27, 29, 95, 92 Khatooni No.135, Khasra Nos. 660, 661, 674, 675, 681, 682, 683, 686 (8 patches) presently land measuring 60 kanals 16 marlas Khewat No.149, Khatuni Nos.352 to 355 Khasra Nos. 1349, 1350, 1325, 1308 min, 1358, 1364, 1351, 1309, 1312, 1324 as per Jamabandi for the year 1987-88, situated at Mauza Badarpur, Tehsil Kasur. On 29-10-1991, the appellants filed their written statement. On 8-6-1992, the issues were framed. After recording evidence of the parties, the learned Civil Judge Class III decreed the suit vide judgment and decree dated 31-3-1994; against which an appeal was preferred before the learned District Judge, Kasur on 11-4-1994. During hearing of appeal a joint statement of learned counsel for the parties was recorded by the learned Addl. District Judge, Kasur on 18-6-1995, whereby valuation of suit for the purpose of court fee and jurisdiction was conceded as Rs.564,000; on the same day, the learned Addl. District Judge, Kasur returned the appeal to the present appellants for filing before the court of competent jurisdiction. On 22-6-1995, the appellants filed appeal before this court bearing R.F.A. No.166 of 1995, along with an application for condonation of delay in filing of appeal. On 10-7-2002, a learned Division Bench of this Court dismissed the said application as well as appeal as being time barred. Appellants filed a petition for leave to appeal before the august Supreme Court of Pakistan bearing C.P. No.3262/L of 2003 and on 28-5-2003, the august Supreme Court of Pakistan, granted leave to appeal and on 9-10-2008, at the time of final hearing of the case, Civil Appeal No.1143 of 2003 was allowed, judgment of this Court dated 10-7-2002 was set aside and case was remitted to the learned District Judge, Kasur with the consent of learned counsel for the parties. After remand, the learned District Judge, Kasur vide impugned judgment and decree dated 17-3-2010 accepted the appeal and while setting aside the impugned judgment and decree dated 31-3-1994 remanded the case to the learned Senior Civil Judge, Kasur for hearing the parties on the basis of available evidence on record and to decide the case within two months. Hence, this appeal.

2. Learned counsel for the appellants has inter alia argued that the impugned judgment and decree dated 17-3-2010 is against law and facts of the case. Adds that while passing the impugned judgment, learned District Judge has not appreciated that when the trial Court was not competent to entertain the suit due to lack of pecuniary jurisdiction, how the proceedings conducted/recorded by it can be termed as valid and legal, rather same were Coram Non Judice. Submits that by holding the same as according to law, the learned District Judge has erred in law and has failed to follow the precedents, even the impugned judgment is self contradictory and without application of judicious mind. Submits that the mandate of law required that plaint should have been returned under Order VII, Rule 10 of Code of Civil Procedure, 1908 for its presentation before the Court of competent jurisdiction. Hence, the impugned judgment and decree is not sustainable in the eyes of law and is liable to be set aside; resultantly, by allowing this appeal, the impugned judgment and decree dated 17-3-2010 passed by learned District Judge may be set aside and plaint may be ordered to be returned to the respondents/plaintiffs for its presentation before a court of competent jurisdiction. Relies on Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584, Mahmood Khan and others v. Agricultural Development Bank of Pakistan and others 1998 CLC 790-Karachi, Messrs Pakistan Telecommunication Corporation through its Director v. Abdus Sattar and 5 others 1995 MLD 1563 Karachi, Mohammad v. Mt. Wahab Jan AIR 1935 Peshawar 174, Suba Khan v. Rehmat Din and 2 others 1980 CLC 589-Lahore and Sankappa Rai and others v. Keraga Pujary and others AIR 1931 Madras 575.

3. On the contrary, learned counsel for the respondents/ plaintiffs, by favouring the impugned judgment and decree, has prayed for dismissal of the appeal in hand. Relies on Muhammad Suleman v. Habib Bank Limited, Hyderabad 1988 CLC 969-Karachi, Mahmood Akhtar and another v. Ch. Muhammad Hussain Naqshbandi, Addl. District Judge, Rawalpindi and another 1986 CLC 1451-Lahore and Muhammad Naseer and others v. Mustafa and others 2001 SCMR 1258.

4. Heard.

5. The moot point in this civil revision is that when the learned trial Court had no pecuniary jurisdiction, whether the proceedings conducted by it would be considered in accordance with law or not? In order to address this question, this Court has to see, initially, at the time of institution of the suit, the valuation of the suit for the purpose of court fee and jurisdiction was fixed at Rs.400 and same continued till passing of the judgment and decree by the learned trial Court, which lies within the pecuniary jurisdiction of learned Civil Judge Class III, because the valuation of the original suit has been determined by the respondents/ plaintiffs themselves under section 3 of Suits Valuation Act, 1887, thus, same would be a determining factor for the purpose of jurisdiction and not the market value or sale price of subject matter of suit, as agreed by the learned counsel for parties at appellate stage; in this regard reliance is placed on Muhammad Ali v. Imdad Hussain 1997 CLC 768-Lahore, wherein it has been observed, 'Suit Valuation Act, 1887, S.3

Subsequent change in valuation of suit

Effect

Jurisdiction

Initial value was within pecuniary jurisdiction of Trial Court and it rightly entertained such suit

Valuation of original suit as determined under S.3, Suits Valuation Act, 1887 for purposes of jurisdiction would be the determining factor and not market value or sale price of subject matter of suit..' Moreover, where during pendency of suit, the value of subject matter was found to be more than pecuniary jurisdiction of the Court trying the suit, such Court would not be deprived from its pecuniary jurisdiction under section 6 of the Code of Civil Procedure, 1908 to try the suit; in this regard guideline can be sought from Muhammad Naseer's case 2001 SCMR 1258, wherein it has invariably been held, 'Suit, institution of

Pecuniary jurisdiction of Court

Scope

Where during pendency of suit, the value of subject matter was found to be more than pecuniary jurisdiction of the Court trying the suit, such court would not be deprived from its pecuniary jurisdiction under S.6 of C.P.C. to try the suit.', but in the present case no such specific objection on the pecuniary jurisdiction was raised during pendency of the suit, mere an objection was raised that valuation of the suit was not properly made and it was for the first time at appellate stage when both the learned counsel for parties conceded the valuation of suit for purpose of court-fee and jurisdiction as Rs.564,000, which does not debar the proceedings conducted by the learned Civil Judge Class III, because the provisions of Order VII, Rule 10 of C.P.C. would apply only where Court initially lacked jurisdiction to entertain and try civil suit. At appellate stage, as is evident from the impugned judgment, no objection regarding proceedings conducted by learned Civil Judge Class III has been raised, therefore, at this revisional stage, no such objection can be allowed to be taken, because this has limited scope and only the question of illegality, irregularity and wrong exercise of jurisdiction by learned lower Court has to be seen at present. Moreover, the question whether any prejudice was caused to the appellants by proceedings and decision of the suit on merits by the learned Civil Judge Class III was not agitated before the learned Appellate Court; therefore, impugned judgment, remanding the case to the Court having pecuniary jurisdiction for deciding the same on merits after hearing the learned counsel for parties by considering the material available on record, recorded by learned Civil Judge Class III, does not suffer from any material irregularity and illegality. In this regard reliance is placed on Nasima Faiz's case 1994 MLD 810-Lahore, wherein it has been observed, 'O.XLI, R.23

Remand order

Validity

First Appellate Court had remanded case on the ground that valuation of suit for purposes of court-fee was beyond the jurisdiction of Trial Court

Case on remand was entrusted to the Court having pecuniary jurisdiction in the matter

Remand order passed by First Appellate Court was thus, legal and did not suffer from any material irregularity.' However, the order/judgment and decree delivered by learned Civil Judge Class III would be void and nullity in the eye of law and the learned appellate Court has rightly remanded the case to the Court having pecuniary jurisdiction for rehearing the learned counsel for parties and deciding the suit afresh. In this regard reliance is placed on Zahida Parveen v. Muhammad Saleem 2003 CLC 1245-Lahore, wherein it has been observed, 'Pecuniary jurisdiction

Court lacking pecuniary jurisdiction, order/judgment passed by such Court would be void.' Even in Mahmood Akhtar and another's case 1986 CLC 1451-Lahore, it has been held, 'Entrusting of suit to another Court wherein after payment of deficient court-fees, subject matter of suit exceeded pecuniary jurisdiction of Court would not render such Court to be totally bereft of jurisdiction ..'

6. In view of above discussion, the case-law relied upon by learned counsel for the appellants, with utmost respect, has no relevance to the peculiar facts and circumstances of the present case; therefore, same does not render any assistance or help to the appellants' cause; because each and every case has its peculiar facts and circumstances and the Courts have to evaluate the same with independent mind, so as to administer safer justice to the litigant public without being prejudiced or biased.

7. The crux of discussion above is that this Court finds no illegality, irregularity or wrong exercise of jurisdiction, committed by learned Appellate Court in remanding the suit to learned Senior Civil Judge for hearing the parties on the basis of available evidence on record and to decide the case afresh, rather same is up to the dexterity and based on appreciation of law on the subject; resultantly, the instant appeal being devoid of any force is hereby dismissed. No order as to costs. AG/B-24/L Appeal dismissed.