P L D 1960 (W (PLP)

BASHIR AHMAD, J.‑This is a miscellaneous petition under section 151 of the Code of Civil Procedure presented by the plaintiff ‑respondent in Regular First Appeal No. 19 of 1959, which has been referred to us for decision.

2. The respondent had brought a suit for pre‑emption of land which was decreed by the trial Court on payment of a sum of Rs. 8,

000. The defendant had come up in appeal against the decree (Regular First Appeal No. 19 of 1959) which had been duly admitted. The sole question involved in the appeal is the right of pre‑emption. The amount at which the claim had been decreed is no longer in dispute.

3. The jurisdictional value of the suit was fixed at 30 times the land‑revenue which came to Rs. 234‑4‑

0. The appeal was filed to this Court on the basis that the decree for possession had been passed on payment of Rs. 8,

000. The respondent contests the jurisdiction of this Court to entertain the appeal. He appre hends that the decision of the appeal in this Court will in the usual course take long time and has prayed that the preliminary point may be decided first. The prayer of the petitioner was granted and the point is now before us for decision.

4. Before examining the precise point raised, it will be useful to reproduce a few provisions of the law, which have a material bearing on the case. Section 7 (v) and (vi) of the Court Fees Act read :‑-- (v) "In suits for the possession of land, houses and gardens according to the value of the subject‑matter ; and such value where the subject‑matter is land shall be deemed to be. (b) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid ; and such revenue is settled, but not permanently‑ten times the revenue so payable ;" (vi) "In suits to enforce a right of pre‑emption ‑according to the value (computed in accordance with paragraph V of this section) of the land, house or garden in respect of which the right is claimed." Reading these two provisions together, it is clear that a suit for, pre‑emption for the purposes of court‑fees is to be treated on the same footing as a suit for possession, and the parties are agreed' that in the present case for the purposes of court‑fees the value of the suit will be ten times the land‑revenue settled on the land.

5. This brings us to a consideration of the relevant provisions of the Suits Valuation Act. Section 3 of the Act reads :‑

"(1) The Provincial Government may make rules for deter mining the value of land for purposes of jurisdiction in the suits mentioned in the Court Fees Act, 1870, section 7, paragraphs (v) and (vi), and paragraph (x), clause (d). (2) The rules may determine the value of any class of land, or of any interest in land, in the whole or any part of a local area, and may prescribe different values for different places within the same local area." The present case falls expressly within the terms of section 3 of the Suits Valuation Act. The Provincial Government with the concurrence of the High Court framed rules under Suits Valuation Act. It will be useful, to reproduce the relevant rules. Rule 1 reads :‑

"In suits for the possession of land the value of the land for purposes of jurisdiction, shall be held to be as follows :‑ (b) where the land forms an entire estate, or a definite share of an estate paying annual , revenue to Government or forms part of such estate and is recorded as aforesaid, and revenue is settled, but not permanently‑ thirty times the revenue so payable." Rule 2 reads :‑ "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." It is thus obvious that the value for the purpose of jurisdiction in a suit for pre‑emption shall be held to be thirty times the land revenue. As already indicated, the value for the purposes of Court‑fee and jurisdiction in the present case was fixed on the basis of the provisions mentioned above and there is no dispute that this was as required by the law.

6. The contention of the learned counsel for the petitioner is that the value fixed for purposes of court‑fees shall be deemed to be as laid down in the Court Fees Act, which is very different from what it actually may be. In terms, therefore, the valuation determined under the Acts is professedly artificial under both the Acts, and is not concerned with the market‑value of the property otherwise. The same could be said about the value as determined for the purposes of jurisdiction for the expression employed under the rules is as already indicated "shall be held to be as follows."' It is clear therefore, that under section 3 of the Suits Valuation Act read with rules 1 and 2 framed under section 3 of the Act, the value determined is essentially artificial in character and has no reference to the market‑value of the property in dispute. The power so conferred is unfettered and the plea that the market value is different from the value so determined will not be available under the law or the rules framed under the law.

7. The learned counsel for the petitioner has argued on the footing of these provisions that the fact that the claim has been decreed on the payment of a sum of Rs. 8,000 will not alter the jurisdictional value of the suit for the purposes of appeal. As a pure matter of law it is the Suits Valuation Act and the rules framed under the Act alone which have to be consulted. It is contended that the pecuniary jurisdiction of the Court in cases falling under the aforesaid provisions will have to be determined with reference to the artificial value and not the amount on which the claim has been decreed. The learned counsel for the respondent, who is the appellant in the main appeal, has on the other hand, contended that the value so determined is purely tentative and varies on determination by the Court of the real value. He has cited a few authorities in support of the proposi tion which require examination.

8. The basic authority on the point is a Full Bench judgment of the Punjab Chief Court [Muhammad Afzal Khan v. Nand Lal (16 P R 1908)]. This was a suit for pre‑emption in which the jurisdictional value as determined under the rules framed under the Suits Valuation Act was Rs.

644. The trial Judge who was invested with pecuniary jurisdiction of Rs. 1,000 only, decreed the claim on payment of a sum of Rs. 4,

098. It was argued that since the pecuniary jurisdiction of the Court was Rs. 1,000, he had no jurisdiction to pass a decree for pre‑emption on the payment of a sum of Rs. 4,

098. The matter was ultimately referred to the Full Bench, who held that in passing the decree the trial Subordinate Judge had exceeded his jurisdiction. This conclusion was based on the following premises. Mr. Justice Chatterjee, one of the learned Judges composing the Full Bench, said that the general rule of law is that a Court cannot pass a decree which exceeds its pecuniary jurisdiction. Section 4 of the Suits Valuation Act prescribes an artificial value for the purposes of jurisdiction in a pre‑emption suit, but it does not follow from the provisions that the Court is empowered in passing the decree to exceed the limits of its pecuniary jurisdiction. The situation in his Lordship's estimate was due to the anomaly created by the artificial provision contained in sections 3 and 4 of the Suits Valuation Act, which he did not consider as overruling the provisions of the general law. Any other interpretation in his view would have far‑reaching effects. Mr. Justice Reid, who delivered a separate judgment, supplemented the reasons by stating that the value determined under the Suits Valuation Act was purely tentative and ceased to be operative when there bas been an actual determination of the value by the Court. He distinguished cases in which a mere decree for possession of land was claimed from those in which a decree for possession was claimed on the basis of pre‑emption. In the estimate of the learned Judge in suits of simple possession the Court is not called upon to determine the value of the land, though it is under an obligation to do so if possession is claimed on the basis of pre‑emption. He noticed also the distinction that since the execution of the decree for possession in pre‑emption suit is dependent on the payment of the sum found due, the deter mination of the amount formed part of the decree. Mr. Justice Rattigan also delivered a separate judgment. The substance of the reasoning which prevailed with the learned Judge in concurring with the conclusions reached by his other brother Judges was that there is a radical difference between a simple decree for possession of land and one based on a claim of pre‑emption. In a suit for pre‑emption the plaintiff has to establish his right to pre‑empt and secondly also the amount on the payment of which he could claim a decree. The amount has, to be determined without reference to the provisions of the Suits Valuation Act and the decree is to provide the amount which the decree‑holder has to pay before decree for possession could be executed. The adjudica tion of the amount, which the decree‑holder has to pay, forms part of the decree. The learned Judge in agreement with his other brother Judges reached the conclusion that the case of settlement of accounts and dissolution of partnership were at par with cases in which a decree for possession on the basis of pre‑emption is claimed. The valuation initially is purely tentative and varies with the adjudication by the Court of the true value of the property. In the result the Full Bench found that the order of the Sub‑Judge decreeing the claim on payment of Rs. 4,098 exceeded the pecuniary jurisdiction of the Court and was without jurisdiction.

9. The above authority dealt with jurisdiction of the trial Court to pass a decree which exceeded its pecuniary jurisdiction. The question of the jurisdiction 'of the Appellate Court to pass a decree, which exceeded its pecuniary jurisdiction, came up in a later case of the Punjab Chief Court [Iftikhar Ali v. Thakar Singh (83 P R 1912)], to which Mr. Justice Rattigan, one of the learned Judges constituting the Full Bench, was also a party. The jurisdictional value in this case according to rules was Rs. 1,

132. The claim was decreed on the payment of a sum of Rs. 7,

000. An appeal against that decree was preferred before the District Judge, who reduced the amount to a sum of Rs. 5,

300. In second appeal, it was urged on the basis of Muhammad Afzal Khan v. Nand Lal, the Full Bench case referred to above, that the learned District Judge had no jurisdiction to entertain the appeal. The learned Judges composing the Division Bench distinguished Muhammad Afzal Khan v. Nand Lal on the ground that the precise point involved in the case was the competence of a trial Judge to pass a decree which exceeded his pecuniary jurisdiction. In the case before them the question was the determination of the jurisdictional value in order to determine the competence of an appeal. It was said that if the Full Bench authority travelled beyond those limits, it would be pure obiter dicta. The learned Judges reached the conclusion that the appeal before the learned District Judge was competent. Mr. Justice Rattigan, who was a party to the Full Bench, concurred to the conclusion reached by his brother Judge, and did not consider the principle laid down in Muhammad Afzal Khan v. Nand Lal as applicable to the facts of the case before them.

10. The principle of law enunciated in this authority was followed by the Division Punch of the Lahore High Court in a case Malha and others v. Bishan Singh and others (A I R 1925 Lah. 41). In this case a decree for pre‑emption was passed on payment of a sum larger than Rs. 5,

000. The learned Judges ruled that the appeal lay to the learned District Judge under section 39 (1) (a) of the Punjab Courts Act and not to the High Court.

11. Another Division Bench of the Lahore High Court followed the above view in a case [Jagdish Ram v. Mst. Chinto and others (A I R 1936 Lah. 133)]. In this case decree for pre‑emption was passed on payment of a sum exceeding Rs. 5,

000. The learned Judges followed the view expressed in Iftikhar Ali v. Thakar Singh and held that the appeal before the learned District Judge was competent.

12. The same view was expressed in another case [Sham Singh v. Jagat Singh and another (A I R 1938 Lah. 765)]. In this case the appeal arose out of a suit by a collateral challenging the alienation under the Customary Law as being without any legal necessity and con sideration although the consideration for the sale was stated to be a sum of Rs. 13,

000. The trial Court dismissed the suit on the finding that the sale was for consideration except for a sum of Rs. 1,500 or thereabouts. On appeal, the learned District Judge found that the sale was for a consideration to the extent of Rs. 6,508, but declined to pass a decree as it exceeded his appellate jurisdiction and returned the appeal for presentation to the High Court. The learned Judges following the principle laid down in Iftikhar Ali v. Thakar Singh came to the conclusion that the learned District Judge had the jurisdiction to decree the claim on appeal.

13. It will be clear from the reasoning of the learned Judges that the point for determination is the pecuniary jurisdiction of the Court as decisive on the question whether the Court is competent or not to decide the suit or entertain the appeal. It will be necessary in that context to reproduce a few more provisions of the law bearing on that question. Section 39, subsection (1) of the Punjab Courts Act (VI of 1918) reads :‑ "Save as aforesaid, an appeal from a decree or order of a Subordinate Judge shall lier‑ (a) to the District Judge where the value of the original suit in which the decree or order was made did not exceed Rs. 5,000. (b) to the High Court in any other case." By virtue of the power conferred by section 26 of the Punjab Courts Act, the High Court has divided the Subordinate Judges into four classes as follows :‑ "Class I.‑Subordinate Judges exercising jurisdiction without limit as to the value of the suit. Class II.‑Subordinate Judges exercising jurisdiction in cases of which the value does not exceed Rs. 5,

000. Class III.‑Subordinate Judges exercising jurisdiction in cases of which the value does not exceed Rs. 2,000., Class IV‑‑Subordinate Judges exercising jurisdiction in cases of which the value does not exceed Rs. 1,000. (Fide High Court Notification No. 4, dated 3rd January 1927)." The determining feature in either case is the value of the suit and it was for that very purpose that Suits Valuation Act was placed on the Statute Book. And the same would apply with equal force to appeals, for it is the value of the original suit in which the decree was passed which will be decisive of the forum where appeal was to lie.

14. The sole point for determination, therefore, in this case is whether it would be permissible to determine any value other than the value for purposes of jurisdiction as provided by the statute in order to decide the limited question as to which Court is competent to decide the case either on the original side or on appeal. The learned Judges who rested their conclusion on the value as actually found and not the artificial value as determined under the provisions of the statute, are influenced in no small measure by the fact that in suits for dissolution of partnership and rendition of accounts, the initial valuation of the suit for purposes of court‑fee is purely tentative and varies on determination by the Court as to what the true value is. The learned Judges have not been able to reconcile with the provisions of the statute because of the realisation that the true value is different and in assessing the pecuniary jurisdiction of the Courts they have felt strong disinclination to dissociate the amount on which the decree has been passed from the value as determined under the provisions of the law. It will be necessary, however, to examine how far the analogy for suits of dissolution of partnership and rendition of accounts could be pressed into service in the decision of the point involved.

15. Before examining the proposition, it may be necessary to reproduce a few provisions of the law bearing on the juris diction of the Court to entertain suits for dissolution of partner ship and rendition of accounts. Section 7(iv) (f) of the Court Fees Act reads :‑

"In suits for accounts‑according to the amount at which the relief sought is valued in the plaint or memorandum of appeal: In all such suits the plaintiff shall state the amount at which he values the relief sought." The relevant provision of section 11 of the Act reads : ‑ "In suits ..for an account .if the amount decreed is in excess of the amount at which the plaintiff valued the relief sought, the decree shall not be executed until the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole amount so decreed shall have been paid to the proper officer " It will be pertinent here to refer to section 8 of the Suits Valua tion Act, which provides :‑ "Whether in suits other than those referred to in the Court Fees Act, 1870, section 7, paragraphs (v), (vi) and (ix) and paragraph (x), clause (d), court‑fee are payable ad valorem under the Court Fees Act, 1870, the value as determinable for the computation of court‑fees and the value for purposes of jurisdiction shall be the same."

16. Combined effect of these provisions is that under section 7 (iv) (f) the amount has to be tentatively fixed by the plaintiff in the first instance but on a determination by the Court of the actual sum due under section 11 of the Court Fees Act the amount so determined, has to be the basis for the levy of the Court‑fee and under section 8 of the Suits Valuation Act the value so determined for the purposes of Court‑fees will be the value for the purposes of jurisdiction as well. It would thus be clear that suits for dissolution of partnership and rendition of accounts are dealt with as a separate subject both under the Court Fees Act and the Suits Valuation Act. It would follow that those cases which do not fall within the purview of section 8, such as a suit for pre‑emption which falls under section 7, paragraph (vi) of the Court Fees Act, are expressly exempted from the operation of section

8. The value for purposes of jurisdic tion does not depend on the amount on the payment of which the decree has been passed, but the value as determined under the provisions of the Court Fees Act read with section 3 of the Suits Valuation Act. There is a clear distinction between cases where the value is tentatively fixed and where it is fixed once for all.

17. This, however, does not end the matter for the learned Judges who have taken the contrary view have rested their decision on what they described as a general law, in which a Court in the exercise of its jurisdiction is limited to its pecuniary jurisdiction. We see no conflict in the general law, if in determining the pecuniary jurisdiction we hold that the deter mination of the pecuniary jurisdiction is to be as required by the Suits Valuation Act and the Rules framed under the Act. The value so determined shall fall within the pecuniary jurisdiction of the Court before it could pass an effective decree. The reasoning of the learned Judges on this part of the case is obviously involved. Pecuniary jurisdiction can have reference either to the amount which has to be paid under the decree before it could be executed or the jurisdiction as determined under the law and the rules framed under the law, or both if the law does make such a provision. In the absence of any provision making both the tests applicable the Court is not exceeding its jurisdiction if it decrees the claim if it falls within the jurisdic tional value as determined under the law. The legislature has said in the clearest terms under the Court Fees Act that the value shall be deemed to be, and in the rules framed under the Suits Valuation Act that the value shall be held to be as pres cribed and the function of the Courts is to give effect to the provisions notwithstanding the apprehended result. It is said that if the contrary view were adopted a Court of a limited jurisdiction may decree a claim which involves property which is far in excess of its value if the true value of the property was to be determined. In their anxiety to get out of the situation so created, the learned Judges distinguished a case for possession of land as very different from a claim for possession of land based on pre‑emption which could succeed only if a certain amount of money was to be paid. It appears to us that this would be a case of distinction without a difference for even in the either case title in property which if assessed in terms of its market‑value may be a sum of Rs. 50,000 could be effectively decided by a Sub‑Judge of the fourth class. the fact that the learned Judge had not to come to such a decision does not alter the factual position. There can be no serious quarrel to the proposition that the valuation determined under the law and the rules is purely artificial and is far below its market‑value, and the determination remains mandatory in character.

18. But it is said that the amount ordered to be paid for the decree for possession to be executed in a suit for pre‑emption is a part of the decree. The points for decision in a pre‑emption suit are two‑fold : the determination of the right to pre‑empt and the determination of the price of the land on which the claim could be decreed. The learned Judges on that analysis have ruled that the amount determined as payable is as much a par of the decree as the right to pre‑empt affirmed under the decree and in assessing the pecuniary jurisdiction the amount determined as payable has a material bearing on what the pecuniary juris diction of a Court should be. There appears to us a fallacy in the view. Order XX, rule 14(1) of the Civil Procedure Code will bear examination for determination of the distinction drawn:‑-- "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." It is clear from the provisions that in case the plaintiff bad already deposited the amount the Court had to pass no order for the payment of money before the decree could be executed. In case the amount has not been paid, the Court has to determine the value and fix the time within which the plaintiff has to deposit the money and it is on the payment of the amount that the title shall be deemed to have accrued to the plaintiff. In default of payment of the purchase‑money and the costs (if any) the suit shall be taken to be dismissed with costs. On bare analysis, therefore, the determination by the Court of the value of the property is only with the object of enabling the plaintiff to secure the possession of the land if he so wills it. He may not pay and the suit shall be taken to be dismissed, and if he choose to pay it is dependent on his will for the Court could not have enforced the payment of the amount under the decree. In essence therefore, a decree in a suit for pre‑emption retains essentially the character of a decree for possession of land and the determination of the amount is subsidiary to the main purpose. The competence of the Court to determine the cause, therefore, not dependent on the amount which forms a condition precedent; to the execution of the decree but on the jurisdiction of the Court as determined under the provisions of the law and the rule having the force of the law. Once that jurisdiction is affirmed the pecuniary jurisdiction remains the same notwithstanding that the amount which the plaintiff may be ordered to pay, it', he must have land, in terms of money exceeds the pecuniary juris diction as artificially determined.

19. We are really not called upon in the present case to decide whether the Full Bench case (Muhammad Afzal Khan v. Nand Lal), was correctly decided. The case before us is one of appeal. With utmost respect, however we have no hesi tation in expressing the view that the soundness of reasoning in the Full Bench Case is open to very grave doubts, and is based on the obvious disinclination of the learned Judges to give effect to the clear provisions of the law which bear on the subject. We will, accordingly, hold that in suits for pre‑emption the jurisdictional value of the appeal remains as determined under the Suits Valuation Act and the rules framed thereunder notwithstanding the amount on the payment of which the decree for pre‑emption had been passed being far in excess of the pecuniary jurisdiction as so determined.

20. This petition is allowed, and it is ordered the appeal be returned to the appellant for presentation to the proper Court. The point was difficult, and there was no uniformity of practice in a matter of procedure. There will, therefore, be no order as to costs before this Court. K. M. A. Petition accepted.