1985 PLP 1233 (MLD)

S.7(v)(d)--Valuation of suit--Valuation not determined by District Judge himself--Legality of order of transfer could not be gone into without determining question of valuation--Case remanded to trial Court to determine if suit was beyond his pecuniary jurisdiction, in which case order under O.VII, r.10, C.P.C. would .have to be passed by Court otherwise same should be decided on merits on basis of evidence already on record. Islam Ali Qureshi for Appellants. Asif Saeed Khosa for Respondent. Date of hearing: 24th April, 1985. This first appeal was directed against the judgment dated 29-7-1971 of the learned District Judge. D.G. Khan whereby accepting the appeal of the respondent the judgment and decree, dated 12-9-1969 of the learned Administrative Civil Judge, 1st Class, D.G. Khan was set aside and the suit was sent back to the learned Administrative Civil Judge for its decision on merits. 2. The suit for possession dated 30-11-1967 of the respondent/ plaintiff to pre-empt the sale of the land in dispute made by means of Mutation No. 668, sanctioned on 30th November, 1966 was filed in the Court of learned Civil Judge, 3rd Class, Rajanpur. The plaintiff averred in the plaint that the land was not worth more than Rs.1,260. For the purpose of court-fee he valued the suit at Rs.32.50 being ten times of the land revenue of Rs. 3.25 and for the purpose of jurisdiction he valued -it at Rs.97.50 being thirty times the land revenue of Rs. 3.25. On objection being taken, Local Commission was appointed by the learned Civil Judge to report as to the market value of the land in suit. The local Commission reported that the land in suit was worth Rs.5,025. The learned civil Judge despite the fact that there was an issue as to whether the suit has been properly valued for purpose of court-fee and jurisdiction and though the evidence was led by the parties on all the issues, thought it proper to take up the question of jurisdiction first and vide his order, dated 16-5-1969 came to the conclusion that section 7 (v) (d) of the Court Fees Act governed the case. He, therefore, directed the plaintiff to amend the plaint and to make-up the deficiency in court-fee on Rs.5,025 which he thought was the market value of the land in suit by 20th May, 1969. The plaintiff filed amended plaint on 20-5-1969 but asked for extension of time and the time was extended till 15-6-1969 vide order, dated 22-5-1969. In the same order it was directed that the file be sent to the learned District Judge as the jurisdiction value as shown in the amended plaint exceeded his pecuniary limits. The file was accordingly sent to the learned District Judge who vide his order, dated 2-6-1969 transferred the suit to the Court of Administrative Civil Judge for disposal. The parties appeared before the learned Administrative Civil Judge on 7-6-1969 when the plaintiff was again directed to make-up the deficiency in the court-fee by 15-6-1969 and admittedly the deficiency was made good by this date. The Administrative Civil Judge vide order, dated 12-9-1969 dismissed the suit as barred by time observing that the date of institution of the suit would be the date of proper presentation of the plaint to the Court of Administrative Civil Judge and this date was 15-6-1969. On appeal filed by the plaintiff /respondent the learned District Judge in the impugned judgment held that in his view the fact that the learned Civil Judge had instead of returning the plaint under Order VII, rule 10, C.P.C. sent file to the District Judge with the request to transfer it to a Court of competent jurisdiction would not make any difference. It is, however, important to note that the learned District Judge himself noted in the impugned judgment that the essential question on which turns the fate of the case is whether the suit was competently transferred by the learned District Judge from the Court of the Civil Judge, Rajanpur to the Court of Administrative Civil Judge. In this behalf it was observed that if the answer was in the affirmative then the question of limitation would hardly arise and that as the record stands it was difficult to say with any amount of certainty that jurisdiction of the suit as determined by the Civil Judge, Rajanpur was correct because record was bare of any evidence as to whether net profits had arisen during the year next before the institution of the suit it was further observed that in this view of the matter it was also difficult to say whether the suit as originally instituted was not competent in the Court of Civil Judge, Rajanpur. Despite the aforequoted findings, the learned District Judge held that .the sending of the file to the District Judge for its transfer to the Court of competent jurisdiction would not make any difference. 3. In support of his findings, the learned District Judge failed to give any reason. It is well-established that only a suit which is pending in a Court competent to try it, can only be transferred to another Court of competent jurisdiction under section 24, C.P.C. In other words the powers of withdrawal and transfer given by section 24, C.P. C. can only be exercised if the suit, appeal or other proceedings were instituted and are pending in a Court that has jurisdiction over the same. See Mst. Razia Shafi v . Major M . S. Malik P L D 1971 S C 247 , Ahmad Ali and another v, Muhammad Ashraf etc. N L R 1979 Civil Lah. 508 and Haji Faiz Muhammad v. Sayed Riaz Hussain P L D 1957 (W.P.) Lah. 689. The question of jurisdiction according to the learned District Judge essentially arose in the case and on the determination of this question the fate of the case rested. The learned District Judge was also of the view that on the basis of evidence available on record it was difficult to say with any amount of certainty that the jurisdictional value of the suit as determined by the learned Civil Judge, Rajanpur was correct. According to the learned District, Judge the jurisdiction value was to be fixed with reference to the net profits arising during the year next before the institution of the suit. The necessary consequence of the finding recorded by the learned District Judge was that the suit should have been remanded to the Civil Judge, Rajanpur where the suit was initially filed for passing an appropriate order after determining the question of jurisdiction by providing opportunity to the parties to lead evidence on the question of valuation. This question was not determined by the learned District Judge himself and without determining the said question legality of the order of transfer cannot be gone into, At this stage it may be noted that according to learned counsel for the appellant the Jamabandi for the year 1961-62 Exh. P.1r would not be relevant as the latest Jamabandi for the year 1964-651 should have been produced alongwith Khasra Girdawari of the relevant crops. This situation therefore, necessitates the remand of the suit to the trial Court. Order accordingly. If the learned Civil Judge finds that the suit as filed was beyond his pecuniary jurisdiction then an appropriate order as required by Order VII, rule 10, C . P. C . will have to be passed. In case the suit as filed falls within the jurisdiction of the learned Civil Judge then the same shall be decided on merits on the basis of the evidence already available on record. 4. The appeal is disposed of in the above terms. The suit shall stand remanded to the Court of learned Civil Judge, 3rd Class, Rajanpur instead of remand to the Court of Administrative Civil Judge, Rajanpur. The suit shall be disposed of within three months. No order as to costs. A . A . Order accordingly.