2015 PLP 1171 (YLR)

SARDAR ABDUL HAMEED KHAN, J.

All the above titled writ petitions have been filed under section 44 of the Interim Constitution Act, 1974, whereby in all the writ petitions the petitioners have made the following prayer:-- "Therefore, prayed that these writ petitions may graciously be accepted and the order of respondent No. I may kindly be set aside being against the law and the respondent No. 3 may kindly be directed to restore the suit in accordance with law".

2. All the above captioned petitions raised common controversy hence, were consolidated and are disposed of through the instant consolidated judgment.

3. Facts of the all the petitions are that petitioners herein filed a declaratory suit before the Civil Court No. 1 Rawalakot under section 39 of the Specific Relief Act, 1877 and prayed for the cancellation of agreement dated 28-4-2001 registered on 2-5-2001 regarding the land bearing Survey Nos. 359 (old), 736, 754, 755 and 748 (new) situated at Rawalakot executed in favour of Pearl Development Authority, Rawalakot for the sale of 2 kanals of land and fixed price Rs. 80,000 per kanal, out of which Rs. 50,000 received through Cheque No. 22004546. The respondents/defendants failed to fulfil its obligation of payment of balance amount, which resulted high increase in prices of land. The respondents herein without fulfilling the conditions of the agreement and without knowledge of the petitioners/plaintiffs transferred the suit land in favour of Pearl Development Authority, Rawalakot.

4. Respondents/ defendants were summoned and they submitted written statement in the trial Court on 16-6-2011 and 10 issues were framed on 9-5-2012 and the learned trial Court decided issues Nos.1, 2 and 4 through order dated 1-9-2012 and decided in favour of the petitioners. Feeling dis-satisfied from the order of the trial Court filed revision petition before the learned District Judge, Rawalakot on 30-11-2012 the file was made over to the Additional District Court on the same day and the learned Additional District Judge Rawalakot accepted the revision petition and the order of the trial Court was set-aside and remanded the file to the trial Court for deciding afresh.

5. Feeling aggrieved from the judgment of learned Additional District Judge Rawalakot, the petitioners filed the above titled writ petitions. After filing of these writ petitions respondents were summoned but respondents failed to file comments or written statement, hence the defense of respondents were closed.

6. Barrister Adnan Nawaz, appearing on behalf of petitioners reiterated the facts and grounds narrated in the petitions and argued that the learned trial Court had rightly decided legal issues which required no interference. It is further stated that the perusal of record with Section 8 of Suits Valuation Act, and section 7(iv)(c) of Court Fees Act, 1870 makes it clear that for declaratory decree with consequential relief the petitioners/plaintiffs shall state the amount at which value the relief sought. It is contended that plaintiffs/petitioners herein rightly valued the plaint, hence, the Civil Court has jurisdiction to try and dispose of the matter. Finally the learned counsel for the petitioners prayed for acceptance of the writ petitions and referred PLD 1985 SC (AJK) 1.

7. On the other hand, Sardar Suleman, Advocate appearing on behalf of the respondents supported the judgment of Additional District Judge on all four corners and contended that the learned trial Court decided the legal issues against the law and assumed jurisdiction not available to the Civil Court. It is stated that petitioners filed suit under Section 39 of the Specific Relief Act, 1877 which is simple a declaratory suit and court-fee will be calculated 'Ad-Valorem" means the value of impugned document according to clause 10(a) of Section 7 of the Court Fees Act, 1870. The learned counsel for the respondents further stated that the learned trial Court was unable to understand the real controversy between the litigants and declared that the Civil Court has jurisdiction without commenting on the pecuniary side of the matter. The learned counsel submitted that the learned Additional District Judge Rawalakot rightly set aside the order of trial Court. Lastly he prayed for dismissal of the writ petitions with exemplary costs and relied upon 2002 CLC 1549 and PLD 1991 (AJ&K) 66.

8. I have heard the learned counsel for the parties and gone through the record of the case with due care.

9. At the very outset, it is stated that the defence of the respondents has been closed hence, the real controversy between the parties which emerges from the arguments of both the counsel is valuation of suit for the purpose of court-fee and jurisdiction.

10. First of all, I would like to differentiate between sections 39 and 42 of Specific Relief Act, 1877. For convenience sake the above sections reproduced here under:-- "Section

39. When cancellation may be ordered. Any person against whom a written instrument is void or void able, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or void able, and the Court may in its discretion, so adjudge it and order it to be delivered up and cancelled".

11. Whereas, the wording of section 42 of Specific Relief Act, says:-- "Section

42. Discretion of Court as to declaration of status or right. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief; Bar to such declaration: Provided that no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so".

12. The perusal of both the provisions shows that declaration can be claimed along with cancellation of document as its consequential relief and again cancellation of any instrument can be claimed independently without going for declaration. The cancellation does not require declaration every time and that is why independent section 39 is provided by the legislators.

13. Now keeping in view the distinction between two sections of Specific Relief Act, discussed above, this proposition further simplified for the purposes of valuation of suit for court-fee and jurisdiction; (1) Simple declaratory suit under Section 42 of Specific Relief Act, 1877. (2) Declaratory suit with consequential relief under Section 42 of Specific Relief Act, 1877. (3) Cancellation of any instrument without seeking declaration under Section 39 of Specific Relief Act, 1877.

14. For convenience sake relevant portion of section 7 is reproduced as under:-- "Section 7.

Computation of fees payable in certain suits for

(i) xxx (ii) xxx (iii) xxx (iv) In suits xxx (a) xxx (b) xxx (c) For a declaratory decree and consequential relief: to obtain a declaratory decree or order, where consequential relief is prayed; (d) xxx (e) xxx (f) xxx "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 the relief sought is valued in the plaint or memorandum of appeal". "(x). For Specific Performance: In suits for Specific Performance:- (a) of a contract of sale - according to the amount of the consideration; (b) xxx (c) xxx (d) xxx".

15. Section 8 of the Suits Valuation Act, 1877 is also reproduced hereunder:-- "Section

8. Court fee value and jurisdictional value to be the same in certain suits; Where 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 determined for the computation of court fee and the value for purposes of jurisdiction shall be the same."

16. Serial/Article 10 of Schedule showing value of suits for purpose of computing Court Fees on plaint and memorandum:--

10. Declaratory Ad-valorem, according to the amount claimed. 7(iv)(c) (a) Where consequential relief is prayed. Ad-valorem according to the amount at which the relief sought is valued. (b) Where no consequential relief is prayed. Fixed Rs.10. Article 17 (ii), Schedule II (c) By a reversioner in respect of an alienation of ancestral land under the Customary Law. Fixed Rs.20. Article 22, Schedule II.

17. Now it will be proper to reproduce the precedent of law relevant to the proposition PLD 1985 SC (AJK) 1 case titled "Muhammad Suleman and another v. Javaid Iqbal and others in a civil appeal decided by Mr. Justice Raja Muhammad Khurshid Khan, C.J., decided on 8-8-1985, observed at pages 33, 34, and at page 35 as under:-- "Here the suit was brought for declaration with the consequential relief only. The amount of Court fee would be deemed to be correct because under Section 7(iv)(c) of the Court Fees Act in a suit to obtain a declaratory decree where the consequential relief is also claimed, the amount of fee payable shall be computed according to the amount at which the relief sought is valued in the plaint. Under section 8, Suits Valuation Act, where (except in certain cases) the court-fees are payable ad valorem the value as determinale for the computation of the court-fees and the value for purposes of jurisdiction shall be the same. It is pertinent that in this case objection to the valuation for the purposes of court-fees was only taken before the trial Court which was overruled while deciding the case as a whole. The appellants, it appears, felt contended with this decision and kept silent in the first and second appeals. But it is now contended before me that the suit fell within clause (v) of Section 7 of the Court Fees Act and was not entertain-able in the Court of Sub-Judge. The value of the property, being Rs. 65,000 the suit, it is claimed was beyond the pecuniary jurisdiction of the Sub-Judge". "The principle is that the Court has to look at the 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 camouflage attempt in words to disguise a specific relief claimed in the garb of suit for declaration occupied with a consequential relief. With this proposition I may say with all respect that I entirely agree and hold that the suit was triable by the Sub-Judge". "As regards the provision in Section 11, Suits Valuation Act, it should be noted that the restriction is of a special kind. It applies only to cases of the nature where it might be alleged that by reason of over Valuation or under-valuation that there was defect in jurisdiction. The section assumes there is no apparent defect the Court has jurisdiction on the valuation given. The section merely limits the power of the appellate Court to consider an objection, and it is to be inferred, I think, that the decision on the point, express or implied, possesses the same finality as the decision on any issue in the suit. I would, therefore, say that the decree of the Sub-Judge here cannot be treated as a nullity even though proper valuation of the suit may be beyond its jurisdiction". "My view is that in a suit to obtain the declaration it is difficult to determine what the true value of the relief sought is. Therefore, a Court shall not lightly disturb the plaintiff's valuation if apparently it is correct; and if the Court accepts the plaint even after objection (as is done in this case) that is an end of the matter and thereafter all the proceedings must be controlled by the valuation fixed by the plaintiff'. "Even, I assume, the defect in the jurisdiction of the Sub-Judge, it stands cured by section 11(b) of the Suits Valuation Act. Section 11 of the Suits Valuation Act provides that an objection that by reason of the over-valuation or under-valuation of the suit a Court has no jurisdiction to try it, shall not be entertained by an appellate Court though taken in the Court of first instance unless the appellate Court is satisfied that there was overvaluation or under-valuation and this fact had prejudicially affected the disposal of the suit on its merits. The view, which appears to have been constantly taken of this provision, is that (as also section 21, Code of Civil Procedure which deals with the territorial jurisdiction) there are exceptions to the general rule that the judgment of a Court without jurisdiction is nullity and that want of jurisdiction cannot be waived".

18. The controversy has also been resolved by Hon'ble Justice Tanzeel-ur-Rehman, J in case titled Saeeda Bano and 8 others v. Muhammad Sabir and 8 others reported in 1986 CLC 123 Karachi. The relevant portion is reproduced as under:-- "The court is to take into consideration the plaint as a whole and see the nature of the relief claimed by the petitioner. In this case, the applicants have not only sought for declaration in respect of the agreement and the decree obtained by fraud and misrepresentation to be void and of no effect but have also prayed for the relief for cancellation of the said agreement and the decree. The second relief as to the cancellation of the agreement and the decree constitutes a consequential relief which flows from the declaration itself. In this view of the matter, it cannot be said that he has not asked for any consequential relief. The relief for declaration has been sought under Section 42 of the Specific Relief Act, whereas the cancellation of an agreement and a decree falls within the preview of Section 39 of the Specific Relief Act. The possible result would be that in a suit for declaration and cancellation of a document or decree court-fee is to be paid under Section 7(iv)(c) of the Court Fees Act".

19. Following the dictum of apex Court laid down in PLD 1985 SC (AJ&K) 1, the proposition has been decided by Hon'ble Mr. Justice Kh. Mohammad Saeed as he then was in a case titled Mst. Nasim Akhtar v. Mohammad Sabeel and another (PLD 1991 AJ&K 66) whereas the Hon'ble Judge has observed as under:-- "In the present case, the plaintiff firstly has to prove that he had paid Rs. 6 lac to his father deceased, Ghulam Rasool to purchase the land along with house for the plaintiff. He has also to prove that decree allowed in favour of Mst. Nasim Akhtar on October 9, 1986 with regard to the suit land on the admission of Ghulam Rasool deceased, was void, ineffective and inoperative against his rights. Without removing these obstacles, the decree for possession cannot be allowed in his favour. As held in the earlier part of this order, the entire plaint has to be scrutinized in order to ascertain the real nature of the suit. In the instant case, the relief of possession is implicit in the relief of declaration. Therefore, under Section 7(4)(c) where two reliefs; one for declaration and the other as consequential relief for possession, have been sought for, it would bring the case with the ambit of Section 7(4)(c) of the aforesaid Act". In the light of what has been stated above, finding no error in the order of the learned Sub-Judge Mirpur, the revision petition stands dismissed with costs".

20. In PLD 1991 AJ&K 50 in a case titled "Pervaiz Akhtar and others v. Raj Muhammad decided by Hon'ble Mr. Justice Ch. Mohammad Riaz Akhtar as he then was relying upon PLD 1985 SC (AJK) 1 has observed as under:-- "As the matter pertains to the jurisdiction of the Court, the interpretation of section 7(iv)(c) of the Court Fees Act and section 8 of the Suits Valuation Act is required. Section 8 of the Suits Valuation Act is meant for the purpose of determining the value of the suit for the purpose of jurisdiction. Section 8, envisages that in all suits value for the purpose of the jurisdiction will be the same which will be for the purpose of the court-fee except paragraphs (v), (vi), (ix), and (x) of the section 7 of the Court Fees Act. It clearly lays down that except paragraphs mentioned above in all other cases the value for the purpose of jurisdiction will be the same which will be for the purpose of court-fee". "Now the question arises that which paragraph of Section 7 will be applicable in the present case. The present case is a case for declaration in which the conesquential relief has been sought. It is very much clear, that in declaratory suit along with the consequential relief, section 7, subsection (iv)(c) of the Court Fees Act will apply. Both the learned counsel for the parties are in agreement that in the present case section 7(iv)(c) will apply, however the learned counsel for the petitioners has difference on the interpretation of section 7, sub-section (iv)(c) of the Court Fees Act". "The plaintiff has an absolute discretion to put his own valuation. The Court has no jurisdiction to question the valuation, however arbitrary it may be. So the plaintiff has sole discretion to put any value for the purpose of court-fee on the relief of the suit".

21. The same view has been approved in AIR 1922 Lahore

236. The relevant portion is as under:-- "It was held that in a suit under section 7, clause 4(c) of the Court Fees Act the Courts are bound to accept the valuation placed by the plaintiff upon the relief sought by him, even though such valuation is arbitrary and inadequately represents the value of the property. It was further held, in regard to the jurisdiction value of suits falling under section 7 clause 4(c) of the Court Fees Act that as the general rule the value as determinable for the purpose of court-fee and the value for purposes of jurisdiction were the same under section 8 of the Suits Valuation Act."

22. In the instant case after detailed scrutiny, it is ascertained that relief of declaration of mutation being in operative and in effective upon rights of the petitioners, which has been sanctioned in favour of PDA and that of possession is implicit in the relief for cancelation of impugned document. Therefore under Section 4(iv)(c) of the Court Fees Act, 1870, where two reliefs, one as substantive and other as consequential have been sought for, it would bring the case within the ambit of the above said section.

23. It is pertinent to note that the learned Additional District Judge interpreted the term "Ad Valorem" value of the suit to be according to value of the document which is misconceived. This Latin word "Ad Valorem" means only "according to value". According to Black's Law Dictionary, Law dictionary by Dr. Tanzeel-ur-Rehman and Rafiq's Law Dictionary it mean "According to the value " ". It means according to value of the plaint or the document according to relevant provision of suit valuation and Court Fees Act. In this case, in view of the above, it means according to the value fixed by the plaintiff in plaint or memo of appeal.

24. In view of the above facts and in light of the statutory law as well as the case law referred above, it is concluded that the instant case falls within purview of section 7(iv)(c) of Court Fees Act, 1870 and the learned District Judge has erred in holding that the case does not fall in the said category and pass the order to return the plaint under Order VII Rule 10 of C.P.C. impugned herein, which is not tenable under law.

25. The crux of the above discussion is that all the above titled nine petitions are accepted and the impugned orders of the learned District Judge dated 13-3-2013 in all the above cases are hereby set aside and declared that the impugned orders have been passed against the law, which are of no legal effect. Order announced. AG/9/HC(AJ&K) Petitions allowed.