P L D 1996 Supreme Court 292 (PLP)

SAIDUZZAMAN SIDDIQUI, J.‑‑We propose to dispose of above mentioned two appeals by a common judgment as the judgment impugned in both these appeals is the same. Leave was granted in the above appeals consider the following legal contentions:‑‑ (2) Contention of the learned counsel for the petitioners is that after holding the order of the learned District Judge to be beyond his A pecuniary jurisdiction, the proper order should have been to return the appeal to the respondents for proper presentation. If it was so done, the petitioners would. have been in a position to contest the same inter alia on the 'ground of limitation. Secondly the learned Judge erred in striking off all the issues .except issue No.3‑A. The petitioners have been prejudicially affected in their rights." The relevant facts of the cases are that Muhammad Hussain, predecessor‑in‑interest of respondents Nos.4 to 7 and 4 to 11 in Civil Appeals Nos ' 164/92 and 165/92 respectively, allegedly agreed to sell land me assuring 105 Kanals, 1 Marla situated in Jhattanwali, Tehsil Wazirabad, District Gujranwala (hereinafter to be called as 'the suit land'), to respondents Nos.1 to 3 in the above appeals for a consideration of Rs.56,

000. According to respondents I to 3 the sale was reduced in writing on 20‑1‑1972 but it could not be registered on account of some mistake in the Khasra Girdawari and. Register Haqdaran. It appears that appellants and respondent No.8 in Civil Appeal No.164 of 1992 instituted civil suit against the said Muhammad Hussain before the Civil Judge, Wazirabad, and obtained a consent decree on 10‑2‑1972 for sale of suit land in their favour. Respondents I to 3 thereupon instituted a suit for declaration and permanent injunction on 17‑2‑1972 against the appellants and respondents Nos.4 to 8 Civil Appeal No. 164 of 1992, seeking a declaration that they are the owners of the suit land and that they are entitled to enforce the agreement dated 20‑1‑1972. They also claimed a further relief of declaration that the decree date 10‑2‑1972 passed in favour of appellants and respondent No.8 in the civil suit was collusive and not binding on respondents I to

3. The suit instituted by respondents 1 to 3 was, however, dismissed by the Civil Judge, Wazirabad. Respondents I to 3 filed Civil Appeal No.35 of 1979 before the District judge, Gujranwala, against the judgment and decree of the Civil Judge dated 14‑2‑1979. During pendency of this appeal, respondents I to 3 made an application before the District Judge, for amendment of the plaint in the suit and ,sought permission to convert it into a suit for specific performance and consequently valued it at Rs.56,

000. The learned District Judge, in his judgment dated 31‑1‑1981 reached the conclusion that the suit instituted by respondents I to 3 was in substance a suit for specific performance which should have been valued at Rs.65,000 and accordingly, after setting aside the judgment and decree of trial Court remanded the case after framing the following additional issues for a fresh decision in accordance with the law:‑‑ "(3‑A) Whether the Plaintiffs had paid Rs.9,000 as the earnest money and they had only to pay Rs.47,000 to Muhammad Hussain deceased, defendant at the time of the registration of the sale‑deed? OPP (3‑B) Whether if issue ' No. 3‑A is answered in. negative even then Muhammad Hussain deceased was bound to get registered the sale‑deed? OPP (3-C) Whether the possession of the disputed land was delivered to the plaintiffs in part performance of the contract or they were in possession in part performance of the contract and have done any act in furtherance of a contract. If so, to its effect? OPP. The appellants preferred F.A.O. No.22 of 1987 against the above order of District Judge, Gujranwala, which was accepted by a learned Judge in Chambers of Lahore High Court through the impugned judgment as follows: ‑‑ "Preliminary point has bee ' n raised by the learned counsel for the appellants that the learned District Judge having concluded the valuation of the suit to be Rs.56,200 in view of the Punjab Civil Courts (Amendment) Ordinance, 1978 (Ordinance No.XX of 1978 ) which came into effect on 20‑9‑1978, the District Judge had no jurisdiction in the case. He, according to him, therefore, should ' have returned the appeal for presentation in the High Court and that on this score alone the judgment announced by the learned District Judge, cannot be maintained. There can be no cavil that in view of the determination of the valuation of the suit the District Judge was left with no jurisdiction to further determine the case. Question arises, should on this score the appellants b left high and dry after the pendency of this appeal in the High Court for 10 years, I think not. The reasoning of the learned District Judge is perfectly correct that in view of the pleadings of the parties it was not only a case for the specific performance of the contract but also for a declaration and injunction. His finding must be upheld that the valuation of the suit for jurisdiction was Rs.56,

200. He could have returned the appeal or sent it up to the High Court but he adopted neither of the two courses. The judgment and the decree of the learned District Judge, therefore, cannot be maintained. However, even if this Court is to make appreciation of the case, the reasons given by the learned District Judge on the pleadings of the parties and reliance upon the precedent case from the jurisdiction of the Supreme Court would support his conclusion. The result is that the appeal is accepted. The judgment and decree passed and granted by the learned District Judge are hereby set aside. As discussed above only one issue arises from the pleadings of the parties and that is issue No.3‑A, as settled by the learned District Judge. This would remain as the only issue in the field while the other issues settled by the learned Civil Judge as well as the District Judge are struck off under Order 14, Rule 5, C.P.C. The case is remanded to the learned trial Court with the direction to determine Issue No.3‑A and dispose of the case in accordance with the final finding thereon. " The learned counsel for the appellants in support of the above appeals jointly contended that the learned Judge in Chambers after having reached the conclusion that the learned District Judge had no jurisdiction in the case as the valuation of the appeal was fixed as Rs.56,000, should have directed return of the memo of appeal filed before the District Judge for presentation before the competent Court instead of deciding the appeal himself and remanding the case to the trial Court for further proceedings. The learned counsel jointly urged that after the valuation of the appeal was corrected, the first appellate Court was left with no jurisdiction to proceed with the appeal and as such the order of remand passed by the learned District Judge was a nullity in the eyes of law and the learned Judge in Chambers should have simply set aside the same and left it to respondents 1 to 3 to present their appeal before a competent Court. The learned counsel for the appellants further contended that in any case the learned Judge in Chambers was not justified in striking off issues Nos.3‑B and 3‑C which were framed by the learned District Judge and the other issues framed by the trial Court while remanding the case to the trial Court for decision as this has caused great prejudice to the appellants. The appeals are not contested by the succession‑interest of deceased Muhammad Hussain (respondents 4 to 7 and 4 to 11 in the above appeals) but are resisted by respondents Nos. 1 to 3 only. The learned counsel for respondents Nos. I to 3 did not oppose the prayer (if the appellants that all the additional 3 issues framed by the learned District Judge, should be tried by the trial Court alongwith the issues originally framed by the trial Court but contended that the order of remand passed by the District Judge, Gujranwala, was a competent and valid order which could not be set aside by the learned Judge in Chambers. The learned counsel for respondents I to 3 contended that appellants had raised no objection to the jurisdiction of the learned District Judge to hear the appeal and they also failed to show that any prejudice was caused to them on account of decision of the appeal by the District Judge, Gujranwala. It is a well‑settled principle of law that if a Court has no jurisdiction to entertain a case or an appeal, the consent of the, parties cannot confer such jurisdiction on that Court. However, section 11 of the Suits Valuation Act (hereinafter to be referred as 'the Act' only), is an exception to this well established principle of law. It will be advantageous at this stage to reproduce here section 11 of the Act which in our view provides an answer to the objection raised by the learned counsel for the appellants to the competency of the appeal before the District Judge. It reads as follows:‑‑ Procedure where objection is taken on appeal or revision that a suit or appeal was not properly valued for jurisdictional purposes.‑(1) Notwithstanding anything in section 578 of the Code of Civil Procedure, an objection that by reason of the over‑valuation or under valuation of a suit or appeal or Court of first instance or lower appellate Court which had no jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an appellate Court unless‑‑ (a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower appellate Court in the memorandum of appeal to that Court, or (b) the appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit‑ or appeal, was overvalued or under‑valued and that the over‑valuation or under‑valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits. (2) If the objection was taken in the manner mentioned in clause (a) of subsection (1), but the appellate Court is not satisfied as to both the matters mentioned in clause (b) of that subsection and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance or lower appellate Court. (3) If the objection was taken in that manner and the appellate Court is satisfied as to both these matters and has not these materials before it, it shall proceed to deal with the appeal; under the rules applicable to the Court with respect of the hearing of appeals; but if it remands the suit or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, & shall direct its order to a Court competent to entertain the suit or appeal. (4) The provisions of this section with respect to an appellate Court shall, so far as they can be made applicable, apply to a Court exercising revisional jurisdiction under section 622 of the Code of Civil Procedure or other enactment for the time being in force. (5) This section extends to the whole of (Pakistan) and shall come into force on the first day of July, 1887. A careful reading of the above section 11 of the Act will show that an appellate Court is precluded from entertaining an objection as to the jurisdiction of he trial Court or a lower Appellate Court founded on the ground of over valuation or under‑valuation unless such objection in the case of the Court of first instance, was raised by the party at or before the hearing of the case when the issues were settled in the case, and in the case of lower Appellate Court the objection had been raised in the memo of appeal. Another condition which is required to be satisfied for entertaining the above objection is that the Appellate Court must record its reasons of satisfaction that the suit or appeal was over valued or under‑valued and that the over‑valuation or under‑valuation has prejudicially affected the disposal of the suit or appeal on its merits. Subsection (2) of section. 11 ibid further provides that where an objection has been raised by the party in the manner as stated in section 11 (1) of the Act but the Appellate Court is not satisfied with regard to existence of conditions mentioned in section 11(l) (b) ibid and it has material available before it for determining the other grounds of appeal, it shall proceed to dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance or lower Appellate Court as the case may be. Subsection (3) of section 11 of the Act further provides that where the objection has been raised by the party as required in section 11 (1)(a) of the Act and the Court is satisfied with regard to the presence of the conditions mentioned in section 11(l) (b) ibid and it also finds that it does not have sufficient material before it to decide the appeal, it shall proceed to dispose of the same in accordance with the rules applicable to the hearing of the appeals and if it remands the suit or appeal or frames and refers the issues for trial or requires additional evidence to be taken it shall remit the case to a Court which is competent to entertain the appeal or suit as the case may be. We are, therefore, of the view that section 11 of the Act prescribes complete procedure for dealing with the objection relating to the jurisdiction of the Court of first instance as well as lower Appellate Court on the ground of over‑valuation or under‑valuation of & subject‑matter of the suit or appeal as the case may be. Therefore, to the extent where objection is taken on the ground of over‑valuations or under‑valuation as to 'the jurisdiction of the Court of first instance or first Appellate Court, the same was to be determined in accordance C with the provisions of section 11 of the Act. This section clearly provides that firstly, the objection as to the jurisdiction of the Court of the first instance or lower Appellate Court based on the ground of under‑valuation or over‑valuation of the suit or appeal is to be raised at the earliest opportunity; and secondly, the Appellate Court hearing the appeal must be satisfied that on account of such over‑valuation or under‑valuation the disposal of the appeal on merits has been prejudically affected. In case where the first condition namely that the objection as to the jurisdiction raised by the party at the earliest opportunity has been satisfied but the second ingredient that on account of under‑valuation or over valuation no prejudice has been caused to the party taking such objection in so far the disposal of appeal or suit on merits is concerned, the appeal is to be disposed of by the Appellate Court ignoring the grounds of defect of jurisdiction on account of under‑valuation or over‑valuation of the suit or appeal as the case may be. Even in cases where the party raising the objection as to the jurisdiction on the ground of under‑valuation or over‑valuation succeeds in showing that he had not only raised objection with regard to the jurisdiction at the earliest opportunity as provided under section 11 (1)(a) of the Act and that on account of such over‑valuation or under‑valuation there has been a prejudice caused to him in disposal of the suit or appeal on merits, then also the appeal before the appellate Court is to be disposed of in accordance with the law and if the appellate Court decides to remand the case and frames additional issues then the case is to be remanded to the Trial Court or First Appellate Court as the case, may be which is competent to dispose of the matter. The scope of section 11 of the Act came up for consideration before the Indian Supreme Court in the case of Kiran Singh and others v. Chamah Paswan and others (AIR 1954 SC 340). The Indian Supreme Court while examining the scope of section 11 made the following observations:‑‑ "(6) The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of section 11 of the Suits Valuation Act is on that position. It is a fundamental principle well‑established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject‑matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was 'coram non judice, and that its judgment and decree would be nullities. The question is what is the effect of section 11 of the Suits Valuation Act on this position. (7) Section 11 enacts that notwithstanding anything in section 578 of the Code of Civil Procedure an objection that a Court which had no jurisdiction over a suit or appeal had exercised it by reason of over valuation or under‑valuation, should not be entertained by an appellate Court, except as provided in the section. Then follow provisions as to when the objections could be entertained, and how they are to be dealt with. The drafting of the section has come in‑‑and deservedly for considerable criticism; but amidst much that is obscure and confused, there is one principle which stands out clear and conspicuous. It is that a decree passed by a Court, which would have had no jurisdiction to hear a suit or appeal but for over‑valuation or under‑valuation, is not to be treated as, what it would be but for the section, null and void, and that an objection to jurisdiction based on over‑valuation or under valuation, should be dealt with under that section and not otherwise. The reference to section 578, now section 99, C.P.C., in the opening words of the section is significant. That section, while providing that no decree shall be reversed or varied in appeal on account of the defects mentioned therein when they do not affect the merits of the case, except from its operation defects of jurisdiction. Section 99 therefore, gives no protection to decrees passed on merits, when the Courts which passed them lacked jurisdiction as a result of over‑valuation or under valuation. It is with a view to avoid this result that section 11 was enacted. It provides that objections to the jurisdiction of a Court based on over‑Valuation or under‑valuation shall not be entertained by an appellate Court except in the manner and to the extent mentioned in the section. It is a self‑contained provision complete in itself, and no objection to jurisdiction based on over‑valuation or under‑valuation can be raised otherwise than in accordance with it. With reference to objections relating to territorial jurisdiction, section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice. It‑is the same principle that has been adopted in section 11 of the. Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying sections 21 and 99, C.P.C. and section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an Appellate Court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under section 11 of the Suits Valuation Act. (11) It is next contended that even treating the matter as governed by section 11 of the Suits Valuation Act, there was prejudice to the appellants, in that by ‑reason of the under‑valuation, their appeal was heard by a Court of inferior jurisdiction, while they were entitled to a hearing by the High Court on the facts. It was argued that the right of appeal was a valuable one, and that deprivation of the right of the appellants to appeal to the High Court on facts must, therefore, be held, without more, to constitute prejudice. 'His argument proceeds on a misconception. The right of appeal is no doubt a substantive right, and its deprivation is a serious prejudice; but the appellants have not been deprived of the right of appeal against the judgment of the subordinate‑ Court. The law does provide an appeal against that judgment to the District Court, and‑the plaintiffs have exercised that right. Indeed, the under‑valuation has enlarged the appellants' right of appeal, because while they would have had only a right of one appeal and that to the High Court if the suit had been correctly valued, by reason of the under‑valuation they obtained right to two appeals, one to the District Court and another to the High Court. The complaint of the appellants really is not that they had been deprived of a right or appeal against the judgment of the subordinate Court, which‑they have not been, but that an appeal on the facts against that judgment was heard by the District Court and not by the High Court. This objection, therefore, amounts to this that a change in the forum of appeal is by itself a matter of prejudice for the purpose of section 11 of the Suits Valuation Act. (12) The question, therefore, is, can a decree passed on appeal by a Court which had jurisdiction to entertain it only by reason of under‑valuation, be set aside on the ground that on a true valuation that Court was not competent to entertain the appeal? Three High Courts have considered the matter in Full Benches, and have come to the conclusion that mere change of forum is not a prejudice within the meaning of section 11 of the Suits Valuation Act. Vide Kelu Achan v. Cheriya Parvathi Nethiar AIR 1924 Mad. 6 (FB), (E); Mool Chand v. Ram Kishan AIR 1933 All. 249 (FB)(F) and AIR 1924 Pat. 278 (FB) (A). In our judgment, the opinion expressed in these decisions is correct. Indeed, it is impossible on the language of the section to come to a different conclusion. If the fact of an appeal being heard by a Subordinate Court or District Court where the appeal would have lain to the High Court if the correct valuation had been given is itself a matter of prejudice, then the decree passed by the Subordinate Court or the District Court must, without more, be set aside, and the words .unless the over‑valuation or under‑valuation has prejudically affected the disposal of the suit or appeal on its merits" would become wholly useless. These words clearly show that the decrees passed in such cases are liable to be interfered with in an appellate Court, in all cases and as a matter of course, but only if prejudice such as is mentioned in the section results. And the prejudice envisaged by that section therefore, must be something other than the appeal being heard, in a different forum. A contrary conclusion will lead to the surprising result that the section was enacted with the object of curing defects of jurisdiction arising by reason of over‑valuation or under‑valuation, but that, in fact, this object has been achieved. We are therefore clearly of opinion that the prejudice contemplated by the section is something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimately determined. (14) That brings‑ us to the question as to what is meant by "prejudice" in section 11 of the Suits Valuation Act. Does it include errors in findings on questions of fact in issue between the parties? If it does, then it will be obligatory on the Court hearing the second appeal to examine the evidence in full and decide whether the conclusions reached by the lower appellate Court are right. If it agrees with those findings, then it will‑ affirm the judgment; if it does not, it will reverse it. That means that the Court of second appeal is virtually in the position of a Court of first appeal. The language of section 11 of the Suits Valuation Act is plainly against such a view‑. It provides that over‑valuation or under‑valuation must have prejudically affected the disposal of the case on the merits. The prejudice on the merits must be directly attributable to over‑valuation or under‑valuation and an error in a finding' of fact reached on a consideration of the evidence cannot possibly be said to have been caused by over‑valuation or under‑valuation. Mere errors in the conclusions on the points for determination would therefore be clearly precluded by the language of the section. It must further be noted that there is no provision in the Civil Procedure Code, which authorises a Court of second appeal t5 go into questions of fact on which the lower appellate Court has recorded findings and to reverse them. Section 103 was relied on in 'AIR 1949 Pat. 278 (FB)(A)' as conferring such a power. But that section applies only when the lower appellate Court has failed to record a finding on any issue, or when there has been irregularities or defects such as fall under section 100, C.P.C., If these conditions exist, the judgment under appeal is liable to be set aside in the exercise of the normal powers of a Court of second appeal without resort to section 11 of the Suits Valuations Act. If they do not exist, there is no other power under the Civil Procedure Code authorising the Court of second appeal to set aside findings of fact and to rehear the appeal itself on those questions. We must accordingly hold that an appellate Court has no power under section 11 of the Suits Valuation Act to consider whether the findings of fact recorded by the lower appellate Court are correct, and that error in those findings cannot be held to be prejudice within the meaning of that section. We are in respectful agreement with the observations of Indian Supreme Court reproduced above. In the case before us, it is an admitted position that the trial Court, where the suit was instituted was competent to entertain the suit on the basis of the valuation disclosed by the plaintiffs/respondents I to 3 as well as on the basis of enhanced valuation of the suit determined by the first appellate Court. It ii quite clear from 'reading of the judgment of the learned District Judge, Gujranwala, that it was a case where the suit was under‑valued as on proper consideration of the pleadings of the suit, the learned District Judge came to the conclusion that t he suit instituted by the plaintiffs/respondents 1 to 3 was in substance a suit for specific performance which should have been valued at Rs.56,

000. It is not disputed before us that the valuation of the suit was fixed by the plaintiffs/respondents 1 to 3 at Rs.200 as it was a declaratory suit and on the basis of this valuation the appeal riled by respondents I to 3 before the District Judge, Gujranwala was fully competent. It was during the course of hearing of the appeal that the learned District Judge came to the conclusion that the valuation has not been properly fixed and the suit has been under‑valued, and therefore, he directed that the suit should be valued at Rs.56,000 and court‑fee be recovered from plaintiffs/respondents 1 to 3 accordingly. In these circumstances, the case was fully covered by the provisions of section 11 of the Act, and therefore, respondents I to 3 could not be non‑suited on the ground that on account of correction of the valuation by the District Court, the learned District Judge, Gujrainwala, lost the jurisdiction to hear and decide the appeal. The learned counsel for the appellants have, however, relied on the case of Abdul Majid and others v. Muhammad Walayat Khan through his legal heirs (1987 SCMR 113!;)to support their contention that in the circumstances of the cases, section 11 of the Act was not attracted. The case relied by the learned counsel for the appellants is of no help to the appellants in the present cases. In the above cited case, the appellants had valued their memo of appeal at Rs.24,000 but filed the same before the High Court while it should have been presented before the District Court according to its valuation. Therefore, it was not a cage of erroneous or improper valuation, of‑the appeal. It was in these circumstances that this Court observed in above cited case that section 11 of the Act was not attracted. The learned counsel for the appellants also contended that they could not have raised the objection with regard to the valuation of the suit or appeal as they were respondents in the appeal filed before the District Judge. This objection has no merit. The respondents did not object to the valuation of the suit although from reading of its contents it appeared to be it suit for specific performance of the agreement of sale. In any case, when the respondents I to 3 themselves applied before the lower Appellate Court for amendment of plaint, it became clear that the suit was under‑valued. The appellant does not appear to have objected o jurisdiction of the District Judge to hear the appeal on account of enhancement 'in the valuation of suit and the appeal. Even otherwise, the objection to the jurisdiction of District Judge, to hear the appeal or the ground of under‑valuation could not have succeeded as no prejudice was caused to the appellants in so ‑ far decision of appeal by the District Judge on* merits was concerned. However, with regard to the other objection of the appellants that the learned Judge in Chambers should not have struck off issues Nos.3‑B and 3‑C F and the issues framed by trial Court while remanding the case to the trial Court for fresh trial, we would observe ‑that the objection is not only well‑founded but the learned counsel for the contesting respondents I to 3 also did not oppose it. We, accordingly, partly allow this appeal set aside the order of the learned Judge in Chambers and restore the order of District Judge. In the circumstances of the case, there will be no order as to costs. A.A./A‑1369/S Appeal partly accepted.