P L D 1987 Lahore 320 (PLP)

Facts giving rise to this civil revision are that one Akbar Khan sold 43 Kanals and 14 Marlas of land in favour of the respondents, Aziz Ullah and others, on 16th August, 1981, by means of a registered sale‑deed in which the sale price was mentioned as Rs.80,

000. At the time of its sale, the land was under mortgage for Rs.12,

000. The sale was pre‑empted by the petitioner, Saifullah Khan, on 2nd July, 1982, by contending that the sale price actually paid was Rs.32,000 but it was fictitiously shown as Rs.80,000 in the sale‑deed with a view to defeating pre‑emptive rights. On 8th July, 1984, the suit was decreed by a Civil Judge. It was held by him that the sale price of Rs.80,000 was, in fact, paid. He also allowed Rs.6,000 to the respondents as compensation for improvements effected by them on the land in dispute. The petitioner was directed to deposit Rs.86,000 (Rs.80,000 as sale price and Rs.6,000 as compensation) by 31st July, 1984. He, however, deposited Rs.61,000 only before the stipulated date and then took out execution proceedings to get possession of the land in question. Respondents objected to these proceedings on the ground that the requisite deposit had not been made in time. Petitioner furnished explanation for depositing Rs.61,000 instead of Rs.86,000 but that did not find favour with the learned executing Court with the result that his execution application was dismissed. Petitioner filed appeal before the District Judge, Mianwali, who entrusted the same to Ch. Muhammad Amjad Khan, Additional District Judge, Mianwali. The learned Additional District Judge returned the memorandum of appeal to the petitioner stating that he had no jurisdiction to hear the appeal. Feeling aggrieved by the order of the learned Additional District Judge, the petitioner has come up in revision to this Court.

2. In the plaint, the petitioner (plaintiff) fixed Rs.53,099.70 as valuation of the suit for the purposes of jurisdiction. It is not disputed that the above valuation was objected to by the respondents but no issue in this regard was framed by the learned trial Court. It is not the case of learned counsel for the petitioner that issue with regard to jurisdiction was claimed by the respondents by making an application or otherwise. It would, therefore, follow that objection raised by the respondents with regard to jurisdictional value was subsequently abandoned by them, by their own conduct. Learned trial Court also did not find anything wrong with the jurisdictional value fixed by the petitioner. It was, therefore, not altered by it till the disposal of the suit.

3. While taking appeal before the learned Additional District Judge also the petitioner fixed jurisdictional value thereof at Rs.53,099.70, as done by him for his suit. Undoubtedly, at the time when the appeal was filed or the impugned order was passed by the learned Additional District Judge, he could not hear appeal of the value exceeding Rs.50,

000. Learned counsel, however, contended that the jurisdictional value of the suit ac well as the appeal was incorrectly fixed. According to him, the correct valuation thereof was about Rs.1,800 being sixty times the land revenue of the land in dispute, and in view of that valuation the learned Additional District Judge had the jurisdiction to hear the appeal. It was maintained by him that the petitioner wanted to explain the above position to the learned Additional District Judge but he made the order under challenge without hearing the petitioner. He cited Babu Jan Muhammad and others v. Dr. Abdul Ghafoor and others P L D 1966 S C 461 and Suba Khan v. Rehmat Din and 2 others 1980 C L C 589 to support his contention.

4. In reply to the contentions raised by learned counsel for the petitioner, it was submitted by learned counsel for the respondents that since the jurisdictional value of the suit, as fixed by the petitioner (plaintiff) himself, was not altered by the learned trial Court, the petitioner was bound to fix jurisdictional value of his appeal accordingly which was actually done by him. The argument proceeds that at the appellate stage it was not open to the petitioner to take exception to the jurisdictional value fixed by him for his appeal nor did he do so by making any application to the learned Additional District Judge or otherwise. In this connection, reliance was placed by him on Sadar Din v. Elahi Bakhsh and another P L D 1976 Lah. 1; Messrs Pakistan Electrical and Mechanical Constructions Ltd., Lahore v. Abdul Rashid and 5 others 1979 C L C 845 and Ilahi Bakhsh and others v. Mst. Bilqees Begum P L D 1985 S C 393. 5.???????? It has been clearly ruled in the above cases of Sadar Din, Messrs Pakistan Electrical and Mechanical Constructions Ltd., Lahore, and Ilahi Bakhsh and others that forum of appeal is to be determined on the basis of value in the suit. Value of suit means the value as fixed by the plaintiff or, if altered by that Court, the value so altered. In the instant case, the petitioner fixed the jurisdictional value of his suit at Rs.53,099.70 and it was not altered by the learned trial Court. The forum of appeal was, therefore, to be determined in view of the above valuation fixed by the petitioner (plaintiff) himself. This was actually done by him while taking appeal to the learned District Judge. At the time of filing appeal or at any subsequent stage, no objection in regard to the jurisdictional value was raised by the petitioner before the learned Appellate Court by making an application. Plea of learned A counsel for the petitioner that he was not allowed an opportunity to do so is not acceptable because if he was serious in objecting to the jurisdictional value he had ample time to do so. The appeal was filed in 1984 and it was returned in 1985. As stated above, on the date when the appeal was returned by the learned Additional District Judge he had no jurisdiction to hear the appeal of the jurisdictional value given in the memorandum of appeal, namely Rs.53,099.70, as at that time he could not hear appeals of the value exceeding Rs.50,000.

6. The case of Babu Jan Muhammad and others cited by learned counsel for the petitioner, is of no help to him. On the other hand, following observations made therein support the contentions raised by learned counsel for the respondents:‑ ??????????? "The learned Judges in the High Court ...................... appear to have ignored the fact that it was not for the plaintiffs to vary the valuation in the plaint when it came to taking the matter in appeal against refusal of the Senior Civil Judge to restore the suit. The plaintiffs were bound by the valuation they had thus, stated, in a suit of which the Senior Civil Judge had become seized, with the consequence that that valuation could not be altered by themselves, unless with the permission of the Senior Civil Judge. Equally, when they came to appeal against the adverse order of the Senior Civil Judge, they could not choose a forum on the basis of an altered valuation to be conceived, or made by themselves." According to the view expressed in the case of Babu Jan Muhammad and others the petitioner (plaintiff) should have filed his appeal in this Court and not before the learned District Judge because of the valuation of suit which was fixed by him and was not altered by the learned trial Court, especially when for his appeal also he had fixed the same valuation. There was no justification whatsoever for his taking the appeal to the learned District Judge. As for the case of Suba Khan, relied upon by learned counsel for the respondents it does not deal with the question of determination of the forum of appeal. It has, therefore, little bearing on the point in issue. 7.???????? Upshot of the foregoing discussion is that the order of the learned Additional District Judge regarding the return of appeal is 8 unexceptionable. This civil revision, therefore, fails. It is dismissed with costs. A.A./S‑36/L????????????????????????????????????????????????????????????????? Revision dismissed.