1969 PLP 69 (SCMR)

FAZLE‑AKBAR, C. J.‑The facts relevant to this appeal, by special leave, are as follows:‑ Aqil Ahmad, the respondent herein, filed a suit for specific per formance of an agreement for sale of a two‑storeyed building situate at Municipal. Holding No. 46, Subhas Bose Avenue, Dacca, in the Court of a Munsif, whose powers are limited to suits of jurisdic tional value of Rs. 4,000 and under. By the above agreement one, Abdul Qayum Khan, predecessor of defendants Nos. 1 to 4, agreed to sell the above house to the plaintiff for a sum of Rs. 4,000 and received Rs. 2,000 as advance. The relevant clause in the said agreement is as follows: "That if my house Holding No. 46, Subhas Bose Avenue, Dacca, is not derequisitioned and its vacant possession not restored to me by the Govt. of East Pakistan by 31st August 1964, then I ‑shall execute the sale‑deed of my aforesaid house in favour of Mr. Aqil Ahmad on 1‑9‑64 on receipt of the balance of rupees two thousand only (Rs. 2,000) and a power of‑attorney in my favour for the disposal of the house of Mr. Aqil Ahmad and others situated in Mohalla Beharipur, Bareilly, in U. P. (India) as per Bai‑bil‑wafa agreement dated 22‑12‑49 registered by Sub‑Registrar of Bareilly on 27‑12‑49." Default having been made by the vendor the aforesaid suit was filed. Objection was taken to the jurisdiction of the Munsif to try the suit on the ground that the valuation was in excess of Rs. 4,

000. It was said that the house was actually of value about 20 times greater than Rs. 4,

000. The Munsif overruled the objection, because the money consideration was specified as Rs. 4,000 and that no value had been given "for the power‑of attorney which was to be in regard to a house of the plaintiff in India." A revision was moved in the High Court where a learned Single Judge held that reference to plaintiff's house in India was irrelevant and that "the success or failure of the suit depends on the agreement which specifically stated the price of house to be Rs. 4,000." He, accordingly, dismissed the revision petition. Special leave to appeal was granted in this case to consider whether on the basis of true construction of the agreement it could be said that the supplementary consideration mentioned therein had the effect of raising the valuation of the suit beyond the competence of the Munsif to try. The suit being for specific performance of a contract clearly fell under section 7, clause (x) (a) of the Court Fees Act and the court‑fees thereon were to be assessed according to the amount of the consideration. Now the question is : What was really the consideration for sale in this case? From clause of the agreement mentioned at the commence ment of the judgment it is manifest that consideration for the house was Rs. 4,000 plus the power‑of‑attorney for disposal of the plaintiff's house at Bareilly in India. It may also be mentioned that along with the plaint the plaintiff filed a petition for temporary injunction restraining the defendant No. 5, the Deputy Commissioner, Dacca, from evicting him from the suit premises and handing over possession of the same to the defendants Nos. 1‑4, and in his affidavit‑in‑reply in the said proceedings he clearly accepted the above position in these terms: ‑ "The price of the suit premises has been shown to be not Rs. 16,000 as per deed of exchange dated 15‑8‑1960 by which Abdul Qayum Khan acquired the right and title and interest of the suit premises which at the time of exchange was in a delapidated condition, to improve which the plaintiff has spent a good amount of money also. Moreover, the defendants 1‑4 are deliberately suppressing the term in the contract for sale that in addition to Rs. 4,000 in cash the plaintiff shall have to transfer to the defendants 1‑4 a much better two‑storeyed, electrified and a recently modern built house at Bareilly City in U. P., a much bigger and important city than Dacca, the cost of which now is about Rs. 85,000." In view of the clear statements in the agreement and the admission oh the plaintiff in his affidavit‑in‑reply it will be difficult to hold that Abdul Qayum Khan had agreed to sell a two‑storeyed building, consisting of about 10 rooms, on a main road in the city of Dacca for a sum of Rs. 4,

000. The plaintiff, Aqil Ahmad, who appeared in person, attempted to argue that he did not agree to exchange or transfer the Barielly house, because as per Bai‑bil‑wafa agreement he had no proprietary rights in the Barielly house at the time of agree ment for sale of Dacca house. We, however, do not consider it desirable to enter into this question at this stage lest it might prejudice either of the parties at the hearing of the suit. It will suffice to say that the clause of the agreement, which has been referred to above, has the effect of raising the valuation of the suit beyond the competence of the Munsif to try. We, therefore, direct that the plaint may be returned to the plaintiff, so that it may be presented to a Court having the jurisdiction to try the suit if not barred by limitation. There will be no order as to costs of this appeal. Appeal accepted.