P L D 1993 Lahore 151 (PLP)

. The applicant instituted Suit No.1012 of 1987 in the Court of 1st Senior Civil Judge, Karachi (South) against the respondent for dissolution of partnership concern known as Sadaf Academy and rendition of accounts. The suit was valued at Rs.10,000 for dissolution of partnership and at the like amount for accounts for the purpose of court-fees and jurisdiction.

2. The facts, in so far as they are relevant for the present Revision Application, as disclosed in the plaint, are that the parties in dispute were partners in two partnership concerns, namely, Nizam Memorial School and (Muhammad Hussain Adil Khatri, 3) Sadaf Academy. Under some agreement both the partnerships were dissolved. The respondent executed receipt dated 16-11-1984 admitting hi indebtedness to the tune of Rs.7,00,000 (Rupees seven lacs only) in respect o the two partnership concerns and paid Rs.1,60,000 and promised to pa Rs.5,40,000 before November, 1985, in twelve monthly instalments. The respondent also executed demand promissory note for the said balance amount. It is then alleged that the respondent failed to abide by the terms an conditions of the dissolution agreement and failed to pay the above balance amount in time.

3. The respondent filed application under Order VII, Rules 10 an 11, C.P.C. for rejection of the plaint or in the alternate for return thereof to the applicant for presentation before the Court of competent jurisdiction. On 7-9-1987, the trial Court ordered return of the plaint to the applicant for presentation to this Court for the reason that the contents thereof disclosed that the respondent at the time of dissolution of the firm ha admitted liability and promised to pay ks.5,40,000 to' the applicant and therefore, the amount involved in the settlement of account being more than Rs.1,00,000 the suit was beyond the pecuniary jurisdiction of the Court an accordingly ordered return of the plaint. The trial Court refused to consider the request for rejection of the plaint as it had no jurisdiction to try the suit. The above order was assailed in appeal, which was dismissed by the learned IVth Additional District Judge, Karachi (South) by judgment date 24-4-1990. The applicant had also simultaneously filed Suit No.1011 of 1987 o similar facts for dissolution of partnership concern described as Nizar Memorial School and rendition of accounts, plaint whereof was also ordered t be returned on the application of the respondent and appeal filed by her me the same fate. The applicant has challenged the above orders in the above two Civil Revision Applications under section 115 of the Civil Procedure Code. 4. 1 have heard the learned counsel Mr. Sadruddin Huda for the applicant and Mr. Syed Hasan Imam Rizvi for the respondent in both Revisions. Since points raised in both the Revisions are common and the impugned orders and judgments in both the cases are in similar terms, propose to dispose of both the Revision Applications by this judgment. The learned Advocate for the applicant has contended that under section 7(iv)(f), the suit for accounts is to be valued according to the amount a which the relief sought is valued in the plaint and such amount is to be state by the plaintiff at which he values the relief sought and as such no exception can be taken to the valuation of the two suits put by the applicant for the relief sought by her. In support of above proposition he has relied on the cases of Ishawarappa Mallehappa Manvi v. Dhanji Bhanji Gujar and another AIR 1932 Bombay 111 and Ch. Muhammad lqbal v. Mst. Ahmed Jahan Begum PLD 1970 Karachi

548. It was next contended that the written statements having been filed in both the suits, the learned Trial Court Judge ought to have framed preliminary issues instead of passing orders on applications under Order VII, Rules 10 and 11, C.P.C. In this regard he has relied on National Bank of Pakistan v. Humayun Sultan Mufti 1984 CLC 1401 and Masjid Maiz Bin Jabal and Madrisa Binoria Qasmi Aloom v. Sadiq Ali 1987 CLC 1145. The learned counsel for the respondent has, on the contrary, submitted that the reading of the plaint itself discloses that the accounts between the parties were settled and the respondent had agreed to pay specific sum in respect of both the partnerships and the applicant had agreed to accept the said amount in full and final settlement of the accounts. The aforesaid arrangement was acted upon and the part payment was made at the time of execution of the said document and a promissory note was executed by the respondent for payment of the balance amount. Under such circumstances the suit for accounts was not maintainable and since the applicant had chosen to file the suits for account, she cannot be permitted under law to put arbitrary and artificial valuation for the purpose of jurisdiction and court-fees, as it would amount to defeating the provisions of the Sindh Civil Courts Ordinance, 1962 and playing fraud with the state revenue by side tracking the provisions of the Court Fees Act. The learned counsel relied upon Badrul Islam v. Qamrul Islam and 4 others PLD 1971 Kar. 682, Narayan Jha Narone and others v. Jogni Prasad Jha and others AIR 1934 Patna 184, Haji Gul and another v. Mst. Aisha PLD 1973 Kar. 653, Ghularn Mustafa v. TaJ Muhammad and others 1987 CLC 99, Allah Bux and 7 others v. Khuda Bux 1985 MLD 1233 and National Bank of Pakistan v. Abeda Mustajab Hassan and another 1985 CLC 1074.

5. In Lakhomal Deepchand and another v. Deepchand Tolaram and others (supra), the question came up on reference before the Full Bench of the Court of Judicial Commissioner, Sindh, whether in a suit for declaration and injunction it is open to the plaintiff to put any arbitrary value upon the injunction sought and pay court-fee on such value. Devi, CJ. after referring to the case-law and the statutory provisions, answered the reference as under:.-- "In certain cases there would appear no difficulty in saying the relief claimed in a suit was undervalued. In my opinion also, the Court has jurisdiction to revise a valuation. If this were not so, an unscrupulous litigant could defraud the Court and determine the Court in which his suit should be tried by undervaluing or overvaluing the relief he claims irrespective of its true value. In my opinion the answer to the first question is in. the negative. The answer to the first part of the second question is in the negative, and the answer to the last part of the question is that it is open to the Court to revise an arbitrary valuation I think the reference should be answered accordingly." The other two learned members agreed with the above view.

6. In Iman Din and another v. Abdul Ghani PLD 1959 Kar. 802, the question of valuation of suit for declaration that a certain document executed by the plaintiff was of no effect and for dissolution of partnership and for accounts came up for consideration before G.B. Constantine, J. After considering the case-law on the subject in detail, including the above Full Bench case of Lakhomal, his Lordship observed:-- "It is true as the Calcutta High Court pointed out that it may be difficult for the Court to arrive at a correct valuation and that may be reason why the Court would not overrule the discretion which is initially at least vested in the plaintiff but here in the present case we have a declaration of assets and so far as the plaint goes he is claiming half share in the assets worth over Rs.6,00,

000. It appears to me therefore, that the valuation must be over Rs.25,000 and, therefore the Court of the 1st Class Sub-Judge had no jurisdiction." In the above case reference -to Calcutta High Court is in regard to judgment of Full Bench of Calcutta High Court reported as Narayan Ganj Central Cooperative Sale and Supply Society Ltd v. Mafeezuddin Ahmed and another AIR 1934 Calcutta 448, wherein following observations have been made:-- "There may be cases in which the valuation is perfectly obvious on the face of it and in that case it would be open to the Court to correct a clearly wrong valuation even before the framing of the issues. Otherwise until rules are framed under section 9, Suits Valuation Act, the Court would be in a practical difficulty and unable to take necessary action." In Imam Din's case the learned Judge, following the rule laid down by the Full Bench, observed that the First Class Sub-Judge, Karachi, had no jurisdiction to deal with the case and, therefore, while exercising revisional jurisdiction, it was considered proper to order returning of the plaint for presentation to the proper Court, namely, the High Court at Karachi.

7. The above Full Bench view was also followed in the case of Zafar Ahmed v. Abdul Khaliq PLD 1964 Kar. 386 and by a Division Bench in the case of Muhammad Siddique and others v. Haji Ahmed & Co. PLD 1967 Kar. 468.

8. It may be pointed out that the Division Bench having noted that the view of the Full Bench has been constantly followed by the Karachi Bench of High Court, preferred to f6flow the same against the contrary view expressed in Mian Karam Ellahi v. Muhammad Bashir and others PLD 1949 Lah. 8 and B. Ghularn Qadir v. Mrs. Bulaqi Mall & sons PLD 1949 Lah. 461.

9. In Badtul Islam v. Qamrul Islam and 4 ' others PLD 1971 Kar. 682, Dorab Patel, J. referring to the previous case-law on the subject including the authorities that have been referred to herein above and the case of Ch. Muhammad 1qbal v. Mst. Ahmed Jahan Begum (supra), relied upon by the learned counsel for the applicant, fol.lowed the view laid down in Imam Din's case. In the said case of Badrul Islam the suit was filed for rendition of accounts of the Waqf and the mandatory injunction. According to the plaint, the value of the Waqf property exceeded Rs.67,000 but the suit for the purposes of court-fee and jurisdiction was valued for injunction and for accounts at Rs.200 only. An application was riled under Order VII, Rule 11, C.P.C. on the ground that the Court had no jurisdiction because under the Karachi Courts Order, 1965, the jurisdiction of the District Court, including the trial Court was limited to Rs.25,000 while the subject-matter of the suit was more than Rs.67,

000. The Court accordingly had ordered return of the plaint for presentation to the proper Court, namely, the High Court at Karachi and it was observed that it would be the High Court at Karachi which would be competent to determine the proper valuation.

10. Coming to the authorities relied upon by the learned counsel for the applicant, with regard to the case of Ch. Muhammad Iqbal, it may suffice to say that in the al:;6ve case the learned Judge had based his view on the cases of Mian Karam Ellahi v. Muhammad Bashir and 6hularn Qadir v. Bulaki Mall & Sons but the said view was not approved by the Division Bench of this Court in the case of Muhammed Siddiq and others. So far as the case of Ishwrappa Mauchappa Manvi v. Dhanji Bhanji Gubar and another AIR 1932 Bombay 111 is concerned, no doubt the view has been expressed that in suit for accounts the valuation shall be that which has been fixed by the plaintiff in the plaint, but looking at the rule laid down by this Court consistently to the effect that where the plaint itself discloses the amount or the value of the subject-matter in dispute or the valuation is obvious on the face of the plaint the plaintiff cannot be allowed to value the suit arbitrarily. The said authority, therefore, is of no help to the applicant.

11. The second contention of the learned counsel for the- applicant that the Court ought to have framed a preliminary issue is of no substance. In the case of Muhammad Mar v. Qudsia Begum, relied upon by the learned counsel for the applicant, it has been observed that the plaint could be returned under Order VII, Rule 10, C.P.C. on the basis of the facts which are either admitted before the Court or which are not in dispute between the parties or on the basis of facts which are found by the Court after inquiry. The order returning the plaint was passed in the said case, as the Court reached the conclusion that the plaintiff was not entitled to certain amounts claimed by the plaintiff and after excluding the said amount from the suit amount, it would fall short of the amount that would attract the jurisdiction of the Court. Such finding was given without recording any evidence and in spite of the averments in the plaint regarding the acknowledgement of the sum claimed in the suit. In the case of Masjid Maiz Bin Jabal, the Courts below, while deciding injunction application, formed the opinion on the basis of affidavits and counter-affidavit without recording evidence, that the defendant was joined in his official capacity and the plaint was returned for presentation before the proper Court. Saeeduzzaman Siddiqui, J. (as he then was) observed:-- "I have read the plaint in the above suit .. and I do not rind any averment in the plaint which can be construed as showing the defendant as an official of the Government." Accordingly the impugned order regarding return of the plaint was set aside as the said order was based on the allegation made in the counter- affidavit. The above authorities do not lay down any rule that in all cases where written statement has been filed, the Court must frame preliminary issue regarding jurisdiction of the Court even if on the bare reading of the plaint, the suit is found beyond the pecuniary jurisdiction of the Court. it is well-settled rule of law that in order to rind out whether the Court has jurisdiction or not, the allegations in the plaint alone have to be looked into' and this is what the learned Courts below have done. In this connection reference may be made to he following cases also:-- "(i) National Bank of Pakistan v. Abida Mustajab Hasan (1985 CLC 1074) and (ii) Mir Faiq Ali and others v. Syed Muharpmad Jafry (PLD 1959 Kar. 704)."

12. The learned counsel for the respondent stressed that the suits for dissolution of partnerships and accounts were not maintainable and the plaints were liable to be rejected under Order VII, Rule 11, C.P.C. and as such the trial Court ought to have rejected the plaints, instead of returning the same for presentation before the Court of competent jurisdiction, as both the plaints, specifically state that the partnership firms were dissolved, accounts between the parties were settled and the agreement relating to the said settlement. was acted upon. The trial Court had rightly refused to reject the plaints as after having found that it had no pecuniary jurisdiction in the matter, the only order that could be passed was the one for return of the plaints. However, the learned Advocate for the applicant argued that the applicant can always amend the plaint under Order VI, Rule 17, C.P.C. and instead of demanding the accounts can substitute the prayer for recovery of the amount. He further submitted that the total amount payable in both the suits is Rs.5,40,000 which, if divided in the two plaints, each will be for recovery of Rs.2,70,

000. The learned Advocate pointed out the amendment made in section 7 of the Sindh Ordinance 11 of 1962 by Sindh Civil Courts (Amendment) Ordinance, 1991 (Ordinance VII of 1991). In the cAse of Mst. Hawabai and 6 others v. Abdus Shakoor and 8 others PLD 1981 Kar. 277, Division Bench of this Court, on erudite analysis of the case-law, in respect of the options available to the plaintiff, when a plaint is returned for want of jurisdiction, has summarised the law as under:-- "(i) he may challenge the order, returning the plaint for presentation to the proper Court by riling an appeal against such order, or (ii) he may present the same plaint after its return to him to a Court having jurisdiction in the matter, or (iii) he may amend the plaint by giving up a part of the relief or reduce the valuation so as to make it cognizable by the Court which returned the plaint and then represent the same to the same Court or amend the plaint and present it before a Court having jurisdiction in the matter, or (iv) he may rile a fresh suit in the Court having jurisdiction in the matter. "We also hold that there is no bar either under Order VII, Rule 10, C.P.C. or in any other provision of the Code which precludes the plaintiff from riling a fresh suit in case the plaint riled earlier in a Court is returned on the ground that the Court had no jurisdiction in the matter. We further hold that a plaint riled in a Court of proper jurisdiction after having been returned by another Court on the ground that the former Court had no jurisdiction in the matter is ' a fresh suit to all intents and purposes and is not merely a continuation of the old proceedings in the former Court." In view of the above, the submission made by the learned Advocate cannot be considered and even otherwise is misconceived. I any merit. A.A./M-1775/K Both the Revision Applications are dismissed with costs, being without Revision dismissed.