1986 PLP 606 (MLD)

Mumtaz Begum v. Zulfiqar Ali P L D 1960 Lah. 1088 and Muqarrab Khan v. Muhammad Anwar and 10 others P L D 1964 Pesh. 228 ref. (c) Civil Procedure Code (V of 1908)‑‑ ‑‑‑S.115‑‑Revisional jurisdiction‑‑Return of memorandum of appeal by First Appellate Court, suffered from legal infirmity being in contradiction to requirement of Suits Valuation Act, 1887‑‑First Appellate Court had illegally refused to exercise jurisdiction vested in it‑‑Order for return of memorandum of appeal was set aside by High Court in revisional jurisdiction with direction that same be returned to petitioner for presentation to proper Court. Ch. Ghazanfar Ali Gondal for Petitioner. Namo for Respondents Nos. 1 and

3. Mian Nisar Ahmad for Respondent No.

2. When the miscellaneous petition filed by the respondent No.2 for vacation of the ad interim stay order granted in the case came up for hearing on the 17th of June, 1974, learned counsel for the parties agreed that because only a short legal point is involved in the appeal, instead of debating the miscellaneous matter, the appeal itself may be disposed of. Accordingly, the appeal has been heard today.

2. Learned counsel for the respondent has argued that the appeal is not competent because only an order returning a plaint has been made appealable in the Code of Civil Procedure under Order XLIII, rule 1(a) and the phrase 'return of plaint' does not cover return of memorandum of appeal by the Court. In support of this contention, he has invited my attention of Hari Chand v. Madan Lai and others AIR 1930 Lah. 832, which authority supports his contention. Mr. Ghazanfar Ali Gondal, Advocate, appearing for the appellant, relies on Wahid Ullah and another v. Kanhaya Lai I L R 25 All. 174 a Full Bench Authority of that Court. The plaintiffs in that case brought a suit claiming possession of part of a house and also arrears of rent. The plaintiffs valued their suit at Rs.7,000 and filed it in the Court of Munsif. An objection was raised by the defendant that the suit was undervalued. The Munsif considered the objection, and came to the conclusion that the suit was undervalued; but he was of opinion that the under-valuation was entirely due to inadvertence, and accordingly entertained the suit. The Munsif passed a decree in favour of the plaintiffs. The defendant appealed, again raising the question of the valuation of the suit. On this appeal the lower appellate Court (Extra Additional Subordinate Judge of Aligarh) held that the misrepresentation as to value was intentional on the part of the plaintiffs, that the value of the suit was Rs.1,580 and that the Munsif had no jurisdiction to entertain it. The decree of the Munsif was, therefore, discharged and the plaint was directed to be returned to the plaintiffs for presentation to the proper Court. From this order the plaintiffs appealed to the High Court where an order returning a plaint for amendment or to be presented to the proper Court is passed by a Court of Appeal, an appeal will lie from such order in the manner provided by section 589 of the Code of Civil Procedure of 1882. The present case is distinguishable as the order under appeal is that of return of memorandum of appeal and not that of plaint. Learned counsel has also referred to Hira Lal v. Karori Mal and others 59 P R 1899 and contends that an appeal is competent by virtue of the provisions of section 107 of the Code of Civil Procedure. Hira Lal v. Karori Mal and others (supra) is also of no help to the appellant because their Lordships of the Chief Court were considering an order of the appellate Court directing return of plaint and it was not a case of return of memorandum of appeal for presentation to the proper Court. Respectfully following the interpretation placed on Order XLIII, rule 1, clause (a) of the Code of Civil Procedure, in Hari Chand v. Madan Lal and others (supra) I hold that the appeal is not competent. However, the verbal prayer of counsel for the appellant that the appeal may be treated as a revision petition is allowed in the interest of justice and the case has been heard as a revision petition.

3. The facts relevant for the disposal of this revision petition are that the petitioner‑pre‑emptor had filed an appeal against the decree of the trial Court dismissing the pre‑emption suit in which the jurisdictional value had been fixed at Rs.5,250 which the ostensible price of the suit land is Rs.85,

000. The learned Additional District Judge has taken the view that because the ostensible price exceeds the pecuniary jurisdiction of the Court of the District Judge, the appeal against the decree of the trial Court lies direct to this Court and as a consequence the memorandum of appeal has been returned for presentation to this Court. The legal position is quite clear on the point. It was held by a Division Bench of the erstwhile High Court of West Pakistan in Mumtaz Begum v. Zulfiqar Ali P L D 1960 Lah. 1088 that 'the value for the purpose of jurisdiction in a suit for pre‑emption (relating to land assessed to land revenue) shall be held to be thirty times the land revenue' (page 1092). Under section 3 of the Suits Valuation Act, 1887, read with rules 1 and 2 framed under section 3 of the Act, the value determined is essentially artificial in character and has no reference to the market value of the property. The power so conferred is unfettered and the plea that the market value is different from the value so determined will not be available (page 1092). In suits for pre‑emption the jurisdictional value of the appeal remains as determined under the Suits Valuation Act and the Rules framed thereunder notwithstanding the amount on payment of which the decree for pre‑emption had been passed being far in excess of the pecuniary jurisdiction as so determined (p.1098). The said authority has been subsequently followed in Muqarrab Khan v. Muhammad Anwar and 10 others P L D 1964 Pesh.

228. Mian Nisar Ahmad, Advocate, fairly concedes this proposition of law. The result is that the order passed by the learned Additional District Judge returning the memorandum of appeal suffers from legal infirmity and because of this erroneous view of law the Additional District Judge has illegally refused to exercise jurisdiction in the case.

4. In the result, the order of the learned Additional District Judge is set aside and the memorandum of appeal will be returned to the petitioner for presentation to the proper Court.

5. Before parting with this case, it may be clarified that the Court of appeal will decide the appeal in accordance with law, untrammelled by any observations on merits made by this Court in this judgment or any order passed in the ancillary proceedings.

6. The revision petition succeeds and is allowed without any order as to costs. A.A. Revision allowed.