P L D 2002 Karachi 511 (PLP)

Date of hearing: 9th April, 2002. Civil Miscellaneous Application No.8802 of 1999 (under Order 7, rule 11, C.P.C.), listed application has been filed by the defendant seeking rejection of the plaint, inter alia on the ground that in a suit for possession under section 9 of Specific Relief Act claim for the return of the articles as prayed in prayer clause (a) cannot be granted and the suit has been exorbitantly valued at 10,00,000 to avail the jurisdiction of this Court. Upon hearing the parties, this Court vide order dated 5-3-2002 allowed the plaintiff's application under Order 6, rule 16, C.P.C. for scoring off the relief for return of the articles. Consequently amended plaint has been filed seeking possession of the House No. 1190 Sector 8-L, Orange Town, together with mesne profit at the rate of Rs.100 per day w.e.f. 18-7-1999 till the possession is handed over to the plaintiff. Mr. Riaz Hussain Baloch, Advocate, learned counsel for the defendant contended that the value of the house in question is not more than 40,000 and claim of mesne profit under section 9 of the Specific Relief Act, cannot be made. In support of his contention he has relied upon Foujmal Manaji. v. Bikhibai and another (AIR 1937 Sindh 161) and Yalamanchili Purnayya v. Pamu Ramaswamy (AIR 1915 Madaras 80). Learned counsel for the defendant also relied upon the valuation table/notification of the property in question, issued by the Collector of Karachi dated 29-6-1995 showing value of the subject property of 80 square yards to be at Rs.550 per square yards i.e. Rs.44,

000. It was further argued that a suit for possession under section 9 of the Specific Relief Act, attract 1/2 of the amount of maximum court-fees as prescribed in Serial No. l to the First Schedule attached to the Court Fees Act, therefore, the valuation shown as more then Rs.5,00,000 would in fact attract 1/2 of the court-fees, According to the learned counsel suit under section 9 of the Specific Relief Act is not covered under section 8 of the Suits valuation Act, 1887. As against this Mr. Khawaja Sharful Islam learned counsel for the plaintiff contended that plaintiff earlier had filed a suit while in possession of the subject property and when the suit was dismissed for non-prosecution defendant taking advantages of such dismissal, forcibly dispossessed the plaintiff and came into the possession on 18-7-1999 necessitating the instant suit. According to him, in earlier suit since, relief claimed was for permanent injunction. It was accordingly valued at Rs.40,000 and since now the possession is claimed in this suit. Suit is valued as per market value of the property involved. It was further argued that in terms of Order 49, rule 3, C.P.C. provision of Order 7, rule 10, C.P.C. are not applicable to the High Court. This Court according to him has ultimate jurisdiction being Court of higher grade and competent to decide the suit, even of lesser valuation. As far as the objections as to joinder of relief for mesne profit is concerned. Learned counsel concedes to legal position. He does not press for the relief of mesne profit. According to him this Court is ultimate Court of original jurisdiction and can accordingly decide the controversy in issue. In support he has relied upon Messrs Agricides (Pvt) Ltd. v. Messrs Ali Agro Supply Corporation Ltd. (1988 CLC 59) and West Pakistan Industrial Development Corporation. v. Messrs Fateh Textile Mills Ltd. (PLD 1964 Karachi 11). I have heard the arguments and perused the record. In order to appreciate contention of the parties, it will be advantageous to recapitulate relevant facts. Plaintiff has filed a suit under section 9 of the Specific Relief Act claiming possession and mesne profit. As averred in the plaint plaintiff's father was originally allotted the subject plot after his demise, plaintiff came into possession and raised construction thereon. Plaintiff tiled a Suit No.582 of. 1998 for declaration, cancellation and permanent injunction, against defendant herein. K.M.C. and its officers. Said suit was dismissed for non-prosecution on 10-7-1999. It is' the case of the plaintiff that taking advantages of dismissal of the suit the defendant in absence of plaintiff trespassed into the subject house on 18-7-1 9 thereby, necessitating the present suit for possession and mesne profit. Valuation for the purpose of jurisdiction, is couched in para. 24 of the plaint in suit as follows: That for the purpose of possession of the house in question in terms of market value and mesne profit, the suit is valued ore than Rs.5,00,000 (Rupees five lacs only) according to the market value consolidatedly. and a maximum court-fees of Rs.15,000 s paid thereon. Valuation for the purpose of jurisdiction and court-fee in to is of section 8 of Suits Valuation Act, is the same for a shit for possession under section 7 (v) of Court Fees Act. Court-fee on a plaint in suit for possession is leviable in 'accordance with the market value of the such property. The court-fees payable on a suit for possession under section 9 of the Specific Relief Act is prescribed in the First Schedule to the Court Fees Act at Serial No.2 thereof i.e a fee of 1/2 of the amount as prescribed u. Serial No. l maximum court-fees of Rs.15,000 is provided under this head. Fee payable alone will not determine the jurisdiction of this Court. Value as determinable for the computation of court-fee and the value for the purpose of jurisdiction is same. Suit for possession whether section 8 or 9 of the Specific Relief Act is to be valued under clause (v) of section 7 of the Court Fees Act as amended by Sindh Amendment Act NO.XIII of 1974) which runs as follows:--. "(v) In suit for the possession of a land, house or garden: according to the value, of the subject-matter, and the market value of the land, house or garden shall be deemed to be such value." However, as discussed above, court fee payable on a suit for possession under section 9 of Specific Relief Act is 1/2 of the court-fee that may be attracted in suit under section 8 of the Specific Relief Act, it is the amount, at which the subject property to suit is valued for which possession is claimed will determine the jurisdiction is of the Court and not the court-fee that may be payable. From examining para. 24 of plaint as reproduced above it is apparent that the plaintiff .has valued the suit for the purposes of "possession and mesne profit consolidatedly" to be more than Rs.5,00,000 from the contents of the plaint it appears that the plaintiff alleged dispossession on 18-7-1999. Suit was filed on 2-8-1999 i.e within 16 days, mesne profit as claimed by the plaintiff at the rate of Rs.100, per day comes to Rs.1600. It is for this reason apparently the plaintiff, for the purpose of jurisdiction has valued the suit as more" than Rs.5,00,

000. Pecuniary jurisdiction of the High Court is, in respect of the claim where the value of the subject-matter is over Rs.5,00,

000. From bare reading of above clause (v) to section 7 of Court Fees Act it is clear that for the purposes of court-fee in a suit for possession market value of the immovable property in question is deemed to be such value. The error, which plaintiff apparently has committed in this suit, is that he has clubbed two distinct causes of action i.e one for possession under section 9, with that of mesne profit. The issue of mesne profit invariably raises the question of title. Right to possess and occupy immovable property and right to enjoy the profit thereof on the basis of some right/entitlement thereto, are two different and distinct causes of action. Under section 9 of the Specific Relief; Act, a person who i0s dispossessed without his consent of immovable property, without due process of law, may within six months from the date of such dispossession (as per Article 3 of Schedule 1 of Limitation Act) recover possession thereof, by bringing a suit, irrespective of his right or title to the property. Under section 9 of the Specific Relief Act. Court will only adjudicate the claim of possession alone bereft of title, right or legal character of the claimant. Claim of damages or mesne profit, as discussed above, invariably rest on right, title and legal character of the claimant to claim such damages or mesne profit. Court under section 9, of the Specific Relief Act is not required to enter into or adjudicate, right title or legal character of the person claiming possession. If a person is dispossessed illegally and without due process of law is interested to claim damages and mesne profit, together with possession then, such result could be achieved by bringing a suit under section 8 of the Specific Relief Act. Where a suit for possession under section 9 of the Specific Relief Act together with mesne profit is filed, Court may in exercise of power under Order 6, rule 16 strike out, pleadings which are unnecessary or which tend to delay fair trial or, where it appears to the Court in terms of Order 2, rule 6, C.P.C. that any cause of action joined in one suit cannot be conveniently tried or disposed of together, Court may order separate trial or may pass such other order as may be expedient. Since in view of the discussion made above and as held in Foujmal Manaji (supra) and Yalamanchili (sic) that, in a suit for possession under section 9 of the Specific Relief Act, only relief of possession could be claimed and no other relief. Claim of mesne profit in a suit for possession under section 9 of Specific Relief Act suffers from misjoinder of causes of action, therefore, relief of mesne profit as claimed in prayer clause (b) to the plaint is struck off as not maintainable. However, f the plaintiff succeeds in his suit for possession and is able to establish his title as claimed in Suit No.582 of 1998 said to be pending adjudication, before 1st Senior Civil Judge, Karachi (West), he may bring a suit for mesne profit or damages as may be advised. It may not be out of place to mention that the valuation of the built up property situated in Orangi Town, is valued at Rs.550 per sq. yards in Column No.4 of the Notification dated 29-7-1995 issued by the Collector of Karachi total value of 80 sq. yds. plot comes to Rs.44,000 only. Commissioner report dated 28-6-2001, taken on record on 5-3-2002 shows that the construction of subject property is of Massionery Block having Tin Sheet roofing which are not plastered, comprised of two rooms. It is the common knowledge that the valuation given in the official notification is almost half of the actual market values. Taking judicial notice of such fact that even value shown in the notification-referred to above is considered to be 25 % of the actual market value then also the value of the subject property with existing construction would be approximately Rs.1,76,

000. Even assuming for the sake of argument and giving the benefit to the plaintiff to ascribe the market value, if the mesne profit are excluded from the valuation. From the own showing of the plaint the value could be not more than Rs.5,00,000 as the plaintiff had consolidatedly valued the suit as more than, Rs.5,00,

000. In my opinion when the prayer for mesne profit is struck off valuation more than Rs.5,00,000 in para. 24 of the plaint reflects mesne profit is to be excluded the suit could at the best be valued at Rs.5,00,

000. Contention of Mr.Shamsul Islam, Advocate that High Court has concurrent jurisdiction, where the value of subject-matter is Rs.5,00,000 contention is not tenable. In terms of section 7 of Civil Courts Ordinance, 1962, original jurisdiction in civil suits and proceedings of the value exceeding rupees five lacs in Karachi District is exercisable by the High Court. Where subject- I matter in amount of value does not exceed five lacs, pecuniary jurisdiction in Karachi District West in Civil Judges IInd Class as conferred under section 7 thereof, vide notification dated 21-3-2000. In terms of section 15, C.P.C. every suit is to be instituted in Court of lowest grade competent to try it. (see PLD 1974 Karachi 408). No doubt under section 15, C.P.C there is no embargo on Court of higher grade/jurisdiction to entertain suit of lesser valuation, but such jurisdiction is normally exercised where the lower Court is not in existence. Here it is not the case, I do not see any reason why this matter may be entertained by the High Court, when subordinate Court of competent pecuniary jurisdiction is very much in existence. Where the pecuniary jurisdiction lies with another Court then the plaint cannot be rejected under Order 7, rule 11, C.P.C, best course is to return the plaint to the plaintiff to be presented before the competent Court of pecuniary jurisdiction. Order accordingly. Application in terms of the above stand disposed of. Plaint in suit be returned to the plaintiff who may present the same before the Court of competent jurisdiction. Q.M.H./M.A.K./S-207/K Plaint returned.