1999 PLP 394 (SCMR)

SH. RIAZ AHMED, J.

Leave to appeal is sought against the judgment and order dated 14-5-1998 whereby writ petition filed by the respondents was allowed and it was held that the determination of the forum of appeal would depend upon the valuation of the suit given in the plaint.

2. The facts in brief giving rise to the institution of this petition are that respondent Dr. Obaidullah instituted a suit for possession through pre-emption against petitioners 1-5/vendees and respondents Nos.6 and 7/vendors in respect of the disputed property. Initially, the suit was entertained by the Additional District Judge, Quetta, but subsequently, it was transferred to the file of the Senior Civil Judge, Pishin. The suit was contested by the petitioners and amongst others, the following issue was framed:-- "Whether the genuine price of the disputed land paid by the defendants Nos. l to 5 to the vendors is Rs.7,50,000.instead of Rs.2,25,000?" After recording evidence, the learned trial Judge came to the conclusion that the genuine price of the suit land was Rs.7,50,000 and the suit was dismissed. An appeal was taken before the District Judge, who transferred the same to the file of the Additional District Judge, who vide order dated 24-9-1997 returned the memo. of appeal for presenting the same before .the Court of competent jurisdiction on the ground that the subject-matter of the appeal exceeds the pecuniary jurisdiction of the Additional District Judge. Regular first appeal was filed against the aforesaid order, but the same was dismissed for not having been pressed. The learned counsel also sought permission to file a Constitution petition against the aforesaid order.

3. In support of this petition, it was urged before us that under section 18(2) of the Civil Courts Ordinance, 1962, the forum of appeal has to be determined in view of the valuation clause in the plaint and not on the basis of the valuation ascertained by the trial Court both for the purposes of jurisdiction and payment of court-fee and therefore the learned Additional District Judge had not jurisdiction to return the memo. of appeal. It was further urged that in the plaint valuation of the subject-matter of the suit for the purposes of jurisdiction and payment of court-fee was fixed as Rs.2,25,000 and as far as determination of valuation by the trial Court while disposing of the issue referred to hereinbefore, is concerned, that was under dispute because the judgment was assailed and was not accepted. It was further urged that if the pre-emptor accepted this amount as price of the land, then he has to pay the court-fee accordingly, but if he disputes it, the same is to be decided by another forum and as such the impugned order of returning the memo. of appeal had been passed without lawful authority and jurisdiction by the Additional District Judge and, thus, the petitioners be allowed to present the memo. of appeal before the Additional District Judge for decision on merits in accordance with law. Besides the above, Mr. Basharatullah, learned counsel for the petitioners contended that the Constitution petition was not maintainable because the alternate remedy of filing a revision petition under section 115, C.P.C. against the order returning the memo. of appeal was available and therefore the Constitution petition merited dismissal inasmuch as under Article 199 of the Constitution, a petition is maintainable only when no other adequate remedy is available. It was further urged that the forum of appeal is to be selected by an aggrieved person taking into consideration the determined value of the subject matter and not on the basis of the valuation in the plaint.

4. In order to resolve the controversy in hand, it will be advantageous to reproduce section 18 of the Civil Courts Ordinance, 1962, which reads as under:

"

18. Appeals from Civil Judges.--(I) Save as aforesaid, an appeal from a decree or order of a Civil Judge, shall lie-- (a) to the High Court if the value of the original suit in which the decree or order was made exceeds five hundred thousand rupees; and (b) to the District Judge in any other case." The important aspect is to note "value of the original suit" occurring in the above provision. 'Value' has been defined in clause (h) of section 2 of the aforesaid Ordinance, which says that with reference to a suit, it means, the amount or value of the subject-matter of the suit. Plethora of case-law discussed by the High Court in the impugned judgment fortifies the view that the forum of appeal is to be determined according to the value of the suit as mentioned in the plaint and the fixation of the price of the disputed property by the trial Court totally irrelevant, because the judgment is yet to attain finality. In this view of the matter, we are also of the view that the Additional District Judge erroneously 'returned the memo. of appeal.

5. As far as objection regarding maintainability of the Constitution petition is concerned, the same has no substance in it because in a fit case, d. revision petition can be converted into a Constitution petition and vice versa. Provisions of section 115, C.P.C. and Article 199 of the Constitution were compared by this Court in the case reported as Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 SC 139) wherein it was held that having regard to the nature or content of Article 199 of the Constitution, the same is assimilable to the jurisdiction under section 115, C. P. C.

6. The upshot of the above discussion is that the judgment impugned is not open to exception. This petition fails and leave is refused. H.B.T./M-258/S Petition dismissed.