P L D 1964 (W (PLP)

West Pakistan Civil Courts Ordinance (11 of 1962), S. 18 --Forum of appeal--Determination of - Suits Valuation Act (VII of 1 887), S.

3. In determining the forum of appeal in a land suit or suit concerning an interest in land, for the purposes of section 18, West Pakistan Civil Courts Ordinance, 1962, the determining factor is the value of original suit determined under rules framed under section 3, Suits Valuation Act, 1887 for the purposes of jurisdiction, and not the market value of the subject-matter or the suit. Mst. Mahallah v. Abdul Mastan Khan and others P L D 1963 Pesh. 247 overruled. S. Tulsi Das Singh and others v. Yusaf Shah and others A I R 1936 Pesh. 61 and Poosa Thoral v. Kannappa Chetty and others A I R 1918 Mad. 1099 not approved. Mst. Mumtaz Begum v. Ch. Zulflqar All P L D 1960 Lah. 1088 fol. ORDER of REFERENCE FAIZULLAH KHAN, J.-For the purposes of this appeal, the following admitted statement of facts would suffice: Muhammad Anwar and Mst. Taj Bibi, respectively, son and widow of Muzaffar Khan, sued defendants 1 to 10, including Muqarrab Khan and Mehrdil Khan, respectively defendants 8 and 9 for possession of 123 kanals 3 marlas of land comprised in Khasras Nos. 951, 977 and 978, situate in village Arbi Banda. The value of the suit for the purposes of jurisdiction was assessed at Rs. 1,500 on the basis of 30 times the land revenue under the rules framed under section 3 of the Suits Valuation Act (VII of 1887), hereinafter to be referred to as Act VII. On 15th January 1963, Captain Muhammad Daud Khan, Senior Civil Judge, Mardan, granted a decree for possession in favour of the plaintiffs against defendants 8 to 10 with costs, the other defendants having confessed judgment.

2. Muqarrab Khan and Mehrdil Khan feeling aggrieved filed separate appeals. As both the appeals were directed against the same judgment and decree, they were heard together by Khan Muhammad Shaffq Khan, Additional District Judge on 2nd October 1963. At the hearing the learned counsel for the parties gave statements "that the value of the subject-matter involved in the suit is more than Rs. 25,000 and, therefore, beyond the limit of the pecuniary appellate jurisdiction of this Court".

3. The learned Additional District Judge, relying on the single Bench decision dated 11-1-63 in Civil Reference No. 299 of 1962 held that since the value of the subject-matter of the suit was in excess of Rs. 25,000 the appeal under section 18 (1) (a) of the West Pakistan Civil Courts Ordinance, 1962, hereinafter to be referred to as Ordinance No. II of 1962, lay to the High Court. He accordingly directed that the "memorandum of appeal along with other documents filed by the two appellants were returned to them with the endorsement that this Court has no jurisdiction to hear the appeals".

4. Muqarrab Khan has come up on further appeal, assailing the decision of the learned Appellate Court that under section 18 (1) (a) the appeals lay to the High Court.

5. Mr. Khan Bahadur Khan, learned counsel for the appellant. canvassed the correctness of the Single Bench decision in Mst. Mahallah v. Abdul Mastan Khan and others (P L D 1963 Pesh. 247) whereunder it was held that "the word `value' used with reference to a suit means the amount or value of the subject-matter of the suit used in section 18 of the Ordinance, and therefore, means the market value of the property in suit, and not the valuation placed under the Suits Valuation Act." (1) 238.2/3 kanals of land out of the disputed property situated in the area of Mahal Ferozpur. (2) 27 kanals 15 marlas 161 sarsais in the land situated in the area of Mahal Kodinaka. (3) 17 kanals 4 marlas out of the land situated in Mahal Mardan, and (4) 6 kanals 6.2/3 marlas situated in Chak Mardan. The decree gave rise to three Appeals Nos. 60/17, 63/18 and 66/19 of 1959, which were instituted in this Registry. On the enforce ment of the West Pakistan Civil Courts Ordinance, 1962, referred to above, under the general order of the Court purporting to act under section 28, subsection (3), the office thought that the appeals should stand transferred to the Court of the District Judge, Peshawar, and as the suit was decided by the Senior Civil Judge, Mardan, these appeals were registered in the Court of the Additional District Judge, Mardan, at Nos. 39 to 41 of 1962. When the parties appeared before the Additional District Judge, Mardan, they admitted before him that the value of the subject- matter of the appeals was more than Rs. 25,000 and therefore, the appeals were to be heard by the High Court under section 18 of the Ordinance'.

7. The Additional District Judge, Mr. Agha Khan Baba Khan, having some doubts about the correct interpretation of section 18 of the Ordinance, as to whether the forum of the appeal would be determined by the valuation of the suit fixed for the purposes of jurisdiction i.e., Rs. 13,302-10-0 under the Suits Valuation Act or the market value of the property in suit, formulated the following question for reference to the High Court: "Whether the value for the purpose of section 18 of the Civil Courts Ordinance is the market value or the rules under the Suits Valuation Act in accordance with which the land was Valued in the lower Court for the purpose of jurisdiction," "The provisions of section 18 of the Ordinance for the determination of the value contained in section 2 (h) of the same Ordinance are analogous to section 2, clause (5) of the N. W. F. P. Courts Regulation, 1931. In interpreting section 2, clause (5) of the N: W. F. P. Courts Regulation, 1931, the Judicial Commissioner's Court held in S. Tulsi Das Singh and others v. Yusaf Shah and others A I R 1936 Pesh. 61 that where, although the value of the suit for purposes of juris diction is only Rs. 517, still the question directly involved in the case is the validity of a mortgage for Rs. 6,000 the requirements of section 31 (1) (b) (ii) are fulfilled, and a further appeal lies from the decree of the District Judge. Similarly in Poosa Thorai v. Kannappa Chetty and others A I R 1918 Mad. 1099 interpreting the words `value of the subject- matter' used in section 110, C. P. Code, it was held that under this section, the `value of the subject-matter of the suit is the real market value of the property involved. The fact that for the purpose of stamp duty the plaintiff in exercise of the option given to him by the Court Fees Act, section 7, valued it at less than its market value cannot deprive him of his right to appeal to the Privy Council."

8. Mr. Khan Bahadur Khan, learned counsel for the appellant, argued that the learned Single Judge has not been properly assisted by the learned counsel who appeared before him in the Reference, in particular that they have failed to draw the attention of his Lordship to the language of section 31 of the N. W. F. P. Courts Regulation, 1931, the wording of which were materially different from the language of section 18 of the Ordinance. The learned counsel while conceding that the value in the Courts Regulation, 1931 and the term "value" within the meaning of section 2 (h) had identical definition, but the languages of sections 18 and 31 were materially different and those sections determine the forum of appeals and had nothing to do with valuation of the suit for the purposes of jurisdiction which continued to be governed by sections 3 and 4 of the Suits Valuation Act and the rules framed under section

3. It was, therefore, argued that the decision in S. Tulsi Das Singh and others v. Yousaf Shah and others had no bearing on the question of interpreting the provisions of section

18. It will be convenient here to refer to certain provisions of the Suits Valuation Act. The material provisions are sections 3 and 4 and the rules framed under section 3 of the Suits Valuation Act. Section 3 is in the following terms "3. (1) The Local Government may, subject to the control of the Governor-General-in-Council, make rules for determining the value of land for purposes of jurisdiction in the suits mentioned in the Court Fees Act, 1870, section 7, para graphs (v) and (vi) and paragraph (x), clause (d). (2) The rules may determine the value of any class of land, or of any interest in land, in the whole or any part of a local area, and may prescribe different values for different places within the same local area." "

4. Where a suit mentioned in the Court Fees Act, 1870, section 7, paragraph (iv) or Schedule 11, Article 17, relates to land or an interest in land of which the value has been determined by rules under the last foregoing section, the amount at which for purposes of jurisdiction the relief sought in the suit is valued shall not exceed the value of the land or interest as determined by those rules." It will be plain from reading the language of section 4 that the section indicates that the principle adopted by the Legislature for valuing a suit mentioned in Schedule II, Article 17, which relates to land or an interest in land is that the value of such a suit for purposes of jurisdiction shall be governed by the value of the land or the interest in the land. The material rules framed by the Punjab Government by Notification No. 255, dated the 4th March 1889, for determining the value of land for purposes of jurisdiction in the suits mentioned in the Court Fees Act, section 7, Paragraphs (v) and (vi), and paragraph (x), clause (d), are rules I (a) and (b) which are in the following terms (a) Where the land forms an entire estate, or a definite share of an estate paying annual revenue to Government or forms part of such an estate, and the annual revenue payable for such part is recorded in the Collector's register, and such revenue is permanently settled,-sixty times the revenue assessed on the land. (b) Where the land forms an entire estate, or a definite share of an estate paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid, and such revenue is settled but not permanently, thirty times the revenue payable." (a) in a small cause or un-classed suit, (i) if the value of the suit is one thousand rupees or upwards, or the decree involves directly some claim to, or question respecting, property of like value, and the decree of the District Court varies or reverses otherwise than as to costs the decree of the Court below, or (ii) if the value of the suit is two thousand five hundred rupees or upwards, or the decree of the District Court involves directly some claim to, or question respecting, property of like value ; (b) in a land suit, (i) if the value of the suit is two hundred and fifty rupees or upwards, or the decree involves directly some claim to, or question respecting, property of like value, and the decree of the District Court varies or reverses otherwise than as to costs the decree of the Court below, or (ii) if the value of the suit is one thousand rupees or upwards, or the decree of the District Court involves directly some claim to, or question respecting, property of like value. (2) The provisions of Order XLI of the Code of Civil Procedure, 190u, other than Rule 35 of the said Order, shall apply as far as may be to further appeals under this section and to the execution of decree passed on such appeals." (a) to the High Court if the value of the original suit in which the decree or order was made exceeds twenty-five thousand rupees ; and (b) to the District Judge in any other case. (2) Where the function of receiving any appeals which lie to the District Judge under the last preceding subsection has been assigned to an Additional District Judge, the appeals may be preferred to the Additional District Judge. (3) The High Court may, by notification, direct that appeals lying to the District Judge from all or any of the decrees or orders passed in any original suit by Civil Judge shall be referred to such other Civil Judges as way be mentioned in the notification, and the appeals shall thereupon be preferred accordingly, and the Court of such Civil Judge shall be deemed to be a District Court for the purposes of all appeals so preferred.

10. On a careful examination of sections 3 and 4 of the Suits Valuation Act, read with the rules framed under the Punjab Government (which still apply to the territories comprising the then Province of North-West Frontier), it is abundantly clear that the "value of any class of land, or of any interest in the land" is to be determined under section 3, subsection (2) by the rules, if any, framed, and under section 4 of the Suits Valuation Act, the value for the purposes of jurisdiction cannot exceed the value as arrived at by applying the rules framed under section 3 of the Act. Since the rules have been framed by the then Punjab Government, the value of the suit for the purposes of jurisdiction involving the land of any class or interest in the land would be governed by those rules alone. It is well-settled proposition of law that in presence of specific provision the general provision cannot apply. In other words when there are specific rules for determining the value of the land or the interest in land for the purposes of jurisdiction, those rules alone would determine the value of the suit.

11. There is another aspect of the case which was not brought to the notice of my learned brother sitting singly, namely, that the Suits Valuation Act is a Central Act and, therefore, a question of considerable importance at once arises whether the Governor of West Pakistan even "having received the previous instructions of the President", would be competent to repeal the Central Act, namely, the Suits Valuation Act, and the rules framed thereunder. I hasten to add that Ordinance No. II of 1962 does not in the least pretend to repeal the Suits Valuation Act or the rules framed thereunder.

12. There is yet another aspect of the case which requires consideration and it is that section 18 was incorporated in the Ordinance No. II of 1962 in order to enlarge the jurisdiction of the Court of the District Judge in the matter of forum of appeals with a view to relieving the congestion of work in the High Court, and, therefore, appeals from a decree or order of Civil Judge in which the value of the original suit in which the decree or order was made to the extent of Rs. 25,000 were to lie to the District Judge as against Rs. 5,000 the maximum limit of the value of the original suit before the Ordinance. If the interpretation of the learned Judge sitting singly were to be accepted, this would not only defeat the object of enlarging the appellate jurisdiction of the District Judge in the forum of appeal, but it would reduce the number of the appeals which would lie to the District Judge as compared to the position which prevailed before the promul gation of Ordinance No. II of 1962. Obviously this was never the intention of the Ordinance. (1) Whether in determining the forum of appeal in land suits or interest in the land for the purposes of section 18 of the Ordinance the determining factor would be the value of original suit determined under rules framed under section 3 of the Suits Valuation Act for the purposes of jurisdiction or the market value of the subject-matter of the suit? (2) In case the market value of the subject-matter of the suit determines the forum of appeal, whether section 18 of the Ordinance is ultra vires the power of the Governor?