P L D 1966 Supreme Court 461 (PLP)

Date of hearing: 27th October 1965. CORNELIUS, C. J.‑This is a plaintiffs appeal to call in question the dismissal of their suit for pre‑emption, ordered on the 2nd October 1959, by the Senior Civil Judge of Lahore, under. Order IX, rule 8, C. P. C. that is, for default in appearance on behalf of the plaintiffs. The facts relating to the default are not in dispute. A question had been raised as to the correct valuation of the suit for purpose of court‑fee, and evidence had been recorded in part. On the day in question, the Court was to consider an application made on behalf of the defendants for correction of a statement made by one of their witnesses, Abdul Rahim. The property in suit consists of certain land subject to land revenue which had been separately assessed thereon at the amount of Rs. 103/1. On a part of the land, there is a garden whose value was fixed by the plaintiffs for purposes of court fee at Rs. 4,000 and it was this valuation which was in dispute. The witness Abdul Rahim had filed an affidavit to the effect that he had taken part in an evaluation of the garden and had found the value to be Rs. 62,

274. In his oral statement, however, he bad given the figure Rs. 60,000, in Urdu, which had been taken down on the record as Rs. 7,000, i.e., the word sash had been heard and recorded as sat. This made a material difference to the contentions of the defendants as to the correct court‑fee, and therefore correction of the record was sought. On the 2nd October 1959, when the case was called in the Court of the Senior Civil Judge, none of the plaintiffs was present, nor was counsel for the plaintiffs present, and thereupon the Court made an order dismissing the suit under Order IX, rule

8. This was at a comparatively early hour of the day, for it is established that Mr. Shah Muhammad Mohsin counsel for the plaintiffs appeared in the Court at 11 a.m., and explained that he had been appearing before a Judge in the High Court. In the enquiry which followed an application for restoration of the suit, Mr. Shah Muhammad Mohsin's clerk deposed that as soon as he found that it was time for him to fetch the lawyer, according to his estimate of the time the intervening cases were likely to take, he left the Court of the Senior Civil Judge and went with speed‑ to the High Court to fetch Mr. Shah Muhammad Mohsin. By the time they returned, the suit had been dismissed. The application for restoration of the suit was filed on the same day. ' It was dismissed by the Senior Civil Judge for two main reasons. None of the plaintiffs was present, when the case was called, and no reason had been shown for their absence except that they had engaged counsel in the case. Counsel for the plaintiffs was also absent, and his only excuse was that he was engaged in another case. Following certain judgments of the Lahore High Court as precedents, the Senior Civil Judge held that the mere fact of a pleader being engaged in another Court, when his case is called, is not "sufficient cause" to explain his absence and that a party which suffers injury through such absence cannot seek protection against such injury by the exercise of the Court's power under Order IX, rule 13, C. P. C. but must proceed against the counsel for damages on the ground of his negligence. The plaintiffs went up in appeal before the District Judge. On the valuation for purpose of jurisdiction stated in the plaint, namely, Rs. 3,091/14, that was the correct forum of appeal, when the matter came up for hearing, the contention was raised on behalf of the respondent that the correct value for jurisdictional purposes was in excess of Rs. 5,000 and the appeal therefore lay in the High Court. The Additional District Judge who heard the appeal came to the conclusion that the value of the suit for the purposes of jurisdiction should be the value placed on the garden lay the plaintiffs, i.e., Rs. 4,000 to which should be added Rs. 2,760 being thirty times of the land revenue assessed on the laud comprised in the sale, which was not covered by the garden. He thus arrived at the conclusion that the correct value for jurisdiction was in excess of Rs. 5,000 on the plaintiffs own valuation and consequently the appeal lay in the High Court. He directed that the memorandum should be returned to the appellants for presentation in the proper Court. It was pressed before him that the jurisdictional value placed upon the suit in the plaint should determine the forum of appeal, but in his view, that did not mean that "if the plaintiff chooses to value his suit absolutely wrongly in utter disregard of the rules obtaining on the subject, even then such a valuation is to be treated as the correct valuation for the purposes of determining the forum of appeal". It should be noted that the Senior Civil to the value for purposes of court‑fee, which had been fixed‑at Rs. 4,000 for the garden and Rs. 1,030/10 being ten times the land revenue assessed on the land as an entity, making a total of Rs. 5,030/10. The order of the Additional District Judge was pronounced on the 4th January, 1961, and on the very next day, the appellants presented their appeal in the High Court, as he had directed. The appeal was taken as a first appeal against the order of the Senior Civil Judge and was dismissed in limine on the 2nd February 1961, on the following ground:‑ (1) that there was a delay of 244 days in filing the appeal ; (2) that for purposes of court‑fee, the plaintiffs had themselves fixed the‑ value in excess of Rs. '5,000 and "according to the Full Bench decision of this Court that was the value for purposes of jurisdiction as well ;" (3) that the suit being one for pre‑emption, "no equities are involved in favour of the plaintiffs ;" (4) that the plaintiffs had allowed their suit to be dismissed in default on an earlier occasion, and it was finally restored A by order of the High Court; this was the second occasion on which through their default the suit had been dismissed ; and (5) that the contention that the counsel was appearing in the High Court, when his case was called in the trial Court was not sufficient cause for restoration of the suit. Special leave was granted by this Court to appeal against this order of the High Court. We have heard Mr. Shah Muhammad Mohsin for the appellants and Mr. A. K. Brohi for the respon dents, and are clearly of the opinion that the order of the Division Bench of the High Court cannot be sustained. The statement in the judgment of the Division Bench as to the existence of a Full Bench decision laying down that in a case of the present kind, the valuation for court‑fee and that for jurisdiction should be the same, does not appear to be correct. No such decision was placed before us, and the impression is gained that the reference is probably to a case falling under section 8 of the Suits Valuation Act, 1887. The present suit is one which falls under section 7, paragraph (vi) of the Court Fees Act, 1870, and valuation for purposes of jurisdiction is to be determined in accordance with rules made by the Provincial Government under section 3 of the Suits Valuation Act. These rules provide with respect to land which is not permanently settled, and forms part of an estate on which a separate amount is assessed as land revenue, which is recorded as such in the e Collector's register, that for purposes of jurisdiction, the value shall be thirty times the assessed revenue. Where the subject matter is a garden, the market value of the garden determines the jurisdictional value. These Rules apply also to suits for pre‑emp tion. Rule 3 lays down that when the "land or interest" in a suit "fails partly under one and partly under another of the classes enumerated in rule i, the value of the land in each class shall be separately calculated". It is provided in an explanation to rule I that where land is a portion of a part of an estate on which the land revenue is assessed at a specific figure, being not permanently settled to land revenue, the jurisdictional value should be thirty times the proportionate share of the land revenue falling upon such separate portion of the part of an estate in question. On this basis, the figure arrived at by the Additional District Judge, upon the plaintiffs own valuation in their plaint would appear to be correct. . Consequently, the view he hold that he did not have jurisdiction to hear the appeal was well‑founded. The learned Judges in the High Court appear to have thought that the plaintiffs were so plainly in error in their valuation of the suit for jurisdiction that they could not be allowed the benefit of the time spent in the Additional District Judge's Court, which led to the decision that the jurisdictional value was under stated. They appear to have ignored the fact that it was not for the plaintiffs to vary the valuation in the plaint when it came to taking the matter in appeal against refusal of the Senior Civil Judge to restore the suit. The plaintiffs were bound by the valuation they had thus stated, in a suit of which the Senior Civil Judge had become seized, with the consequence that that valuation could not be altered by themselves, unless with the permission of the Senior Civil Judge. Equally, when they came to appeal against the adverse order of the Senior Civil Judge, they could not choose a forum on the basis of an altered valuation to be conceived, or made by themselves. In other words, it was essential that they should take their appeal to the District Judge, since the valuation of the suit for jurisdiction was below Rs. 5,000, and it was only after that Court had decided the matter definitely that they became entitled to go to the High Court as the proper Court of appeal. They do not appear to have challenged the valuation fixed by the Additional District Judge for jurisdiction. The point of the suit being for pre‑emption does not, in our view, carry any weight in determining the question whether in presenting their appeal to the High Court, which had been returned by the Additional District Judge, and in doing so without delay, they have not done all they could do in the circumstances. Again, the fact that this was the second occasion on which they were asking for restoration of their suit which had been dismissed for default could hardly be of weight in determining the merits of their second application for restoration. The learned Judges have declared, supporting the view of the Senior Civil Judge, that the mere fact of the plaintiffs counsel being busy in the High Court, when his case was called before the lower Court, does not amount to "sufficient cause" for restoration of the suit. The determination of sufficient cause is a matter within the discretion of the Court, to be exercised judicially in relation to all the circumstances of the case. The fact of Mr. Shah Muhammad Mohsin being engaged in the High Court was not the only reason given for his absence, when the Senior Civil Judge called the present case. It had been explained that his clerk had tried to estimate the probable time at which the suit was likely to be called, and had left himself what he thought was a reasonable margin in to fetch the lawyer from the High Court; where he knew that he would be present. His judgment proved wrong, but that could be for a variety of reasons over which he, namely the clerk, had no control. It may be that some of the intervening cases occupied much less time of the Court than he had estimated. Mr. Shah Muhammad Mohsin appeared in the trial Court at 11 a.m., which is a sufficiently early hour in the Court's working time, and it is impossible therefore to avoid the conclusion that the suit must have been called early in the‑ day. Mr. Shah Muhammad Mohsin's clerk stated that when he left the Court to call the lawyer, there were still six cases to be heard before the present case was to be called. He did not have very far to go from the Senior Civil Judge's Court, to the High Court, and it cannot be said that his estimate was wholly inadequate. A case with a greater degree of relevancy to the facts of the present case than the earlier High Court decisions aforesaid is that of Mumtaz Ahmed v. Mst. Umtul Habib (1)PLD1955FC178 where certain observations were made in allowing an appeal against a similar order refusing to restore a case that had been dismissed for default for absence of counsel. These go to indicate that weight should be given to the difficulties of counsel who have to appear in more than one cases in different Courts on the same, day. That was a case of the opposite kind to the present case, namely, that the counsel was absent whether his case was called in the High Court, because at that time he was appearing in the Court of a Civil Judge. A reason had been given why counsel had thought that it would be early enough for him to appear at the time when he did appear, this being that he had obtained from counsel in the case before his own an estimate, of the time that case was likely to take, and had relied on that estimate. The Federal Court observed that there was no reason to think that the estimate given by the other counsel "was wholly wrong or extremely exaggerated". In the present case, we see no reason to think that in proceeding to fetch Mr. Shah Muhammad Mohsin when there were still six cases on the list of the Senior Civil Judge to be dealt with before the present case was called, the clerk left the matter until too late. We allow this appeal, and setting aside the order made by the High Court, we direct that the suit be restored to its original place in the list of the Senior Civil Judge, and that it should be proceeded with according to law. The parties will bear their own costs in this Court. K. B. A. Appeal accepted.