1997 PLP 1863 (SCMR)

FAZAL KARIM, J.‑‑‑The question of law that requires determination in this petition was described by the learned Judge in the High Court as a difficult question'. It has arisen in the following circumstances. The petitioners are the successor‑in‑interest of Lai Khan vandee. The sale in favour of Lai Khan was sought to be pre‑empted by Imdad Hussain respondent. He had valued the suit for the purposes of court‑fee and jurisdiction at Rs.1,

000. This valuation was contested by the petitioners and one of the issues formulated was ' whether the suit has not been properly valued for purposes of court‑fee and jurisdiction'. However on 22‑9‑1973 Lai Khan made a statement admitting that the plaintiff had a superior right of pre‑emption. By a statement dated 27‑5‑1974, the plaintiff admitted the sale price to be Rs.6000; he also agreed to pay Rs.1,000 on account of improvements and this was accepted by Lai Khan. On the basis of these statements, the learned trial Judge who was exercising 3rd Class powers decreed the suit by his order dated 22‑7‑1974 on payment of Rs.7000; the learned trial Judge also directed the plaintiff to make up deficiency in court‑fee on Rs.6000 which according to him was the market value of the land. The suit was to stand dismissed if the plaintiff failed to comply with those directions. Two days later, that is on 24‑7‑1974 the plaintiff made an application under section 151 of the C.P.C., saying that as the value of the suit had been determined to be Rs.6000 and that was beyond the pecuniary jurisdiction of the learned trial Judge, the decree dated 22‑7‑1974 was without jurisdiction. The learned trial Judge heard the parties and by order dated 31‑7‑1974 returned the plaint to the plaintiff for being presented to the competent Court. In this way what the parties had by their statements referred to above agreed to do was allowed to be undone. In pursuance of the order dated 31‑7‑1974 and filed it in the Court of the Civil Judge 1st Class at Muzaffargarh with an application under section 14 of the limitation Act praying that the delay be condoned, There was a fresh trial, the crucial issues tried at that trial being whether the suit was within time and whether the plaintiff was entitled to have the delay in the institution of the suit in the Court of Civil Judge Ist Class, Muzaffargarh condoned. The learned Civil Judge Ist Class decided these issues against the plaintiff and dismissed the suit. But on appeal, a learned Additional District Judge decreed the suit by his judgment dated 7‑6‑1977.

2. There was the second appeal to the High Court. The learned Judge in the High Court held that the learned Civil Judge 3rd Class "could not have directed the return of plaint without expressly recalling the decree" and that Court "had absolutely no jurisdiction at all to pass the order dated 31‑7‑1974". The question then was that if the decree dated 22‑7‑1974 stood restored whether the plaintiff was entitled to fresh time for the deposit of the pre‑emption money. Holding that the Civil Judge 3rd Class was not right in treating Rs.6000 as the valuation for the purpose of jurisdiction and that the order dated 31‑7‑1974 was invalid and also that it was not the plaintiff alone who had "contributed to the illegal proceedings" but the Court and the defendant "also participated unwillingly in the same" the learned Judge went to uphold the decree of the District Court and to give the plaintiff time up to 31st December, 1994 for deposit of the decretal amount under the decree and the balance of the court fee".

3. Learned counsel for the petitioners maintains that the decree dated 22‑7‑1974 was a consent decree and it was not open to the plaintiff to have it undone in the manner he did; that it was the plaintiff himself who had first instituted the suit in the Court of the Civil Judge 3rd Class and then consented to the decree being passed, he was not entitled to invoke the provisions of section 14 of the Limitation Act and that the direction contained in the decree dated 22‑7‑1974 being to deposit the pre‑emption money by 7‑10‑1974 and that direction having not been complied with, the suit stood automatically dismissed.

4. Leave to appeal is granted, Inter alia, to consider these contentions. It is stated that the petitioners are in physical possession of the land. If so, their possession shall not be disturbed. A.A./G‑5/S Leave to appeal granted.