P L D 1967 Karachi 468 (PLP)

WAHIDUDDIN AHMAD, J.‑This is a Letters Patent Appeal against the order of a learned single Judge in Execution No. 93 of 1962, dated 16‑5‑

66. By this order the objections tiled by the appellants were overruled and the sale proclamation for the property attached in execution of tile decree was directed to be issued.

2. In Suit No. 113 of 1958 an ex parte decree was passed against the appellant for a sum of Rs. 1,76,500 on Ah April, 1959 with interest at 6 % per annum. His applica tion for setting aside the decree was dismissed on 18th May 1959 on the ground that no sufficient ground was shown for absence on the date of hearing. Letters Patent Appeal No. 20 of 1959 was compromised on 10th November 1959, whereby the appellant agreed to pay Rs. 1,60,000 by instalments. It is alleged that up to November 1960, he had paid about Rs. 1,04,000 but did not pay any further amount because on 15th December 1960, he came to know that the respondents plaintiffs had a different identity than the original firm Haji Ahmed & Co. with whom Muhammad Siddiq, the sole proprietor of the appellant Fine Textile Mills had entered into an agreement on 11th April 1956, and, therefore, it is alleged that the decree against him was obtained by fraud and the Letters Patent Appeal was also got compromised fraudulently. Accord ingly the appellant filed Suit No. 2696 of 1960 on 19‑12‑1960 before the First Class Civil Judge, Karachi. On an objection that the Civil Subordinate Courts at Karachi had no jurisdiction the learned Court by order, dated 20‑8‑1962 came to the conclusion that the value of the suit is Rs. 1,60,000 and it had no jurisdiction. He, therefore, directed the plaint to be returned to the appellant for representation to the proper Court. Later on he filed an amended plaint which was rejected on 12‑11‑1962. After the rejection of the plaint the appellant presented a fresh plaint of a suit in this Court on 23‑11‑62 but without complying with the objections raised by the office it was taken back. This was followed by Revision Application No. 600 of 1962 filed against the order of the Sub‑Judge, dated 12‑11‑1962 which was dismissed on the ground that no revision lies from such order and the proper remedy for the appellant was to file an appeal. The appellant then filed an appeal in the Court of the District Judge, Karachi, Appeal No. 117 of 1964, against the order of the Civil Judge, Karachi, dated 20‑8‑1962 passed in Suit No. 2696 of 1960 which too was dismissed on 12th play 1964. This order was challenged in Revision Application No. 106 of 1964 which was dismissed on 28th May 1964. It was, however, remarked by this Court that the Additional District Judge had only decided application under Order XXXIX, rules I and 2, C. P. C. and that the matter was still pending before it on merits and it, was open to the appellant to apply for hearing on the point of limitation. The appeal was, therefore, further heard by the Court concerned, but it was dismissed on 26th September 1964. The appellant then filed a fresh suit for declaration No. 479 of 1963 on 4th November 1963 which was dismissed by the 2nd Civil Judge. First Class, Karachi on the ground that the same was barred by res judicata. Against that an appeal was filed on 8th May 1964, known as C. A. No. 262 of 1964 before the 5th Additional District Judge, Karachi. In this appeal the appellant was granted an injunction on 11th May 1966, restraining the respondent from executing the decree obtained by them which is pending before the learned single Judge for execution.

3. In the appeal before us the order of the learned single Judge is attacked mainly on the ground that the sale of the attached mill should not have been ordered after an injunction had been issued by a Civil Court of competent jurisdiction to the respondents restraining them from executing the decree. Besides it is attacked on the ground that the outstanding balance of the decree against the appellant is not more than Rs. 72,000 including interest; and it was not proper to auction the entire mill for the recovery of a much smaller amount than the value of the property. Notice was issued to the respondent on 27th May 1966, to find out whether it would not be proper that in the first instance only a portion of the attached mill may be sold. In response to the notice Mr. Khoja, the learned counsel for the respondent, expressed readiness on behalf of the respondent that only such portion of the attached mill be sold as will be sufficient to satisfy the balance of the decretal amount. Mr. Khalid Ishaque, the learned counsel for the appellant, was granted time to find out from the appellant which portion of the mill he would like to be sold first, but the learned counsel informed us that the appellant is not prepared to earmark any portion of the attached mill for this purpose. He contended that it was the duty of the Court under Order XXI, rule 64, C. P. C. to order for the sale of such portion of the attached property as may be sufficient to satisfy the decree passed against the appellant. The contention of the learned counsel ha no force because under it the Court is not bound to adopt such course. In suitable cases it is permissible to order the sale of A, portion of the attached property. Now it is a well established rule of law that the option in such a case is with the decree holder who may ask for the sale of the entire property. In Badri Narain Singh v. Chander Mauleshwar Prasad Narain Singh and others (A I R 1942 Pat. 152) it was held that the executing Court is not bound to value property and order sale of only part of the property. In the present case the appellant is not within to co‑operate with the Court for the sale of part of the property attached and therefore he cannot possibly have any legitimate grievance in this respect. We would, therefore, overrule the objections of the appellant in this respect.

4. Mr. Khalid Ishaque, the learned counsel for the appel lant, next contended that the learned single Judge on the original side should not have issued an order for the sale proclamation of the property attached as the appellant had already obtained an injunction order against the respondent from the Court of Additional District Judge, Karachi, in Civil Appeal No. 262 of 1964. The contention of the learned counsel in this respect, also is not well founded because we have noticed that the order of the Additional District Judge was passed on 31st May 1966, whereas the ‑learned District Judge overruled the objections filed by the appellant by order dated 16th May 1966 and directed that sale proclamation be issued in respect of the property attached in execution of the decree.

5. Finding this difficult, Mr. Khalid Ishaque contended that this Court in this appeal may direct the respondent or the learned single Judge on the original side not to proceed with the execution as an injunction order has already been issued against the respondent by a Civil Court of competent jurisdiction: After hearing the learned counsel for the parties, we are satisfied that the order of the learned Additional District Judge, Karachi dated 31st May 1966 is without jurisdiction and a nullity in the eye of law. Admittedly the compromise decree which was passed against the appellant in Letters Patent Appeal No. 20 of 1959 wag in the sum of Rs. 1,60,

000. It is alleged by the appellant that he had paid Rs. 1,04,000 and that a sum of Rs. 72,000 is only due from him. Even if the contention of the appellant in this respect is accepted the fact remains that Suit No. 479 of 1963 for declaration and injunction filed by him against the respondent, on the ground of fraud is to get rid of a decree which is of the value of much more than Rs. 25,000 and outside the pecuniary jurisdiction of the civil Court at Karachi. In this connection it will be convenient to mention here that under clause 4(2) of the Karachi Courts Order, 1956 it is clearly provided that "unless the. Central Government by order under the proviso to subsection (2) of section 22 of the Sind Courts Act, 1926 otherwise directs the Court of the District Judge shall not have jurisdiction in original Civil Suits and proceedings wherein the subject‑matter exceeds Rs. 25,000 in amount or value." Mr. Khalid Ishaque referred us to the West Pakistan Civil Courts Ordinance, 1962, section 28 of which shows that the Karachi Court Order, 1956 has been repealed except clause 4(2) referred to above. But in the proviso to the above section 24(1) it is provided that:‑ "In the Karachi District any such suit if the value thereof does not exceed Rs. 25,000 may be instituted in the Court of the District Judge, the Additional District Judge or a Civil Judge of the First Class in the‑High Court where the value of the suit exceeds Rs. 25,000." in section 24(2‑A) it is provided as under: "Notwithstanding anything contained in subsections (1) and (2), in the Karachi District. any such suit, if the value thereof does not exceed Rs. 25,000 may be instituted in and be tried by the Court of the District Judge and the Additional District Judge or a Civil Judge of the First Class and where the value of the suit exceeds Rs. 25,000 it shall be instituted in and be tried by the High Court." Thus it will be noticed that both under clause 4(2) of the Karachi Courts Order, 1956 arid the West Pakistan Civil Court Ordinance, 1562 the District Courts at Karachi have no pecuniary jurisdiction to try suits where the value of the suit exceed Rs. 25,

000. It is only the High Court at Karachi which ha the jurisdiction to entertain such suits. In view of the above provision of law the contention of Mr. Khoja that the suit No. 479 of 190 was instituted in a Court which lacked inherent jurisdiction and therefore C. A. No. 262 of 1964 is also pending before a Court which has no jurisdiction in the matter has, much force.

6. Mr. Khalid Ishaque, the learned counsel for the appel lant, contended that in cases where the decree is sought to be set aside on the ground that it was obtained by fraud and a permanent injunction is claimed by a party suit, being a suit for declaration and consequential relief, is one which falls under section 7(iv)(c) of the Court Fees Act. The learned counsel contended that in such suit it is for the plaintiff to decide and fix the value of the suit for the purposes of court -fee and jurisdiction and to pay court‑fee on that basis. In support of his contention the learned counsel relied on two Full Bench decisions of the Lahore High Court reported in Mian Karam Elahi v. Muhammad Bashir and others (P L D 1949 Lah. 8) and B. Ghulam Kadir v. M/s. Bulayi Mall & Sons (P L D 1949 Lah. 461). In the first case it was held by the Full Bench that it is the value for the purpose of court‑fee that determines that value for purposes of jurisdiction. It was further held that under section 7 (iv)(c) of the Court Fees Act, the plaintiff' has an absolute discretion to put his own valuation on the relief that be claims and the Court has no jurisdiction to question the valuation, however, arbitrary it may be. In' the second case it was held by the Full Bench that suits for cancellation of 4ecree or suits, the value of which cannot satisfactorily be ascertained under section 9 of the Suits Valuation Act; and, therefore, different values can be fixed in respect of such suits for purposes of court‑fee and jurisdiction. It will be noticed that the above two decisions conflict with each other. It appears that before the first Full Bench the attention of the learned Judges was not drawn to the rules framed by the Lahore High Court under section 9 of the Stets Valuation Act. These rules were noticed in the second Full Bench case and it was for this reason that it was held that different values can be fixed in respect of such suits for purposes of Court fee and jurisdiction.

7. Mr. Khalid Ishaque's contention that in view of the decision in Mian Karam Illahi v. Muhammad Bashir and others that in suits falling under section 7(iv)(c) of the Court Fees Act the plaintiff has absolute discretion to put his own valua tion on the relief that he claims and the Court has no jurisdiction to question the valuation, however, arbitrary it may be has received our anxious consideration. It will, however, be noticed that the above observation by Munir, acting C. J., as he then was, was in respect of the state of law in the Lahore Court. This view was expressed without taking into consideration tae view expressed in other Courts on this aspect of the question. For instance, the view expressed in the Full Bench decision of the Sind Court in Lakhomal Deepchand and another v. Deepchand Tolaram and others (A I R 1937 Sind 241) was not taken into consideration. In that case it was held that a suit for declara tion and injunction is a suit for consequential relief. In such suit it is not open to the plaintiff to put any arbitrary value upon the injunction sought and pay court‑fee on such value. Similarly, Thakurji v. R. R. S. Sari (I L R 27 Pat. 494) it was held that in suits following under section 7iiv)(c) the plaintiff has some amount of liberty to put his valuation and this liberty cannot be curtailed or diminished so long as he does not value the relief arbitrarily. It seems to us that ordinarily in suits falling under section 7(iv)(c) a plaintiff is entitled to put his own valuation but in case the Court comes to the conclusion that it is arbitrarily fixed it can put its own valuation and ask the plaintiff to pay court‑fee on the valuation. We are in respectful agreement with the view of Davis, J. C. that absence of the rules under section 9 of the Suits Valuation Act is no bar to the exercise of the power under Order VII, rule 11, C. P. C. and that the question as to what is proper valuation depends upon the circumstances of each suit and the judicial decision of the Court. To hold otherwise would mean to give unlimited power to litigants in drafting their prayers so as to include or exclude relief with a view to confer jurisdiction on the Court to try the suit.

8. Mr. Khalid Ishaque contended that we are bound by the decision in Mian Karam Illahi v. Muhammad Bashir and that view was accepted by Kaikaus, J. in Mst. Wazir Begum v. Haji Ashiq Hussain and six others (P L D 1957 Lah. 126) a decision of a learned Single Judge of this Court. In that suit it was held by the learned Single Judge that a plaintiff is entitled to put his own valuation for court‑fee and the valuation for jurisdiction is to follow that for court‑feet On the other band, Mr. Khoja. referred us to a decision of this Court at Peshawar in Muhammad Aslam Khan v. Muhammad Hassan and others (P L D 1959 Pesh. 101). In that case a Division Bench of this Court followed is Mst. Zeb‑un‑Nisa and others v. Chaudhri Din Muhammad and others (A I R 1941 Lah. 97) and observed that:‑ Section 7(iv)(c) lays down that the plaintiff shall state the value of the relief in the plaint. In the present case, the plaintiffs have themselves valued the relief in the plaint at Rs. 5,

100. They did so no doubt for the purpose of jurisdiction but it can hardly be contended that the plaintiff can value the relief for the purpose of jurisdiction atone figure and for the purpose of court‑fee at another. Sections 8 and 9, Suits Valuation Act, show that except when specific rules to the contrary have been framed, the value for purposes of court‑fee and jurisdiction must be the same. In the present case, therefore, the plaintiffs were bound to fix the same value on the relief claimed for purpose of court‑fee and jurisdiction." Thus it will be noticed that this Court at Peshawar took a different view from what was taken in Mian Karam Illahi's case by a Full Bench at Lahore. This point was considered by one of us in S. Zafar Ahmad v. Abdul Khaliq. It was held that according to the Sind Full Bench decision the valuation for purposes of court‑fee under section 7(iv)(c) in a suit for setting aside a decree should be the amount involved in the impugned decree and since the decision is still followed in this region it was not necessary to review the case law in order to reconcile the view of the Sind Court with the Lahore Full Bench referred to above. We would, therefore hold that the decision in Man Karam Illahi's case is not binding on this Court.

9. There may be some doubt on the question of valuation of suits for purposes of jurisdiction under the Court Fees Act, but so far as the Karachi Subordinate Courts are con cerned, their pecuniary jurisdiction is governed by clause 4(2) of the Karachi Courts Order, 1956 and section 24(2‑A) of the West Pakistan Civil Courts. Ordinance,. 1962. Under these provisions of law their pecuniary jurisdiction is limited only to those cases in which the value of the suit is less than Rs. 25,

000. Mr. Khalid Ishaque was unable to satisfy us that the above provisions of law are governed by the Courts Fee Act or Suits Valuation Act. It may be pointed out that the reasons for referring to the provisions of the Court Fees Act and .Suits Valuation Act for determining the valuation for purposes of court‑fee and jurisdiction is that in section 6 of the Civil Procedure Code itself it is provided as under:‑ "Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court Jurisdiction over suits the amount or value of the subject‑matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction." It is, therefore, by necessity that one has to find out which are those provisions which otherwise expressly provide for such situation. Admittedly, the provisions of Court Fees Act an Suits Valuation Act are express provisions in respect of pay meat of court‑fee and suits valuation and for these reason them cannot be disregarded for interpreting the provisions of section 6 of the Civil Procedure Code. Fortunately, no such condition is attached to clause 4(2) of the Karachi Court Order, 1956 or to section 24(2‑A) of the West Pakistan Civil Courts Ordinance, 1962. In these circumstances the question whether the value of the‑ subject‑matter of the suit is more than the pecuniary jurisdiction of the Courts concerned, is to be considered independently of these provisions. In this connection it will not be out of place to refer to a decision of the Judicial Committee in Rachappa Subrao Jadhav Desai v. Shidappa Venkatarao Jadhav Desai (A I R 1918 P C 186). In that case the plaintiff valued the suit for declaration at Rs. 130 and injunction at Rs. 5 and filed it in the Court of First Class Sub‑Judge. Admittedly, the amount of value of the subject‑matter exceeded Rs. 60,

000. Under section 24 of the Bombay Civil Courts Act, the jurisdiction of the First Class Sub‑Judge extended to all original suits and proceedings of a `civil nature and that of a subordinate Judge of the second class to all original suits and proceedings of civil nature wherein the subject‑matter did not exceed in amount or value Rs. 5,

000. By section 25 the Subordinate Judge of the First Class had special jurisdiction to exercise jurisdiction wherein the subject‑matter exceeded Rs. 5,000 within the local jurisdiction of the Courts in the District presided over by subordinate Judges of the second class. It was admitted that the suit could not have been heard by the Sub‑Judge, 1st Class in the exercise of his original jurisdiction on account of the local situation of the property in suit. It was contended that the suit could not be instituted in the Court of the First Class Subordinate Judge. The Judicial Committee repelled this contention, amongst others, on the following observation:‑ "If regard be had to the real as distinct from the imputed value of the property, the suit was properly instituted in the Court of the First Class Subordinate Judge, and if any part of the fee payable and paid was a fixed fee under Schedule II of the Act, then the notional value of the property or any part of it could not displace its real value for the purposes of jurisdiction." Similarly, in the case of Bai Lilavanti and others v. Vadilal Purshottamdas (A I R 1945 Bom. 474) it was held that section 8 of the Suits Valua tion Act is not applicable to suits under section 24 of the Bombay Civil Courts Act. Under it the jurisdiction is to be determined according to the amount or value of the subject- matter. If the subject‑matter exceeds an amount or value of Rs. 5,000 then the Second Class Subordinate Judge had no jurisdiction to try the suit. In that case the subject‑matter of the plaintiff's suit was the setting aside of the two decrees under which he was liable to pay Rs. 5,366‑4‑

6. That was held to be the value of the subject‑matter of the suit and the Second Class Subordinate Judge was found to have no jurisdiction to try such suit. Similarly, in Inayat Hussain v. Bashir Ahmad and others (A I R 1932 All. 413) it was, held that Suits Valuation Act and the Court Fees Act were purely fiscal enactments and they have no bearing on the question as to which is the proper Court for the institution of the suit having regard to the value of the property. It seems to us that in cases arising under clause 4(2) of the Karachi Courts Order, 1956 under section 24(2‑A) a the West Pakistan Civil Courts Ordinance, 1962 the question of the valuation of the suit is not referred by the fiscal standards of the Court Fees Act and Suits Valuation Act by which the pecuniary jurisdiction is determined under section 6 C. P. C. In such cases it will be determined by the real value of the subject‑matter of the snit. We are fortified in this view by the decision in the cases arising under section 110, C. P. C. in filing appeal to the Privy Council and now to the Supreme Court. Under this provision of law the amount or value of the subject‑matter of the suit in the Court of the first instance must be Rs. 20,000 or upwards and the amount or value of the subject‑matter in dispute on appeal must be the same sum or' upwards. It was held in Mohanlal Sookul v. Babee Doss and others ((1867) 7 M I A 428), Baboo Lekraj Roy v. Kanhiya Singh (1 I A 317) and Gourmoney Debia v. Khoja Abdool Gunny (8 M I A 268) that if the plaint is not required to be valued for purposes of court‑fee accord ing to the real or market value but upon some other basis the doctrine of approbate and reprobate does not apply and the plaintiff may show when applying for a certificate for leave to appeal that the value exceeded Rs. 20,000, although court‑fee was paid on lesser amount. In Nawazali and others v. Allu and others (A I R 1924 Lah. 82), while considering the value of the suit under section 110, C. P. C., it was held that the rules under the Suits Valuation Act in accordance with which the land in suit is valued for the purposes of jurisdiction in the lower Courts did not apply in determining the value for the purposes of section 110, C. P. C., but it is the market value which has to be ascertained. Similarly, in Firm L. V. Govindji & Co. v. Premji Damodar Thakur (A I R 1944 Sind 190) it was held that though only Rs. 6,000 were actually claimed in the suit that claim did not represent the true value of the subject‑matter of the suit in the Court of the first instance. The applicant could show when applying for a certificate of leave to appeal that the value exceeded Rs. 10,000, although court‑fee was paid on a lesser amount. Judging Civil Appeal No. 262 of 1964 filed before the 5th Additional District Judge, Karachi, in which the learned Court granted injunction by order, dated 11th May 1966, in this light, it is quite obvious that the value of the suit being of much more than Rs. 25,000, the appeal was not competent in that Court. The learned Additional District Judge having no jurisdiction in the matter any order passed by him is without jurisdiction and is void in law.

10. This being the position, the injunction issued by the learned Additional District Judge, Karachi, has no binding effect on the respondent in the present appeal. In this connection reference may be made to a decision of the Full Bench of the Lahore High Court in Mian Sultan Ali Naghiana v. Mind Noor Hussain (P L D 199 Lah. 301). In that case the High Court in exercise of its power under section 115, C. P. C. stayed the proceedings before the Election Commission and contempt proceedings were taken for disobedience of the order of the High Court. The majority of the learned Judges held that the order staying proceedings before the Commission, being without jurisdiction, was void and that being so, no contempt of High Court was committed by the members by disobeying it. In these circumstances, we find no force in the contention of the learned counsel for the appellant that, in the presence of the above injunction order, this Court should stay further proceedings before the learned Single Judge in respect of the auction of the attached property.

11. Before parting with this case it maybe mentioned that the appellant has not come in this Court with clean hands. He has been knocking the doors of the subordinate Courts at Karachi in a number of suits and failed to get any redress there. It is to be depreciated that the learned 5th Additional District Judge did not take this fact into consideration and granted an it junction against the respondent without examin ing the facts of the case and finding out whether the appellant was abusing the process of the Court.

12. In the result, we find no force in the appeal which is summarily dismissed. Since notice was issued on the Miscel laneous Application to the respondents, we will direct the appellant to pay Rs. 250 as costs to the respondents. K. B. A. Appeal dismissed.