P L D 1965 Azad J & K 26 (PLP)

MUHAMMAD SHARIF, J.‑This is an appeal against the judgment and decree of the Sub‑Judge, Muzaffarabad, dated 15‑4‑63 by which the plaintiff's suit for a declaration that the plaintiff was the owner of the suit land on account of purchase and for a permanent injunction restraining the defendants from interfering with the possession of the plaintiff, was dismissed. The learned counsel for the respondents has raised a preli minary objection to the effect that the appeal does not lie in the High Court; and that it should be returned for presentation before the proper Court. The learned counsel has pointed out that the plaint in this case was originally filed in the Court of the Sub‑Judge, Muzaffarabad, on 17‑1‑59; and that on the face of the plaint the jurisdictional value was entered as Rs. 130‑00 and also in para. 8 of the plaint, the value for purposes of jurisdiction was entered as Rs. 130.00. The plaintiff then made an application to the trial Court for leave to amend the plaint on 27‑9‑59 showing that during the pendency of the suit the defendants had executed a fictitious sale‑deed of the land in suit in favour of Ahmad Ali and Barkat Ullah by sale‑deed registered on 21‑2‑1959 which was without any consideration and which had necessitated the addition of the new vendees as a party to the suit. The learned Sub‑Judge by order dated 27‑2‑59 allowed the amend ment sought for. The amended plaint was put into the Court on 5‑3‑

59. In para. 7 for the amended plaint the valuation for jurisdictional purposes was changed to Rs. 3,000.00. According to the valuation entered in the amended plaint the appeal lies in the High Court though according to the original jurisdictional value entered in the original plaint the appeal lies before the District Judge. The contention of the learned counsel for the respondents is that the jurisdictional value entered in the original plaint should be taken as the value for jurisdictional purposes in order to determine the forum of appeal, and that these valuations for jurisdiction as entered in the amended plaint should be ignored since the same is unauthorized. In order to decide the preliminary objection, we have to refer to the applications of the plaintiff dated 27‑2‑59 by which amendment of the plaint was sought. It is put down in para. 1 of this application that during the pendency of the suit the defendants had executed a sale‑deed of the land‑in‑suit in favour of Ahmad Ali, son of Nadar Ali and Barkat Ullah, son of Sher Ali caste Ghakkar residents of Garthama on 21‑2‑59 and had got the sale‑deed registered on the same day which has necessitated addition of these persons as parties to the suit. It has been argued by the learned counsel for the respondents that the party seeking to amend the pleadings has not only to apply for leave to amend the pleadings but also has to specify the amendment that he wants to make in his pleadings. His contention is that the plaintiff had sought leave to amend the plaint only in so far as the addition of the vendees' names was concerned. The plaintiff had not sought leave to amend the value of the suit for purpose of jurisdiction and no such amendment had been granted by the Court itself. Therefore, the amendment in the valuation for purpose of jurisdiction, which was made un-authorisedly should be ignored. He has cited 206 I C 1, which is a Privy Council case. It has also been argued by the learned counsel for the respondents that the suit being for a declaration and a consequ ential relief of injunction, it was, no doubt, open to the plaintiff to value his relief at any amount he thought fit under section 7 (iv) (c) of the Court‑Fees Act but then under section 8 of the Suits Valuation Act the valuation fixed by the plaintiff for purposes of the court‑fee shall be the value for purposes of jurisdiction also. He has cited Karam Ilahi v. Muhammad Bashir (P L D 1949 Lah. 8), Suleman Khan v. Muhammad Zaman Khan (P L D Azad J & K 48) and 204 I C

239. It was laid down by Davis, C. J. and Weston, J. in 204 I C 239, which is a case from the Sind Chief Court that "a suit for declaration and injunction is a suit involving consequential relief within the meaning of section 7 (iv) (c), Court‑Fees Act and conse quently under section 8 of the Suits Valuation Act, the value for A the computation of the court‑fee and the value for jurisdiction must be the same. It was also observed in this ruling that "in such a suit where the plaintiff takes advantage of the jurisdiction of a higher Court by affixing a higher value for the purpose of jurisdiction than for the purpose of court‑fee, the Court cannot ignore the higher value which is placed upon the relief claimed for the purpose of jurisdiction and as in a suit of this nature there can be only one valuation and not two, according to section 8, Suits Valuation Act, the valuation for the purpose of court‑fee must be the higher valuation and not the lower valuation placed by the plaintiff upon his relief by way of injunction. But P L D 1949 Lah. 8, which is a Full Bench case decided by five Judges, lays down that "it is the value for purposes of court‑fee that determines the value for purposes of jurisdiction and 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 he claims and the Court has no jurisdiction to question the valuation, however, arbitrary it may be." Munir, Ag. C. J. observed that "when a suit is ostensibly in the form of a declaration pure and simple but the defendant contends that the suit is in substance not a suit for declaration simpliciter but for a declaration and consequential relief, and the Court decides that the defendant's contention is well founded, it must require the plaintiff to put his own valuation on the relief under section 7 (iv) (c) of the Court‑Fees Act, and the value of the suit for purposes of jurisdic tion will then be automatically fixed. To hold that the plaintiff must adopt the value fixed by him for purposes of jurisdiction as the value for purposes of court‑fee is to make section 7 (iv) (c) of the Court‑Fees Act dependent upon section 8 of the Suits Valuation Act which amounts, to use a colloquial phrase, to putting the cart before the horse." It was also laid down in P L D 1961 Azad J & K 48 (D. B.) that "in a suit for rendition of account the plaintiff must state the amount at which he values the relief sought. In such a suit the crucial value is the value of the relief and the plaintiff need not state any value for purposes of jurisdiction because it will be the same as laid down in section 8 of the Suits Valuation Act. The value for purposes of jurisdiction in advertantly stated in the plaints, therefore, cannot be taken to be value for purposes of relief claimed." It has been argued by the learned counsel for the respondent that the plaintiff cannot be allowed to bring his appeal before the higher Court, i.e. the High Court even by paying court‑fees, on Rs. 3,000.00 which is the value fixed by him for purposes of jurisdiction. His contention is that the value for the purpose of court‑fee remains at Rs. 130‑00 which was originally fixed in the original plaint and even if to it is added Rs. 25‑00 at which the relief of injunction has been valued by the plaintiff for purpose of court‑fee and jurisdiction, the forum of appeal would still be the Court of the District Judge and not the High Court. The Privy Council lay down in 206 I C 1, that "a proper application for leave to amend must be insisted on and a formal order made thereon duly safeguarding the rights of the defen dants, and ensuring that the basis in fact of the new case made, should be stated with particularity and exactness by the plaintiff:" We are also of the opinion that a party desiring to amend his pleadings has to make an application in writing to the Court stating out precisely the amendment that he seeks to make in his pleadings and the Court should also pass a clear order showing the nature and extent of the amendment allowed. A pleading can be amended only to the extent allowed by the Court. Thus, when a plaint was ordered to be amended by addition of parties and the plaintiff also altered the relief claimed, it was held in 7 I C 505 (D B Lah.) at p. 525 that "the plaint must be taken as originally framed, even though the unauthorised amendment as to relief was not objected to either by the Court or by the other party." It was laid down by Roberts, C. J. and Blagden, J in A I R 1941 Rang. 37, that "it is usual and generally most desirable that a party desiring to amend his pleadings should submit his proposed amendments in explicit form before the leave sought is granted, that is, he should formulate and state in writing the exact amendment for which he asks." To the same effect is 2 K B

696. It has been argued by the learned counsel for the appellant that the amendment had been made in the amended plaint in the valuation for purpose of jurisdiction; and that neither the Court nor the defendants had raised any objection to it, therefore, the amended valuation should be taken to be the valuation for purposes of jurisdiction. The reply of the learned counsel for the respondents is that the amendment was made at a stage when the defendants had not been served as has been pointed out by the learned counsel for the appellant; and that the defendants had not been furnished a copy of the original plaint but had been furnished with a copy of the amended plaint only. Therefore, they did not know that an unauthorised amendment had been made in the valuation for jurisdictional purposes also. An amendment that was not sought and not granted would be ignored and the original value fixed in the original plaint would determine the forum of appeal. The learned counsel for the appellant has referred to para. 2 of the application dated 27‑2‑1959 seeking leave to amend the plaint wherein it has been prayed that leave to amend the plaint be granted and the original plaint returned so that it may be represented to the Court after the necessary amendment. The learned counsel argues that herein the plaintiff has sought leave to make all such amendments'" he considered necessary. We do not agree with the learned counsel. In the first place the necessary amendment referred to in para. 2 of the application refers back to the amendment sought in para. 1 above which was for the purpose of adding new parties only. In the second place no general prayer for an amendment can be made or allowed. As already observed the party seeking to amend his pleadings has to specifically state the amendment that he wants to make and the Court has also to make a specific and clear order showing the nature and extent of the amendment allowed. The learned Sub‑Judge drew a line on the margin of r para. 1 of the application of the plaintiff and wrote an order as against it that leave to amend is granted; and that the plaint should be returned for amendment and the same should be returned after amendment before the date of hearing fixed. It is also clear from the order of the learned Sub‑Judge passed on. the plaintiff's application that leave to amend had been granted only so far as the prayer in para. 1 was concerned and that no general amendment had been sought for or allowed. Our finding is that the value for purpose of jurisdiction shall be the same on which court‑fee has been paid by the plaintiff; and that the valuation for purpose of jurisdiction fixed in the amended plaint being unauthorised, amendment shall be ignored. It has been argued by the learned counsel for the appellant that even if the amendment is held to be unauthorized section 99, C. P. C. cures the defects. Section 99, C. P. C. provides that:‑‑ "No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court." We fail to understand how section 99, C. P. C. applies in the present case. There is no question of the decree being reversed or substantially varied or the case being remanded and there is no error, defect or irregularity is any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court. The jurisdiction of the trial Court is not affected whether the valuation for purpose of jurisdiction entered in the original or the amended plaint is adopted. The pecuniary jurisdiction of the Sub‑Judge extends up to Rs. 5,000.00 but it is the forum of appeal that is affected by the amendment in the valuation for purpose of jurisdiction. If the valuation is up to Rs. 2,500.00 then the appeal lies before the District Judge but if the valuation exceeds Rs. 2,500.00 then the appeal lies before the High Court. It has been next argued by the learned counsel for the appellant that this Court may amend the defect under section 153, C. P. C., section 153, C. P. C. provides that:‑ "The Court may at any time, and on such terms as to costs or otherwise as it thinks fit, amend any defect or error in any proceeding in a suit ; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding." The first thing to be looked into is whether we have jurisdiction to entertain the appeal. The question of the application of section 153, C. P. C. comes later. We are of the view that an un authorised amendment which is not sought and which is not allowed by the Court shall simply be ignored and the original entry in the original plaint shall be taken to be the correct valuation, therefore, no question of any amendment arises. The value for purpose of jurisdiction remains the value on which the court‑fee has been paid, and according to this valuation it is the court of the District Judge and not the High Court that has jurisdiction to hear the appeal from the judgment and decree of the Sub‑Judge passed in this case. It has also been agreed by the learned counsel for the appellant that the defendant respondents have not filed any cross‑objections against the decree of the Sub‑Judge, therefore, this appeal which has been presented before us should be heard and decided. Order XLI, rule 22 provides that "any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross‑objection‑to the decree which he could have taken by way of appeal". The plaintiff's suit had been dismissed. The defendants could not have appealed from the decree of the Sub Judge, therefore, no question of cross‑objection arises. Moreover, the question of cross‑objection could arise if this Court has jurisdiction to hear the appeal. The respondents can without filing any cross‑objections raise objection to the jurisdiction oft the Court to hear the appeal. Having held that the appeal lies in the Court of the District Judge, the preliminary objection is upheld and the memorandum of appeal is ordered to be returned to the appellant for presentation before the proper Court. K. B. A. Order accordingly.