1993 PLP 2105 (MLD)

(1) "In suits for the possession of land the value of the land, for purposes of jurisdiction, shall be held to be as follows:

(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 revenue is settled, but not permanently, thirty times such revenue so payable. Explanation to clause (b)

Where the land is a fractional share or a portion of part of an estate, and the land revenue payable for such part is recorded in the Collector's register, and such revenue is not permanently settled, the value, for purposes of jurisdiction, shall be held to be thirty times such portion of the revenue recorded in respect of that part as may be rateably payable in respect of the share or portion. Illustrations.

(1) In a suit for possession of a one-third share of the entitle holding of ten ghumaons forming part of an estate, and recorded as paying Rs.20 annual revenue, the value of the land, for the purposes of jurisdiction is one-third of thirty times Rs.20 or Rs.600. (2) In a suit for possession of one ghumaon out of the same holding the value of the land is one-tenth of thirty times Rs.20 or Rs.60. (c) Where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue, and net profits have arisen from the land during the year next before the date of presenting the plaint, fifteen times such net profits. But where no such net profits have arisen there from

the market value. (d) Where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and does not come under clause (a), (b) or (c) of this rule, the market-value of the land. (e) Where the subject-matter is a garden

the market-value of the garden. (2) In suits to enforce a right of pre-emption in land, the value of the land, for the purposes of jurisdiction, shall be calculated by the preceding rules. A perusal of the aforementioned rules clearly shows that the method of the determining of the valuation of the subject-matter of the suit for purposes of jurisdiction regarding suit for possession of immovable property which includes the suit for possession by pre-emption is that in cases where the land is permanently assessed to land revenue valuation shall be calculated as 30 times of the land revenue. In cases where the land is not permanently assessed the valuation shall be calculated as 15 times of the net profits if such net profit has accrued during the preceding year and in those cases which are not covered by the two aforementioned situations, it is the market value which shall be the jurisdictional value of the suit as well as the appeal. In the case in hand it has been admitted by the learned counsel for the parties that the land in dispute is not permanently assessed to land revenue. However, there is Jhar Padawar on record which proves that Rs.990.14 accrued as net profits during the preceding year, therefore; the valuation of the suit for the purposes of jurisdiction in this case shall be 15 times of the said amount which is equal to Rs.14,852.10, hence, it is held that the jurisdictional value of the suit in this case shall be Rs.14,852.10 and the same shall be the valuation for the purposes of court-fee as provided under the provisions of the Court-fees Act. Consequently, the findings of the learned first Appellate Court on issue No.1 are set aside and it is held that the valuation of the suit for the purposes of court-fee and jurisdiction is not Rs.1,50,000 but is Rs.14,852.10 being 15 times of the net profits. Hence, the question which requires determination is that even if the learned trial Court had come to the conclusion that the plaint is deficiently stamped, whether the plaint could have been rejected? It is an established law declared in case of Siddique Khan referred to supra and subsequent judgments rendered by the Hon'ble Supreme Court that the plaint of a suit cannot be straightaway rejected even if it is not stamped at all. It has been held in Siddique Khan's case that a plaint even if not stamped at all shall be a validly instituted document and it cannot be said that the suit has not been instituted within time. It has further been held in the said judgment that the exact 8 amount of the court-fee is to be determined and an opportunity is to be given to make up the deficiency in, payment of court-fee and it is only thereafter that the provisions of Order VII, Rule 11, C.P.C. can be used to reject the plaint due to non-compliance of the order so passed by the Court. In this case, admittedly, the learned trial Court did determine the exact valuation for payment of the court-fee yet did not afford opportunity to make up the deficiency to the plaintiffs-respondents No.1 and 2 and proceeded to reject the plaint although other issues including the issue of superior right of pre-emption had been decided in favour of the pre-emptors. The order of rejection of paint passed by the learned trial Court, therefore, is erroneous in law and as such is set aside and it is held that the plaint could not have been rejected for two reasons: firstly, for the reason that in this case no amount of court-fee was payable inasmuch as the valuation of the purposes of jurisdiction is less than Rs. 25,000 and, secondly, for the reason that without affording an opportunity C to make up the deficiency in court-fee, the learned trial Court had no jurisdiction to reject the plaint. Resultantly, the finding of the learned trial Court on issue No.1 with regard to the rejection of plaint as well is set aside inasmuch as the law declared in Walayat Khatun's case relied upon by the learned lower Court does not hold good in view of the law declared in the late judgment in Siddique Khan's cast; referred to above. Consequently, it is held that the plaint was not liable to rejection in this case. After holding that the findings of the learned trial Court on issue No.1 were not correct and setting them aside, the next question which requires examination will be as to what was the forum of appeal in this case and whether the learned First Appellate Court had jurisdiction to set aside the judgment and decree rendered by the learned trial Court and to pass a decree in favour of the pre-emptor respondent.

5. There is no cavil with the proposition that in case of suit for possession of immovable property, valuation of the suit for the purposes of jurisdiction is thirty times of the land revenue in case the same is permanently' assessed to land revenue and in absence thereof 15 times of the net profits if' accrued during the preceding year. There is also no cavil with the proposition', as held in case of "Illahi Bakhsh and others" referred to supra that it is the valuation as given in the plaint which will determine the forum for filing of the appeal and valuation of the subject-matter is to be calculated as per formula referred to above. However, in the case where the Learned trial Court determines valuation for the purposes of jurisdiction then it is this valuation which will determine the forum cat app cal. The plaintiff himself cannot change the valuation for the purposes of filing of appeal before a particular forum. It has been held in case of Sana Ullah v. Muhammad Akhtar and 11 others 1979 CLC 578 at page 584 as under: -- "In Muhammad Sharif v. Nawab Din and another PLD 1957 Lah. 283 it was argued that under section 31) of Punjab Courts Act an appeal shall be to the District Judge in a case where the value of the original suit is not more than Rs. 5,

000. It was observed by B.Z. Kaikaus, J. that `I am prepared to accept this argument subject to a reservation. This reservation is that if an order which arises out of a suit, awards a sum of not less than Rs. 5,000 then although the value of the original suit as initially fixed was less than Rs. 5,OOJ an appeal shall lie not to the District Judge but to the High Court.'

26. This observation makes it clear that His Lordship had interpreted the words `value of the original suit' as meaning the value as modified by the Court." It has been held in case of Nazir Ahmad and another v. Muhammad Tahir and another PLD 1992 Lah. 89 at pages 90-91 as under: -- "As for the valuation of the appeal, established law is to the effect that if the valuation fixed for the purposes of trial Court is not altered by the trial Court, that valuation continues to be valuation for the purpose of the appellate Court also; but if the valuation is changed by the trial Court then the valuation so changed is to be treated as valuation for the purpose of the appellate forum as well. Mumtaz Begum v. Ch. Zulfiqar Ali PLD 1960 (W.P.) Lahore 1088 and Muqarrab Khan v. Muhammad Anwar Khan and 10 others PLD 1964 (W.P). Peshawar 228 are some of the several precedent cases in point. Admittedly in the instant case, valuation fixed by the petitioners (plaintiffs) for the sake of the trial Court was not modified by that learned Court. Therefore, for the purpose of the appeal the same valuation had to be adhered to. This is exactly what the petitioners had done. The learned District Judge could not, therefore, take exception to the valuation fixed by the petitioners for the purpose of the appeal. In this view of the matter, judgment and decree passed by the learned District Judge are not sustainable and call for interference by this Court in exercise of its revisional jurisdiction." It is clear from the law declared in the aforementioned cases, therefore, that there are two methods for determining the forum of appeal; one as per valuation fixed by the plaintiff himself in the plaint and as per valuation as determined by the Court. In cases where the valuation is determined by the original Court, the forum of appeal shall be determined by that valuation and not by valuation fixed by the plaintiff or as per rules referred to above, as valuation cannot be changed by the party himself. In this case the valuation for the purposes of jurisdiction having been determined as Rs.1,50,000, the forum of appeal was the High Court and not the District Court. Therefore, I hold that the appeal filed before the learned District Court was incompetent and therefore, the judgment and decree rendered by the learned First Appellate Court is without jurisdiction and a nullity in the eyes of law. Having held that the learned lower Appellate Court had no jurisdiction to entertain the appeal and the judgment rendered by the learned First Appellate Court is nullity in the eyes of law, the next question which requires consideration would be as to what order should be passed in civil revision. In view of .the amendment in the law, now the pecuniary jurisdiction of the learned District Court has been increased from Rs.50,000 to two lacs, therefore, even if, this civil revision is accepted and the judgment and decree rendered by the learned First Appellate Court is set aside and it is directed that the memorandum of appeal should be returned to-the appellant, the result would be that again the appeal shall be presented before the same Court. Consequently, in view of the fact that the findings on all the other issues having not been challenged by the petitioner and superior right of pre-emption of respondents No.1 and 2 having been admitted, no useful purpose would be served by directing return of the memorandum of appeal for refining thereof in the District Court again. It is an established principle of law that as per provisions of section 115, C.P.C. which is reproduced as under: -- "Section 115, C.P.C.

(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto and if such subordinate Court appears-- (a) to have exercised a jurisdiction not vested: in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Provided, that where a person makes an application under this subsection, he shall, in support of such application; furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court; provided further that such application shall be made within ninety days of the decision of the subordinate Court. (2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court. (3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court no further such application shall, be made to either of them. (4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court." this Court is competent to pass any judgment and decree which the lower Court is competent to do therefore, I have decided to dispose of the matter in accordance with the provisions of section 115, C.P.C. In case of Manager, Jammu -and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678, it has been held at pages 694-695 as under:--. "On an objection taken as to the competence of the appeal on ground of non-satisfaction of the conditions laid down in section 47, C.P.C., counsel for the appellant prayed that the appeal may be treated as a revision. The prayer was declined on the ground that alternative remedy by way of a separate suit under section 73(3), C.P.C. was available to the appellant. Relying on Jou Ram v. Beli Ram-Barkat Ram A I R 1935 Lah. 791, the learned Judge took the view that where another remedy is open to a litigant the, High Court would not interfere under section 115, C.P.C. In Mai Das and another v. Mst. Dhan Devi and another, the same view was taken that where other remedies were available a revision petition was not to be entertained. The phrase "case decided" was also explained by the learned Judge as something decided which is complete in itself so that it is a matter independent of and separable from the suit. Although ordinarily Courts have declined to exercise the revisional jurisdiction where an alternative remedy is available, yet this is not an inflexible rule to be rigidly followed and a departure could he justifiably made if required by the circumstances of the case. Reference may be made in this regard to Ayothyaprasad v. Secretary of State A I R 1924 Nag.

298. In Lila v. Mahange and others, a Full Bench case authority, it was observed by Sulaiman, Acting Chief Justice as follows: -- "Section 115 is no doubt discretionary and therefore it is open to the High Court to decline to interfere in particular cases. As a matter of practice it may be conceded that ordinarily the High Court would not interfere if another convenient remedy is open to an applicant 'particularly when that remedy is by way of appeal to a lower Court. But it cannot be laid down as a general proposition that the High Court has no power of interference at all or should not interfere where there is another remedy by way of a suit open to the applicant. The remedy by way of separate suit would involve a protracted litigation through several Courts and is not always a convenient remedy when more effective and speedy remedy is available. There is no jurisdiction for restricting the power conferred upon the High Court under section 115 by laying down that no revision should be entertained when a remedy by suit lies. Each case must be considered on its own merits and if the Court below has acted without jurisdiction or with material irregularity and the applicant has been seriously prejudiced and interference is called for in the interest of justice, there is no reason why we should drive the applicant to a more circuitous remedy by way of a separate suit. We accordingly overrule the preliminary objection". In Bakshshish Singh and others v. Biru, a judgment by Shadi Lal, CJ.contained the following observation which is quite relevant: -- "There can however be no doubt that there is no inflexible rule that where an aggrieved party has another remedy available to him, the High Court should never interfere in revision. There are several judgments in which the High Courts have interfered on revision under section 115, C.P.C. even though the appellant had a remedy by way o1 a suit. The discretionary jurisdiction of the High Court has been exercised in order to avoid unnecessary hardship and multiplicity o1 proceedings. This principle is fully applicable to the facts of this case." At page 697 it has been held as under: -- "It is thus abundantly clear that no serious objection could be -taken to the competence of a revision under section 115 of the Code of Civil Procedure in the rather peculiar circumstances of the case, notwithstanding the fact that as a matter of abundant caution and apparently in compliance with the direction contained in the impugned order of the High Court a fresh application for the readmission of the appeal was jointly filed by the Central Government and the Manager and is stated to be still pending before the District Judge. It would be indeed difficult for the appellant to plead before that Court that its order was without jurisdiction having been passed in a perfunctory manner without consciousness of the fact that service had not been effected on the respondent or even that of its own discretion not to dismiss the appeal in default. By no means, therefore, a remedy under Order XLI, rule 19 may be deemed to be an effective remedy, wherein normally the principal ground of restoration of appeal would be to satisfy the Court that the appellant had sufficient cause for non-appearance which could be reasonably explained away to the satisfaction of the Court. The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as; Firstly, its discretionary jurisdiction may be invoked by the Court suo motu, and secondly, the Court "may make such order in the case as it thinks fit". In Rangrao v. Pandurang and another AIR 1924 Nag. 154, it was held that under section 115 of the C.P.C., the High Court could and might deal with a case under that section without there being any application by any of the parties and may in the special circumstances pass such orders as it thinks fit. In this case the Small Causes Court passed a decree against defendant No.2 and exonerated defendant No.1 and on revision the High Court exonerated defendant No.2. It was held that despite the fact that the plaintiff had not appeared in revision, he could still be given a decree against defendant No.1:" In case of Naseem Ahmed and another v. Air Botswana (Pvt.) Ltd. and 5 others (1993 SCMR 647) at page 648 and 649 of the report it has been held as under: -- 'The revision was dismissed as incompetent on the ground that against the dismissal of the suit the proper forum of appeal was District Judge and without approaching the said forum a direct revision was not competent in the High Court. In support of this view, reliance was placed upon case of Municipal Committee, Bahawalpur v. Shaikh Aziz Elahi PLD 1970 SC 506 wherein it was held that to allow a direct revision to the High Court in cases where an appeal lay to the Court of the District Judge would lead to anomalous situations in that it would entitle a person to circumvent the ordinary procedure laid down for preferring an appeal as the case may be and enable a party aggrieved from a decree or order from which an appeal lies to the District Judge to short circuit the procedure prescribed by the Code of Civil Procedure and come direct to the High Court. However, the view taken above has to some extent been modified by this Court in subsequent judgments delivered by this Court and the view subsequently taken is that undoubtedly the Court will ordinarily decline to exercise revisional jurisdiction wherein alternative remedy is available but this should not be regarded as an inflexible rule to be followed rigidly without exception because in special circumstances of a case, a departure from this rule could be justified. Thus, this Court in Manager, Jammu and Kashmir State Property in Pakistan and others v. Khuda Yar and another PLD 1975 SC 678 inter alia observed: -- `As a general rule the principle to be followed in all such discretionary matters is that special and extraordinary powers ought not to be exercised in favour of an applicant who has been negligent in pursuing the normal remedies open to him. Thus where an appeal lay to some other Court and could have been filed if the applicant was diligent but he has not done so, then the High Court should not ordinarily entertain revision even if the order or decision complained of does not amount to a decree.... This rule is not, however, an inflexible one and it will, no doubt, depend upon the special circumstances of each case whether it will be followed or not: and recently in the case of Messrs United Bank Limited v. Yousaf Haji Noor Muhammad Dhadi (1988 SCMR 82) after noticing the above-mentioned two decisions it was observed: -- Learned counsel also contended, on the basis of Municipal Committee v. Sh. Aziz Elahi PLD 1970 SC 506 and S. Aziz-ul-Hassan and another v. Malik Ghulam Muhammad (1971 SCMR 123), that no revision under section 115 was competent if no appeal was preferred from the order which was appeal able. This point, however, is concluded and determined by a judgment of this Court in Manager, Jammu aad Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678, in which it was held that although ordinarily Courts have declined to exercise revisional jurisdiction where an alternative remedy is available, yet this is not an inflexible rule to be rigidily followed and a departure could be justifiable made if required from circumstances of the case. Having regard to all the circumstances of this case we feel that in this case the High Court ought to have entertained the revision application and set aside the order impugned before it whereby the plaintiffs were non-suited for a trivial formality'." Therefore, instead of directing return of the memorandum of appeal, as I have already held that the judgment and decree rendered by the learned trial Court rejecting the plaint, is erroneous in law, I hold that the plaintiffs-respondents No.1 and 2 are entitled to the grant of decree for possession on the basis of their superior right of pre-emption, which stands established on record as per jamabandi for the-year 1980-81 and has also been admitted by the learned counsel for the petitioner. Resultantly, the judgments and decree of both the Courts below are set aside and the suit filed by the respondents No.1 and 2 is decreed on payment of Rs.1,50,000 which amount shall be deposited in Court for the benefit of the vendees-defendants within a period of two months w.e.f. today. In case the amount referred to above has been deposited in part or full during the pendency of the suit before the learned trial Court by way of Zar-e-Panjum as well as in pursuance of the decree passed by the learned lower Appellate Court, it shall be deemed to have been deposited in pursuance of the decree passed by this Court and shall not be necessary to be deposited afresh. In case of failure of respondents No.1 and 2 to make deposit of the decretal amount in the manner above, the suit shall stand dismissed. In view of the difficult question involved in this case, the parties are left to bear their own costs. A.A./D-24/L Order accordingly.