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Petitioner: DITTA KHAN VS Respondent: MUHAMMAD ZAMAN and others
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad Khan Title: DITTA KHAN vs MUHAMMAD ZAMAN and others Case No.: Civil Revision No,10-D of 1986 Date of Judgment:1993-04-26 Reported As: 1993 MLD 2105 Result: Order accordingly
JUDGMENT
JUDGMENT ' Land measuring 103 Kanals 14 Marlas alongwith share of Shamlat situate in revenue estate of village Chakiali Hardo, Tehsil Kahuta, District Rawalpindi, was purchased by petitioner and respondent No, 3 vide registered sale-deed dated 20-6-1982. M/s. Muhammad Zaman and another respondents Nos. 1 and 2 filed a suit to pre-empt the aforementioned sale. Habib Ullah respondent No, 4 also filed a suit to pre-empt the sale. Both the suits were consolidated, contested and on the basis of the pleadings of the parties following consolidated issues were framed:--- (1) Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction? OPD. Whether the vendee-defendant No,1 improved the condition of the disputed land and spent Rs,50,000 for this purpose? If so, its effect? OPD. ' Whether the suit is for partial preemption of the disputed land? If so, its effect? OPD. ' Whether the ostensible sale price of one lac and fifty thousand rupees was fixed in good faith and actually paid? OPD ' On non proof of Issue No,4 what was the market value of the suit land at the time of sale? O.P. Parties. ' Whether both the plaintiffs and the rival pre-emptors are estopped by their words and conduct to bring this suit? OPRP and OPP. ' Whether the suit of the rival pre-emptor is collusive? OPP. ' Whether the plaintiffs and the rival pre-emptor have superior right against the vendee- defendants? If so, what is course of decree inter se? OPP & OPRP. 7. Relief.
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' Learned trial Court while deciding Issue No,1 regarding valuation of the suit for the purposes of court-fee and jurisdiction held that the value of the suit is Rs,1,50,000, the sale price of the land in question as entered in the registered sale-deed. Issue No,2 regarding making of improvements was decided by the learned trial Court against the defendants and it was held that making of improvements has not been proved. Issue No,3 was decided in the negative as having not been pressed for want of evidence. While deciding Issue No,4, the learned trial Court held that the disputed land was purchased by the respondent for consideration of Rs,1,50,000. Issue No,5 regarding fixation of market value was held to be redundant and hence was answered accordingly. Issues Nos.6 and 7 were decided against the plaintiffs and the rival pre-emptor as there is no evidence in support of these issues. While deciding superior right of pre-emption rendering findings on Issue No,8, learned trial Court held that respondents Nos.1 and 2 as per copy of record of rights for the years 1980-81 are proved to be the owners in the estate whereas evidence has not proved his superior right of pre-emption. It has been held that the plaintiffs who are respondents Nos.1 and 2 before this Court have proved superior right of pre emption against the vendee-defendants as well as against the rival pre-emptor who has failed to establish his right of pre-emption. However, in the light of the findings recorded on Issue No,1, the learned trial Court dismissed both the suits as being deficiently stamped in view of the law declared in case of Mst. Walayat Khatun v. Khalil Khan and another PLD 1979 SC 821. Respondent No,4 did not challenge this judgment decree. However, respondents Nos.1 and 2 challenged the judgment and decree of dismissal of their suit in District Court of Rawalpindi. The appeal was heard by learned Additional District Judge, Rawalpindi. During the course of arguments, preliminary objection was raised by the learned counsel for defendants that as per determined valuation of the subject-matter of the suit which is Rs,1,50,000, the appeal could not have been filed before the District Court whose pecuniary jurisdiction at that time was Rs,50,000. Consequently, the appeal should be dismissed for want of jurisdiction. Learned lower appellate Court, however, held that the valuation of the suit for the purposes of jurisdiction is to be determined in accordance with the provisions of rules framed under the Suits Valuation Act, which provides that the valuation of the subject-matter of the suit will be thirty times of the land revenue in cases where the same is permanently assessed and in rest of the cases if the net profits have arisen during the preceding year, the valuation shall be 15 times of the net profits and it is only in cases where neither the land revenue is permanently assessed nor the net profits have arisen during the preceding year that the valuation shall be the market value of the property in dispute for the purposes of determination of the subject-matter of the suit which will determine the forum for filing of appeal. Learned Additional District Judge has held that although the land in dispute is exempted from payment of land revenue yet as per statement of Jhar Padawar, which has been placed on record, net profits accrued during the preceding year were Rs,990.14, and, therefore, 15 times of this amount will be Rs,14,852.10, which shall be the valuation for the purposes of court-fee and jurisdiction, therefore, the learned lower Appellate Court had jurisdiction to entertain and decide the appeal and that the finding rendered by the learned trial Court on Issue No,1 regarding valuation of the suit for the purposes of court-fee and jurisdiction is not lawful and hence was reversed. Reliance in this behalf was placed on case of Mst. Fatal Jan v. Muhammad Din 1983 CLC 993. Learned Additional District Judge further held that as no court-fee was payable, therefore, the plaint of the suit could not have been rejected as being deficiently stamped. It has further been held that the conduct of the plaintiffs cannot be said to be contumacious and at any rate in view of the law declared in case of Siddique Khan and 2 others v. Abdul Shakoor and another PLD 1984 SC 289 unless and until after determination of the exact amount of court-fee opportunity is given to the suitor, the plaint cannot be rejected. Consequently, the plaint could not have been rejected even on this score. As the findings on other issues were not challenged and no other point was urged, the learned First Appellate Court after setting aside the
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finding on Issue No,1 rendered by the learned trial Court, set-aside the decree of dismissal of the suit and passed a decree in favour of respondents Nos.1 and 2 on payment of Rs,1,50,000 payable within a period of 30 days w.e.f, 23-11-1985, the date of the judgment and decree rendered by the learned First Appellate Court. Aggrieved of this judgment and decree, one of the vendees namely Ditta Khan has filed this Civil Revision. His co-vendee has been cited as respondent No,3 whereas the rival pre-emptor has been cited as respondent No,4. 2. Mr. Sultan Mansoor, Advocate has appeared on behalf of the petitioner whereas Mr. Tanvir Bashir Ansari, Advocate has appeared on behalf of Mr. Bashir Ahmad Ansari, Advocate for respondents Nos.1 and 2. None has appeared on behalf of other respondents. Learned Counsel for the petitioner has argued that the appeal was incompetent before Distict Court, inasmuch as the valuation for jurisdiction was determined by the learned trial Court as Rs,1,50,000 and, therefore, the appeal should have been filed before the High Court and not before the District Court, who at that time had the pecuniary jurisdiction to the extent of Rs,50,000 only, and, therefore, the judgment and decree rendered by the learned First Appellate Court is without jurisdiction. 3. As against the above arguments, learned counsel for the respondents has argued that the valuation of the subject-matter of the suit is to be determined in the light of the provisions of the rules made under the Suits Valuation Act, which provides that the valuation of the subject-matter of the suit for possession of immovable property shall be thirty times of the land revenue in cases where the land is permanently assessed to land revenue and in other cases 15 times of the net profits accrued during the preceding year and in absence thereof the market value. Learned counsel contends that in the case in hand although it is not established that the land was permanently assessed to land revenue, yet there is evidence on record which prove that net profits have accrued during the preceding year, and, therefore, valuation of the suit for the purpose of jurisdiction shall be 15 times of the net profits amounting to Rs,990.14 which comes to be Rs,14,852.10, and, therefore, the appeal was competent before District Court in view of the law declared in case of Ilahi Bakhsh and others v. Mst. Bilqees Begum PLD 1985 SC 393 and case of Muhammad Nawaz v. Sher Muhammad PLD 1987 SC 284 hence the suit has rightly been decreed by the learned lower appellate Court. Replying the arguments of the learned counsel for respondents Nos.1 and 2 learned counsel for the petitioner has reiterated his arguments. However, learned counsel for the petitioner has conceded that in case it is held that the appeal was competent before District Court or otherwise, it is held that valuation of the suit for the purpose of court-fee and jurisdiction was not Rs,1,50,000 and the plaint could not have been rejected as being deficiently stamped, as the other issues have been decided in favour of respondents Nos.1 and 2, the suit is liable to be decreed in their favour, inasmuch as the fording rendered by the learned trial Court with regard to the superior right of pre-emption and the other issues is not erroneous. 4. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. In order to appreciate the arguments addressed by the learned counsel for the parties; it is necessary to reproduce the relevant provisions of the Suits Valuation Act as well as the rule in accord of which provisions of rules, the valuation of the subject-matter of the suit for the purposes of jurisdiction is to be determined which is further to determine the forum for filing appeal arising out of such a suit. Relevant rule, framed under section 3 of the Suits Valuation Act is reproduced as under:-- (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.
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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 therefrom --- 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 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
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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 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 later judgment in Siddique Khan's case 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 of appeal. 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 39 of Punjab Courts Act an appeal shall lie 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, 5,00J 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 vlauation 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 All 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
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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 tothe 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 refiling 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
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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 Joti Ram v. Beli Ram-Barkat Ram AIR 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…
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