Farid Khan Vs Fazal Maula and others

I

JADGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) C.R No. I 5-n/U2016 (Farid KIan v/s Fazal Maula & others)

Present: Syed Abdul Haq, ASC for the petitioner. Hafiz Ashfaq Ahmad, Advocate, for the respondents.

Date of hearing: 03.11,2022

JUDGMENT

MUHAMMAD IJAZ KHAN. J.- Through the instant revision petition, petitioner has challenged the order and judgment of leamed Additional District Judge/lzafi Zila Qazi Dir Lower at Chakdara dated 31.03.2016 whereby the appeal filed by the present petitioner was retumed to him for its presentation before this Court.

2.Precisely the facts of the case are that the present petitioner then plaintiff brought a suit for possession through enforcement of his right of pre-emption with respect to the property fully mentioned in the heading of the plaint where in Para No. 3 of the plaint his stance was that the pre-empted property has been sold by defendant No. 2 namely Umar Daraz Khan to defendant No. 1 namely F azal Maula on payment of sale Nrwrb (S.8.) llon'ble Nlr, Justlce IUuhrmm.d ljlz Khrn

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consideration of Rs. 300,000/-, which suit was duly contested by the respondents/defendants by filing their written statement. In view of the divergent pleadings of the parties, the learned trial Court framed as many as eleven issues and the parties were required to produce their respective evidence.

Accordingly, both the parties produced their evidence, however, the leamed trial Court vide judgment and decree dated 30.10.2015 dismissed the suit ofpetitioner/plaintiff. Feeling aggrieved of the aforesaid judgment and decree, the present petitioner filed an appeal before the Court of leamed Additional District ludgellzafi Zila Qazi Dir Lower, however, he instead of deciding the same on merits returned the same to the present petitioner then appellant for its presentation before the proper forum i.e. to this Court vide the impugned order and judgment dated 31.03.2016, which order has now been challenged by the present petitioner before this Court through the

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instant petition.

J Arguments of leamed counsel for the parties were heard in considerable detail and the record perused with their able assistance. The (S.B,) Ho['blc [tr. Jultic. Muhrmn.d lirz Khrn

leamed counsel representing the petitioner states that the leamed appellate Court has erred in law as the market value of the subject-matter of the suit has no role in the determination of forum of an appeal. Whereas the leamed counsel representing the respondents/defendants vehemently and vigorously defended the impugned order and judgment and argued that the same is correct as per the law of the land.

4 In view of the above controversy involves in this civil revision petition the following two questions are to be determined by this Court:- l. Whether the value as shown in the plaint for the purpose of court fee and jurisdiction would be considered for the determination of the pecuniary jurisdiction of the appellate Court?

OR

2.Il'hether the market value of the subject-matter determined by the trial Court would be considered for the determination of the pecuniary jurisdiction of the appellate Court?

In order to answer the above two

,y questions it is relevant to mention here that the petitioner/plaintiff while filing the instant suit has shown in his plaint the value for the purpose of court fee and jurisdiction as Rs.23,000/- whereas the sale consideration or the market value of the pre-empted property has been shown as Nrwab (S.8,) llor'bl. Nlr. Juslic. lUuhrmmrd IJcz Khrn

Rs. 300,000/- and as such in this regard the relevant issue No. 9 was framed by the leamed trial Court with respect to the market value of the suit properfy. The record shows that while recording frndings on issue No. 9 the learned trial Court has concluded that the market value ofthe suit property is Rs. 12,04,000/- and thus these findings were found as determining factor by the leamed appellate Court for the purpose of determination of the forum of appeal.

5.In view of the above factual position of the case now it would be relevant to mention here that sections 7 and 12 of The Court-Fees Act, 1870 which deals with the computation of fees payable in different suits as well as the forum which is competent to determine the question relating to the valuation for the purpose of chargeable fee, the aforesaid sections of law being relevant for the present controversy are reproduced below:-

V 7. Com utation of fees navable in c !n sul ts for onev. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :- i. In suits for money (including suits for damages or compensation' or arrears of maintenonce of annuities, or of other sums Nowab (S.8.) lloD'ble Ir. Justice Muhrmmsd ljaz Khao

payablc pe riodically)-according to the amount claimed ;

ii. for maintenance and annuities. In suits for maintenance and annuities or other sums payable periodically according to the value of the subject matter of the suit, and such value shall be deemed to be ten times the amount claimed to be payable for one year :

iii. for moveable property having a market value;In suits for moveable property other than money, where the subject matter has a market value according to such value at the date of presenting the plaint:

iv. In suits_ (a) for moveable property of no market value ; for moveable property where the subject matter has no market value, as, for instance, in the case of documents relating to title,

(b)to enforce a right to share in joint family property ; to enforce a right to share in any property on the ground that it is joint family property,

(c)for a declaratory decree and consequential relief; to obtain a declaratory decree or order, where consequential relief is prayed,

(d)for an injunction i to obtain an injunction' (e) for easements; for a right to some benefit (not herein otherwise provided for) to arise out of land, and

(f)or accounts ; for accounts-

according to the amount at which the relief sought is valued in the plaint or memorandum of appeal :

o 12._ i. Decision of ouestion as to valuation' Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal shall be decided by the Court in which such Plaint or memorandum, as the case may be, is filedr and such decision shall be final as between the parties to the suit.

ii. But whenever any such suit comes before a Court of appeal reference or revision, if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been Paid to PaY so much additional fee as would have been payable had Nswrb (S.8.) IIon'ble Ntr. Justice lUuhsmmld ljrz Khr0

the question been rightly decided, and the provisions of section 10, paragraph ii, shall apply.

The aforesaid provisions of law would show that the said provisions in no manner deals with the determination of the forum of appeal. It manifestly speaks that what amount of court fee would be chargeable on various nature of the suits, whereas section 12 ofthe aforesaid Act speaks that the question related to such valuation for the purpose of payment is to be determined on the basis of plaint or memorandum of appeal, as the case may be. Similarly, section 1 8 of The West Pakistan Civil Courts Ordinance, 1962 being relevant is also reproduced below:-

8.Anneals from Civil Judges. (1) Save as aforesaid, an appeal from a decree or order of a Civil Judge shall lie-

(a)to the High Court if the value of the original suit in which the decree or order was made exceeds I [one million rupeesl; and (b) to the District Judge in any other case.

[(1A) Subject to the provisions of section 102 of the Code of Civil Procedure, 1908' no second appeal shall lie in any other suit when the amount or value of the subject matter of the original suit does not exceed five hundred thousand rupees,l

(2)Where the function of receiving any appeal which tie to the District Judge under the last preceding sub-section has becn assigned to an Additional District Judge, the appeal may be preferred to the Additional District Judge'

(3)The High Court may' by notification' direct that appeals lying to the District Judge from alt or any of the decrees or Orders Nawsb (S.8,) Ilon'blt Nlr. Justice Nluhammsd Irrz Khrn

passed in any original suit by any Civil Judge shall be referred to such other Civil Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly, and the court of such Civit Judge shall be deemed to be a District Court for the purposes of all appeals so preferred.

Section 18 of The Civil Court

Ordinance speaks with respect to the filing of appeal on the basis of maximum threshold of the decretal amount. The words "value of orisinal $uit" and "decree or order made" are of paramount significance as if the plaintiff has shown one amount for the purpose of valuation of the court fee and jurisdiction and the trial Court with reason has given specific and clear findings that such amount has wrongly been mentioned for the purpose of court fee and jurisdiction, then if the trial Court decides and determine for another amount then the amount fixed by trial Court will be considered for the purpose of determining the forum appeal.

6 It may be noted that in the present case the leamed trial Court has not recorded any finding to disturbed the amount for the purpose ofcourt fee and jurisdiction rather it has determined the market value of the pre-empted property which has no Nawab (S.B,) Hon'blc Mr. Justice Muhsmm.d llrz Khrn

relevancy for the purpose of determining the forum ofappeal. The aforesaid exercise ofdetermining the market value of the suit property is to be read in context that if the plaintifflpre-emptor succeeds in getting a favourable decree then he will be liable to pay the market value of the suit property as determined by the trial Court but in no manner it will decide the forum of an appeal. It may be reiterated at the cost of repetition that in the present suit the petitioner/plaintiff has shown the value for the purpose of court fee and jurisdiction as Rs.

23,0001-, therefore, the same is to be considered as a determining amount for the purpose of forum of appeal and as the appellate jurisdiction of the District Court of Appeal in the province of Khyber Pakhtunkhwa was one million and now days the same has been enhanced to rupees fifty million, therefore, the impugned order and judgment of the learned appellate Court is prima facie against the law. The question that as to whether the value q shown in the plaint for the purpose ofcourt fee and o/ jurisdiction or the market value of the subject- matter, if any, determined by the trial Court would be considered has been the favorite subject of the Nrwrb (S.8.) Hoo'ble Mr. Justice Muhrmmrd lisz Kh.n

Hon'ble Apex Court as well as of this Court. In the case of t'Zafee.r Gul v/s Dr. Riaz Ali & others" reported as 2015 SCMR 1691, the Hon,ble Apex Court has held that the legal position in relation to the valuation of a suit for partition and separate possession for the purpose ofjurisdiction, it will be pertinent to mention here that every co-sharer in the immovable property is legally deemed to be in its joint possession to the extent of his undivided share. Therefore, in a suit of such nature, law permits him tentative valuation of his share in the immovable properfy as specihed in the plaint for the purpose of pecuniary jurisdiction, which is subject to final determination by the Court; till then the valuation shown in the plaint is to be deemed as proper value ofthe suit property for the purpose of availing the remedy of appeal qua determining the forum of appe al. In the case of "Munawar Hussain & 02 others v/s Sultan Ahmad" reported as 2-!,!!. SCM,W, the same rational was also expounded q.

t/ by the Hon'ble Apex Court by observing that the crux of all such discussion is that the inherent or pecuniary jurisdiction cannot be conferred on a forum even with the consent or acquiescence of a Nswab (S,8.) Hol'ble Nlr. Jus(ice Iuuhsmmsd lirz Khrn

parfy, The non-raising of any objection in the circumstances is totally immaterial, whereas, the fact is that vendee had raised this objection before the High Court and it was on this point that the appeal before the High Court was admitted to full hearing. Similarly, in the case of "Abdul Ghawas & others v/s Bibi Rahim a & others" reported as 2002 SCMR 801it was also held by the Hon'ble Apex Court that there is no cavil with the proposition that the valuation for the appellate forum is to be determined in view of section 18 of the Ordinance as has been decided by this Court in the case of reported as 1999 SCMR 394, but in the instant case important question for consideration is that when for the relief of partition the suit has not been valued at all either for the jurisdiction of the court or for the purpose of court-fee, whether in such situation the Court is competent to make reference to any other proved document available on record, and if not so whether the appellate o.t, tj/ Court has not travelled beyond its jurisdiction under section 18 of the Ordinance. Similarly, this Court too in the case of titled "Mehtab Khan & otlters v/s Fa Muhammad" reported as

Nawab (S.8.) lloo'ble NIr. Justice lltuhemmad Ijaz Khsn

-l1- PLD 2003 Peshawqr 46 has held that adminedly the suit filed by the petitioners/plaintiffs was dismissed vide judgment and decree, dated 26-l-1999 by the leamed Civil Judge/Illaqa eazi, Malkanad at Batkhela. No doubt while deciding Issues Nos.6 and 7-the leamed trial Court held that the market value of the suit house was Rs.5,50,000, but the perusal ofthe plaint as well as decree-sheet shows that the suit had been valued for Rs.1,50,000. It is by now settled law that a forum of appeal is to be determined according to the value of the suit as mentioned in the plaint and not according to the market value ofthe property fixed by the learned trial Court, therefore, the appellate Court was to be determined according to the said valuation.

7 In view of the above discussion and exposition of law, this revision petition is allowed and the impugned order and judgment of leamed appellate Court dated 31.03.2016 is set aside and the case is remanded back to the Court of leamed Additional District Judge/Izafi Zila Qazi Dir Lower at Timergara where the appeal No. 60/13 of 2015 titled " Fareed Khan s Fazl-e-Maula " shall be Nswrb (S,8,) Hon'ble Ntr, Justice lltuhsmmad ljiz Khrn

deemed pending before it. The office is directed to transmit the memo of appeal along with other annexed documents to the Court of leamed Additional District Judge/lzafi Zila Qazi Dir Lower at Timergara immediately, who shall thereafter issue notices to the parties or their counsel for their appearance and shall decide the appeal on merits in accordance with law.

Announced Dt:03.11.2022 'a3

GE

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(S.8.) Hon'ble Mr' Justice Muh.mmrd ljsz Khrn