Mst.Zar Taja Bibi vs Manager MCB etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

C.R. No. 46-B of 2015

JUDGMENT

Date of hearing 11.06.2015 .

Appellant-Petitioner: Mst. Zartaja Bibi by M. Rashid Khan Wazir & Aman Ullah Jan Advocates.

Respondent: MCB by Rehman Ullah, Advocate.

MUHAMMAD YOUNIS THAHEEM, J.- The petitioners through instant revision petition have called in question the order/ judgment of dated 31.03.2015 of learned Additional District Judge-IV, Lakki Marwat, whereby the appeal of the petitioner/defendant against the judgment and decree dated 11.11.2014 of civil Judge, -VIII, Lakki Marwat, was returned due to lack of pecuniary jurisdiction.

2.Brief facts of the case are that the petitioner/ plaintiff instituted a suit for declaration and permanent injunction against the real-respondents, to the effect that accounts No.092904010000011, amounting Rs.3687938/- under the control of respondent No.1 and account

No.4276-4 amounting Rs.293963/- under the control of respondent No.2 are not the sole ownership of real- respondent No.3, as petitioner being widow and proforma respondent No.4 being real daughter of deceased are also entitled to the extent of their shari share being benami account in her (respondent No.3) name. The respondents / defendants were summoned, who submitted written statement and an application under Order VII Rule 11 of the Code of Civil Procedure for rejection of plaint. The petitioner submitted replication and after hearing arguments of learned counsel for the parties, the learned trial court vide judgment and decree dated 11/11/2014 rejected the plaint of the petitioner/ plaintiff. Being feeling aggrieved the petitioner/ plaintiff filed appeal on 19.11.2014 before the Court of learned Additional District Judge-IV, Lakki Marwat, who vide impugned order/ judgment dated 31.03.2015 dismissed the appeal of petitioner without touching merits of the case on the sole ground, for want of pecuniary jurisdiction, as the subject

matter involved in the suit is more than one Million.

Hence, the instant revision petition.

3.Learned counsel for the petitioner contended that the impugned judgment/ order is in violation of section 3 of the Suit Valuation Act and section 18 of the West Pakistan Civil Court’s Ordinance as, in ascertaining forum of appeal, valuation of original suit would be considered and not the subject matter involved in the suit.

According to Para No.8 of the plaint notional value of suit has been determined as Rs.200/- plus Rs.200/- total value Rs.400/- , hence, the learned appellate court erred in law by ascertaining suit value and determining forum of appeal on the basis of subject matter involved in the suit. Learned counsel for petitioner by relying on the verdict of superior courts produced following case law.

“Mst. Sabra Bibi and others Vs Hikmat Khan and others (2012 CLC 292 Lahore), “Mst. Tabasam Nazir and another Vs Liaqat Hayat and 5 others (2001 CLC 579 Lahore), (Jan Son Construction through Saida Jan Vs

Govt. of Khyber Pakhtunkhwa and others” (2013 CLC 127 Peshawar), and Muhammad Ayub and 4 others Vs Dr. Obaidullah and 6 others (1999 SCMR394)

4.Conversely learned counsel for the respondent No.3 while responding to the arguments of learned counsel for the petitioner submitted that it is not the notional value mentioned in the plaint, but subject matter involved in the suit, which determine forum of appeal. In support of his arguments he referred to clause “h” of section 2 of the Civil Courts Ordinance 1962.

5.I have heard arguments of learned counsel for the parties and gone through the available record as well law on the subject.

06.It is settled law that matter of pecuniary jurisdiction was always determined on the basis of value of the suit as mentioned in the plaint and not on the basis of subject matter involved in views of Section 3 of the Suit Valuation Act, 1887, because appeal is continuation of the

suit and the appellate court has ample power to amend, reverse or enhance the amount of decree.

The relevant provision of Section 18 of West Pakistan Civil Court Ordinance, read as;

18.Appeals 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 1[twenty five hundred thousand] rupees; and

(b)to the District Judge in any other case.

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

(3)The High Court may, by notification, direct that appeals lying to the District Judge from all or any of the decree or order passed in any criminal 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 Civil Judge shall be deemed to be a District Court for the purposes of appeals so preferred.

In views of above provision of law, learned appellate Court has committed material irregularity and illegality while dismissing appeal and judgment of the appellate Court is outcome of nonappriciation and misconception of law.

7.I would like to fortify my this view by relying on judgment “Suleman and others Vs Pir Bakhsh and others” (2012 CLC 1457 Baluchistan), wherein it is held that for the purpose of ascertaining the forum of appeal value of original suit as determined under section 3 of the Suit Valuation Act, 1887 would be taken into consideration for the purpose of jurisdiction and not market value.

Wisdom may also be drawn from the judgment of Hon’ble Supreme Court in case titled “Muhammad Ayub and 4 others Vs Dr. Obaidullah and 6 others” (1999 SCMR 394, wherein it is held that:

“Plethora of case-law discussed by the High court in the impugned judgment fortifies the view that the forum of appeal is to be determined according to the value of the suit as mentioned in the plaint and the fixation of the price of the disputed property by the trial court is totally irrelevant because the judgment is yet to attain finality.”

8.For the reasons discussed above, it is held that learned appellate Court has erred in law and committed irregularity by rejecting appeal having no pecuniary jurisdiction. Hence, this revision petition is allowed, case is return back to the learned appellate court considering it as

appeal pending adjudication before the learned appellate Court.

No order as to costs.

Announced

JUDGE