Aziz-ur-Rehman VS Muhammad Saeed

2013 C L C 682

[Peshawar]

Before Rooh-ul-Amin Khan, J

AZIZ-UR-REHMAN----Appellant

Versus

MUHAMMAD SAEED and others----Respondents

Regular First Appeal No.29/B of 2012, decided 7th February, 2013.

West Pakistan Civil Courts Ordinance (II of 1962)---

----S. 18---Specific Relief Act (I of 1877), S.12---Pecuniary jurisdiction of Appellate Court--- Suit for specific performance of agreement to sell immovable property---Determination of value of suit for purposes of jurisdiction and court-fee---Scope---Appeal of appellant against order dismissing their application to be impleaded as defendants, was returned on the ground that the Appellate Court did not have pecuniary jurisdiction to hear the appeal---Validity---Bare reading of plaint depicted that value for the purposes of court-fee and jurisdiction had been given as Rupees 1000 and for determining pecuniary jurisdiction of the court, only valuation clause of plaint had to be considered and forum of appeal was not to be determined on basis of valuation ascertained by Trial Court, both for the purposes of jurisdiction and payment of court-fee--- Appellate Court was, in the present case, vested with the power of entertaining the appeal and had erroneously returned the same---High Court set aside impugned order of Appellate Court and remanded the case to Appellate Court.

Muhammad Ayub and 4 others v. R.Obaidullah and 6 others 1999 SCMR 394 and Mehtab Khan and others v. Faiz Muhammad PLD 2003 Pesh. 46 ref.

Haji Umar Daraz Khattak for Appellant.

Asmatullah Khan for Respondents.

Date of hearing: 7th February, 2013.

JUDGMENT

ROOH-UL-AMIN KHAN,J.---- Impugned herein is the judgment and decree of learned Civil Judge-III, Takht-e-Nasrati Karak, whereby consent decree was granted in favour of respondents Nos.1 to 4, against which present appellants filed appeal but the same was returned to them by the learned Appellate Court/Additional District Judge Karak at Takht-e-Nasrati vide order dated 17-4-2012.

2.The resume of facts forming the background of instant appeal is that plaintiffs- respondents filed a suit for specific performance of an agreement dated 22-2-2011 against the appellants-defendants alleging therein that they have purchased the suit property measuring 13 kanals and 15 marlas in lieu of sale consideration of Rs.11,00,000/- and that the defendants even after the receipt of sale consideration are reluctant to transfer the suit property in their names in the Revenue Record.

3.Since the suit had been filed by the plaintiffs-respondents against the defendants merely to obtain a consent decree from the trial Court regarding the personal property of the appellants, thus, on getting the knowledge, during pendency of the suit, appellants filed an application for their impleadment in the suit, which was contested by the plaintiffs-respondents Nos.1 to 4. It is pertinent to observe that respondent No.5, being in league with the plaintiffs (respondents No.1 to 4) submitted a cognovit before the trial Court and the trial Court, after recording statement of respondent No.5, on the back of the cognovit, fixed the case for arguments on the application of the appellants as well as the main suit. After hearing the parties, learned trial Court dismissed the application of the appellants while consent decree was passed in favour of respondents Nos.1 to 4. Aggrieved with the aforesaid judgment and decree of the trial Court, appellants preferred appeal before the learned District Judge Karak, who marked the same to Additional District Judge Karak at Takht-e-Nasrati, who vide order dated 17-4-2012, returned the memorandum of appeal along with original documents to the appellant on the ground of lacking pecuniary jurisdiction and directed the appellants to present the same before the proper forum. In pursuance of the order dated 17-4-2012, passed by the learned Additional District Judge Karak at Takht-e- Nasrati, the appellants have approached this Court through instant appeal.

4.After admission of instant appeal for regular hearing, on 6-2-2012, learned counsel for the parties after arguing the case at some length, sought time to prepare the case on the question of pecuniary jurisdiction, which was accordingly accorded and the case was posted to 7-

5.Today, I have heard the exhaustive arguments of the learned counsel for the parties on the point of pecuniary jurisdiction for the purposes of instant appeal.

6.The bare reading of the plaint depicts that the value for the purposes of court-fee and jurisdiction has been given as Rs.1000/-. It is well-settled law that for determining the pecuniary jurisdiction of the Court, only the valuation clause of the plaint has to be considered and the forum of appeal has not to be determined on the basis of the valuation ascertained by the trial Court, both for the purposes of jurisdiction and payment of court-fee. The learned Appellate Court/Additional District Judge Karak at Takht-e-Nasrati under the Civil Courts Ordinance, 1962, is vested with the powers to entertain the appeal in hand. Thus, the learned Appellate Court has erroneously returned the memo of appeal to the appellants. In view

of ratio of judgment in case titled, "Muhammad Ayub and 4 others v. R . Obaidullah and 6 others" (1999 SCMR 394) and case titled, "Mehtab Khan and others v. Faiz Muhammad" (PLD 2003 Peshawar 46), this appeal is allowed, the order of learned Additional District Judge Karak at Takht-e-Nasrati dated 17-4-2012, is set aside and case is remanded to the Appellate Court with the direction to decide the same on merits, in accordance with law. No order as to costs.

KMZ/71/P Appeal allowed.