NOORA through L.Rs, vs AHMAD and others

' MUNIR A. SHEIKH, J.--- This petition is directed against the judgment, dated 6-12-1999 of the Lahore High Court whereby appeal filed by the petitioners has been dismissed.

2. The petitioners filed suit for declaration and as a consequential relief by way of mandatory injunction, recovery of possession of the property in dispute, was also prayed for. The respondents contested the suit on merits and also raised an objection that the suit had not been correctly valued for the purposes of court-fee and jurisdiction. It may be mentioned here that the petitioners had valued the suit for the purposes of court-fee and jurisdiction at Rs,200 under section 7(iv)(c) of the Court Fees Act, 1870. The trial Court did not frame any issue on the point of valuation of the suit for the purposes of court-fee and jurisdiction. Issue No,6 was framed as to whether the suit was maintainable in the present form for an objection had been raised by the respondents-defendants that in the suit, prayer for recovery of possession of the suit partly should have been made directly and not as a substantial relief, therefore, the suit for declaration with consequential relief was not maintainable.

3. The trial Court through judgment, dated 5-6-1988 dismissed the suit on merits. It was also held under Issue No,6 that the suit had not been filed in the proper form as the petitioners should have directly claimed recovery of possession of the land the value of which was Rs,15, 50,000 on which proper court-fee of Rs,15, 000 should have been paid and the same should be paid within two months thereafter. It was not provided in the said judgment as to what would be the consequence of non-payment of the court-fee within specified time

4. The trial Court after holding that the valuation of the suit for the purposes of court-fee and jurisdiction was Rs,15,50,000 did not either of its own amended the relevant para. Of the plaint nor directed the petitioners to amend the same. In the decree-sheet prepared by the said Court, the valuation of the suit for the purposes of jurisdiction was shown as Rs,200.

5. In these circumstances, according to the petitioners, they filed appeal before the District Court assuming that the appeal is always directed against decree and not judgment, as such could be entertained by the said Court due to the fact that in the decree-sheet, the valuation of the suit for the purposes of court-fee and jurisdiction was shown as Rs,200. On the objection having been raised by the respondents-defendants before the District Court through an application that the appeal was beyond the pecuniary jurisdiction of the said Appellate Court, the Court ordered for the return of memo. Of appeal for presentation before the High Court. When the appeal was presented before the High Court, it was entertained and admitted and on the objection raised by the respondents, the same was held to be barred by time through the impugned judgment, dated 6- 12-1999 and dismissed as such against which leave is sought.

6. We find that condonation of delay in filing the appeal before the High Court after its return by the First Appellate Court was sought on the ground that the petitioners were misled by the contents of the decree as to the valuation of the suit for the purposes of court-fee and jurisdiction therefore, it was on account of the act of the Court that the petitioners were made to suffer.

7. The contention did not find favor with the learned Judges of the High Court on the ground that in the judgment the trial Court had clearly held that value of the property was Rs,15,50,000 therefore, court-fee should have been paid accordingly. The petitioners should have filed appeal before the High Court.

8. We are of the view that the trial Court after having holding under issue No,6 that value of the property was Rs,15,50,000 and the same should be the valuation of the suit for purposes of jurisdiction, it should have either directed the petitioners to amend the plaint and itself should have also amended the decree but nothing was done and the plaint remained as it was and in the decree, the valuation of the suit for the purposes of jurisdiction was shown as Rs,200, therefore, it was a fit case for condonation of delay in filing the appeal before the High Court after its return by the First Appellate Court.

9. We have also observed that the petitioners were being non-suited in appeal merely on technical ground of not presenting the same before the proper Court to which the trial Court was also contributory for which the petitioners should not have been made to suffer and it was a fit case for condonation of delay.

10. For the reasons, we convert this petition into appeal, the same is accepted, judgment, dated 6- 12-1999 of the Lahore High Court is hereby set aside and the case is remanded to the said Court to decide the appeal on merits. Learned counsel for the appellants submitted that before presentation of memo. Of appeal before the High Court, court-fee of the value of Rs,15,000 was also filed which fact has not been denied by the learned counsel for the respondents. The appellants shall file additional court-fee of Rs,15,000 for the plaint before the High Court within one month from today, failing which the appeal shall be dismissed.