MUHAMMAD SHAMIM SIDDIQUI Versus Mrs. KAUSAR AZIZ

Brief facts leading to this revision application are that the parties were married on 16‑9‑1978. Soon after marriage differences arose between the parties. Consequently the applicant divorced the respondent. She then filed Suit No.3929 of 1981 for the return of articles of dowry given to her by her parents at the time of marriage, the lists of which articles she appended to the plaint as Annexures `A' and 'B'. In the plaint the respondent prayed for; (1) decree for the return of dowry listed as Annexures `A' and `B' to the plaint, (2) if', alternative decree for value of the un‑returned dowry and (3) injunction restraining the applicant from, selling or disposing of the Articles of dowry. In para. 9 of the plaint the respondent had valued the suit for the purpose of court‑fee and jurisdiction at Rs.4,000. The applicant in his written statement denied the averments that any article of dowry remained with him, but he alleged that all the articles of dowry were kept by the plaintiff/respondent with herself and were taken away by her. He also denied that any cause of action arose to the plaintiff, but in order to avoid further litigation and save time of the Court, he conceded to the valuation of the suit for Rs.4,000 for dowry.

2. The learned XVth Civil Judge IInd Class, Karachi vide his judgment dated 17‑12‑1981 decreed the suit of the plaintiff/respondent for Rs.4,000, keeping in view the pleadings of the parties by granting prayer of the plaintiff as contained in para 2 of the prayer clause. In appeal filed by the respondent, the learned Additional District Judge, Karachi by his judgment dated‑25‑8‑1982 set aside the judgment and decree passed by the learned Civil Judge and ordered re trial of the suit after framing issues, holding that the main relief of the appellant was not taken into consideration and as such the impugned decree was not a consent decree. Against this judgment of the learned Additional District Judge, the applicant has preferred this revision application.

3. I have heard learned counsel for the parties and also gone through the record and proceedings of the case.

4. Mr. Rehanul Hassan Farooqui, learned counsel for the applicant argued that the respondent herself had valued her suit at Rs.4,000 and in prayer clause (ii) she had also claimed value of the dowry in lieu of unreturned articles of dowry. As such when the applicant conceded to this amount, it would amount to an admission under Order XXI Rule 6, C.P.C. and the Court could pronounce judgment without waiting for the determination of any other question between the parties.

5. The contention of Mr. Khuda Bux Umrani learned counsel for the respondent was that the main relief of the respondent was for the return of dowry articles, of which she had appended lists as Annexures `A` and `B` and m alternative she claimed value of only such articles of dowry which could not be returned, He argued that the learned Civil Judge could not have ignored his main prayer for the relief and could not have granted alternative prayer without determining whether the actual articles of dowry were in possession of the applicant and whether he was in a position to return them or not. He further submitted that the valuation for the purpose of jurisdiction and Court‑fee in the plaint would not amount to valuation of All articles of dowry and at the most it would be considered to be a tentative valuation put by the respondent on the subject‑matter which, if the Court after recording evidence considered insufficient, Court could have ordered the payment of the additional court‑fee. He submitted, that the learned trial Court has wrongly come to the conclusion that the value of the articles of dowry, according to the plaint, was Rs.4,000, but it was question of evidence which should have been recorded.

6. Mr. Khuda Bux Umrani, learned counsel for the plaintiff/respondent contended, that the suit of the plaintiff was basically for the return of the articles of her dowry and the applicant in his written statement has denied the possession of the Articles of dowry. As such the parties were at issue on the question as to whether any articles of dowry of the plaintiff/respondent remained with the defendant/applicant which he had to return. It is further submitted that alternate prayer for the value of the articles which could not be returned, therefore, the learned trial Judge before awarding the value under prayer clause (b) would have come to the conclusion as to what articles of dowry had to be returned by the applicant and what articles he could not return and then fix value of such unreturned articles. It is submitted that even a cursory glance at the lists of articles enumerated in Annexures 'A' and 'B' to the plaint would clearly show that the value of those articles was much more than Rs.4,000 as it included in list 'A' one gold‑set of ornaments consisting of necklace, ring and also four bangles. List `B' included .two sets of gold ornaments with stones and one set is shown to be of seven Tolas and the other set is shown to be of five Tolas of gold. Apart from these gold ornaments, more than 70 articles of dowry are also shown. The value of the gold is more than Rs.3,000 per Tola and as such by no stretch of imagination the value of the dowry could be considered to be Rs.4,000. It is submitted, that in spite of denying the possession of any article of dowry the applicant readily agreed to pay Rs.4,000 which shows that the so‑called admission or readiness to pay the amount was not for any bona fide reason, but was with the intention to escape the liability by paying a lesser amount. It is submitted that the respondent had come to the Court with unclean hands and as such was not entitled to any consideration.

7. Learned counsel for the parties have relied upon several authorities, but they are not applicable to the instant case.

8. It is contended by the learned counsel for the respondent that the suit was filed in a Court of IInd Class Civil Judge whose maximum jurisdiction is extended to Rs.15,000 only. He has relied upon P L D 1967 Kar.468 which is a Division Bench decision of the Karachi Bench of the erstwhile High Court of West Pakistan. It would be worth‑while to reproduce the observations of their Lordships in the said case which are as follows:

"It seems to us that ordinarily in suits falling under section 7(iv)(c) a plaintiff is entitled to put his own valuation, but in case the Court comes to the conclusion that it is arbitrarily fixed it can put its own valuation and ask the plaintiff to pay court‑fee on the valuation. We are in respectful agreement with the view of Davis, J.C. that absence of the rules under section 9 of the Suits Valuation Act is no bar to the exercise of the power under Order VII, Rule 11, C.P.C. and that the question as to what is proper valuation depend upon the circumstances of each suit and the judicial decision of the Court."

It was further observed that:

"Suits Valuation Act and the Court Fees Act are purely fiscal enactments and they have no bearing on the question as to which is the proper Court for the institution of the suit having regard to the value of the property. In cases arising under clause 4(2) of the Karachi Courts Order, 1956 and under section 24(2‑A) of the West Pakistan Civil Courts Ordinance, 1962 the question of the valuation of the suit is not affected by the fiscal standards of the Court Fees Act and Suits Valuation Act by which the pecuniary jurisdiction is determined under section 6, C.P.C. In such cases it will be determined by the real value of the subject‑matter of the suit."

9. The mere fact that the plaintiff'/respondent valued the suit for the purpose of jurisdiction at Rs.4,000 would neither bind the Court, nor would it determine the value of the property in question. The Court bas got ample power under section 12 of the Court Fees Act to determine the question of valuation and after such determination, if it finds the value: of the subject‑matter to exceed the pecuniary jurisdiction of the Court, the Court has power to return the plaint for presentation before the Court having jurisdiction. The decision of the learned Civil Court in accepting the offer of the Defendant /applicant to pay the value of the goods under prayer clause (b) on the valuation fixed for the purpose of jurisdiction appears to be hasty and without application of judicial mind. Under the circumstances the decision of the learned Additional District Judge in setting aside the order and ordering re‑trial of the case neither appears to be illegal nor suffers from any infirmity.

10. Mr. Rehanul Hassan Farooqui, learned counsel for the applicant defendant has submitted, that the appeal before the learned Additional District Judge was barred under subsection (3) of section 96, C.P.C. which provide; that no appeal shall lie from a decree passed by a Court by consent of parties.

11. The order of the learned trial Judge clearly shows that the respondent never consented to decree for R s.4." but it was passed by the Court in spite of objection by the applicant. The learned Civil Court has passed the judgment and decree not lay consent and agreement of parties, but on so called admission of the Defendant/Applicant under Order 12 Rule 6, C.P.C. As pointed above, this so called admission was neither unqualified, nor did the plaintiff/respondent seek any judgment or decree on the so‑called admission. The judgment in appeal, therefore, cannot be considered to be without jurisdiction.

Considering all the facts of the case and circumstances discussed above, I do not find any reason to interfere with the order of the learned Appellate Court ordering the re‑trial of the case The revision application is dismissed with no order as to cost.

AA./M 476/K Revision dismissed: