Mst. MUKHTIARA Versus ALIF KHAN
IKRAMULLAH KHAN, J.--- Through the instant civil revision, the petitioners have challenged the impugned judgment dated 16.03.2013, passed in appeal by the learned Additional District Judge, Peshawar whereby, the memorandum of appeal in original was returned to the petitioners.
2. Briefly stated facts of the case are that the petitioners instituted a suit for possession through partition against the respondents, in regard to suit property correctly mentioned therein the head note of the suit, whereof, the suit was valued for the purpose of jurisdiction and Court fee as Rs. 120/-, and Rs. 200/-, respectively.
3. On dismissal of her suit by the learned Civil Judge, the petitioners moved the learned appellate Court an appeal, but the learned appellate Court, returned the memorandum of appeal in original as the subject matter, determinable therein the suit was beyond its pecuniary jurisdiction, hence, the instant revision filed thereunder section 115 of C.P.C., 1908 against the impugned judgment by the petitioners in this Court.
4. The learned counsel for the petitioners, contended that the impugned judgment is against the established principle of law, enunciated by the apex Court and also well enumerated thereunder the provision of the Civil Courts Ordinance, 1962 read with Suits Valuation Act, 1962, hence not tenable to be set aside.
5. On the other hand, the learned counsel, on behalf of respondents supported the impugned judgment and urged that the subject matter, thereunder adjudication was more than the pecuniary jurisdiction of the learned lower Appellate Court, hence lacked jurisdiction to adjudication upon the matter, whereas, the subject matter, under contest was more and above its pecuniary jurisdiction.
6. Arguments heard and carefully gone through the record.
7. The petitioners have valued its suit for the purpose of jurisdiction as Rs. 200/-. However, in written statement, respondents have asserted that they have made improvement over the suit property, which was not less than Rs. 15,00,000/-and the learned trial Court had also framed an issue in this regard, too.
8. It was due to the cause, that the learned lower appellate Court returned the memorandum of appeal to the petitioners.
9. This is an admitted fact that respondents have not raised any objection over the suit valuation or the Court fee fixed and determined by the petitioners in its suit. The learned trial Court has also not opined that either the value of Court fee or the valuation suit for the purpose of jurisdiction be amended and accepted it as it was fixed and determined by the petitioners for the purpose of Court fee and jurisdiction both in its plaint.
10. The provisions contained thereunder section 18 of the Civil Courts Ordinance, 1962, has provided the forum of appeal, the relevant portion of section 18 reads:-
Section 18(1):- Save as aforesaid, an appeal from 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 fifty thousand rupees; and
(b) To the District Judge in any other case.
However, the pecuniary jurisdiction of the appellate Court has been enhanced vide NWFP, Act, VII of 2003 to Rs. One Million.
11. It would be the value of the original suit in which the judgment or order has to be made, determine, the forum of appeal.
12. The valuation for appellate forum has to be determined in view of section 18 of the West Pakistan, Civil Courts Ordinance, 1962. Reliance be placed on case titled "Abdul Gayyas v. Bibi Rahima" (2002 SCMR 801), valuation of the suit would be the same which has been disclosed in the plaint for the purpose of the jurisdiction of the Court. Reliance be placed on the case of "Government of Sindh v. Abdul Majeed" (1990 CLC 1891).
13. The petitioners have valued its suit for the purpose of Court fee and jurisdiction at Rs. 120 and 200, respectively, which was accepted by the learned Civil Judge and no direction had been made to the petitioners to correct the valuation in the plaint. The valuation as made in the plaint would be taken on the basis for determination of the pecuniary jurisdiction of the trial Court as well forum of appeal till its determination by the Court. Reliance be placed on case titled "Sardar Begum v. Mukhtar Ahmad" (2001 YLR 1435).
14. In view of the judicial pronouncement referred hereinabove, it would be the Court of lowest grade with jurisdiction of the same value will be competent to entertain and decide the suit and the appeal will similarly lie to the Court having jurisdiction to entertain appeal of the same value. Reliance would be placed on the judgment of the Apex Court delivered therein the case of "Illahi Bakhsh and others v. Mst. Bilqees Begum" (PLD 1985 SC 393).
15. The upshot of the discussion herein, is that the learned lower appellate Court misconstrued section 18 of the Civil Courts Ordinance, 1962, while returning the memorandum of appeal to the petitioners thereby not exercised a jurisdiction vested in him, therefore, for the reasons recorded hereinabove, this civil revision is allowed, and consequently, the impugned judgment is accordingly set aside.
16. The case is remanded back to the learned lower appellate Court to decide the appeal according to law being presumed to be pending before the lower appellate Court.
ZC/130/P Case remanded.