ABDUL MAJID And Others vs MUHAMMAD WALAYAT KHAN Through His Legal Heirs

1. NASIM HASAN SHAH, J.--In this case Walayat Khan, the predecessor-in-interest of the respondents, filed a suit claiming possession through pre-emption of agricultural land measuring 162 Kanals 2 Marlas situated in village Naurozepur, Tehsil Hafizabad, District Gujranwala, sold in favour of one Assar Hayat for an ostensible sum of Rs.90,000. However, the suit was valued for purposes of Court-fee and jurisdiction at Rs.24,300 by Walayat Khan.

2. The trial Court dismissed the suit but its decree was challenged by the legal representatives of Walayat Khan who had since died, by a regular first appeal in the High Court. The High Court allowed the appeal by its judgment dated 27-1-1985. The vendees moved this Court seeking leave to appeal against the last mentioned judgment and leave was granted, inter alia, to examine the point whether the first appeal in this pre-emption matter should have been filed in the High Court or before the District Court.

3. It is now well settled that for determination of the forum oft appeal, the value given in the original plaint shall also control the forum of appeal; see Ilahi Bakhsh and others v. Mst. Bilqees Begurt PLD 1985 SC 393 and Muhammad Nawaz v. Sher Muhammad PLD 1987 SC 284.

4. Accordingly in this case as the plaintiff had valued his suit for purposes of court-fee and jurisdiction at Rs.24,300 the appeal against the judgment and decree passed by the learned trial Court lay in the District Court and not before the High Court.

5. Mr. Muhammad Yakub Sindhu, learned Advocate for the respondents, however, submitted that the appellants herein were precluded from raising such a plea before this Court at this stage and in support of his contention relied on section 11 of the Suits Valuation Act, 1887 which to the extent relevant provides:---- "11. Procedure where objection is taken on appeal or revision that a suit or appeal was not properly valued for jurisdictional purposes.-

(1) Notwithstanding any thing in section 578 of the Code of Civil Procedure, an objection that by reason of the over-valuation of a suit or appeal a Court of first instance or lower Appellate Court, which had not jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an appellate Court unless-

(a) .........................

(b) The Appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit or appeal was over-valued or under-valued and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits".

6. See now section 99 of the Code of Civil Procedure (Act V of 1908).

7. He also relied upon the judgment of the Supreme Court of Azad Jammu & Kashmir and the Supreme Court of India to wit, Suleman v. Khurshid 1982 CLC 2511 and Kiran Singh and others v.

8. Chaman Paswa n and others PLD 1956 SC (India)

38. In these cases, it was held that a decree passed by a competent Court is not a nullity on the ground of under or over valuation, especially in the absence of any prejudice such as is visualised by section 11 of the Suits Valuation Act.

9. It is well established that Section 11 of the Suits Valuation Act has the effect of curing want of jurisdiction caused by erroneous or improper valuation and treats over valuation or under- valuation as a mere irregularity contemplated under Section 578 (Section 99 of the present Code) of the Civil Procedure Code.

10. But the present is not a case of under or over valuation but is a case where the memorandum of appeal was presented to a Court which was not the appropriate forum to deal with it. In such a case section 11 does not apply. Moreover a plain reading of section 11 shows that the "appellate Court" referred to therein means the Districts, Court or the High Court. Hence, the curative provisions of section 11' cannot in terms, be of any avail in this Court.

11. The upshot is that as the High Court was not the appropriate forum before which the appeal could be presented by the pre-emptor and therefore the judgment passed by it dated 27-1-1985 must be set-aside and the memorandum of appeal which was submitted to it returned to the respondents herein (the appellants before the High Court) for presentation to the appropriate forum.

12. The appeal is allowed in the above terms, but with no order as to costs.