2012 C L C 1457
[Balochistan] Before Muhammad Hashim Khan Kakar, J
SULEMAN and others ----Petitioners
Versus
PIR BAKHSH and others ----Respondents
Civil Revisions Nos.408 to 414 of 2008, decided on 4th June, 2012.
(a) Suits Valuation Act (VII of 1887)---
----S. 3---Civil Procedure Code (V of 1908) O.VII, R.1(i)---Specific Relief Act (I of 1877), Ss.42
& 54 ---Value of suit for jurisdictional purposes ---Suit for declaration and permanent injunction
was dismissed by Trial Court ---Appeal against the said dismissal was returned to the plaintiffs on
the ground that the same was beyond the pecuniary jurisdiction of the Appellate Court ---
Validity ---Suit could not be rejected if the same was undervalued or insufficiently stamped unti l
and unless opportunity was given to the plaintiff to make good the deficiency and in case of his failure, the Trial Court shall reject the plaint---Neither the Trial Court came to the conclusion
that there was a deficiency in the payment of court -fee or that the suit was undervalued; nor any
opportunity was given to the plaintiffs to make the deficiency good despite the fact that the
defendants specifically disputed the valuation of the subject -matter ---For the purposes of
ascertaining the forum of appeal , value of the original suit as determined under Suits Valuation
Act, 1887 would be taken into consideration for the purposes of jurisdiction, and not market
value, sale price or compensation amount of subject -matter of the suit---Forum of appeal would
be determined according to the value of the suit mentioned in plaint unless same was specifically
denied and issue was framed and the Trial Court had taken a different view ---High Court
remanded the case to the Trial Court with the direction for fresh disposa l of the case with the
framing of issues regarding suit valuation and court -fee---Revision was allowed, in
circumstances.
(b) Civil Procedure Code (V of 1908)---
----O. I, R.1, Ss.151 & 107---Powers of Court to implead necessary parties ---No rule exist ed in
the C.P.C. to limit or restrict the jurisdiction or authority of the court in impleading a person,
having interest in the result of a suit or an appeal, though not party to the suit ---Courts, in such
cases, should resort to its inherent jurisdiction under S.151, C.P.C. and order that such a person
may be made a party Necessary condition was that the court must be satisfied that a party was
obviously interested in the result of the suit or appeal and not otherwise ---Appellate Court while
exercising powers, postulated in S.107, C.P.C. read with Order I, Rule 10, C.P.C. could implead
any party.
Abdullah Baloch for Petitioners.
S.A.M. Qaudri Merab Khan Gichki and Nadir Ali Chalgari for Respondents.
Amanullah Tareen, Addl. A.-G. for the State.
Date of hearing: 28th May, 2012.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. --- The instant Civil Revision Petitions No.408
to 414 of 2008 are directed against the orders dated 19th November 2008, passed by the
Additional District Judge, Gwadar (the "appellate Court"), whereby he has returned/ dismissed
the appeals filed by the petitioners against the judgments and decrees dated 18th September 2008, passed' by the Senior Civil Judge, Gwadar (the "trial Court"). Since common questions of facts and law are involved in the matters, as such, I propose to dispose of the same through this
common order.
2 Briefly stated the facts of the case are that the plaintiffs/ petitioners filed Civil Suits
Nos.88, 90, 91, 92, 93, 94 and 96 of 2006 for declaration, partition, cancellation of Khatooni
No.40/40, Khasra No.99 and permanent injunction as a consequential relief, inter alia, contending therein that they are owners in possession of the disputed land well described in the schedule. They further averred tha t they have inherited the suit -property through their
grandfather, however, the defendants/respondents with collaboration of revenue officials got the
suit-property mutated fraudulently on their names, thereby deprived the petitioners from their
inherited property.
2-A. The suits were contested by the defendants/respondents and the trial Court, from the
divergent pleadings of the parties, framed the following issues, which are almost common in
every suit:
(i) "Whether the suit of the plaintiffs is not m aintainable in view of the legal objections
taken in the written statement?
(ii) Whether the plaintiffs are the owners of the disputed property by way of inheritance from
Dostain through his son Shah Karam?
(iii) Whether the defendants illegally caused the disputed property entered in their favour in
the record of settlement?
(iv) Whether defendant No.1 has no relation to Dostain and his son Ismail and belongs to
different family?
(v) Whether the disputed property is ancestral property of Mir Umar a nd some portion as
purchased property of defendant No.1, is in his possession and rightly entered in his name in the
Revenue Record?
(vi) Whether the plaintiffs are entitled to relief claimed for?
(vii) Relief?"
3. The trial Court, after framing the aforesaid issues and affording opportunity of leading
evidence to both the parties, dismissed the suits. On appeals, preferred by the petitioners, the
appellate Court vide order dated 19th November, 2008, dismissed/returned the same on the ground of jurisdiction, against which present petitions are directed.
4. I have heard learned counsel for the parties and have also gone through the impugned
judgments and orders passed the trial Court as well as appellate Court (the "Courts below").
5. Learned counsel for the petitioners contended that the findings of the Courts below are
contrary to facts, law and justice. The Courts below have misinterpreted and misconstrued the
relevant provisions of the Civil Procedure Code, 1908 (C.P.C.) and have draw n conclusions
contrary to the record, which has caused serious prejudice to the petitioners, resulting in
miscarriage of justice. He further contended that the appellate Court has acted illegally and with
material irregularity, while returning the appeals presented before it on flimsy ground of
pecuniary jurisdiction. It was also asserted that the petitioners never consented for withdrawal of
the appeal, nor authorized their counsel to do so, therefore, the impugned judgments and orders
are liable to be set aside.
6. On the other hand, learned counsel for the private respondents vehemently opposed the
arguments advanced on behalf of the petitioners and stated that, admittedly, the petitioners are
out of possession, therefore, without seeking consequential relief of the same, the suits were not competent. They further stated that the suits were hopelessly barred by time and it is a fact that the suits were not properly drafted; as the same were suffered from causes of action. They argued that the suits were also bad for misjoinder and non-joinder of necessary party, as the Civil Aviation Authority (CAA) has not been made party to the suits. It was asserted that the valuation clause of the suits were left blank by the plaintiffs, as such, the appellate Court has rightly determined the pecuniary jurisdiction on the basis of compensation amount paid by the CAA to
the respondents. Lastly, they prayed for upholding the impugned judgments and orders of the
Courts below.
7. Mr. Amanullah Tareen, Additional Advocate -General, while addressing the arguments,
has supported the contentions raised by learned counsel for the private respondents, however, he
was of the view that CAA being a property party was required to be arrayed as defendant in the suits for just and pro per decision of the matters.
8. At this stage, it would be advantageous to reproduce the gist of the order dated 19th
November, 2008 passed by the appellate Court, which reads as under: ---
9. A bare perusal of the above gist of the impugned order shows that the appeals were
returned to the petitioners on the ground that the same were beyond the pecuniary jurisdiction of
the appellate Court, as the value of the subject -matter was worth of millions of rupees, in view of
the compensation amount paid to the private respondents by the CAA. After having gone
through the impugned orders passed by the appellate Court, I am of the considered view that the conclusion drawn by the appellate Court is contrary to the relevant provisions of law. The plaints are indicative of the fact that the same have not been valued for the purpose of affixation of court -fee and assessing the jurisdiction, which is required to be made under Order VII, Rule 1(i)
of the C.P.C. It is true that in a suit for declaration and consequential relief, the plaintiff has a
right to value the suit according to his own choice, but it is equally true that the court is not powerless to correct arbitrary valuation given by the plaintiff. The court can always direct the plaintiff to correct such valuat ion. Admittedly, suit cannot be rejected in case it is under valued
or insufficiently stamped until and unless opportunity is given to make good the deficiency to the plaintiff, in case of his failure in time fix by the court the plaint shall be rejected. It is an admitted feature of the case that neither the trial Court come to the conclusion that there is deficiency in payment of court -fee or suits are undervalued, nor any opportunity was given to the plaintiffs to
make the deficiency good despite the fac t that the respondents/defendants specifically disputed
the valuation of the subject -matter.
10. Furthermore, it is by now well -settled that for ascertaining forum of appeal; value of
original suit as determined under section 3 of the Suits Valuation Act , 1887 (the "Act") would be
taken into consideration for the purposes of jurisdiction and not market value, sale price or
compensation amount of subject -matter of the suit. Forum of appeal would be determined
according to the value of suit mentioned in plaint unless the same was specifically denied and issue was framed and the trial Court had taken a different view. In the instant case, even the trial Court failed to observe the provisions regulating the suits filed with a prayer for declaration. Order VII, Rule 1(i) of the C.P.C. is to be observed, while entertaining a suit,
which the trial Court failed to keep in sight, thus, come to the conclusion, which is contrary to
the relevant provisions of law. The plaint is indicative of the fact that the suit was not valued at all for the purposes of affixation of court -fee and assessing the jurisdiction as required under
Order VII Rule 1(i) of the C.P.C. Thus, in this view of the matter, the plaintiffs/petitioners have to be given an opportunity in the trial Court to cure the defects in the plaint, but if they failed to
do so, the plaints will have to be rejected.
11. There is another important aspect of the ease, which has been oversighted by the trial
Court i.e. acquisiti on of the land in question by the CAA prior to institution of the instant
suits. Admittedly, the CAA had acquired rights in the property in dispute and the
authority should be impleaded as a party. The CAA although is not necessary part y, however, the
authority is proper party; who had acquired the property in question, therefore, the authority must
be interested in the result of the suits as well as appeals. The Courts below were empowered to
implead the authority as respondent. There i s absolutely no rule in the C.P.C. so as to limit or
restrict the jurisdiction and authority of the Courts below, in impleading a person, having interest
in the result of a suit or an appeal, though not a party to the suit. The Court in such cases shall resort to its inherent jurisdiction under section 151 of the C.P.C. and order that such person may
be made a party. The necessary condition in such a situation is that the Court must be satisfied that a party is obviously interested in the result of the suit or appeal and not otherwise. The
provisions of Order I, Rule 10 of the C.P.C. vest ample powers to a Court to see that proper parties are brought before it. The Order I, Rule 10(2) of the C.P.C. speaks as under: ---
1. Who may be joined as plaintiffs.--- All persons may be joined in one suit as plaintiffs in
whom any right to relief in respect of or arising out of the same act severally or in the alternative,
where if such persons brought separate suits, any common question of law or fact would arise.
10. Suit in name of wrong plaintiff.---Where a suit has been instituted in the name of the
wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the
right plaintiff, the Court may at any stage of the suit, if sati sfied that the suit has been
instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
Court may strike out or add parties.--- (2) The Court may at any stage of the proceedings,
either upon or without the application of either party and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order
to enable the Court effectually and competently, to adjudicate upon and settle cull the questions
involved in the suit, be added."
12. Similarly, the appellate Court, while exercising powers, postulated in section 107 read
with Order I, Rule 10 of the C.P.C. can implead any party. Section 107 of the C.P.C. is
reproduced as under: ---
"107. Powers of Appellate Court.--- (1) Subject to such contains and limitations as may be
prescribed, an Appellate Court shall have power---- (a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as
nearly as may be the same duties as are conferred and imposed by this Code on Courts of
original jurisdiction in respect of suits instituted therein."
It is true that under Order I, Rule 9 of the C.P.C., no suit can be defeated by reason of the
misjoinder or non-joinder of parties, but it is equally true that as per Order I, Rule 10(2) of the
C.P.C., the Court can strike out or acid parties. The trial Court while dealing with this aspect of the case, overlooked these provisions of law thus, came to erroneous findings.
13. In view of the above discussion, the petitions are partly allowed and the impugned
judgments and orders passed by the Courts below are set aside. Resultantly, the cases are
remanded to the trial Court for disposal afresh in view of the observations made hereinabove
strictly in accordance with law, more particularly, framing of additional issues regarding valuation of the suits as well as misjoinder and non- joinder of necessary party i.e. CAA, after
providing full opportunity of hearing and leading evidence to the respective parties, if any.
This disposes of Civil Revision Petitions No.408 to 414 of 2008 with no order as to cost.
K.M.Z./45/Q Petitions allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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