2017 Y L R 179
[Balochistan]
Before Muhammad Ejaz Swati, J
BAHADUR KHAN and 6 others ---Petitioners
Versus
MUHAMMAD ANWAR and others ---Respondents
Civil Revision No.104 of 2015, decided on 19th October, 2016.
Balochistan Civil Courts Ordinance (II of 1962) ---
----S. 18---Suits Valuation Act (VII of 1887), S. 11---Partition Act (IV of 1893), S. 4---Suit for
possession through partition---Forum of appeal ---Determi -nation of ---Principles ---Forum of
appeal was to be determined on the basis of original value of the suit ---Pecuniary jurisdiction of
District Judge was subject to valuation in the plaint ---Appeal against the decree or order of Civil
Judge would lie to the District Judge if the value of original suit in which such decree or order
was made did not exc eed Rs. 5,00,000/ - and to the High Court in any other case ---If defendant
questioned the original value of the suit or Court disagreed with the determined jurisdiction value
of the suit assessed by the plaintiff then the Trial Court could pass order fixing the value after
framing issue and providing an opportunity to the parties to produce evidence ---Pecuniary
jurisdiction of the Court had to be determined with reference to the valuation given in the plaint
and could not be connected to the escalation in th e price of the property during pendency of the
suit---Valuation of the property for the purpose of jurisdiction would be same as mentioned in
the plaint unless determined by the Trial Court after framing issue ---Suit for the purpose of
jurisdiction and court -fee was valued as Rs. 37.50/ ---Neither the defendant questioned nor the
Trial Court had determined the original jurisdiction value of the suit by way of framing of issue --
-Valuation of suit for the purpose of jurisdiction in the matter of appeal would be the same as
mentioned in the plaint ---Petitioners had rightly availed remedy of appeal before the District
Judge but order of return of memo of appeal had been passed which was not sustainable ---
Impugned order was set aside and appeal filed would be deem ed to be pending before the
Appellate Court ---Appellate Court should decide the matter in accordance with law within a
period of two months ---Revision was allowed in circumstances.
1999 SCMR 394 and 2005 SCMR 1933 ref.
Illahi Bakhsh v. Mst. Balqees Begum PLD 1985 SC 393; Muhammad Ayub and 4 others
v. Dr. Obaidullah and 6 others 1999 SCMR 394 and Zafeer Gul v. Dr. Riaz Ali 2015
SCMR 1691 rel.
Khalil Ahmed Panezai for Petitioners.
Syed Manzoor Shah for Respondents Nos. 1A to 6.
Muhammad Saleem Lashari an d Sheikh Muhammad Ali for Respondents Nos.10, 11 and
12.
Date of hearing: 19th October, 2016.
ORDER
MUHAMMAD EJAZ SWATI, J. ---The respondents filed a suit for declaration and
possession through partition in respect of their inheritance rights from the property of their
predecessor Mehrban. The suit was decreed by the Civil Judge -VII, Quetta, vide judgment and
decree dated 18.08.2014.
2. The petitioners assailed the judgment/decree by way of filing appeal before the District
Judge, Quetta, which was trans ferred to Additional District Judge -IV, Quetta. The appellate
Court vide order dated 14th April 2015, returned the memo of appeal in view of clause (a) of
subsection (1) of Section 18 of Civil Courts Ordinance 1962 due to lack of pecuniary
jurisdiction.
3. The learned counsel for the petitioners States that the appellate Court instead of
considering the valuation clause of the suit has assessed the pecuniary jurisdiction on the basis of
presumptions. He further states that in a suit for possession through partition in respect of
inheritance rights, every co -sharer in the immoveable property is deemed to be in possession of
each inch, therefore, the tentative valuation given in the plaint is to be considered for the purpose
of pecuniary jurisdiction; that pe titioners in the suit have valued the property for the purpose of
jurisdiction and court -fees of Rs.37.50/ -, such value was to be considered the value of the suit
property for determining the forum of appeal; that the impugned order is illegal and amounts to
deprive the petitioners from a right of a forum as provided under the law. Learned counsel for the
petitioners placed reliance on the judgments reported in 1999 SCMR 394 and 2005 SCMR 1933.
The learned counsel for the respondents while controverting th e contention of the learned
counsel for the petitioners states that it came on record that the value of the subject matter of the
suit is more than Rs.500,000/ - (five lac), therefore, the learned Additional District Judge, Quetta
lack pecuniary jurisdictio n to entertain and adjudicate upon the appeal being appellate Court and
appeal is to be filed before this Court. He further maintained that the plaintiffs in the suit had not
given the valuation of the property, therefore, the valuation of the property for the purpose of
jurisdiction came on surface through evidence during pendency of the suit would be considered
for the purpose of pecuniary jurisdiction by the appellate Court, thus the impugned order is liable
to be sustained.
4. Heard the learned counsel for the parties and perused the record. The forum of appeal is
to be determined on the basis of original value of the suit and pecuniary jurisdiction of the
District Judge is always subject to valuation in the plaint. Section 18 of the West Pakistan Civil
Courts Ordinance 1962, as amended provides that appeal against the decree or order of Civil
Judge would lie to the District Judges, if the value of the original suit in which such decree or
order was made did not exceed Rs.500,000/ -(five lac) and to the Hi gh Court in any other case. If
the defendant questioned the original value of the suit, or Court disagreed with the determined
jurisdiction value of the suit assessed by the plaintiffs, it could have passed an order under
Section 11 of the Suits Valuation Act, 1887, fixing the value after framing an issue and providing
an opportunity to the parties to produce evidence. In this respect, reference may be made to Illahi
Bakhsh v. Mst. Balqees Begum PLD 1985 SC 393, wherein the Hon'ble Supreme Court of
Pakistan observed that "the value of the suit for the purpose of pecuniary jurisdiction in respect
of appeal would be the same as mentioned in the plaint".
In Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others, 1999 SCMR 394,
wherein the Hon'ble Supreme Court of Pakistan observed as under: --
"The important aspect is to note "value of the original suit" occurring in the above
provision. 'Value' has been denied in clause (h) of section 2 of the aforesaid Ordinance,
which says that with reference to a suit, it means the amount or value of the subject -
matter of the suit. Plethora of case -law discussed by the High Court in the impugned
judgment fortifies the view that the forum of appeal is to be determined according to the
value of the suit as mentioned in the plaint and the fixation of the price of the disputed
property by the trial Court is totally irrelevant, because the judgment is yet to attain
finality. In this view of the matter, we are also of the view that the Additional District
Judge erroneously return ed the memo of appeal."
5. As per law and dictum laid down by the Hon'ble Supreme Court of Pakistan, the
pecuniary jurisdiction of the Court is to be determined with reference to the valuation given in
the plaint and cannot be connected to the escalation i n the price of the property during pendency
of the suit or happening of any other subsequent event that may increase the monetary value of
the claim with passage of time or came on surface through evidence. The valuation of the
property for the purpose of jurisdiction would be same as mentioned in the plaint unless
determined by the trial Court after framing issue and providing opportunity of evidence to the
party.
6. In the instant case, the respondents filed suit for declaration, possession through partition
for their inheritance right to the extent of their respective shares from the property of their
predecessor namely Mehrban and valued the suit for the purpose of jurisdiction and court -fees as
Rs.37.50/ -. Neither the defendants questioned nor the trial Court had determined the original
jurisdiction value of the suit by way of framing issue in terms of Section 11 of the Suits
Valuation Act, 1887, therefore, valuation of the suit for the purpose of jurisdiction in the matter
of appeal would be the same as mentioned in the plaint. Reference in this regard may usefully be
made to case titled Zafeer Gul v. Dr. Riaz Ali 2015 SCMR 1691, wherein the Hon'ble Supreme
Court of Pakistan observed as under: --
"To expound the legal position in relation to the valuation of a suit for partition and
separate possession for the purpose of jurisdiction, it will be pertinent to mention here
that every co -sharer in the immovable property is legally deemed to be in its joint
possession to the extent of his undivided share. Therefore, in a suit of such nature, law
permits him tentative valuation of his share in the immovable property as specified in the
plaint for the purpose of pecuniary jurisdiction, which is subject to final determination by
the Court; till then the valuation shown in the plaint is to be deemed as proper value of
the suit property for the purpose of availing the remedy of appeal qua determining the
forum of appeal. For fur ther guidance see: Ajiruddin Moudal and another v. Rehman
Fakir and others (PLD 1961 SC 349)."
7. In the instant case, the petitioners had rightly availed the remedy of appeal before the
District Judge i.e. Additional District Judge -IV, Quetta, but the order for return of memo of
appeal vide impugned order has been passed, which in the circumstances of the case is not
sustainable.
In view of the above, Civil Revision No.104 of 2015 is partly allowed and the order dated
14th April, 2015 passed by District J udge -IV, Quetta is set aside and the appeal filed by the
petitioners is deemed to be pending before the Additional District Judge -IV, Quetta. Counsel for
the parties are present, they are directed to appear before the appellate Court for 28.10.2016 and
the appellate Court shall decide the matter in accordance with law possibly within a period of
two months.
ZC/68/Bal Revision 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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