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Civil Revision Petition No. 69 of 1955 under section 115, Civil P. C. decided on 7th June, 1955, for revision of the order of Muhammad Dastgir, Civil Judge, 4th Class, Lahore, dated the 2nd February, 1955.
suit‑Amount of Court‑fee on plaint and question of jurisdiction of Court should be decided on merits and not on a prima facie basis with reference to price mentioned in sale deed.
The price mentioned in the sale deed of a house, the subject of a pre‑emption suit, was Rs. 2,000, but the plaintiffs said in their plaint that price had been mentioned only to defeat the claim of pre‑emptors, the market value of the house being only Rs. 500 which amount was mentioned as the value of the suit for purposes of Court‑fee and jurisdiction.
The defendant objected to the valuation.
The Civil Judge 4th Class found that the plaintiffs were liable to pay a Court‑fee on Rs. 2,000, the price mentioned in the sale deed. As the value for jurisdiction was to be the same as the value for Court‑fee, the Civil Judge further held that he had no jurisdiction to try the suit, his pecuniary limit being Rs. 1,000. He directed that the file be sent to the District Judge for being transferred to a Civil Judge who had jurisdiction to try the suit.
Held, that the order was wrong in law.
There is no provision in the Court Fees Act directing that before a determination of the issues on merits the ques tion of Court‑fee should be decided on a prima facie basis.
The question of jurisdiction also could not be decided on a prima facie basis.
Muhammad Anwar and others v. Dial Chand and another A I R 1937 Lah. 239 dissented from.
S. 715‑Misinter pretation of law or procedure resulting in refusal to exercise juris diction‑Revision competent.
Every wrong decision on a question of law does not attract the application of section 115 C. P. C., but in this case the Civil judge had mis‑interpreted a law which regulated the exercise of his own jurisdiction. If a Court misinterprets a provision of law (as opposed to procedure) regulating the exercise of its own jurisdiction, it acts illegally in the exercise of its jurisdiction. If the misinterpreted provision relates to a matter of procedure, the result will be an irregularity and if material will be within section 115 Civil P. C. The difference between a provision of law and a provision relat ing to procedure may in some cases be a matter not of form but of degree.
. In this case the Court declined jurisdiction on the ground that though the suit for possession on the basis of pre‑emption was valued at Rs. 500 by the plaintiff, the value of house in dispute as mentioned in the deed of sale was Rs. 2,000, where as the Court's jurisdiction extended to a suit valued at Rs. 1,000 only.
Held, that the Court declined jurisdiction illegally or in any case with material irregularity. Revision therefore was competent under section 115 C. P. C.
A. R. Sheikh, for Petitioners.
Fazal Ghani, for Respondents.
‑This is a petition in revision against the order of Mr. Muhammad Dastgir, Civil Judge, 4th Class, Lahore, determining value of the suit to be Rs. 2,000 and hold ing that he had no jurisdiction to try the suit as the pecuniary limit of his jurisdiction was Rs. 1,000.
The suit out of which this petition arises is one for posses sion by pre‑emption of a house. The plaintiffs stated that the price of Rs. 2,000 had been mentioned in the sale deed only to defeat the claims of pre‑emptors and that the market value of house was only Rs. 500. The value for Court‑fee and jurisdiction was stated to be Rs.500. The defendant vendee objected to the valuation. Certain other preliminary objections were also taken, and the learned‑Civil Judge framed the following preliminary issues :‑
1. Has proper Court‑fee been paid
2. Was sale price of Rs. 2,000 fixed in good faith
3. If not, what is the market value of the disputed house
4. Is this suit not triable by this Court on account of the reason that ostensible sale price is Rs. 2,000.
The learned judge decided only issues Nos. 1 and 4 as the decision of other issues became unnecessary. On issue No. 1, the learned Civil Judge found that the plaintiffs were liable to pay a Court‑fee at Rs. 2,000, the price mentioned in the sale deed. As the value for jurisdiction was to be the same as the value for Court‑fee, the learned Civil JudgeA further held that he had no jurisdiction to try the suit, his pecuniary limit being Rs. 1,000. He directed that the file be sent to the District judge for being transferred to a Civil judge who had jurisdiction to try the suit.
Under section 7 (vi) of the Court Fees Act, Court‑fee in a suit for pre‑emption is to be the same as in a suit for posses sion which is provided for in section 7 (v) of the Act. According to section 7 (v) in a suit for possession of a house, Court‑fee is to be paid on the market value.
The learned Civil judge has not found it necessary to determine the market value of the house in dispute. He has held that the plaintiffs are bound to pay Court‑fee on the price mentioned in the sale deed and that if ultimately the market value of the property was found to be less than Rs. 2,000, the plaintiffs could apply for a refund of the excess of, the Court‑fee paid. In passing this order, the learned Civil judge has followed Muhammad Anwar and others v. Dial Chand and another (A I R 1937 Lah.239). There is no doubt that that judgment does support the view he has taken.
Let me state in some detail the facts of that case. In that case a suit had been filed to pre‑empt the sale of a vacant site. The plaintiff alleged in the plaint that although the price mentioned in the sale‑deed was Rs. 1,000 the market value of the site sold was Rs. 400. Stating further that he himself was the mortgagee of the site in suit for Rs. 197, he paid Court‑fee only on a sum of Rs. 203. The defendants objected to this valuation and also contended that the plaintiff was liable to pay court‑fee on a further sum of Rs. 1,942, which they had spent on raising a house on the site in dispute. Skemp, J. held that the plaintiff was liable to pay Court‑fee on Rs. 1,000 plus the value of the improvements, and that in case it appeared when the suit was ultimately decided that the market value of the property was less than Rs. 1,000 or that the plaintiff was not liable to pay court‑fee oil improve ments, as he was entitled to the site in dispute without the improvements, he could apply for refund of the excess Court fee paid. The learned Judge gave the following reasons for adopting this course :‑
"In these circumstances, on what amount ought he to pay the Court‑fee There is no doubt that he ought to pay on at least Rs.1,000 the amount specified in the deed 9/l0ths of which was paid before the Sub‑Registrar. As to the improvements, I think the rule' laid by the learned District Judge is a good rule to follow at the end of the suit when all the evidence has been heard and the Court can give a finding on the merits. But if I adopt the view which the learned District judge would have liked to adopt, the plaintiff would obtain a decision on most of the points in suit on the Court‑fee payable on Rs. 203 (or, at any rate on Rs. 400) for a property valued at Rs. 2,493. The only point left would apparently be whether the right of pre -emption prevails in the locality in suit. The plaintiff has already obtained from the Court below a decision as to the amount spent by the vendees on their building and if the order of remand were carried out he would get a decision on two more important issues, still paying a Court‑fee only on Rs. 203. For these reasons I am of opinion that the order of the learned District judge was erroneous and that in the circumstances the plaintiff ought to pay Court‑fee on the value of the site as given in the deed and on the cost of the improvements."
The learned Judge was of the opinion that the plaintiff should pay Court‑fee on the prima facie value of the subject‑matter before he gets an adjudication on the points involved. He said at the end of the judgment :‑‑‑
"I am not giving final decision on the points in issue, but stating how the case appears on the matter so far on the record for purposes of Court‑fee. The plaintiff tan only get an exact decision on those matters after the case has been tried out and he ought to pay Court‑fee on what is prima facie the value of the subject‑matter in dispute before he gets an exact decision on these points and not afterwards."
With the utmost respect I am unable to agree that the plaintiff can be forced to pay Court‑fee on a prima facie basis and to apply for a refund of the excess paid. There is no provision in the Court Fees Act justifying such a course. Under section 7 (vi) read with section 7 (v) the Court‑fee has in such cases to be paid on the market value. Court‑fee is not an interlocutory matter like an injunction which may be decided on prima facie grounds without any final determination by a Court. A plaintiff may, if this course be adopted, be prevented from filing a suit for which he is quite willing to pay the court‑fee required by law. There is force in the contention urged on behalf of the plaintiff that his plaint should not have been rejected unless the value for Court‑fee was determined not prima facie but by final determination of the Court on evidence. Apart from the fact that such a course is nor consistent with the provisions of Court Fees Act, it may result in serious hardship to the plaintiff. The suit may be dismissed in default. It may be dismissed on a preli minary issue of limitation or some other preliminary legal issue without any determination of the market value or the bona‑fide nature of the improvements made. It may be decided by compromise or by arbitration. In all these cases the plain tiff would be left without any remedy to recover the excess Court‑fee paid. Also the refund of Court‑fee is within the discretion of the Court whether it be under section 10 of the Court Fees Act or under the inherent powers of Court. Why should a plaintiff be ordered to pay a Court‑fee for which he is in fact not liable and be left to rely on the discretion of the Court for its refund
The course adopted in Muhammad Anwar and others v. Dial Chand and another is also opposed to the provisions of Court Fees Act. Under section 9 of the Court Fees Act if the Court has reason to think that the market value in the plaint is incorrect. it can issue a commission for report on the market value. Of course as held in Hari Ram v. Akbar Hussain (I L R.29 All. 749) this is only one of the means of investigation of the market value and other methods of inquiry are not exclud ed. Under section 10 of the Court Fees Act if the value stated in the plaint is found as a result of the investigation to be less than the true market value, the plaintiff is to be ordered to make up the deficiency sand the suit is to be stayed till the deficiency is made up. These sections do show that if the Court sees "reason to think" that the market value has been wrongly stated, it has to make an inquiry and can not act merely on what appears prima facie to be the market value.
The question of Court‑fee on improvements is not before me. As, however, the argument with respect to sale price mentioned in the deed and the value of the improvements was the same in Muhammad Anwar and others v. Dial Chand and another it will be relevant to show that the argument does not hold good in the case of improvements. No person is liable to pay Court‑fee. in respect of a relief that he does not pray for. The subject‑matter of the suit in Muhammad Anwar and others v. Dial Chand and others was only a site the possession of which was prayed for and not the improve ments. As pointed out in Durga Das and others v. Nihal Chand and others (A I R 1928 Lah. 852), the plaintiff is not bound even to refer to the improvements, his suit being for possession of land. It is for the defendant to take up a plea with respect .to the structures which he has raised. If the plaintiff is not suing for the improvements also, it is always open to the defendant to remove the structures even during the pendency of the suit. In a pre‑emption suit a Court may on the plea of the vendee direct that before possession of the property is deli vered, the plaintiff shall also pay the costs incurred by the defendant on making improvements. That however does not mean that the subject‑matter of the suit as filed includes the improvements, In any case, if the Court finds that the plaintiff is not entitled to possession of the land sold unless he has also included improvements and is prepared to pay for them he cannot be called upon to pay Court‑fee on the improvements. Whether the plaintiff is ever liable for Court‑fee on improvements is a matter which I am not called upon to decide in this case, and it is sufficient to say that at least till the liability of the plaintiff to pay for the improvements is adjudicated, the plaintiff cannot be ordered to pay court‑fee on the value of the improvements.
The mere fact that the plaintiff will, if this view be adopt ed, get an adjudication on some important questions relating to merits of the case, cannot effect the liability of the plaintiff to pay Court‑fee. This, it will be remembered, is the ground on which Skemp, J. held that the Court should not adjudicate upon a question as to market value and the bona‑fade nature of improvements before full court‑fee is paid. If the issues relating to Court‑fee and merits overlap, it cannot be said that the determination as to correct Court‑fee should be post poned. There is no provision in the Court Fees Act direct ing that in such a case a special procedure should be adopted and before a determination of the issues on merits the question of Court‑fee should be decided on a prima facie basis. I may point out that in ordinary suits for possession also the plaintiff may be able to get a decision on questions relating to merits before payment of full Court‑fee. A plea as to improvements can be taken even in ordinary suits for posses sion and if a question of court‑fee is raised, the question of the value of the improvements and of the bona‑fide nature of the improvements may have to be tried before the case is finally decided. Similarly; in a suit for possession where Court‑fee is to be paid at fifteen times the annual net profits, a decision as to the amount of net profits may be given on an objection as to Court‑fee although the suit is one for mesne profits too, and mesne profits have ultimately to be deter mined in respect of the merits of the case. If in an ordinary suit for possession the consideration that issues are over lapping does not prevent the determination of the question of Court‑fee before a decision is given on merits, there should be no different rule for a suit for pre‑emption. I would, however, point out that the findings with respect to the market value or mesne profits recorded while determining the question of Court‑fee would not bind the parties when the suit is determined on merits. The finding as to market value or net profits would not constitute re.s‑ludicata for the question of Court‑fee is primarily between the states and the party liable to pay court‑fee. The Court can raise this point sup moto as will appear from section 9 of the Court Fees Act. A defendant may keep himself altogether aloof from the inquiry regarding the market value or mesne profits. When issues are framed on the merits of a case no party can be debarred from leading further evidence with respect to the market value or mesne profits merely on the ground that the same has been determined while considering the question of Court‑fee.
That the view taken in Muhammad Anwar and others v. Dial Chand and another will lead to undesirable results can be demonstrated by a reference to the facts of the present case. Here the learned Civil judge, after recording his decision on the question of Court‑fee, was bound to decide also the ques tion of jurisdictional value accordingly because the values for purposes of jurisdiction and Court‑fee are the same in the present case. He had found that the value for Court‑fee was Rs. 2,000 and he was bound, therefore to find that he had no jurisdiction to try the suit, his pecuniary limit being Rs. 1,000. He has not returned the plaint for presentation to a proper Court having sent it to the District judge, but he may well have done so, so that the plaint in a suit, which may, in fact, have been triable by him, may have been return ed. It could hardly be argued that even a question of juris diction can be decided on a prima facie basis. The Court must decide the question of jurisdiction on evidence and the determination must be final so far as that Court is concerned.
I hold that the order passed by the learned Civil judge was wrong in law. Learned counsel for the respondent urges that B no ground under section 115 Civil P. C. has been made out. Of course every wrong decision on a question of law does not attract the application of section 115 Civil P. C., but here the learned Civil judge has mis‑interpreted a law which regulates the exercise of his own jurisdiction. If a Court mis‑interprets a provision of law (as opposed to procedure) regulating the exercise of its own jurisdiction, it acts illegally in the 'exercise of its jurisdiction. If the mis-interpreted provision relates to a matter of procedure, the result will be an irregularity and if material will be within section 115 Civil P. C. The difference between a provision of law and a provi sion relating to procedure may in some cases be a matter not of form but of degree. In the present case more than one clause of section 115 Civil P. C. is attracted. The jurisdiction has been exercised illegally and in any case with material F irregularity. It may even be argued that there is a refusal to exercise jurisdiction for the order of the learned Civil Judge amounts, in the first place, to a refusal .to hear the case unless a Court‑fee, which the law does not require, is paid, and secondly, to a refusal to hear the case at all on account of want of jurisdiction. Whereas, in fact, he may have the jurisdiction. Learned counsel for the respondent has also urged that the lower Court had only followed a judg ment of this Court and, therefore, it could not be said to have acted either illegally or with material irregularity. I do not agree. If the act of the learned Civil judge was in fact illegal, it does not cease to be so because of its being in accordance with a judgment of this Court.
I set aside the order under revision. There is no need to pass any order with respect to the determination of the value for jurisdiction, for the case is now pending before a Civil Judge 2nd Class, having been transferred to him by the learned District Judge. The order directing the plaintiff to pay Court fee on a sun of Rs. 2,000 is hereby set aide. The learned Civil judge will now determine the market value of the property and direct the payment of Court‑fee in accordance therewith. There is no order as costs.
A. H.Petition accepted.
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