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Second Appeal h'o..10 of 1955, decided on 3rd January 1956, from the order of A. U. Qureshi, Additional District Judge, Lahore, dated the 19th April 1955, reversing that of Ch. Ghulam Hussain, Civil Judge, III Class, Lahore, dated the 29th December 1953.

----S. 11‑Objection as to jurisdiction not taken in Court of first instance, nor in memo randum of appeal before the Additional District Judge‑Objection should not be allowed to be raised at the hearing.

In a suit for pre‑emption before a Civil Judge, III Class, the plaintiff claimed pre‑emption on payment of Rs.10,000 but the defendant claimed Rs.16,942‑8‑0 as the price of the sale transaction. The amount of Rs.10,000 itself, however, exceeded the pecuniary jurisdiction of the Court. No objection as to jurisdiction was raised by the defendant. A decree for possession by pre‑emption was passed on pay ment of Rs.10,000 the defendant appealed but again ignored the plea of jurisdiction in his memorandum of appeal. The Additional District judge, however, on the point of jurisdiction, ordered the plaint to be returned in order to be presented to the proper Court.

On the plaintiffs second appeal Held, that under section 11, Suits Valuation Act (VII of 1887), the Additional District Judge ought not to have given effect to the objection raised before him at the time of heating.

The order returning the plaint was set aside and case remanded for disposal according to law.

Shankar Nath v. Tirlok Singh A I R 1929 Lah. 509 (2) rel.

Abdur Rahman v. Charag Dan and others 19 P R 1908, Chandgi Ram v. Ram Sukh A I R 1933 Lah. 767, Jagdish Ram v. Mst. Chinto A I R 1936 Lah. 133, Sham Singh v. Jagat Singh

A I R 1938 Lah. 765, Muhammad Af zal Khan and others v. Nand Lai 16 P R 1908 and Sardar Khan v. Mst. Aisha

Bibi I L R 6 Lah. 105 ref.

Siraj‑ud‑Din Ahmad and h. H. Naqvi on 25‑10‑1955 only for Appellant.

Ghias Muhammad for Respondent.

‑This second appeal arises out of a suit brought by the plaintiff‑appellant to pre‑empt a sale- deed executed by one Dr. Qadir Bakhsh in favour of Barkat Ali, who died during the pendency of the suit and is represented by the present respondents in this appeal. The sale purported to have been made for Rs.16,942‑8; but the plaintiff contended that that amount was fictitious and that the actual amount paid was only Rs.10,000, which was also alleged to be the actual market value. The learned trial judge, who was a Civil Judge 3rd Class, upheld the contention of the plaintiff and decreed the suit on payment of Rs. 10,000 only. The representatives of the vendee appealed and the learned Additional District Judge, Lahore, held that the trial Court had not the jurisdiction to pass a decree on the payment of Rs.10,000, which amount exceeded its pecuniary jurisdiction and, setting aside the judgment and decree of the lower Court, ordered the plaint to be returned to the plaintiff for pre sentation to the proper Court. The plaintiff has come up to this Court in second appeal against the order passed by the lower appellate Court.

Only two points arise for decision in this appeal. The first question is whether the trial Court, which undoubtedly had the jurisdiction to try the suit, could pass a decree on the payment of an amount in excess of its pecuniary jurisdiction. Secondly, if it could not pass such a decree, was the lower appellate Court justified, in the circumstances of this case, to take any notice of the defect in the decree of the trial Court in view of the provisions of section 11 of the Suits Valuation Act. As regards the first question, it must be answered in the negative in view of a Full Bench ruling of the late Punjab Chief Court reported as Abdur Rahman v. Charag Din and others (19 P R 1908). That ruling, to the best of my knowledge, still holds the field and has been consistently followed in that part of the country which until recently was known as the Province of Punjab, in spite of the fact that it is based upon reasoning which is not altogether convincing and its logical conclusions have not been given effect to in some subsequent rulings vide 83 P R 1912 and A I R 1925 Lah. 41. In Chandgi Ram v. Ram Sukh (A I R 1933 Lah.767) a Divisian Bench of this Court laid down that a decree for possession subject to encumbrance which exceeds the pecuniary jurisdiction will not. make the decree so passed ultra vires of the Court.

Another Division Bench of this Court, deciding the case of Jagdish Ram v. Mst. Chinto (A I R 1936 Lah. 133), observed: The authorities relied upon by the appellant are 16 P R 1908, 7 Lah.570 and 1934 Lah. 545. Those authorities lay down the law for suits for rendition of accounts and for redemption of mortgages, but the principles therein enunciated cannot be extended to pre‑emption suits, but can only be applied to suits for which the Suits Valuation Act. VII of 1887 lays down no rule for the determination of the jurisdiction value". While it is true that the principle in question cannot logically be extended to pre‑emption suits, the remarks of the learned judges are not factually correct with reference to the case reported as 16 P R 1908, which was a case of pre‑emption and not for rendition of approved. This ruling, however, was approved and followed in Sham Singh v. Jagat Singh (A I R 1938 Lah. 765), a case decided again by a Division Bench of this Court. It is wholly un necessary to express my own views on this subject because the authority of the Full Bench ruling in Muhammad Afzal Khan and others v. Nand Lai's case (16 P R 1908) has not been so far over ruled and still prevails.

I am, however, of the opinion that section 11 of the Suits Valuation Act is applicable to the circumstances of this case. The relevant portions of that section run as follows :‑

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

(a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower appellate Court in the memorandum of appeal to that Court, or

(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.

(2) If the objection was taken in the manner mentioned in clause (a) of subsection (1), but the appellate Court is not satisfied as to both the matters mentioned in clause (b) of that subsection and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance or lower appellate Court".

Learned counsel for the respondents has contended, and not without some justification, that these provisions apply only to a case of under‑valuation or over‑valuation which is not the case here; and that they come into play only where the jurisdiction of the trial Court to entertain the suit, and not to pass the decree, is in question. It is true that a case of the present nature, where the trial Court possessed the jurisdic tion to try the suit but not the power to pass an appropriate decree in accordance with its findings, is not expressly provided for in section 11. But I am convinced that the present case is clearly covered by the principle underlying that section and I am in no doubt regarding the real meaning and intention of that provision upon the language employed by the legislature. In Sardar Khan v. Mst. Aisha Bibs (1 L R 6 Lah.105), decided by a Full Bench of five judges, the following observations were made :‑

"Section 11, however, provides an exception to the general rule and lays down that a party, who has not taken objec tion as to the pecuniary jurisdiction of the Court at the time specified in clause (a), cannot be allowed to dispute that jurisdiction afterwards. It appears that the object of the Legislature in enacting this provision was to ensure that the time and labour spent by a Court in deciding a case should not be wasted if the party concerned has joined issue and gone to trial upon the merits without raising objection to the pecuniary jurisdiction of the Court at the earliest opportunity. It will be observed that a similar rule has been enacted by the new Code of Civil Procedure in order to cure a defect of territorial jurisdiction. Section 21 of the Civil Procedure Code of 1908 provides that no objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice".

The present case, to my mind, is entirely covered by a decision of the Division Bench in Shankar Nath v. Tirlok Singh (A I R 1929 Lah. 509 ). The head‑note of that case clearly brings out the point decided and is as follows :‑

"Where the defendant, in a pre‑emption suit, challenged the valuation of the suit and claimed a sum, which was in excess of the trial Court's pecuniary powers, and this fact was prominently brought to the notice of the plaintiff, who, notwithstanding this, raised no objection on the score of jurisdiction and insisted on the suit being proceeded with in the trial Court.

Held: that it was not open to plaintiff to raise in appeal the question of jurisdiction and to contend that the trial Court's decree had been vitiated by the fact that it had decreed possession on payment of a sum exceeding its pecuniary powers. Even if the objection as to jurisdiction was raised at the proper time, the appellate Court must be satisfied that the valuation had prejudicially affected the disposal of the case on merits before the objection could be given effect to".

In the present case, the plaintiff was claiming a decree for Rs.10,000, an amount which was clearly in excess of the pecuniary jurisdiction of the trial Court. The defendant, on the other hand, instead of raising the objection that the Court could not pass a decree for that amount and, therefore, the plaint should be returned for presentation to the proper Court, claimed a decree even for a greater amount. Thus no objec tion was raised by the defendant to the jurisdiction of the Court to decide the case although it was open to the defendant to have brought up this matter at the very outset. When the defendant filed the appeal before the District Court, he again failed to take objection to the power of the trial Court to pass the decree for an amount exceeding its pecuniary jurisdiction. This failure on his part clearly brings the case within the purview of section 11 of the Suits Valuation Act. For all these reasons, I am of opinion that the learned Additional District judge ought not to have given effect to the objection raised before him at the time of hearing. I would, therefore, accept this appeal and, setting aside the order of the lower appellate Court, remand the case for decision according to law.

A. H. Case remanded.

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