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Civil Petition No.255‑K of 1985, decided on 29th May, 1985.

(On appeal from the judgment of High Court of Sind, dated 24‑3‑1985 in First Civil Appeal No. 82 of 1971).

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 92‑‑Suit under S. 92, C.P.C.‑‑Dismissed on ground of being beyond pecuniary jurisdiction of District Judge‑‑Appeal dismissed by High Court with direction that plaint be returned for presentation to civil Court having jurisdiction‑‑Leave to appeal‑‑Finding of trial Court/High Court not challenged‑‑Plea that leave be granted so that petitioners might apply to Supreme Court for making a suitable application for amendment of their plaint, repelled as this prayer was not made before trial Court or High Court nor even in memo of petition before Supreme Court‑‑Order of High Court being unexceptionable, petition for leave to appeal dismissed.

P L D 1971 Kar. 682 ref.

Rashid Akhtar Qureshi, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 29th May, 1985.

This petition arises out of a suit filed by petitioners in the District Court, Karachi against respondents, under section 92 of the Code of Civil Procedure, by which they sought for the following reliefs:

(a) Declaration that the sale of the portion measuring 26,400 square yards of Plot No.LR‑3/1, Lawrence Road, Karachi by defendants 1 and 2 to defendants 3 and 4 by the sale‑deed dated 14‑1‑1965 is illegal and inoperative in law.

(b) Setting a scheme of the Trust‑land, viz. Plot No. L.R.3/1 for the welfare and rehabilitation of the Christian families.

(c) Appointment of a Commission for taking accounts of income and expenditure of the said trust property.

(d) Removal of Reverend Chandu Ray and Lahore Diocesan Trust Association from trusteeship of the said trust property and appointment of a new trustee for the administration of the said trust‑property.

2. The allegations made by the petitioners were controverted by respondents, and it was, inter alia, pleaded that the District Court had no jurisdiction to entertain the suit for the reason that the valuation of the suit‑land shown ‑ by the plaintiffs themselves was beyond the pecuniary jurisdiction of the District Court. It was further pleaded that the suit was res judicata since earlier Suit No. 129 of 1965 filed by some of the petitioners in which the same reliefs were claimed was dismissed by the judgment dated 9‑4‑1969.

3. In view of the legal objections raised by the respondents, learned trial Judge framed the following preliminary issues:

(1) Whether this Court has jurisdiction to entertain the suit

(2) Whether the suit has been properly valued and the court‑fee is paid thereon

(3) Whether the suit is barred by res judicata

(4) Whether the suit is barred by provision of Order II, rule 2, C.P.C.

4. The learned trial Judge, after hearing the learned counsel for the parties, decided the first three issues against petitioners and dismissed the suit in view of the decision on the third issue that the suit was barred by the doctrine of res judicata. On the first issue as to the pecuniary jurisdiction of .the District Court, learned trial Judge held as follows:

"The plaintiffs want to set aside the sale‑deed in favour of the defendants Nos. 3 and 4. The property in consideration was sold in rupees ten lacs, therefore, the subject‑matter of the suit is rupees ten lacs. The pecuniary jurisdiction of this Court is limited upto Rs.25,000, therefore, the suit of the plaintiffs is beyond the jurisdiction of this Court. I need not discuss the argument of learned counsel for the defendants Nos. 3 and 4 that the suit should have been instituted in the High Court, as the High Court is Principal Court of civil jurisdiction for Karachi and the suit under section 92, C.P.C. is to be filed in the Principal High Court of jurisdiction."

5. Petitioners challenged the judgment and the decree passed by the learned trial Judge in an appeal in Sind High Court, and the learned Judge who heard the case upheld the plea of the respondents that the District Court had no pecuniary jurisdiction to try the suit with these observations:

"Now, as regards the first issue that the District Court had no pecuniary jurisdiction suffice it to say that it is itself stated in the plaint that the property in suit is worth Rs.50 lacs. However, the sale‑deed which is sought to be declared as void ab initio and inoperative in law was executed in consideration of Rs.10 lacs. It is, therefore, apparent that the value of the suit property is far exceeding the pecuniary jurisdiction of the District Court which, at the relevant time, upto Rs.25,000 only. Relying on the decisions cited by the learned counsel for the respondents and more particularly the decision reported in P L D 1971 Kar. 682 I am clear in my mind that the Court of District Judge did not have pecuniary jurisdiction to entertain the suit and the valuation fixed by the appellant at Rs.200 was arbitrary and the suit was filed in a wrong Court."

On this view of the case, learned Judge in the High Court dismissed the appeal, with the direction that the plaint is to be returned to the appellants to be presented to the Civil Court having jurisdiction in this case which would be the High Court of Karachi."

6. Petitioners now seek leave to appeal from the judgment of the High Court and the learned counsel appearing in support of the petition does not challenge the findings of the learned Judge in High Court and the learned trial Judge that the suit as presented was beyond the pecuniary jurisdiction of the District Court, Karachi and it should have been filed on the original side of Sind High Court. Learned counsel however submits that leave to appeal be granted to the petitioners so that they may apply this Court for making a suitable application for amendment of the plaint so as to delete the prayer (a) in the suit regarding the declaration as to the invalidity of the sale of the land by respondents 1 and 2.

7. Since the petitioners do not challenge the impugned judgment of the High Court on any score, we see no reason to grant leave to, appeal. So far the request of learned counsel for the petitioners is concerned all that can be said is that they should have made this prayer before the learned trial Judge. They chose not to do so and instead challenged the finding of the trial Judge in this regard in an appeal before the High Court. Even before the High Court, they made no such prayer. Indeed, it has not even been made in the memorandum of the petition in this Court. Since the plaint of the suit as presented was admittedly beyond the pecuniary jurisdiction of the District Court, the High Court has rightly directed that it should be returned to the petitioner for presentation before the Court of competent jurisdiction No exception in law can be taken with the impugned Judgment of the High Court, the petition is dismissed.

M . I . Petition dismissed.

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