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Regular Second Appeal No. 77 of 1985, heard on 2nd December, 1985.

‑‑‑S. 96‑‑Appeal‑‑Lack of jurisdiction‑‑Effect‑‑Where Court of appeal had no pecuniary jurisdiction, any adjudication made by it, held, would amount to total nullity‑‑Absence of jurisdiction being apparent, failure to take notice of same by Court of appeal would not cure illegality.

Ghulam Mohy‑ud‑Din and others v . Barkat Ali and others 1984 C L C 1171 rel. (b) Civil Procedure Code (V of 1908)‑ ‑‑‑S. 96‑‑Court Fees Act (VII of 1870), S. 7(vi)‑‑Punjab Pre‑emption Act (I of 1913), S. 21‑‑Pre‑emption suit‑‑Appeal‑‑Jurisdictional value beyond jurisdiction of Appellate Court‑‑Where Appellate Court lacked pecuniary jurisdiction, judgment and decree passed by said Court were set aside and appeal was sent back with direction to return same to appellant for presentation before Court of competent jurisdiction, if so advised.

Ch. Muhammad Safdar Yasin for Appellant.

Ch. M.A. Latif Amritsar for Respondents.

Date of hearing: 2nd December, 1985.

For proper appreciation of the controversy raised, facts in brief may be given in some broad outlines. Dispute concerns land measuring 94 Kanals 18 Marlas, situated in Chak No. 160‑E.B., Tehsil Vehari. It was sold by Mst. Maqbool Jan and others to Taj Muhammad and Abdul Ghafoor for a sum of Rs.70,000 vide registered deed of sale, dated 5‑2‑1979. Ghulam Mustafa claimed ownership of the estate and brought a suit to pre‑empt the aforenoted sale in favour of the vendees. Suit was instituted, on 3‑2‑1980 in the Court of Senior Civil Judge, Vehari. In para. 8 of the plaint, the valuation for purposes of jurisdiction was assessed at Rs.70,000. Jurisdictional value as given in the plaint remained unaltered. Vendees resisted the suit. As many as ten issues were framed reflecting the divergence of pleadings. Learned Senior Civil Judge, Vehari vide his order, dated 26‑7‑1983 rejected the plaint under Rule 11,. Order VII of the Code of Civil Procedure on the ground that the plaint was deficiently stamped without allowing an opportunity to the pre‑emptor to pay the discovered deficit court‑fee. Pre‑emptor appealed to District Judge, Vehari. It was heard and decided by learned Additional District Judge, Vehari who dismissed the appeal, on 19‑1‑1985. Dissatisfied, pre‑emptor has come up to this Court in second appeal. While addressing preliminary arguments at the admission stage appellant's counsel himself referred to the decision of this Court in Ghulam Mohy‑ud‑Din and others v. Barkat Ali and others 1984 C L C 1171 to contend that the Court of appeal had no jurisdiction to entertain and decide the appeal because of the jurisdictional value given in the plaint. Ch. M.A. Latif Amritsari, Advocate learned counsel appearing for the respondents is also of the view that jurisdictional value being Rs.70,000 District Court had no jurisdiction to entertain, hear and decide the appeal. Counsel are in agreement that District Court could entertain appeal upto value of Rs.50,000 only. Facts, therefore, are not in dispute. Since the Court of appeal had no jurisdiction, any adjudication made by it would be an act of total nullity. Absence of jurisdiction being apparent, its non‑noticing by the Court of appeal either at the instance of the appellant or respondents would not cure the illegality. There is a marked difference between total lack of jurisdiction and erroneous A exercise of jurisdiction. The present case falls in the former category. In this view of the matter, I find myself in respectful agreement with the view taken by this Court in Ghulam Mohy‑ud‑Din and others v. Barkat Ali and others and pass a similar order as was made in aforenoted precedent.

In result, this appeal is allowed, judgment and decree of learned Additional District Judge, Vehari is set aside and the appeal is sent back to him with a direction to return the same to the appellant to present it before the Court of competent jurisdiction, if so advised. Since the palintiff/appellant was himself guilty of taking appeal before the Court of District Judge when the jurisdictional value (Rs.70,000) was noted on the face of decree sheet which could not have escaped his attention, I feel that he should be burdened with costs. Accordingly, the appellant shall pay the costs of the respondent which are quantified at Rs.1,000.

A. A. Appeal allowed.

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