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Civil Revision No.T578 of 1984, decided on 22nd June, 1987.

---S.96--Appeal--Jurisdictional value, determination of--Where jurisdictional value fixed by plaintiff in suit was not altered by High Court, same, held, would also be jurisdictional value for purposes appeal filed against judgment of Trial Court, same, held, would also be jurisdictional value for purposes of appeal filed against judgment of Trial Court. [Jurisdiction].

Ilahi Bakhsh and others v., Mst. Bilqees Begum P L D 1985 393; Saifullah Khan v. Aziz Ullah Khan and 3 others P L D 1987 Lah. 320 and S.Kad,ir Hussain Rawthor and 3 others v. Jamila Bi an,, another 1943 Madras Series 497 ref.

Kh.Saeed-uz-Zafar for Petitioner.

Pir Anwar Rehman for Respondent No.1.

Date of hearing: 22nd June, 1987.

Facts giving rise to this civil revision are that respondents Nos.2 to 5, Abdul Hayee khan and others, filed a suit against respondents Nos. 6 to 15, Abdul Majid Khan arid others, for administration of the estate of one Haji Rustam Khan. His estate was confined to a house in Anarkali, Lahore. The suit was brought on 22nd December, 1960 and a preliminary decree was passed therein on 31st May, 1966. Thereafter, the house was auctioned for Rs.55,O00 on 22nd January, 1974. Respondent No.1, Muhammad Saleem, was tile auction purchaser. In view of the auction money the defendants paid fts.9,000 to the plaintiffs whereupon the latter agreed to the dismissal of the suit. Accordingly, the suit was dismissed on 27th April, 1974. Despite that, respondent No.1 took steps to get the auction confirmed and it was ultimately confirmed vide order dated 23rd May, 1979 passed by the Civil Judge, who seas seized of the matter. His order was challenged by the petitioner, Abdur Rashid Khan, who was order of the defendants in the suit, by taking appeal to an Additional District Judge. Jurisdictional value given in the memorandum of appeal was Rs.130 but the plea of the auction purchaser was that correct jurisdictional value was Rs.55,000 for which the house had been auctioned. Agreeing with the auction purchaser, the learned Additional District Judge returned the appeal for presentation before this Court. His order in this regard has been challenged by means of the instant revision.

3. Out of abundant caution, Abdur Rashid Khan also filed First Appeal against Order (F.A.0) No.151 of 1984 before this Court. In fact, this is the appeal which was returned to him by the learned Additional District Judge.

4. This judgment shall dispose of the above civil revision as well as the F.A.O.

5. Abdur Rashid Khan, who filed the aforementioned civil revision and the appeal before this Court, has since died and is represented by his legal representatives, Akhtar Saeed and others.

6. At the time when the impugned order was passed by the learned Additional District Judge he could hear an appeal of the value not exceeding Rs.50,000. It was contended by learned counsel for the legal representatives of Abdur Rashid Khan, hereinafter referred to as the petitioners, that since the jurisdictional value of the suit was Rs.130 the appeal was rightly preferred before the learned Additional District Judge by fixing its jurisdictional value also, at Rs.130. It was further submitted by him that even if the suit had been decreed it would have been decreed for Rs.9,000 which was the share of the plaintiffs in the auction money. Admittedly, the learned trial Court has not determined the jurisdictional value of the suit other than the one fixed by the plaintiffs. In the circumstances, it was urged by learned counsel for the petitioners that the appeal lay before the learned Additional District Judge. In this connection, reliance was placed by him on Ilahi Baksh and others v. Mst. Bilqees Begum (PLD 1985 Supreme Court 393) and Saifullah Khan v. Aziz Ullah Khan and 3 others (P L D 1987 Lah. 320).

7. On the contrary it was argued by learned counsel for the purchaser that the auction purchaser was not party to the and thus he had no occasion to question the value of the suit by the plaintiffs for the purpose of jurisdiction. It was also out by him that the predecessor-in-interest of the petitioners not object to the auction money and thus it was conceded by him the market value of the house was Rs.55,000. Another plea by learned counsel for the auction purchaser was that in administrative suit it is the entire property sought to be of which the market value would constitute the value of the suit and not the share of the plaintiff in property. For this proposition reliance was placed by him on S. Kadir Hussain Rawthor and three others v. Jamila Bi and another Madras Series 497). According to him, the plaintiffs could not valuation of the suit of their own under clause (c) of subsection of section 7 of the Court Fees Act, 1870 for the purpose of and jurisdiction.

8. In the aforementioned case of Saifullah Khan, it was held by that if the jurisdictional value fixed by the plaintiff in his suit is altered by the trial Court, the same would also be jurisdictional for the purposes of appeal. While recording this view, I had upon the precedent cases including the case of Ilahi Bakhsh others cited by learned counsel for the petitioners. In view of authoritative pronouncement of our Supreme Court in the case of Bakhsh and others, it is not possible for me to take a contrary on the basis of the case of S. Kadir Hussain Rawthor and three cited by learned counsel for the respondent. The facts of case relied upon by him are also different from those of the case in hand.

It is not disputed that the jurisdictional value of the suit by the plaintiffs was Rs.130 and it was not altered by the learned trial Court. In view of that jurisdictional value, the petitioners were justified in taking appeal before the learned Additional District Judge who could then hear appeals of the value not exceeding Rs.50,000. In my opinion, therefore, the learned Additional District Judge had erred in returning the appeal filed before him on the ground that he has no pecuniary jurisdiction to hear it.

9. The civil revision is, accordingly accepted. Order of the learned Additional District Judge by which the appeal was returned by him is set aside and the appeal returned by him which is now F.A.O. No.151 of 1984 before this Court, shall be sent back to him for decision on merits. This disposes of the F.A.O. also. There shall be no order as to costs in the civil revision as well as the F.A.O.

10. Impugned order was made by Mr. Masood Akhtar Khan, Additional District Judge, Lahore. Learned counsel for the parties state that Mr. Masood Akhtar Khan had since been transferred and his present successor is Malik Mushtaq Ahmad. Parties shall, therefore, appear before Malik Mushtaq Ahmad, Additional District Judge, Lahore, on 16th July, 1987. Record shall be returned to him immediately.

11. Learned Additional District Judge is directed to re-decide the appeal expeditiously and in any case before 30th September, 1987.

H.B.T./A-176/L Revision accepted.

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