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Second Appeal from Order No, 5 of 1959, decided on 7th January 1960.

S. 7 (v)‑Valuation for purposes of Court fee and jurisdiction as given in plaint admitted by defendants‑Subsequent objection to valuation barred‑Suits Valuation Act (VII of 1887), S. 9.

S. 24‑High Court Rules and Orders, Vol. I, Chapter 13, para. 4‑Pre‑emption suit Trial Judge on finding that value of property exceeded his pecuniary jurisdiction sent case to District Judge who entrusted same to competent Court‑Procedure, held, proper.

The plaintiffs valued their suit for pre‑emption on the basis of net profits and the defendants did not raise any objection to the suit as valued. The parties were in disagreement on the market‑value of the property, on which the claim could have been decreed if the right of any of the plaintiffs was established. Inquiry resulted in the finding that the value of the property exceeded Rs. 1,000, whereupon, the trial. Civil Judge sent the case to the District Judge for transfer to the file of some other Court competent to dispose of the same, being of the view that since prima facie the claim had to be decreed for a sum which exceeded his pecuniary jurisdiction, he could not dispose of the case. The District Judge passed an order withdrawing the case from the file of the trial Civil Judge and transferring the same to the file of the Administrative Civil Judge who disposed it of.

Held, that the order of transfer passed by the District Judge was a proper order.

Section 24, C. P. C., envisages a situation where the case has to be tried but not disposed of. The situation, in the instant case, was akin to one wherein the trial by the Civil Judge was perfectly leg l but he was incompetent to dispose of the case, because it exceeded his pecuniary jurisdiction. Such a situation was expressly contemplated by the language of section 24 and the order passed by the learned District Judge, being a matter purely of construction of statute, was above exception.

Para. 4, Chapter 13, Vol. I, High Court Rules and Orders provides that a Subordinate Court can send to the District Judge a case for transfer to some other Court on the ground that it is beyond its jurisdiction, or on similar grounds.

Haji Faiz Muhammad v. Sayed Riaz Hussain P L D 1957 Lah. 689 and B. Kanhaiya Lal and others v. Hamid Ali A I R 1940 Oudh 164. ref.

Muhammad Ismail Bhatti for Appellants.

Siraj‑ud‑Din Ahmad for Respondents.

Dates of hearing: 17th December 1959 and 7th January 1960.

This is a defendants appeal against the decree of the learned Additional District Judge, Muzaffargarh, in a pre‑emption suit, by which in disagreement with the trial Judge he found that tie suit was not one for partial pre‑emption and was erroneously dismissed by the trial Judge on that finding and remanded the case for the trial of the other, issues.

2. The facts necessary to understand the points in contro versy may be briefly stated. The land, which is the subject matter of pre‑emption, was sold by Mst. Sablay and Mulazim Hussain in favour of the appellants and the contesting respondents brought a suit for pre‑emption, in which their counsel made a statement to the effect that as the land sold by Mst. Sablay has been the subject of a suit for a declaration under custom that. it will not bind the reversioners and the aforesaid claim has been decreed, the plaintiffs may be allowed to pre‑emption payment of the sale price, which may be determined by the Court, of the land sold by Mulazim Hussain, and the‑land sold by Mst. Sablay may be decreed in their favour without payment of any amount. This statement of the counsel for the plaintiffs was followed by a state ment by the counsel for the defendants, who stated that in view of the statement made by the counsel for the plaintiffs the suit would be one for partial pre‑emption and, therefore, liable to dismissal on that ground. This statement was followed by another state ment made by the counsel for the plaintiffs. The pith and substance of that statement is that in case the Court found that the land affected by the decree in the declaratory suit could not be made the subject‑matter of a suit for pre‑emption, then the claim with respect to the remaining land may be decreed in his favour. On the basis of the aforesaid statements, the learned counsel for the appellants has contended that the reasonable conclusion to draw will be that the plaintiffs claimed a decree for pre‑emption against the land sold by Mst. Sablay without payment of any consideration so far as that part of the sale is concerned.

3. The above argument is supported on the plea that the first statement also expressed the willingness to have the land but on payment of no consideration. The argument is plausible, but on close examination I do not feel inclined to agree with the conten tion of the learned counsel and the construction, which he places on those statements. It is true that initially the plaintiffs wanted to have the whole land and the land sold by Mst. Sablay on pay ment of no consideration and if the statement rested on that alone, there would have been great force in the contention of the learned counsel for the appellants that no suit for pre‑emption could succeed on that basis, but the statements have to be read in their context and taking all the three statements together the fair con clusion to draw will be that he would have a decree for pre‑emption for the entire land covered by the sale deed if the findings of the Court be that in spite of the declaratory decree the claim would have been decreed. This will conclude this part of the attack by the learned counsel against the decree of the learned District Judge. In agreement with the learned District Judge, therefore, I hold that on the pleadings no question of partial pre‑emption is involved and his direction remitting the case to the trial Judge to dispose of the other issues was correct.

4. This, however, does not end the matter. The learned counsel for the appellants has attacked the decree on another ground. His contention is that this suit was filed on the 2nd of January 1956 before Civil Judge 4th Class, Leiah at Alipur. The suit was valued on the basis of net profits and the defendants did not raise any objection on the suit as valued. The parties were in disagreement on the market value of the property, on which the claim could have been decreed if the right of any of the plaintiff, was established. The inquiry resulted in the finding that the' value of the property exceeded Rs. 1,000. On this, the trial Civil Judge sent the case to the learned District Judge for transfer of the cast to the file of some other Court competent to dispose of the same. The learned Civil Judge expressed the view that since prima fact the claim had to be decreed for a sum which exceeded his pecuniary jurisdiction, he could not dispose of the case. The learned District Judge passed an order withdrawing the case from the file of the Civil Judge, 4th Class, Leiah at Alipur, to the file of the Adminis trative Civil Judge, Muzaffargarh, who disposed of the case in the manner indicated above. It is contended on these facts that there was no power in the District Judge to transfer the case for the case before the Civil Judge, Leiah, on the finding that it exceeded his pecuniary jurisdiction was not pending before him within the meaning of section 24 of the Code of Civil Procedure, and since the case was before a Court with no jurisdiction it could not have been validly transferred to any other Court and the proper procedure to follow should have been under Order VII, rule 10 to return the plaint for presentation to a Court competent to try it. In order to examine this objection it will be necessary to refer to section 24 of the Code of Civil Procedure. The section provides that the District Judge may, at any stage, withdraw any suit pending in any Court subordinate to him and transfer the same for trial or disposal to any Court subordinate to him and competent to try or on dispose of the same. It will be useful at this stage to refer to Order VII, rule 10 of the Code of Civil Procedure, which provides that the plaint shall, at any stage of the suit, be returned to be presented to the Court, in which the suit should have been insti tuted. The argument of the learned counsel for the appellants is that the suit should have been instituted in a Court with a pecuniary jurisdiction exceeding Rs. 1,000: The argument, however, misses the point that under the Court Fees Act of 1870 in suits concern ing agricultural lands under clause (v) of section 7 of the Court Fees Act a procedure is prescribed by which the value has to be determined and under section 9 of the Suits Valuation Act of 1887 rules have been framed. which prescribe a method of determining the value of a suit for the purposes of jurisdiction. The value for court‑fee or for jurisdiction is determined under a fiction of law, which has no reference to actual situation. The plaintiffs in the present case valued as required by law both for purposes of court fee and jurisdiction and their valuation was not objected to by the B defendants. It should be taken to have been admitted by the defendants that the suit was properly valued both for purposes of court‑fee and jurisdiction. In this view of the matter, no objec tion could be raised as to the Court before whom the plaint could have been validly instituted and on this finding it is clear that the provisions of Order VII, rule 10 of the Code of Civil Procedure are not attracted.

5. This leaves us to consider the objection founded on the language of section 24 of the Code of Civil Procedure. The burden of the learned counsel for the appellants argument is that on the finding that prima facie the market value of the land exceeds the pecuniary jurisdiction of the Court, the proceedings were no longer pending before him. If the proceedings were not pending, then he had nothing to transfer nor to return. There was some thing before him which called for some action to be taken whether it was in the form of returning the plaint for presentation to the proper Court or forwarding the papers to the learned District Judge for such action as he may consider necessary under section 24 of the Code of Civil Procedure. The section itself envisages a ‑situation where the case has to be tried but not disposed of. The situation, which has arisen in the present case, is akin to that situation where the trial by the Civil Judge was perfectly legal but he was incompetent to dispose of, because it exceeded his pecuniary jurisdiction. Such a situation is expressly contemplated by the language of section 24 and the order passed by the learned District Judge, being a matter purely of construction of statute, seems to me to be above exception. It is, however, contended on the authority of a Single Bench judgment of this Court reported as Haji Faiz Muhammad v. Sayed Riaz Hussain (P L D 1957 Lah 689) that when a plaint is before a Court with no jurisdiction there is no jurisdiction in the District Judge to transfer the case to another Court under section 24 of the Code of. Civil Procedure. This case, however, is not opposite to the facts of the present case. In this case, the plaint was valued for purposes of court‑fee and jurisdiction on a sum of Rs. 15, the basis of calculation being fifteen times the net profits. An issue was raised with respect to the jurisdiction of the Court to entertain the suit. The evidence disclosed that fifteen times net profits would come to Rs. 1,087‑1‑9. It is obvious that the plaint was initially instituted before a Court with no jurisdiction and in cases such as this, in respectful agreement with my brother Ortcheson, J. who delivered that judgment, there can be no manner of doubt that initially there was no jurisdiction in. the Court to entertain the plaint and there was no power under section 24 reposing in the District Judge to transfer the case to some other Court. The learned counsel has also referred to another case. B. Kanhaiya Lal and others v. Hamid Ali (A I R 1940 Oudh 164) in support of the proposition that where there is absence of initial jurisdiction to entertain a plaint, no power reposes in any Court under section 24 to treat it as a valid plaint which forms subject‑matter of a transfer to some other Court. The principle therein enunciated is sound and it will be of little help to the learned counsel so far as the present case is concerned. The procedure followed by the learned Civil Judge in this case finds an express mention also in Volume I, Chapter 13 of the High Court Rules and Orders. Para. 4 provides that a subordinate Court can send to the District Judge a case for transfer to some other. Court on the ground that it is beyond its jurisdiction, or on similar grounds. It appears to me, therefore, that the order passed by the learned District Judge in this case was a proper order and the case could have been properly transferred.

6. In this view of the matter, it seems to me that there is no force in this appeal, which is accordingly dismissed with costs.

7. The learned counsel for the appellants has asked for a certificate under clause 10 of the Letters Patent of this Court, but I do not consider it a fit case in which a. certificate should be granted. The prayer is refused.

On enquiry from office it transpires that the plaint was presented to Sh. Saeed Ahmad who at the relevant time was invested with powers of Second Class Judge and could have enter tained the plaint in the value subsequently found.

K.M.A. Appeal dismissed.

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