MUHAMMAD SAIR ALI, J.--- Through this civil revision, the petitioner Muhammad Ayub has called in question order dated 01.09.2000 passed by the learned Addl. District Judge, Gujrat whereby he held that the claim of the appellant in the plaint was for the adjustment of Rs.7,000,000/-, therefore, he as the first appellate Court lacked jurisdiction to entertain the appeal and thus returned the same .To the petitioner for presentation before the proper forum, if so advised.
2. The learned counsel for the petitioner read out the pleadings of the parties and stated that a suit for declaration and perpetual injunction was filed by the petitioner-plaintiff fixing the value of the suit for the purpose of court-fee and jurisdiction at Rs. 25,000/-. And that the said suit having been dismissed, an appeal was initiated by the petitioner on the basis of the same value on which the decree of dismissal was passed by the learned Civil Judge through judgment and decree dated 29.05.2000. The learned counsel placing reliance upon a number of cases stated that it was the value of the suit under Section 18 of the Civil Court Ordinance, 1962 that determined the forum of the appeal and not what has been pleaded in the plaint by the petitioner-plaintiff.
3. Contrarily, the learned counsel for the respondent relying upon the cases of "M/s State Life Insurance Corporation and 3 others Vs. Fazal Muhammad and 3 others" (1982 CLC 1162) and Adamjee Paper and Board Mills Ltd. Vs. Maritime Agencies Ltd."(1984 CLC 440) stated that upon the arbitrary fixation of the value the court had the power the direction correction of the value and fixation of the correct value on the basis of the impugned demand of the defendant challenged by the petitioner-plaintiff in the suit.
4. I have considered the submissions of the learned counsel for the parties. It has not been denied that in Para-17 of the plaint value of the suit for the purposes of Court-fee and jurisdiction was determined by the petitioner-plaintiff as Rs.25,000/- and no court-fee was fixed. In the prayers, however the petitioner-plaintiff a decree as under:-
(i) To get the rebate/claim to the extent of Rs.7,000.000/- in the total leas amount...
(ii) To get declaration of order dated 12.06.1998 demanding further amount by the respondent as illegal and unlawful;
(iii) To get consequent mandatory injunction against the respondent-defendant to adjust Rs.
7,000,000/- in the accounts of the petitioner-plaintiff and also to refund of the balance outstanding amount; and
(iv) To get a perpetual injunction restraining the respondent defendant from claming the notice/order amount of Rs.5,227,730/- per memo dated 10.06.1998
5. The Pleadings and the prayer in the plaint show that the petitioner-plaintiff claimed and sough a decree for the adjustment of Rs.7,000,000/- and for the refund of further balance, if any and also a restraint decree against the respondent-defendant from claiming Rs.5,227,730:-.. This claim of- course has to be adjudicated upon by the learned Trial Court. In order to commence the process of adjudication, the written statement was sought from the respondent-defendant. The same was submitted. However the respondent-defendant, failed to raise any objection as to the incorrect valuation of the suit or qua the arbitrariness of the plaintiff in determining the value of the suit at Rs.
25.000/-. The reply to para-17 in the written statement was that the contents of plain's Para-17 were legal. In absence of any objection to the valuation of the suit for the purposes of jurisdiction and the court-fee, no issue was framed by the learned trial Judge. On recording the evidence, the learned trial Judge dismissed the 'suit of the petitioner-plaintiff through judgment and decree dated 29.05.2000. The petitioner filed an appeal thereagainst before the learned Addl. District Judge on the basis of the valuation of suit at Rs.25,000/- and its notation in the decree. The learned Addl. District Judge as the first Appellate Court returned to the prayer made therein that determined the forum of appeal and not the valuation of the suit as made by the petitioner- plaintiff in the present case.
6. As per the learned counsel for the respondent, this order was accepted by the petitioner and the memo of appeal was received back by the petitioner-plaintiff. The petitioner as the plaintiff and the appellant was thus estopped from questioning the impugned order dated 29.05.2000 in the present civil revision.
7. The simple question requiring decision is as to whether the valuation fixed in the plaint by the petitioner-plaintiff was relevant to determine the appellate forum or the claim made in the plaint by the petitioner-plaintiff.
8. The law is well-settled. The Hon'ble Supreme court of Pakistan in the case of "Muhammad Ayub and 4 others Vs. Dr. Obaidullah and 6 others" (1999 SCMR 394) settled the legal position by observing that the forum of appeal was to be determined on the valuation of the suit as mentioned in the plaint and a not as, per the price fixed for the udisputed property by the learned trial court in its the ment and decree. The Hon'ble Supreme Court of Pakistan observed as under:- "In order to resolve the controversy in hand, it will be advantageous to reproduce section 18 of the Civil Courts Ordinance, 1962, which reads as under:-
18. Appeals from Civil Judges---(1) Save as aforesaid an appeal from a decree or order of a Civil Judge, shall lie---
(a) to the High Court if the value of the original suit in which the decree or order was made exceeds five hundred thousand rupees; and
(b) to the District Judge in any other case."
The important aspect is to note "value of the original suit" occurring in the above provision. 'value' has been defined in clause (h) of section 2 of the aforesaid Ordinance, which says that with reference to a suit. Plethora of case-law discussed by the High Court in the impugned judgment fortifies the view that the forum of appeal is to be determined according to . The value of the suit as mentioned in the plaint and the fixation of the price of the disputed property by the trial Court is totally irrelevant, because the judgment is yet .To attain finality. In this view of the matter, we are also of the view that the Additional District Judge erroneously returned the memo of appeal"
9. Following the above judgment, this Court in the case of "Muhammad Younas Vs Surya Bibi and another" (2003 MLD 168) held that the valuation of the suit for the purpose of jurisdiction as fixed by the plaintiff in the plaint determined the forum of the appeal wherefor the learned Addl. District Judge was wrong in considering the claim in the suit as the relevant fact. In the case of Wazir Ahmad and another Vs. Muhammad Tahir and another" (PLD 1992 Lahore 89), it was adjudged that the learned District Judge could not take exception to the suit value fixed by the plaintiff in the plaint for determining the appellate forum.
10. In view of the law settled by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Ayub and 4 others Vs. Dr. Obaidullah and 6 others (1999 SCMR 394), any observation made in the case of "M/s State Life Insurance Corporation and 3 others Vs Fazal Muhammad and 3 others" (1982 CLC 1162) or "Adamjee Paper and Board Mills Ltd. Vs Maritime Agencies Ltd. "(1984 CLC 440) relied upon by the learned counsel for the respondent cannot be given preference. In these cases, however, the question of arbitrariness of fixation of the court-fee was under adjudication by the Court. In the present case, no question of arbitrariness was raised before the learned trial Court by the respondent as defendant. Furthermore, in the above referred case reported as 1984 CLC 440, it was observed that the Court had the power to direct the plaintiff to correct the valuation of the suit in the pleadings of the plaint. No such direction was made in this case. Instead the memo. Of appeal was wrongly ordered to be returned to the petitioner by the learned Addl. District Judge.
11. In view of What has been discussed above, I am of the opinion that the impugned order dated 01.09.2000 of the learned Addl. District Judge, Gujrat has been passed on wrong interpretation of the law on the subject. The same is thus unsustainable for having been passed without jurisdiction.
The impugned order dated 01.09.2000 is therefore set aside.
12. Upon setting aside the impugned order dated 01.09.2000, the natural consequence is to hold the appeal filed by the petitioner as pending. The learned counsel for the respondent informed the Court that the memo. Of appeal on return was received by the petitioner as per the directions of the learned Addl. District Judge impugned order. In my opinion, receipt of memo. By the petitioner does not affect petitioner's right or the remedy before the proper Appellate Court. The impugned order dated 01.09.2000 has been held to be without jurisdiction and unlawful, therefore, any administrative or managerial act undertaken pursuant thereto is also illegal. Furthermore, the receipt of the memo of appeal upon the order of return by the learned first Appellate Court was an involuntary act of the petitioner. He did not voluntarily withdraw the appeal under the principles of Order XXIII read with Orders XLI & XLIII of the Civil Procedural Code. Instead he sought adjudication from the first Appellate Court by filing his appeal within the period of limitation. The memo. Of appeal was ordered to be returned upon wrong interpretation of the law by the learned Addl.
District Judge, Gujrat. This order placed the petitioner under nuwanted compulsion which was neither caused nor was consented to by the petitioner. As such return by the registry of the learned first Appellate Court of the memo. Of appeal to and its receipt by the petitioner could not attract the principles of estoppel against the petitioner to deny him to his vested right to the remedy of an appropriate appeal.
13. The appeal shall; for the above reasons, be deemed to be pending before the learned first Appellate court. The memo. Of appeal, as per the learned counsel for the petitioner, was filed alongwith the present civil revision. The same shall be returned to the petitioner urgently and without loss of further time. The petitioner shall re-present the same before the learned first Appellate Court for consideration an decision of the appeal in accordance with the law. The reasonable time consumed by the petitioner in receiving the original memo. Of appeal back from the office and re-presenting the same before the learned Addl. District Judge shall not be held against the petitioner. Interest of justice requires an expeditious decision of the appeal.
14 This civil revision is accepted in above terms with no order as to the costs.
Civil .