ABDUL HAMEED DOGAR, J.--- This petition is directed against the order, dated 2-2-2006 of the learned Judge of Peshawar High Court, D.I. Khan Bench whereby preliminary objections raised by petitioner with regard to maintainability of regular first appeal was rejected and it was held that in the instant matter the learned High Court has pecuniary jurisdiction to hear and dispose of regular first appeal directly.
2. Learned counsel for the petitioner vehemently contended that regular first appeal was maintainable before District Judge. According to him, the suit has to be valued at Rs,1,700 for the purpose of court-fee and the learned High Court has no jurisdiction to entertain the same.
According to him, it is settled law that the valuation of the suit for the purposes of jurisdiction has to be determined as per court-fee. When confronted that learned trial Court during the trial of the suit and after recording of evidence having found that court-fee was deficit, directed petitioner to pay court-fee and determined the value of the suit at Rs,11,50,000. Learned counsel for the petitioner admitted that the court-fee as required was paid. It was held in that case of Allah Yar v.
Muhammad Riaz and others PLD 1981 SC 489 that mere fact of defendant not having pressed question of deficiency in court-fee at trial does not relieve Court of obligation of looking into matter, determining correct amount of court-fee and seeing deficiency made up. In a suit for specific performance the value of the suit has to be determined according to market value of the property prevailing in the locality. There is a specific provision in section 7(x)(a) of the Court Fees Act, 1870 that a suit for specific performance is to be valued for the purposes of court-fee and jurisdiction according to the sale consideration. The word "consideration", prima facie, means the amount agreed upon between the parties in respect of the contract and not a portion of the consideration remain payable at the time of suit. In the case of S.P. Gupta v. Abdul Rehman AIR 1958 All. 851 it was held that court-fee payable on the suit was the amount of consideration of the sale and not on the portion of the consideration which according to the plaintiff was payable at the time of the suit. In the instant case as per agreement to sell value of the property was mentioned as Rs,11,50,000, out of which petitioner paid Rs,10;00,000 to respondent No,1 Mst. Qamar-un-Nisa and Rs,1,50,000 was to be paid at the time of attestation of mutations. Thus, for the purposes of court- fee suit was valued at Rs,11,50,000 and in such circumstances pecuniary jurisdiction lies with the High Court. We do not find any justification to interfere with the findings of the High Court that it had got the pecuniary jurisdiction and regular first appeal was competently filed before it, as such, preliminary objection was rightly rejected. Accordingly, the petition being devoid of any force is dismissed and leave to appeal refused.