MUHAMMAD AKHTAR SHABBIR, J. --- This judgment will dispose of F.A.O. No. 132 of 2005, Civil .Revision No. 597 of 2005 and Civil Revision No. 617 of 2005, arising out of the same impugned judgment involving identical common question of law and facts.
2 Brief resume of the case is that the appellant Messrs Voyage de-Air, General Sales Agent of Shaheen Air International Pvt. Limited and Babar Hussain Shah son of Muhammad Hussain is the Managing Partner - of Messrs Voyage de-Air- plaintiff, who had instituted a suit for . Declaration with permanent injunction against the defendant/petitioner in Civil Revision No. 597 of 2005 in the Court of Senior Civil Judge,- Islamabad, on 7.12.2004, for issuance of decree for declaration to the effect that the letters/actions for claiming/recovering the illegal/disputer amounts from the plaintiff by the defendant are illegal, r fide, tainted with ulterior motives, qua the approvals granted by the management against the principles of natural justice and terms and conditions governing the subject and ineffective qua the rights of the plaintiffs with permanent relief of injunction restraining defendants/respondents Nos. 1 to 7 from encashing the bank-guarantees or from terminating 'the above agreements (management agreement and GSA agreement dated 10.12.2001 Exhs. C-2 and .3) in any Manner or from interfering into the business affairs of the plaintiffs or reservation system and codes or from physical possession/control over all the offices, outlets. Equipments: revenue document/stock, including outlets at Islamabad Airport and reservation system and codes in any manner. Along with the suit. The plaintiffs also filed an application for temporary injunction under. Order XXXIX.
Rules 1 and 2, C.P.C. The plaint as well as the application was contested by the defendants/respondents Nos: 1 to 7 herein in the appeal. The learned Trial Court after hearing the preliminary arguments issued interim injunction in favour of the plaintiffs/appellants vide its order, dated 7.12 2004..
3. The plaintiffs filed an application for initiation of proceedings under Order XXXIX, Rule 2, sub-rule
(3) read with'Section 151, C.P.C. Against the defendants for violation of the order, dated 7.12.2004.
Notice was issued by the Court in this application. During the course of hearing, an application under Order I, Rule 10, C.P.C. Was filed. On 10.6.2005, the Court called reply from the parties for 11.6.2005. The reply was not filed on the aforesaid date, but the learned Senior Civil Judge vide his order. Dated 11.6.2005 directed the plaintiffs to deposit an amount of Rs. 29,36,840/- in Court with a further direction to deposit an amount of Rs. 95,33,628/- to defendants Nos. 1 to 7 or to furnish the proof of payment of this amount. Furthermore, the plaintiffs were also directed to submit copies of F.S.Rs. Alongwith cheques of that amount to the defendants or in Court uptill 25.6.2005 and in case of default the Court observed that the stay order shall stand vacated. The said order dated 11.6.2005 has been impugned by the appellants before the learned District Judge. Islamabad, through an appeal, which was entrusted to a learned Additional District Judge for disposal. The lower Appellate Court vide its order, dated 16.8.2005 returned the appeal to the appellants for its presentation before the proper forum on the ground that the Court lacked the pecuniary jurisdiction It has further been observed that the memorandum of appeal alongwith its all annexures be returned 'to the appellants after retaining Photostat copies thereof. The Court also directed that subject to availing of the suggested remedy, within a week, all the injunctive orders already passed shall remain operative.
4. The appellants in view of the above order preferred the instant F.A.O. No. 132 of 2005 as well as Civil Revision No. 617 of 2005 challenging the impugned order, dated 16.8.2005. Regarding return of appeal for its presentation before the proper forum.
The condition imposed by the Appellate Court that all injunctive orders already passed shall remain operative has been challenged. By respondent No. 1/Shaheen Air International Pvt. Limited, through Civil Revision No. 597 of 2005.
5. I have heard the learned counsel for the parties and have perused the record. The appellants as well as petitioners in Civil Revision No. 617 of 2005 have preferred F.A.O. No. 132 of 2005 against the order, dated 11.6.2005 passed by the learned Trial Court. Both the revision petitioners/plaintiffs as well 'as the defendants have challenged the vires of the order, dated 16.8 2005. Therefore, I have decided to dispose of these revision petitions as a notice case.
6. The question that boils down for determination in this case is, whether the appeal against the order, dated 11.6.2005 passed by the learned Trial Court was maintainable before the learned District Judge or before the High Court. The plaintiffs in paragraph 45 of the plaint has determined/fixed the jurisdictional value of the suit as Rs. 20,000/- which read as under:-- "That the value of the suit for the purposes of Court-fee and jurisdiction is fixed at Rs. 20,000/- which is exempted from the levy of Court-fee.
7. In paragraph 40 of the plaint, the plaintiffs have stated that defendant No. 4 issued inter office memo. Dated 25.9.2004 whereby he called upon defendant No. 5 to ensure recovery of Rs.
27,76,340/- against group fare and Rs. 1,60,500/- against cash incentive and some other amounts from the plaintiffs. On the basis of these entries, the lower Appellate Court has observed that the pecuniary jurisdiction of the Appellate Court is less than the said amount, therefore, the appeal was returned to the appellants/petitioners for its presentation before the proper forum.
8. Section 3 of the Suits Valuation Act 1887 contemplates as under:- "Section 3. Power of Provincial Government. To make rules determining value of land for jurisdictional purposes. -- (1) The Provincial Government, may make rules for determining the value of land for purposes of jurisdiction in the suits mentioned in the Court Fees Act, 1870, Section 7 paragraphs (v) and (vi) and paragraph (x) clause (d)."
(2). The rules may determine the value of any class of land, or of any interests in land in the whole or any part of a local area, and may prescribe different values for different places within the same local area."
9. In this regard, a schedule is annexed with the Act showing the valuation of the suit for the purpose of computing the Court-fee and determining the jurisdiction of the Courts respectively.
The suit filed by the plaintiffs/appellants pertains to the movable property for declaration and permanent injunction. The plaintiffs as per 'Suits Valuation Act has fixed the valuation of the suit for the purpose of Court-fee and jurisdiction as Rs. 20,000/- less than Rs. 25,000/- which is exempted from the levy of Court-fee As per Sections 9. And 11 of the Suits Valuation Act, the value mentioned in the plaint would govern the jurisdiction of the Court. The value of the original suit would mean the amount or value of the subject-matter of the suit and forum of appeal would be decided according to the value of the suit, which would mean that irrespective. Of what ma.y be the amount for which decree is passed. The appeal will lie in the Court according to the value of the suit. In this context. Reference can be made to the case of Sadar Din v. Elahi Baldish and another (PLD 1976 L.Ah. 1)
10. Section 18 of the Civil Courts Ordinance, 1962, provides as under:-- "Section 18. Appeals from Civil Judges. -- (1) Save as aforesaid an appeal from a decree or order of a Civil Judge shall lie:-
(a) to a High Court if the value of the original suit in which the decree or order was made exceeds twenty-five hundred thousand and
(b) to the District Judge in any other case."
11. Section it of the Suits Valuation Act, 1887 would show that an Appellate Court was :precluded- from entertaining an objection as to the jurisdiction of the Trial Court or of a lower Appellate Court founded on the ground of over-valuation or under-valuation unless such objection, in the case of the Court of first instance, was raised by the party at or before the hearing of the case when the issues were settled in the case, and in the case of lower Appellate Court the objection had been raised in the memo. Of appeal.. Another condition which was required to the satisfied for entertaining the above objection was that the Appellate Court must record its reasons of satisfaction that the suit or appeal was over-valued or under-valued and that the overvaluation or under-valuation had prejudicially affected the disposal of the suit or appeal on its merits. 12.
Another important aspect of the case is that the defendant /revision petitioner in Civil Revision No. 597 of 2005 have filed cross-objections before the lower Appellate Court, which was not returned by the Court for its presentation in--this Court. It is still pending before the Court and if the court- has reached to the conclusion that it has no pecuniary jurisdiction to hear the appeal, then the Court was not even competent to entertain or hear the cross-objection. In the instant case, no objection was raised by the defendants to the jurisdiction of the Civil Court and this objection was also not raised before the lower Appellate Court by the defendants/revision petitioners in Civil Revision No. 597 of 2005 (Messrs Shaheen Air International Limited). w It is an admitted fact that the jurisdictional value was fixed and determined by the plaintiffs in paragraph 45 of the plaint as Rs.
20,000/- and the forum of appeal would be determined from the original value of the suit. In this context, reference can be made to the cases Of Ali Muhammad and others v. Muhammad Shafi and others (PLD 1996 SC 292) and Illahi Bakhsh and others v. Mst. Bilqees Begum (PLD 1985 SC 393). The relevant portion of the judgment of the apex Court for further ready reference and guidance is reproduced as under:- "A perusal of the provisions of Section 18 of Ordinance II of 1962 also does not provide anywhere that the forum of appeal is to be determined on the basis of the sale price or the market value of the land. It only lays down that this is to be determined on the basis of the value of the original suit.
The valUe of the suit in such cases being the one which is notionally fixed. It will be the same value which will determine the forum of appeal. In fact, the question is really no longer res integra. This Court in the case of Jan Muhammad and others v. Dr. Abdul. Ghafoor and others (PLD 1966 SC 461) already clarified that the value for purposes of jurisdiction in the matter of appeal shall be the same as in the plaint. In this connection, the following observation appearing at page 463 of the report is relevant:-- "The plaintiff went up in appeal before the District Judge on the valuation for the purposes. Of jurisdiction stated in the plaint, namely, Rs. 3,091.14 that was the correct forum of appeal."
13. The aforesaid view was upheld by the Honourable Supreme'Court in the case of Munawar Hussain and 2 others v. Sultan Ahmad (2005 SCMR 1388). In this case,. The Honourable Judges have observed that under Section 18, West Pakistan Civil Courts Ordinance; 1962, pecuniary jurisdiction of the District Judge was always derived from the valuation in the plaint. An amendment has been made in Section 18 of the Civil Courts Ordinance, 1962. Wherein it is clearly provided that the appeal against the decree or. Order of the Civil Judge shall lie to the High Court if the value of the original suit in which the decree or order was made exceeds rupees twenty-five hundred thousand and to the District Judge in any other case.
14. In the instant case, neither the defendants have determined or fixed the original jurisdictional value of the suit nor the Trial Court or. The Appellate Court had determined the original jurisdiction value and the Court if disagrees with the determination of jurisdictional value of the suit could pass an order fixing the said value but that too after framing an issue and affording an opportunity to the parties for production of their evidence. No such effort was made by the lower Appellate Court to determine the original jurisdictional value of the suit. Without such exercise, the Court could not observe or come to the conclusion that it lacks the pecuniary jurisdiction to hear the appeal. In this view of the matter, the appeal was competently filed by the appellants against the order, dated 11.6 2005 of the learned Trial Court and while admitting the appeal the order, dated 20.6.2005 was rightly passed by the learned lower Appellate Court.
15. It is settled preposition of law that where the Courts having no jurisdiction over subject-matter of suit or appeal, it cannot decide any question on merit. It can simply decide question of jurisdiction and order return of plaint for its presentation to proper Court if it comes to conclusion that it has no jurisdiction. Reference in this context can be made to the cases of Athmanathaswami Devasthanam v. K. Geopalaswa mi Ayyangar (AIR 1965 SC 338) (V 52 C 63); Karachi Electric Supply Ccrporation Limited through Secretary v. Messrs Haji Hashim Haji Ahmad Brothers (2003 YLR 2226); Maqsood Ali Khan v. National Bank of Pakistan through President, Head Office, 1.1. Chundrigar Road.
Karachi and 3 others (2003 PLC (C.S.) 226); and Qabool Muhammad Shah v. Bibi Bushra and others (1992 MLD 833),
16. . For the foregoing reasons, Civil Revision No. 597 of 2005 and Civil Revision No. 617 of 2005 are accepted and the impugned order dated 16.8.2005 passed by the lower Appellate Court returning the appeal for its presentation before the appropriate forum in toto, is set aside, as a result of which the appeal preferred by the appellants before the lower Appellate Court shall be deemed to be pending before the said Court. The office to return the present memo. Of appeal alongwith its all annexures to the appellants for its presentation before that Court within a period of fortnight and the said Court will decide the same strictly in accordance with law after affording an opportunity of being heard to both the parties. .