' MUHAMMAD KHALID ALVI, J.--- This is an application under Order XLI, rule 5(2), C.P.C. Seeking stay of execution of decree passed by this Court vide judgment and decree dated 25-4-2008.
2. It is submitted that this Court has varied the judgment of the Court immediately below and the value of the subject-matter at the time of institution of the suit and also at the time of hearing of appeal was Rs,80,000 therefore, an appeal is competent before the Honourable Supreme Court as a matter of right.
3. Notice was issued on this application to the learned counsel for the appellants as well. Mian Abbas Ahmad, learned Additional Advocate General and Mr. Muhammad Ameer Bhatti, Advocate were also requested to assist the Court although, it was not part of their duty. They have also shown grace by assisting this Court.
4. Learned counsel for the appellants with reference to PLD 1985 SC 393 contend that in pre- emption cases a special procedure has been evolved for determining the jurisdiction value of the matter. In the instant case, the jurisdiction value was much less than Rs,50,000 therefore, appeal before the Honourable Supreme Court is not competent as a matter of right.
5. Mian Abbas Ahmad, learned Additional Advocate-General and Mr. Muhammad Ameer Bhatti, Advocate have drawn my attention to a case reported as 2003 SCM R 875 in which their lordships in the Supreme Court were pleased to elaborate the phrase, "subject-matter of dispute in the Court of first instance" occurring in Article 185(2)(d)(e) and held as follows:-- "(8) In our view also, the expression "subject-matter of dispute in the Court of first instance" in clauses (d) and (e) means that market value thereof at the time of institution of the suit and also filing of appeal before this Court should be more than Rs,50,000 and not the "valuation" fixed in the plaint, for if that was the intention, the expression to that effect would have been used by the framers of the Constitution by adding the expression "as fixed in the plaint".
(11) It may be mentioned here that in the suit for recovery of possession of land according to the provisions of the Court Fees Act, notional value of subject-matter of dispute is to be fixed for the purposes of court-fee at fifteen times the amount of net profits accrued from the land in the preceding one year and for the purposes of jurisdiction at thirty times the amount of land revenue if the land is assessed to the land revenue which is not merely the real or market value of the land.
The value thus fixed is relevant only for the purposes of payment of court-fee or determining the forum of appeal under the West Pakistan Civil Courts Ordinance, 1962 up to High Court and not before this Court, for as discussed above, in pre-Constitutional period, the appeals from judgments and decrees of the High Court before this Court were governed by sections 109 and 110, C.P.C. And theeafter under Article 185(2)(d) and (e) of the Constitution."
6. I have considered the arguments.
7. Their lordships in the Supreme Court have categorically divided the forum of appeal up to the level of High Court on the one hand and for the purposes of Supreme Court on the other hand. For the purposes of appeals up to the level of High Court, the jurisdictional value fixed in the plaint is the criteria to determine the forum of appeal but for the purposes of appeal before the Honourable Supreme Court as a matter of right, Article 185(2)(d) and (e) are the determining provisions.
Therefore, it is obvious that jurisdictional value of the suit becomes irrelevant when the question of maintainability of an appeal before the Honourable Supreme Court is to be examined. The only thing which is to be checked is, what was the actual market value of the property-indispute at the time of institution of the suit and at the time of appeal before the Honourable Supreme Court?
8. Judgment cited by the learned counsel for the appellants is, therefore, not relevant to the question involved in the instant matter. The said judgment only related to the forum of appeals up to the level of High Court and not beyond that.
9. There is no denying the fact that price of the land in dispute at the time of filing the suit and also at the time of hearing of the appeal was Rs,80,000 therefore, in my understanding, an appeal as a matter of right is competent in this case, hence, the application is maintainable.
10. It is contended by the learned counsel for the applicants that they are in possession of the land in dispute for decades. If in execution they are deprived of their possession and ultimately succeeded before the Honourable Supreme Court, they would suffer irreparable loss. Subject to furnishing security to the Deputy Registrar (Judl.) of this Court for the due performance of decree with one week operation of the decree passed by this Court on 25-4-2008 shall remain suspended till 24-5-2008. This order shall automatically lapse on 24-5-2008. Disposed of.