The late Hafiz Abdul Karim lived and died in Delhi and on 20th March 1917 he had dedicated a sum of Rs, 3 lakhs (approximately) for a waqf. Hafiz Abdul Karim died before Partition, and on his death the applicant became the mutawalli of the waqf. The applicant as well as the respondents migrated to Pakistan in 1947. When the applicant left India he was compelled to leave behind the bulk of the corpus of the waqf. However the waqf had included shares of an Indian Company, known as Kanpur Tannery Limited, and the applicant had managed to sell these shares and bring the sale proceeds over to Pakistan with him. He had then invested the sale proceeds in the shares of a Company known as the Hyderabad Tannery and Shoe Manufacturing Company Ltd., and it is the case of the parties before me that the applicant became the mutawalli of the waqf in Pakistan and that the waqf property comprised these shares. Further, perhaps because the parties are inter-related, there was litigation between them. However, it is not necessary to refer to that litigation here, and it is sufficient to state that on the 1st of September 1965 the first respondent and his brother Moinul Islam, now deceased, filed a suit against the applicant and another who was a pro forma defendant, for rendition of accounts of the waqf and for a mandatory injunction directing the applicant to perform his duties as mutawalli. Further it is material to observe here that, although according to the plaintiffs, the value of the waqf property exceeded Rs, 67,000, for purposes of Court-fees and jurisdiction, they have valued their claims for injunction and for accounts at Rs, 200 only. Neither of the defendants filed any written statement, with the result that a preliminary decree for accounts was passed on 3rd July 1967, and a Commissioner was appointed to take accounts from the applicant of the waqf property. Both the learned counsel informed me that the Commissioner has submitted his report in which he has stated that the corpus of the waqf is Rs, 67,100 and further, according to Mr. Zafar Alam, the report is that the applicant has given false accounts. Be that as it may, on 7th March 1970 the applicant filed an application to the trial Court under Order VII, rule 11, C. P. C. for the dismissal of the suit on the ground that the Court had no jurisdiction to entertain a suit. According to the applicant, the Court had no jurisdiction because, under the Karachi Court's Order, 1956 the jurisdiction of the District Court, including the trial Court, was limited to Rs, 25,000, whilst the subject-matter of the suit was more than Rs, 67,000. Hence the plea that the trial Court had no jurisdiction to hear the case.
Although the application raised important questions of law, the trial Court dismissed it summarily, by a very short order in which it stated that a plaintiff is entitled, under section 7 (4) of the Court Fees Act, to put any valuation he likes on a suit for accounts. Aggrieved by this order, the applicant filed a revision application and, in view of the death meanwhile of the second plaintiff in the trial Court, his legal heirs have been impleaded as respondents in this application. Similarly, the pro forma defendant in the trial Court has also been impleaded as a respondent in this application which has now come up for hearing before me.
2. As the plaint itself states that the value of the property dedicated to the waqf exceeds Rs, 67,000 the first question which arises for consideration is whether the first respondent and his deceased brother could value their claim at Rs, 200 only. I invited Mr. Zafar Alam to explain on what basis the claims had been valued at Rs, 200 only. He was not able to give any explanation but he submitted that under section 7 (iv) of the Court Fees Act, a plaintiff in a suit for accounts was entitled to value his claim entirely as he wished. But if a plaintiff can thus it value his claim arbitrarily, he can defeat the provisions of the Karachi Court's Order, 1956, therefore I told the learned counsel that, in the absence of authority binding on me, I could not accept his submission. Not only was Mr. Zafar Alam not able to refer me to any authority binding on me, but the view of the Courts in Karachi has always been to the contrary. Thus in Lakhomal v. Tolaram a Full Bench of the Judicial Commissioner's Court held that in a suit for declaration and injunction a plaintiff could not value his claim arbitrarily. It is true that the suit in the present case was for accounts, but if a plaintiff cannot value a declaratory relief arbitrarily, I do not see how he can value a claim for accounts arbitrarily; and that was the view taken by Constantine, J. in Imamdin v. Abdul Ghani The facts of that case were that the respondent-plaintiff had filed a suit for dissolution of partnership and for accounts and the averments in the plaint showed that the assets of the partnership exceeded Rs, 6 lakhs, yet the suit had been filed, as in the present case, in the Court of a Sub-Judge, Karachi whose pecuniary jurisdiction was limited to Rs, 25,000 only. After examining the relevant authorities Constantine, J. approved of the view of the Sind Judicial Commissioner's Court in Lakhomal v.
Tolaram and held that a plaintiff cannot value a claim for accounts arbitrarily, therefore he directed the plaintiff-respondent under Order VII, rule 10, C. P. C. to present his plaint in the proper Court, namely, the High Court. The facts of this case are on all fours with the present case, and I am in respectful agreement with the view taken in it. Additionally Mr. Faruqui pointed out that this case had been followed by Waheeduddin, J. in Zafar Ahmed v. Abdul Khalique and again by a Division Bench of the West Pakistan High Court in Muhammad Siddiq v. HO Ahmed & Company . This Division Bench case is very important, because in it the learned Judges of the Division Bench had also considered the provisions of the Karachi Court's Order and expressly observed that the effect of this Order was that a plaintiff could not be allowed to value his claim for relief arbitrarily. They pointed out in para. 7 of the judgment : "To hold otherwise would mean to give unlimited power to litigants in drafting their prayers so as to include or exclude relief with a view to confer jurisdiction on the Court to try the suit." Thus the consistent view of the Courts in Karachi has been that a plaintiff cannot value relief arbitrarily.
3. However because the aforesaid Division Bench judgment related to a declaratory suit it had been distinguished by Iqbal, J. in Ch. Muhammad lqbal v. Mst. Ahmed Jahan , and as this case1 2 3 4 5 arose out of a suit for dissolution of partnership and accounts Mr. Zafar Alam invited me to follow it.
I have examined this judgment, and it is true that lqbal, J., whose attention was not drawn to the judgment of Constantine, J. in Imamdin's case, has distinguished the Division Bench judgment on the ground that the Division Bench case did not relate to a suit for rendition of accounts. However, the principle laid down in that case was that, in view of the provisions of Order VII, rule 11, C. P. C. and the Karachi Court's Order, 1956 a plaintiff could not be permitted to value his claim arbitrarily. This principle is as applicable to suits for accounts as to suits for declaratory relief, therefore, with very great respect, I am not able to agree with the view of Iqbal, J. in the case cited.
4. As a plaintiff cannot value as relief arbitrarily, the next question is whether in the present case the first respondent and his deceased brother had valued their claim arbitrarily. Mr. Faruqui submitted that relief in the plaint has been deliberately and arbitrarily undervalued, and in support of this argument, he referred me to para. 17 of the plaint. In this para. the plaintiffs have stated that as the male descendants of the late Hafiz Abdul Karim they had become "beneficiaries of the waqf and are entitled to the benefit of the waqf property in the possession of the defendant No, 1 1. e., the cash Rs, 67,100 brought by him as mutawalli in Pakistan." Apart from this express averment, a perusal of the plaint leaves no doubt in my mind that the apprehension of the plaintiffs was of the embezzlement of the corpus of the waqf, hence their suit for accounts and an injunction. In these circumstances, the subject-matter of the suit was Rs, 67,100, therefore the valuation of their reliefs by the plaintiffs at Rs, 200 only was arbitrary and was done deliberately in order to file the suit in the wrong Court.
5. Mr. Zafar Alam then argued that the share of the plaintiffs in the income of the waqf property would be much below Rs, 25,000, which was the pecuniary jurisdiction of the trial Court, so that the order of the trial Court could be supported on this ground, and in support of this argument he referred me to a judgment reported in Ajiruddin Mondal and another v. Rahman Fakir and others .
The question whether the plaintiffs had sued for personal relief and whether that relief was within the pecuniary jurisdiction of the trial Court has to be determined on the basis of the averments in the plaint. But, as I have pointed out, not only did the plaintiffs seek the administration of their ancestors' waqf through their suit but nowhere have they sought any personal relief whatsoever.
When I pointed out to learned counsel that the plaintiffs had not sued for their share of the income of the waqf, he merely said that this was a technical error which should be overlooked, and that the plaint should be treated as one for personal relief. I am astonished at the argument. The plaint has to be accepted as it is, and a bare perusal of the plaint shows that learned counsel's submission is not correct. As to the judgment of the Supreme Court, their Lordships have held in the case cited that in a suit for partition of joint property the valuation of the suit should be the value of the share of the plaintiff in the joint property. I am in respectful agreement with this judgment, but it could have helped the respondents only if the suit in the present case had sought personal relief. As the plaintiffs have not sought such relief, the judgment is distinguishable on the facts.
6. No other argument was advanced. The revision is therefore allowed, and as to the order to be passed I have pointed out that the present case is on all fours with Imamdin's case. I cannot do better therefore than follow the order of Constantine, J. in that suit. As the plaint in the present case is not valued properly the plaintiffs have to be given an opportunity of correcting their error. But as the trial Court has no jurisdiction to deal with the case, as observed by Constantine, J. in Imamdin's case at page 805 "the proper order in revision appears to me that the plaint should be returned to the plaintiff for presentation to the proper Court, namely the High Court at Karachi, and it will be the High Court at Karachi which will be competent to determine the proper valuation," I direct accordingly. The revision is allowed with costs. 6 AIR 1937 Sind 241 PLD 1959 Kar. 802 PLD 1964 Kar. 386 PLD 1967 Kar. 468 PLD 1970 Kar. 548 PLD 1961 SC 349