' ABDUL MAJEED MALLICK, ACTG J.-This appeal, by leave, arises out of the judgment of the High Court dated 7th July, 1977, whereupon the modification of the judgment and decree of the trial Court, the appellant was declined the costs of the improvement.
2. Khurshid, respondent, pre-empted the sale of the suit land. The trial Court passed the decree in his favour, on payment of Rs, 1,000, the sale price and expenses of the sale-deed, in addition to a sum of Rs, 7,337.50 as costs of the improvement in the shape of plantation of fruit and other trees and construction of retaining walls etc. The decree of the trial Court was challenged in appeal, by Khurshid. He took the first appeal directly to the High Court and claimed that the vendee was not entitled to any cost of improvement. It was also averred that actual value of the suit land was Rs,
500. The learned Judges of the High Court entertained the appeal and arrived at a conclusion that a sum of Rs, 1,000 was fixed and paid as the price of land. Consequently the appeal was accepted and the plaintiff-respondent was allowed decree of the suit land on payment of Rs, 1,000 only.
3. Leave was granted to determine as to whether in pre-emption case forum of appeal was determined by virtue of value fixed in the suit or the decretal amount and that whether the High Court was competent t. Entertain the first appeal.
4. In order to resolve the controversy it would be conducive to state the relevant facts. Suleman, vendor, alienated his fractional share out of Khewat No, 88 measuring 136 kanals and 4 marlas.
Price of the land entered in the sale-deed was a sum of Rs, 1,000 In para. 11 of the plaint the plaintiff fixed the value of the suit for the purposes of pecuniary jurisdiction as Rs, 218, thirty times of the land revenue of the suit land. The averment was repudiated in the written statement. It was asserted that land revenue of the suit land, not having been settled, the value of the suit for the purpose of jurisdiction, shall be, market value of the suit land, i.e, Rs, 1,000. An issue was framed to that effect. While giving decision on issue No, 1, the trial Court determined the value of the suit for the purposes of jurisdiction as Rs, 1,000, the market value of the land. Thus, the value of the suit for the purposes of jurisdiction was fixed as Rs, 1,000.
5. It appears that in view of the controversy over the point as to whether forum of appeal is determined on the basis of value, for the purpose of jurisdiction, fixed in the original suit or on the basis of decretal amount, the decretal amount being more than Rs, 5,000, the plaintiff-respondent felt advised to take his appeal, instead to the Court of District Judge, to the High Court. It may also be stated that the appellant, who contested the appeal in the High Conrt, raised no objection that first appeal lay to the Court of District Judge and not to the High Court. It was when the decision went against him that he raised the objection in this Court relating to the forum of the first appeal.
6. In Azad Jammu and Kashmir the forum of first appeal is governed by section 36 of Azad Jammu and Kashmir Courts and Laws Code, 1949. The relevant part of the section is reproduced :- "36. (1) Save as otherwise provided by any enactment for the time being inform. An appeal from a decree or order of a District Judge or Additional Judge exercising original jurisdiction shall lie to the High Court :-
(2) An appeal from a decree or order of a Subordinate Judge shall lie-
(a) to the District Judge where the value of the original suit in which the decree or order was made, does not exceed Rs, 5,000; and
(b) to the High Court in any other case."
7. It is evident from the aforesaid provision of sub sections (1) and (2) of section 36 that first appeal lie to the High Court in the following cases-
(i) from a decree or order passed by the District Judge or Additional District Judge, in exercise of original jurisdiction ; and
(ii) from a decree or order of a subordinate Judge, where the value of the original suit exceed Rs, 5,000.
8. In a pre-emption suit the value of the suit, for the purposes of jurisdiction, is determined under the provisions of Suits Valuation Act and rules framed thereunder. In the instant case the value of the suit for the purposes of jurisdiction was determined on the basis of the market value as the suit land formed a fractional share of the estate or khewat. The fractional share of the vendor, being indefinite, was not susceptible to the assessment or ascertainment of land revenue. In other words, land revenue of the suit land could not be settled. Hence value, for the purpose of jurisdiction, was to be fixed on the basis of the market value of the suit land. This point is not controverted by the learned counsel for the plaintiff-respondent. Thus, it is settled that a sum of Rs, 1,000 was vain of the suit for the purpose of jurisdiction. In view of the provisions section 36 of the Azad Jammu and Kashmir Courts and Laws Code where the value of the original suit did not exceed Rs, 5,000 the first appeal lay to the Court of District Judge.
9. As it is settled that in the instant case the first appeal lay in the Court of District Judge. Next we have to determine as to what is the effect of taking the appeal, instead of the Court of District Judge, to the High Court. It is contended by Mr. B. A. Farooqi, the learned counsel for the appellant, that the first appeal to the High Court being in competent, the decision of the High Court was a nullity. Kh. Muhammad Saeed, the learned counsel for the respondent, contended that the High Court, being vested with jurisdiction of superintendence and control over the subordinate Courts, was competent to entertain the appeal. Thus, according to the learned counsel for the respondent, the impugned judgment was protected under the provisions of section 35 of Courts and Laws Code, 1949, and the provisions of C. P. C. In support of his contention he cited Maj. Shujait Ali v. Mst.
Surraya Begum (1) and Fazal Ellahi and S others v. Alam Din (2)
10. In order to arrive at a safe conclusion we propose to discuss the case law cited by the learned counsel on the point. Maj. Shujait Ali v. Mst. Surraya Begum was a case of Writ Petition relating to allotment of plot in new Mirpur City. One of the objections, raised in the petition, was that the cancellation of the previous allotment and order of new allotment, was made by the Chairman of the Allotment Committee alone, whereas under rules the allotment was to be made by the Allotment Committee in a meeting. The objection was overruled on two grounds, firstly, that it was not the Chairman alone but the Allotment Committee which made the subsequent allotment in dispute. Secondly, in the alternative, in case the allotment was made by the Chairman alone, it was an irregularity and not an illegality. It was in the light of the aforesaid circumstances that the learned Judges arrived to the following conclusion :- "There can be no manner of doubt about the fact that the authorities exercising the jurisdiction under any Act are expected to comply with the provisions of that Act but to say that "a failure to follow the prescribed mode must in every case render the exercise of the jurisdiction invalid and illegal is too wide a proposition. There is always a distinction between elements which are essential for the foundation of jurisdiction and the mode in which jurisdiction has to be exercised."
11. In Fazal Ellahi and 5 others v. Alam Din a suit for declaration and permanent injunction was instituted wherein decree was passed in favour of plaintiff under Order VIII, rule 10, C. P. C. An appeal was preferred before the District Judge who accepted the appeal and remanded the case for trial on merits. The judgment of the District Judge was challenged in second appeal before the High Court whereupon accepting the appeal, the learned single Judge of the High Court restored the judgment and decree passed by the trial Court. In appeal before this Court, one of the objections, raised against the impuged judgment, was that no second appeal lay against the judgment and decree passed under the provisions of Order VIII, Rule 10, C, P. C. Mr. Justice Malik Muhammad Aslam Khan, (as he then was) who wrote the judgment, on examining the case law on the point arrived at the following conclusion :- "From the observations contained in the above referred authorities, the principle that emerges is that if the Court does not suffer from inherent want of jurisdiction but the procedure or the mode of hearing is defective or irregular and if in such a case a party joins issues and participates, in the hearing without raising any objection about such a defect touching the jurisdiction, it cannot later on be allowed to turn round and challenge the jurisdiction of the Court when the case goes against it. But where there is a total lack of jurisdiction, no amount of consent or participation in the proceedings, even without objection to jurisdiction, can invest the Court with the jurisdiction which it never had and consequently the
(1) PLD 1978 SC (A J & K) 118 (2).E L D 1979 SC (A J & K) 109 ' question of waiver or estoppel would not arise. The decision of the Court in such a case will be a nullity in the eyes of law ; but not so when the Court had the initial jurisdiction but adopts a defective procedure or mode of hearing without any objection from the concerned party."
12. In Muhammad Yusuf v. Gul Muhammad and others (I) Gul Muhammad filed a suit for declaration in the Court of Sub-Judge to the effect that he purchased the suit land from one Molo, a non-muslim, vide sale-deed dated 4 Sawan Samat 2004 Bk. The sale-deed was sent for counter- signature to Wazir Poonch. On account of war of Liberation the sale-deed was not received back by the plaintiff. Sub-Judge, Pallandri, in whose Court suit was instituted, passed ex parte decree in favour of the plaintiff, on 30-10-1951. One Muhammad Yusuf, not a party to the proceedings nor aggrieved in any manner, came forward and challenged the decree. Instead of taking first appeal to the Court of District Judge, he went in revision before the High Court wherein he challened the judgment and decree of the trial Court on the ground of jurisdiction. It was claimed that suit property being evacuee, Sub-Judge had no jurisdiction to pass the impugned decree. One of the important paints, raised in the High Court, was that the impugned judgment and decree, being subject to appeal, in absence of appeal to the competent Court, High. Court was incompetent to interfere in the impugned judgment under section 115, C. P. C. The point was referred to the Full Bench, the learned Judges observed as :- "The words "no appeal lies thereto" are not confined to first appeal but include a second appeal as well. The revisional jurisdiction of the High Court under section 115, C. P. C. Is limited to those cases only where under the Code of Civil Procedure no appeal either in the first instance or eventually would lie to the High Court and if no appeal has been filed before a District Judge in such case, High Court would be incompetent to exercise its revisional jurisdiction under that section, either on an application or suo motu."
13. The learned Judges arrived at the conclusion that the High Court could interfere in the judgment and decree of the trial Court, in exercise of its revisional jurisdiction under section 115 of the Code of Civil Procedure, in those cases only, where, under the Code of Civil Procedure, no appeal either in the first instance or second would lie. Nevertheless, it was considered that the impugned decree having been passed without inherent jurisdiction of the Court, in order to meet the ends of justice, the High Court in exercise of general powers of superintendence and control conferred upon it, by Azad Jammu and Kashmir Government Act, 1970, and Azad Jammu and Kashmir Courts and Laws Code, 1949, was competent to revise suo motu or otherwise, a gross error on the face of record or an erroneous order amounting to injustice or usurpation of jurisdiction. It was laid down that :- "The High Court, in exercise of general powers of superintendence and control, conferred on it under Azad Jammu and Kashmir Government Act, 1970, and Azad Jammu and Kashmir Courts and Laws Code Act, which powers are much wider and larger and more comprehensive as compared to the powers of a High Court under section 115, C. P. C.. Can revise suo motu or otherwise, such orde,
(1) PLD 1972 Azad J 84 K 90 ' where there is a gross error on the face of record or an erroneous order amounting to injustice or usurpation of jurisdiction that is specifically barred by an enactment, and set aside such order or direct further proceedings to be taken as ends of justice may require.
14. Following conclusions are available from the above referred authorities :-
(i) When a Court suffers from inherent want of jurisdiction, no amount of consent or participation in the proceedings, without objection to jurisdiction, can invest such Court with the jurisdiction.
Question of waiver or estoppel in that case would not arise ; and
(ii) Where a Court does not lack in its inherent want of jurisdiction' but the procedure or mode of hearing, it adopts, is defective or irregular and in such a position a party joins issues and participate in the proceedings without raising any objection on such defect or irregularity touching upon the jurisdiction ; later on it cannot be allowed to challenge the jurisdiction when the result of the proceedings goes against it.
' In the first case order or decision of the Court will be a nullity in the eyes of law but not so in the second case.
15. Point relating to forum of appeal by under-valuation or overvaluation is directly covered by section 11 of the Suits Valuation Act. It is reproduced as under "11. Procedure where objection is taken on appeal or revision that a suit or appeal was not properly valued for jurisdictional purposes. -(1) Notwithstanding anything in section 578 of the Code of Civil Procedure, an objection that by reason of the over-valuation or under-valuation of a suit or appeal as Court of first instance or lower appellate Court which had no jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an appellate Court unless-
(a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower appellate Court in the memorandum of appeal to that Court, or
(b) the appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit or appeal, was over-valued or under-valued, and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.
(2) If the objection was taken in the manner mentioned in clause (a) of subsection (1), but the appellate Court is not satisfied as to both the matters mentioned in clause (b) of that subsection and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance or lower appellate Court.
(3) If the objection was taken in that manner and the appellate Court is satisfied as to both these matters and has not these materials before it, shall proceed to deal with the appeal ; under the rules applicable to the Court with respect to the hearing of appeals ; but if it remands the suit or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, it shall direct its order to a Court competent to entertain the suit or appeal.
(4) The provisions of this section with respect to an appellate Court shall so far as they can be made applicable, apply to a Court exercising revisional jurisdiction under the Code of Civil Procedure."
16. Section 99 of the Code provides that no order or decision of subordinate Court shall be reversed or modified in appeal on account of any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. Section 11 of the Suits Valuation Act lays down an exception the rule. But again this section also contain two exceptions. It provides that an objection that by reason of under-valuation or over-valuation of a suit or appeal, the trial Court or lower appellate Court, which had no jurisdiction with respect to the suit or appeal, as the case may be, wrongly assumed jurisdiction, shall not be entertained by the appellate Court. The exceptions to the rule are that unless ; (1) the objection was raised in the lower Court at the hearing or in the memorandum of appeal thereto, (ii) the appellate Court, before which objection is raised, is satisfied that the suit or appeal was under-valued or over-valued and such under-valuation or over-valuation thereof has prejudicially affected the disposal of suit or appeal on its merits, it shall dispose of appeal as if there had been no defect of jurisdiction in the lower appellate Court.
17. In the instant case Mr. B. A. Farooqi, when confronted with the question relating to appellate revisional and general jurisdiction of the High Court, failed to deny that the High Court is vested with inherent jurisdiction. It is undeniable that High Court is invested with inherent jurisdiction and as such at one stage the matter was likely to be brought before it of course, we agree that in this case the first appeal lay before the District Judge and procedure undprtaken in the case was an irregular one but not illegal. It is conceded that the appellant, who was respondent before the High Court, failed to raise objection that first appeal lay to the District Judge or that appeal was over- valued for the purpose of jurisdiction and that act of plaintiff-respondent resulted in prejudice on merits of the case. Contrary to this the appellant joined the proceedings in the High Court without objection. It is only when decision has gone against him, that he has objected to the jurisdiction of the High Court.
19. As a precaution and for safe administration of justice we undertake to examine the case on merits. The finding on merits given by the learned Judges of the High Court is reproduced below : "The only point argued,before us was to whether the vendee was or was not entitled to the costs of improvements. It was strenuously argued that the land had been in possession of the vendee long before its sale to him and that he had planted fruit and other trees as well as constructed retaining walls etc., the cost of which has been assessed at Rs, 7,337.50. There is no dispute that the improve- ments do stand on the land. In so far as the law is concerned, it is clear that the improvement effected by a vendee in the property purchase before its purchase by him cannot be burdened on the pre-emptor unless they form a part of the sale-deed. However, in this case the question seems to be simple and the question of law need not be gone into. Vendor's only share in the property came to the area that has been sold, whereas the vendee is an independent owner of more than 20 Kanals of land in the whole KheWat. No specific survey number has been sold nor has the land sold been identified in any manner so as to show that any particular piece had been sold. All that is said in the sale-deed is that the vendor transfers by sale, land measuring 4 kanals and 5 marlas from khewat No,
88. The total area of the khewat is 136 kanals and 4 marlas. As no improvements are mentioned in the sale-deed, the presumption is that only such land has been sold out of the whole Khewat which is not covered by improvements in question."
19. The defendant-appellant, in para. I of the preliminary objections of the written statement, averred that he entered into possession of the suit land before the War of Liberation of 1947. He occupied the land on behalf of his wife, who inherited her share out of the share of her deceased father. The vendor alienated his fractional share out of the khewat. The share of the vendor was unspecified. Likewise, the alleged improvement, was not confined to a specific and particular part of the land. The improvement was claimed to have been carried prior to the alienation. If that was so, it formed part of the price of the suit land. The learned Judges examined the case on merits and arrived at a right conclusion. On merits, we do not find that disposal of appeal, in any manner, has prejudicially affected the result.
20. In our well considered view the irregular mode adopted by the High Court in entertaining the first appeal has not resulted in prejudicing the merits of the case. The matter was likely to be brought before the High Court for scrutiny in second appeal. Thus, the High Court ordinarily was supposed to arrive at the same conclusion. The appellant, who joined the proceedings in the High Court without any objection, in absence of prejudice on merits, cannot seek reversion of the impugned judgment on the sole ground of mere irregularity. We feel satisfied with the ultimate result of the decision on merits.
' In view of the aforesaid observations the appeal being devoid of force is hereby dismissed with costs.