MUHAMMAD IJAZ KHAN, J.- Through the instant judgment, this court shall decide this as well as connected writ petition No. 69-A/2024 titled "Mst. Fareeda Awan vs. Dr. Azhar Khan Jadoon & others" as in both these petitions common question of law and facts are involved.
2. Precisely the facts as per the averments of these petitions are that writ petitioners of these petitions have filed a suit in the Court of Senior Civil Judge, Abbottabad for declaration, permanent injunction as well as for rendition of accounts with respect to the investment/profits/income of Women Medical and Dental College, Abbottabad, which suit was contested by the respondents by filing written statement as well as an application for rejection of the plaint under Order VII Rule 11 CPC which application has since been dismissed and that order has attained finality. In view of the divergent pleadings of the parities, the learned trial Court framed issues and the parties were required to produce their respective evidence and in the process the petitioners then plaintiffs have also produced the official witnesses as well, however, at that stage of proceedings the petitioner/plaintiff submitted an application under Order XL Rule 1(d) read with Section 151 of CPC for appointment of a receiver so as to safeguard the rights of the petitioner qua the profits/income of subject Women Medical & Dental College and that application too was duly contested by the respondents by filing their reply and arguments were also addressed, however, on the date fixed for order over the said application, the learned Senior Civil Judge, Abbottabad on its own motion noted that since the petitioners/plaintiffs are seeking the rendition of account with respect to an amount/value of the subject property which falls beyond its pecuniary jurisdiction, therefore, he vide order dated 31.07.2023 sent the suit of the petitioners/plaintiffs to the learned District Judge, Abbottabad with a request to assign the case to a Court that has the pecuniary jurisdiction and then the learned District Judge, Abbottabad on the same date i.e. 31.07.2023 entrusted the aforesaid suit to the Additional District Judge-VI, Abbottabad. The order of the learned Senior Civil Judge, Abbottabad dated 31.07.2023 was challenged by the writ petitioner of WP No. 65-A of 2024 by filing a revision petition before the learned District Judge, Abbottabad, whereas, the order of District Judge of even dated (whereby he entrusted the suit to learned Additional District Judge-VI, Abbottabad) was challenged by the writ petitioners of WP No. 69-A of 2024 by filing a review petition, however, both the revision of the present petitioner as well as the review petition filed by the co-petitioners were dismissed by the learned District Judge, Abbottabad vide impugned orders dated 31.10.2023 through its separate judgments which have now been challenged by petitioners through the instant as well as connected writ petition.
3. Today, when these case were taken up for preliminary hearing Mr. Sardar Nasir Aslam Khan, Advocate Supreme Court, came to the rostrum and submitted his power of attorney on behalf of all the respondents, therefore, both the learned counsel representing the parties were heard in considerable detail and the record perused with their able assistance.
4. The main stance of the learned counsel representing the petitioners was that it is the Senior Civil Judge, Abbottabad who has the pecuniary jurisdiction to entertain and adjudicate upon the instant suit as in para No. 27 of the plaint the value for the purpose of court fee and jurisdiction has been shown as twenty (20) million, whereas, the stance of the respondents/ defendants was that since petitioners in their plaint are seeking rendition of accounts with respect to an amount which is more than fifty (50) million, therefore, in view of the recent amendment made in The Civil Procedure Code, the learned Senior Civil Judge, Abbottabad has no jurisdiction and it is the District Judge/Additional District Judge, who has got the pecuniary jurisdiction to entertain and adjudicate upon the instant suit.
5. In view of the above contentions of the learned counsel for the parties, the only question before this Court would be that as to whether it is the Senior Civil Judge, Abbottabad or Additional District Judge-VI, Abbottabad who is competent qua their pecuniary limits of jurisdiction to entertain and adjudicate upon the instant lis?
6. Before dilating upon the factual aspect of the case, it would be appropriate to first analyze the legal aspect of this case. It is relevant to mention here that as per mandate of Section 6 of the Code of Civil Procedure (hereinafter is to be referred as CPC) no Court shall have any jurisdiction over an amount or the value of the subject matter which exceeds the pecuniary limits of such Court, which un-mistakenly means that the pecuniary jurisdiction of a Court is to be regulated by a threshold of specific amount or the value of the subject matter. It merits to mentions here that before 2019-20 in The Province of Khyber Pakhtunkhwa the pecuniary jurisdiction of the Civil Judge was to be fixed by the High Court through a notification as per Section 9 of The West Pakistan Civil Courts Ordinance, 1962 (hereinafter is to be referred as The Ordinance of 1962), which was notified as unlimited, however, it was in the year 2020 when an amendment was brought in Section 6 of The CPC vide Act No. XLIX of 2020 namely The Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020 (The Act of 2020) whereby the pecuniary jurisdiction of Civil Judge & District Judge was specified and stipulated. The amended Section 6 of the Code of Civil Procedure being relevant for the present controversy is reproduced below.
"6. Pecuniary jurisdiction. --- Save in so far as is otherwise expressly provided, all civil suits shall be filed in the following manner, namely:
(a) where the amount or value of the subject matter of the suit is below rupees fifty million, the suit shall be filed in the Court of Civil Judge, as may be prescribed by the High Court; and
(b) where the amount or value of the subject matter of the suit is rupees fifty million or above, the suit shall be filed in the Court of District Judge, as may be prescribed by the High Court.".
The aforesaid newly amendment brought in The CPC clearly mandates that where the amount or the value of the subject matter of the suit is below fifty (50) million, the suit shall be filed in the Court of Civil Judge and where the amount or value of the subject matter is fifty (50) million or above the suit shall be filed in the Court of District Judge. It is also relevant to mention here that for the aforesaid eventualities, if any, the forum of appeal has also been clarified and through the same Act i.e. The Act of 2020, Section 96 of The CPC has also been amended and the same section of law is also relevant is reproduced below.
"96. Appeal from final judgment or decree.---Save where otherwise expressly provided in the body of this Code and notwithstanding anything contained in any other law for the time being in force, an appeal shall lie to the District Court from the final judgment and decree passed by the Civil Court, while an appeal shall lie to the High Court from the final judgment and decree of the District Court while exercising original jurisdiction on any question of law or fact erroneously determined by the original court and the Appellate Court shall decide the appeal within six months, after completion of service of summons.".
The combined reading of amended Section 6 and Section 96 of The CPC clearly stipulate that in a suit involving an amount or value of the subject matter is below fifty (50) million then such suit is to be tried by the Civil Judge and an appeal there against its judgment and decree would lie to the District Judge, whereas, in a suit in which an amount or value of subject matter is fifty (50) million or above then such suit is to be tried by the District Judge and the appeal there against would lie to the High Court.
7. It is also relevant to mention here that before the aforesaid amendment in Section 96 of The CPC the forum of appeal was to be regulated by section 18 (1) (a) (b) of The Ordinance of 1962 where an appeal from a decree or order of the Civil Judge would lie to the High Court if the original suit in which a decree or order was made exceeds a prescribed amount, whereas, the rest the appeal would lie to the District Judge. The above threshold of stipulated amount was initially Rs. 50,000/- then it was enhanced to Rs. 1 million vide NWFP Act No. VII of 2003 and again it was further enhanced to Rs. 10 million vide Khyber Pakhtunkhwa Act No. XVIII of 2017. It is also pertinent to mention here that there is no provision available in The Ordinance of 1962 which speaks about the pecuniary jurisdiction of District Judge though Section 7 of The Ordinance of 1962 conferred original jurisdiction to the District Judge of all original suit without any limits except if the same is otherwise provided by any enactment, whereas, the pecuniary limits of jurisdiction of the Civil Judge is regulated by Section 9, therefore, the combine reading of the amended Section 6, section 96 of The CPC and various provisions of The Ordinance of 1962 would show that the original jurisdiction qua the pecuniary limits of Civil Judge and District Judge has been provided by the newly amended Act only i.e. The Act of 2020, whereas, there is no provision in The Ordinance of 1962 which speaks about the jurisdiction of the District Judge qua its pecuniary limits.
8. During the course of arguments, learned counsel for the petitioners also stated that since The Ordinance of 1962 is a special law, whereas, The CPC is an ordinary law, therefore, preference has to be given to the special law, however, such submission of the learned counsel for the petitioner is also misplaced as such eventuality of preference of special law over the ordinary law would arise only if there is any inconsistency between them, however, none of the provision of The Ordinance of 1962 and that of the provisions of The Act of 2020 are inconsistent or in conflict. As highlighted above, that the newly amended Section 6 of The CPC prescribes and regulates the pecuniary limits of the Civil Judge and the District Judge and similarly Section 9 of The Ordinance of 1962 also stipulates that the pecuniary limits of the Civil Judge is to be determined by the High Court. Apart from this, both the laws i.e. Section 18 of The Ordinance of 1962 and newly amendment in Section 96 of The CPC through The Act of 2020 provides for the forum of appeal, however, since Section 96 of The CPC contain a non abstante clause, therefore, even in case of their inconsistency The Act of 2020 would prevail, therefore, the aforesaid submission of the learned counsel for the petitioners too could not be appreciated in his favour.
9. In view of the above legal position, now this Court would proceed to answer the only question involved in the case to the effect that whether it is the Civil Court who has the jurisdiction to entertain the present suit or it would be the Additional District Judge who will proceed with the trial of the suit. In order to determine the aforesaid question, it would be relevant to have a reference to the contents of the plaint. The very plaint of the petitioners/plaintiffs would show that the same has been filed for declaration, permanent injunction and rendition of account where the petitioners/plaintiffs have time and again pleaded in para No. 8 and 9 of the plaint that they have invested a huge amount. Similarly, in para No. 18, it has specifically been pleaded that the defendants are required to render all the amounts of the college/society. In para No. 20 of the plaint a detail of investment has been provided and over and above in para No. 22 of the plaint petitioners/plaintiffs have claimed that an amount of Rs. 447,208,917/- is required to be credited to their personal account. The aforesaid narration of the facts would unmistakenly indicates that petitioners/plaintiffs are seeking rendition of accounts which is definitely more than that upper pecuniary limits of Civil Judge of fifty (50) million as said amount is more than 440.72 million and definitely fall within the pecuniary limits of the District Judge as stipulated under section 6 (b) of The Amended Act of 2020. This Court in the case of "Mst. Naseem Ishaq and others vs. Khizar Hayat and others" reported as 2023 PLD Peshawar 133 has even transfer those suits which were filed before the Amendment Act i.e. The Act of 2020 and where the value of the suit or of the subject value of the suit was more than fifty (50) million or above and such a retrospective effect was given to the amended Act of 2020 qua the pecuniary limits of the Civil Judge and District Judge and since in this case the gazette notification of the amended Act of 2020 was made on 28.12.2020 and the suit was filed on 09.03.2021 which is after the enactment of the aforesaid Act, therefore, the instant suit has to be tried by the Additional District Judge.
10. During the course of arguments, learned counsel for petitioners/plaintiffs was also confronted that keeping in view the claim of the plaint of the petitioners/plaintiffs and they may be held as entitled for an amount which may be more than 50 million and in such eventuality whether the Civil Judge would be competent to grant a decree beyond fifty (50) million or not, however, he could not answer satisfactorily and rightly so as if the suit is tried by an Additional District Judge then it after the recording of the evidence would be competent to grant a decree of any amount which may either be less than fifty (50) million or it may be more than fifty (50) million as per the evidence produced by the petitioners/plaintiffs. It is also relevant to mention here that the contents of the plaint and overall financial claims of the petitioners/plaintiffs could be considered as a determining factor for the purpose of jurisdiction so as to avoid a conflict of pecuniary jurisdiction amongst the two or more forum and as under the established jurisprudence such suit is to be filed in a Court which is having jurisdiction to decide the major or a higher claim, therefore, on the above touchstone too, the instant suit is require to be adjudicated upon by the Additional District Judge- VI, Abbottabad.
11. During the course of arguments, learned counsel for petitioners/plaintiffs also emphasized that since the petitioners/plaintiffs have mentioned Rs. 20 million for the purpose of court fee and jurisdiction, therefore, it is the Civil Court who is having the jurisdiction to adjudicate upon the instant suit, however, such submission of the learned counsel for petitioners/plaintiffs is totally misconceived as such amount is mentioned by the petitioners/plaintiffs themselves in their plaint for the purpose of affixing the court fee and for the purpose of the jurisdiction as determined by The Suits Valuation Act, 1887 but under the established jurisprudence if the trial Court is prima facie of the opinion that the plaintiff has not properly valued the suit then it could determine the proper valuation of the suit and it would be that determination of the trial Court which shall be taken into consideration for the purpose of determination of jurisdiction for itself or for any other Court, as the case may be. It is also relevant to mention here that under the new dispensation of justice and after introduction of an amendment in section 6 of The CPC by The Province of Khyber Pakhtunkhwa such submissions have become irrelevant as when after the aforesaid amendment the pecuniary limit of the Civil Judge and District Judge has specifically been defined and prescribed and for every eventuality the forum of appeal has also been provided then mentioning any value for the purpose of jurisdiction in the plaint would not debar the Civil Judge or the District Judge, as the case may be, to consider the limits of their pecuniary jurisdiction and thus the learned Senior Civil Judge, Abbottabad has rightly analyze the law on the subject and has rightly sent the suit to the District Judge for entrusting the same to the competent forum having the pecuniary jurisdiction.
12. In view of the above discussion and exposition of law on the subject the impugned orders/judgments of District Judge, Abbottabad dated 31.10.2023 are upheld and maintained and consequently this and connected writ petition are dismissed, however, since both the parties had surrendered to the jurisdiction of the Civil Judge without any objection and they have contested the suit for a considerable long time as the suit was filed on 09.03.2021 and in the meanwhile, written statement has been filed, issues have been framed and evidence of some of the plaintiff's official witnesses have also been recorded, therefore, the learned Additional District Judge-VI, Abbottabad shall proceed with the instant lis from the stage where the same was stopped by the learned Senior Civil Judge, Abbottabad on 31.07.2023. Order accordingly.