' The petitioners are defendants in a suit filed by Muhammad Hassan respondent for possession of land on 28-11-1981. The respondent had valued his suit at Rs, 8,000 for the purpose of jurisdiction and ten times of the Land Revenue, i,e, Rs, 4,004 for payment of court-fee. Since the suit was exempt of payment of court-fee being of a value less than Rs, 25,000 no court-fee was paid. The petitioners filed a written statement in which the plea was that the value of the property was Rs, 30 lacs. Suit for possession would fall under section 7 clause (5) of the Court Fees Act. It is for the trial Court to determine what is the value of the subject-matter of the suit and whether sufficient court- fee bad been paid or not. When the suit was filed before the Assistant Commissioner Mastung he framed an issue about valuation of the suit amongst other issues and referred the case to the Kazi Sarawan for trial. Kai Sarawan added three more issues and fixed a date for evidence of the parties. On the same date i,e, 17-5.1983, the counsel of the petitioners pointed out to the Kazi that the issue regarding valuation should be decided first before proceedings with the trial on other issues. The Kazi refused to accede to the request of the petitioner's counsel and decided to proceed with the trial of the case of all tne issues. This is the order from which the petitioners are aggrieved. They filed an incompetent appeal to the Majlis-eShoora which was rightly dismissed by that Court hence, this petition.
2. The counsel of the petitioners has urged that the Kazi failed to exercise a jurisdiction vested in him and had failed to take necessary steps in the proceeding. He has relied upon the case of Muhammad Ramzan and others v. Mst. Irshad Khanum (1), in which the operative portion is given in paragraph 7 of the judgment. The learned Judge had also referred to the case of Zafar Ahmad v.
Abdul Khaliq (2).
3. In the Full Bench decision in the case of Zafar Ahmad v. Abdul Khaliq their Lordships of the then West Pakistan High Court have summarised the position with reference to section 115 of the Civil Procedure Code. They have interpreted the term "case decided". It will be worthwhile to reproduce paragraph 19 of the judgment in full with benefit : "19. The position. With reference to section 115 may thus be summarised in the following proposition :
(I) The High Court may, in respect of any state of facts judicially considered, on which a Court subordinate to High Couri has given a decision, make such order as it thinks fit, if in the opinion of the High Court, such Court in giving the decision.
(a)has exercised or assumed a jurisdiction not vested in it by law, or (b)has failed to exercise o: declined to assume a jurisdiction vested in it by law, or
(c) while exercising its jurisdiction has taken a procedural step which is contrary to a mandatory provision of the law, or has omitted to take a procedural step which is required by a mandatory provision of the law to be taken, or (d)while exercising its jurisdiction has taken a procedural step which is contrary to a directory provision of the law, or to a general principle of law, and which in the final result has given to one party an advantage over the other which it would not have got but for the fact that that step was taken.
(II) The High Court cannot exercise this power if that same matter could have been brought before it by way of appeal.
(iii) When a complaint is made to the High Court that a Court subordinate to it has acted in any of the four ways mentioned in the first proposition and the High Court is of the opinion that the Court appears to have acted as complained, it may send for the record relevant for the purpose of ascertaining whether the complaint is correct or not, but is not bound to send for the record, if it can satisfactorily ascertain by other means the facts necessary for a decision of the point raised."
4. The revisional Court has to find out as to whether the subordinate Court has acted in a manner which has either prejudiced a party or by such act has assumed a jurisdiction not vested in it or has taken a procedural step which is contrary to a directory provision of law or a general principle of law and which has given advantage to one party or conversely has refused to take steps which has resulted in such consequences. It may be mentioned here that there have been views of various High Courts to the effect that it is final order which his deemed to be meant by the term 'case decided'. However the position has been crystalized by the decision in the case of Zafar Ahmad v. Abdul Khaliq. The first thing to be examined is as to whether an order passed {{FOOT NOTE}}
(1) P D 1982 B J 38 (2)'PI D 1964 Kas: 149 {{FOOT NOTE}} ' was in the illegal exercise of a jurisdiction of the subordinate Court or amounted to a refusal to exercise that jurisdiction which would disturb the jurisdiction of that Court or in other words amounted to such an act or omission on the part of the subordinate Court which could ultimately dislodge the jurisdiction of that Court. The Court of the Kazi is a Court of unlimited pecuniary jurisdiction as far as a civil suit is concerned irrespective of the valuation. If the value of the land in the present case was 100 rupees or 10 lacs of rupees it would still remain within the competence of the Kazi Mastung. The only difference is that suits above the value of Rs, 10,000 are to be presented to the Deputy Commissioner who in turn refers the same to Kazi. In cases of lesser valuation the suit is presented to the Assistan Commissioner and Tehsildar. In fact the objection of the petitioners in the written statement was that the suit should have been presented to the Deputy Commissioner as the valuation of the subject-matter of the property was 30 lacs of rupees. They have not denied the jurisdiction of the Kazi. After the suit had been referred by the Assistant Commissioner to the Kazi for trial the omission on the part of the plaintiff/respondent to present it to the Deputy Commissioner turned out to be one of technical nature and such omission would be deemed to have been rectified after the Kazi started the trial and E took cognizance of the case. The Court of the Kazi is a Court of unlimited civil jurisdiction and so in any case whether the issue is decided against the plaintiff/respondent the jurisdiction of the Kazi will not be affected and the suit will remain there and be tried by the Kazi and the plaintiff-respondent will be asked to pay the deficient court-fee before decree is prepared.
5. The forum for the suit remains unaltered whatever may be the valuatidn of the suit and failure on the part of the Kazi to decide the issue regarding valuation as a preliminary issue will not have any advance consequence for the suit as far as pecuniary jurisdiction of the Kazi is concerned. The object of section 115, C. P. C. Following the observation of their Lordships in Zafar Ahmad's case, is to ensure that if any order or any omission to make an order is of such a nature that directly disturbs the jurisdiction of the Court it can be revised at any stage of the proceedings without waiting for the final disposal of the case.
6. It will also been seen from the case referred above that those orders hi the passing of which the Court has acted beyond its jurisdiction or where the Court refused to exercise a jurisdiction or where it acts with material irregularity in the exercise of jurisdiction vested in it can be revised although they are of interlocutory nature. Issues are framed on the proposition of law and facts under Order XIV, rule 1, C. P. C. Where both issues of law and facts arise and the Court is of opinion that a case or part of a case can be disposed of on the issues of law only it shall try those issues first. Such issues of law are commonly known as preliminary issues although the term has neither been used in the Code nor defined. The Court is bound to dispose of issues of law first only when it is of the opinion that the case or any part thereof can be disposed of by a decision on such issue or issues. Where it has not been shown that a case or past of it could be disposed of on the decision of a particular issue of law it cannot be urged that the Court failed to exercise a jurisdiction vested in it by its refusal to decide it as a preliminary issue. Decision on a question of valuation is a decision of such nature that of its own force it does not non-suit a plaintiff. Moreover, the question of valuation of a suit usually is a mixed question of facts and law and, therefore, a Court is not bound under Order XIV, rule 2 to decide the issue regarding valuation before settlement of issues on facts. Evan in the case where the issues of law and facts arise and the Court is of opinion that the case or a part cannot be disposed of by the decision of issues of law only it need not try issues of law before settlement of issues of facts.
7. The refusal on the part of the Kazi to decide issue of valuation as a preliminary issue was within his competence firstly for the reason that pecuniary jurisdiction is unlimited and secondly for the reason that it was a mixed question of facts and law and thirdly for the reason that the suit could not be disposed of by decision of this issue alone as a preliminary issue. The Kazi has neither acted beyond a jurisdiction vested in him no: failed to exercise such jurisdiction. In the circumstances of the case it is not necessary to revise the order of the Kazi nor such an action on the part of the revisional Court is indicated. The revisional jurisdiction can be invoked within the scope of section 115, C. P. C. And in case, there is any defect in the finding of the trial Court regarding valuation those can be corrected at the time of I appeal.
8. The provisions of the Court Fees Act are fiscal in nature and do not control the provisions of the Code which are procedural. The Court is empowered under section 9 of the Court Fees Act to correct the valuation after inquiry and investigation and direct payment of court-fees under section 10 of the same Act. Order XIV, rule 2, C. P. C. Does not restrict the power of the Court under section 9 or 10 of the Court Fees Act or vice versa. Firstly the grievance of the petitioner does not attract the provision of section 115, C. P. C. And secondly there are no grounds for interference in revision although the practice has been that question of valuation has been set at rest before proceeding with the trial. The departure may be unusual but it is not without jurisdiction as court- fee can be recovered at any stage K of the proceedings. In the present case there is no departure from that procedure prescribed nor the order of the Kazi comes in conflict with any direction of law.
Before parting with this case I would like to observe that petitioners have been successful in delaying the progress of the case for last three years although they have any manner. The petition is dismissed. M. Z.