' The only question in this revision petition is whether the order of the learned Civil Judge referring the matter to the District Judge for transfer of the suit on account of its being in excess of his pecuniary jurisdiction was within his jurisdiction or he should have acted under Order VII, rule 10, C.P.C. And returned the plaint to the plaintiff tor presentation to the proper Court.
2. This question has arisen in these circumstances. The plaintiff filed a suit for possession of the property in dispute in exercise of superior right of pre-emption in the Court of the Civil Judge, 2nd Class, Samundri. The jurisdiction value of the plaint was worked out at Rs,1,534.50 on 30 times of the land revenu which amounted to Rs, 51.15. A different criterion was used for determining the valuation for the purpose c court-fee, that valuation was determined on 15 times of the profit for the previous year which amounted to Rs, 7,238,06. The Suits Valuation Act provides that in cases governed by section 7(v)(c), the jurisdiction value shall also be 15 times of the on profits for the previous year. The valuation, therefore, elicited an instant objection from the defendant. When the question about the correctness of the valuation came up for consideration before the Court, the learned counsel for the plaintiff conceded that the jurisdictional value should have been the same as the valuation for the purpose of court-fee. The plaintiff was, therefore, allowed to file an amended plaint.
3. After the amended plaint was filed on the 3rd July, 1976, the Court passed the impugned order referring the case to the learned District Judge for transferring it to the Court of competent jurisdiction since the matter was beyond the pecuniary jurisdiction of the learned Civil Judge.
4. Ch. Muhammad Bashir, learned counsel for the petitioner relied upon the principle laid down in Haji Faiz Muhammad v. Syed Riaz Hussain PLD 1957 W.P. Lah. 689 and Mst. Razia Shafi v. Major M.S.Malik PLD 1971 SC 247.
Mr. Muhammad Anwar Sipra, learned counsel for the respondent, on the other hand, placed reliance upon Allah Bakhsh v. Said Ali Shah PLD 1960 (W.P.) Lah.327 to justify the order of the learned Civil Judge.
5. In all these three cases section 24 of the Code of Civil Procedure was interpreted as relatable to matters which were duly pending before a Court and it was held that in cases where this condition is fulfilled, the question of transfer of the case from one Court to another arises. The facts in Haji Faiz Muhammad's case were that the plaintiff in a suit for pre-emption had valued the suit for purposes of court-fee and jurisdiction on Rs,
15. After the relevant Fard Khalis Mujafa had been filed the jurisdiction value was enhanced on the basis of 15 times the net profit to Rs,1,087-1-9. The matter being beyond the pecuniary jurisdiction of the learned Civil Judge, he moved the District Judge to transfer the case. The District Judge transferred it accordingly to the Court of the learned Senior Civil Judge, Muzaffargarh. It was in these circumstances that the question of interpretation of section 24, C.P.C. Arose. It was held that since the Court did not have initially the jurisdiction to entertain the suit, it could not be held to be duly "pending" before it and as such it could not be transferred under section 24, C.P.C. The order was, therefore, set aside.
6. This principle of law was not departed from in either of the two subsequent cases. On the other hand, it was approved by their Lordships of the Supreme Court in case Mst.Razia Shafi v. Major M.S. Malik. It was, however, distinguished in the case of Allah Bakhsh v. Said All Shah. In that case, the suit was filed before the 4th Class Civil Judge, Leiah, on the basis of the nett profits. No objection was taken to the valuation. The parties being in disagreement on the market value of the property, an inquiry was made on that question. The inquiry resulted in the finding that the value of the property exceeded the pecuniary jurisdiction of the Court. It was in these circumstances that the reference to the learned District Judge for transfer of the case under section 24, C.P.C. Was held justified, in view of the provisions of Volume 1, Chapter XIII, High Court Rules and Orders. The case of Haji Faiz Muhammad v. Syed Riaz Hussain was distinguished on the ground that in that case the plaint was initially instituted before a Court with no jurisdiction.
7. After hearing the learned counsel for the parties, I am of the view that the instant case is clearly covered by the principle laid down in Haji Faiz Muhammad v. Syed Riaz Hussain (supra). The plaintiff knew that the court-fee had to be worked out on the basis of 15 times of the nett profits for the previous year. According, to law, the same would have been the principle for determining the jurisdictional value. The departure from that principle appears to have been made to enable the plaintiff to file this case before the Civil Judge at Samundri. This is a case in which the learned Civil Judge initially had no jurisdiction to entertain the suit. Section 24 was not, therefore, attracted.
Reference of the case to the learned District Judge was, therefore, without jurisdiction. The matter shall go back to the Court in which the suit was initially filed for passing an appropriate order as required by Order VII, rule 10, C.P.C. The respondent shall pay the costs in this Court to the petitioner.
The question of award of costs in the trial Court is left to the discretion of the learned Civil Judge.