' HAIDER ALI PIRZADA, J.-This petition under Article 9 of the P. C.
0. Has been filed against the judgment dated +1-1-1982, passed by the VIIth Additional District Judge, Karachi, in Civil Revision No, 120 of 1977 filed by the respondent No, 1.
2. The facts giving rise to this petition, briefly stated, are that the predecessors of the petitioners Nur Muhammad son of Allah Warayo filed a suit in 1968, being Suit No, 499 of 1968 under section 9 of Specific Relief Act, praying for judgment and decree for possession of the plot from the respondent No, I as the latter had dispossessed him illegally, in Court of IX Civil Judge First Class, Karachi. Suit was valued at Rs, 200. During the pendency of the suit the said Nur Muhammad died and his legal representatives were brought on record, being the present petitioners. This Suit was transferred from time to time under the administrative orders of District Judge, Karachi to II nd Civil Judge, First Class, lXth Civil Judge, Karachi, and XIIIth Civil Judge, Third Class, Karachi, respondent No, 3.
3. The written statement was filed on 28-5-1968. The suit was resisted by the respondent No, 1 on various grounds including an objection that the deceased/plaintiff has not disclosed the correct market value of the suit properly and the court-fee paid is insufficient, accordingly the suit is liable to be thrown on this ground as well.
4. On the pleadings of the parties the learned trial Court framed necessary issues. Issue No, 4 reads as follows :- "Whether the court-fee paid is insufficient."
' The suit was decreed by judgment and decree, dated 29th September, 1977. The Revision was filed by respondent No, 1 being Civil Revision No, 120/1977 in the Court of District Judge, Karachi, which was transferred to the Court of respondent No,
2. The Revision was dismissed by judgment, dated 24-2-1981.
5. The respondent No, 1 filed a Constitutional Petition No, 73 of 1981 in this Court and a Division Bench passed the following Order on 14-12-1981.
"By consent of the learned counsel present, this petition is admitted to regular hearing and is being disposed of in terms of the consent order as under :- The judgment of VII A. D. J., is hereby set aside and the case remanded to him for determination of question of pecuniary jtkrisdiction of the trial Court with reference to valuation of Suit (Issue No, 4).
This is to be decided before 31st January, 1982. Petition is disposed in terms of the above order.
There will be no order as to costs."
' The respondent No, 1 by its judgment dated 31-1-1982 set aside the judgment and decree of the respondent No, 3 and allowed the Revision and ordered the return of plaint to the petitioners (plaintiff) under Order VII, rule 10, C. P. C. For presentation before a Court of competent jurisdiction, after showing correct valuation of the suit property both for purposes of jurisdiction of the Court and for court-fee.
6. Aggrieved by the aforesaid judgment, the petitioners have filed this Constitutional Petition. We have heard Mr. Abdul Fateh Memon, learned counsel for the petitioners and Mr. Khalilur Rehman, learned counsel for the respondent No, I.
7. Mr. Abdul Fateh Memon has raised the main contention that the impugned judgment dated 31-1- 1982, passed by the respondent No, 1, Karachi, is illegal and without lawful authority inasmuch as it is in violation of section 11 of Suits Valuation Act.
8. We find from the judgment of that trial Court that the respondent No, 1, who was defendant in the Suit before the trial Court, failed to raise objection that the trial Court has no pecuniary jurisdiction to entertain the suit and that the act of plaintiffs/petitioners resulted in prejudice on merits of the case. Contrary to this the respondent No, 1 joined proceedings in the trial Courts.
9. The respondent No, 1 filed Revision which was dismissed by a judgment dated 24-2-1981. The respondent No, 1 argued Issue No, 1 and Additional Issue No,
1. It seems that it is only when the judgment and decree in the trial Court and the judgment in Revision have pile against him that be has raised objection in Constitutional Petition No, 73 of 1981 for the first time that the trial Court had no pecuniary jurisdiction to entertain the suit and by consent of the parties the matter was remanded to the Additional District Judge, Karachi.
10. In order to appreciate the contentions of the parties, it is necessary to produce section 11(1) and
(b) of the Suits Valuation Act.
"Section 11(1).-Notwithstanding anything in section 578 (now section 99) of the Code of Civil Procedure, an objection that by reason of the over-valuation or under-valuation of a suit or appeal a Court of first instance or lower appellate Court which had not jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an appellate Court unless."
"Section 11(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 overvaluation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits."
' In Rachappa Subrao Jadha v. Shidappa Venkatrao Jaddhav (1) at p. 32, the Privy Council held that the objection which was "the most technical of technicalities" was not taken in the Court of first instance, and that the Court would not be justified "in assisting an objection of that type", and that it was also untenable. Before concluding it observed:- "The Court Fees Act was passed not to arm a litigant with a weapon of technicality against his opponent but to secure revenue for the benefit of the State. This is evident from the character of the Act, and is brought out by section 12, which makes the decision of the first Court as to value final as between the parties, and enables a Court of appeal to correct any error as to this, only where the first Court decided to the detriment of the revenue. The defendant in this suit seeks to utilise the provisions of the Act not to safeguard the interests of the State, but to obstruct the plaintiff ; he does not contend that the Court wrongly decided to the detriment of the revenue but that it dealt with the case without jurisdiction. In the circumstances this plea, advanced for the first time at the hearing of the appeal in the District Court, is misconceived, and was rightly rejected by the High Court."
' It is contended by Mr. Abdul Fateh Memon the learned counsel for petitioner that the learned Additional District Judge has not come to the conclusion that the prejudice has been caused to the respondent No, I. The question, therefore, is, can a decree passed by a trial Court which had jurisdiction to entertain it only by reason of under-valuation be set aside on the ground that on a true valuation that Court was not competent to entertain the suit. The words "unless the over- valuation or under-valuation thereof have prejudicially affected the disposal of the suit or appeal on its merits" would become clearly useless. These words clearly show that the decrees passed in such cases are liable to be interfered with in an appellate Court, not in all cases and as a matter of course, but only if prejudice such as is mentioned in the section results.
' The language of section 11 of the Suits Valuation Act provides that over-valuation or under- valuation must have prejudicially affected the disposal of the case on merits. The prejudice on the merits must be directly attributable to over-valuation or under-valuation and an error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been caused by over-valuation or under-valuation. Mere errors in the conclvi,r... On the points for determination would, therefore, be clearly precluded by the language of this section.
We are, therefore, clearly of opinion that the decree of the trial Court is liable to be reversed only on proof of prejudice on merits and prejudice can be established by going into the merits of the decision both on question of fact and of law. For determining whether there was prejudice or not, there
(1) 46 IA 24 must be an enquiry on the merits of the decision on question of fact. We find that no such enquiry was held in this case. We are in agreement wit judgment of Mr. Justice Anwarul Haq (as he then was) reported in Gul Khan v. Said Hassan Shah and others (I). The Judgment lends support to our view. In this view of the matter the Constitutional Petition is allowed, the impugned judgment is set aside and the case is remanded to the learned Additional District Judge to decide afresh the aforesaid aspect after giving notice to the parties.
' These are the detailed reasons in pursuance of a short order of 14-9-1983.
(1) PLD 1968 Pesh. 148 A...