1. ' Muhammad Suleman and Muhammad Riaz, the appellant-vendees herein (defendants in the original suit), have moved this appeal, by leave, to assail the judgment passed by a learned Single Judge of the Azad Jammu and Kashmir High Court on 26-2-1981 ; where by the order recorded by the District Judge, Mirpur, on 8-7-1980 in favour of the respondents to this appeal (plaintiffs in the original suit) in upsetting the judgment of dismissal of the suit passed by the Sub-Judge, Mirpur, on 13-3-1979, was maintained ; resultantly the appellants' appeal was disallowed. An application seeking amendment in the written statement, moved in the High Court on 8-2-1981, was also rejected by that very order.
2. To understand the controversy, it would be proper to have a cursory glance of the facts forming background of the dispute. The appellants, Muhammad Suleman and Muhammad Riaz, purchased a house and shops through a sale-deed, registered on 6th of December, 1971, from three minor sons of Ghulam Rasool, namely. Javed Iqbal, Mahmood-ulHassan and Fida Hussain. The suit property sold to them, earlier on 23-12-1970, was transferred by way of a gift-deed executed by their father. Ghulam Rasool. The sale-deed on behalf of minors was executed by their mother Mst.
2. Zahoora Begum. The respondents (minors) challenged the validity of the sale-deed by way of a regular suit moved on their behalf by Muhammad Saeed, a son of Ghulam Rasool, in the Court of Sub-Judge, Mirpur. It was averred in the plaint that the document of title (sale-deed) executed by Mst. Zahoora Begum, their mother de facto guardian being ab initio void does not transfer title to the vendees (appellants) in the property sold. Consequential possessory relief of the house and shops was also prayed for, The claim set up in plaint was contested in the written statement mainly on the ground that the sale-deed was validly executed by the mother of the minors, Mst. Zahoora Begum, and the sale consideration was utilized in the interest of the minors.
3. The learned Sub-Judge, Mirpur, after the trial, vide order dated 13-3-1979, dismissed the suit with the finding that it stood established that the sale-deed was executed by the mother of the minors for their benefit and as such it was unassailable. The first appeal moved by the minors (plaintiffs) before the District Judge, Mirpur, however, succeeded vide order dated 8-7-1980. It was found by the learned Judge that the sale-deed executed by the mother (de facto guardian of the minor vendors) in presence of the father, the legal guardian, was a nullity and was, therefore, necessarily to be recalled. Consequential relief for possession of the house and shops was also granted. The appellants (vendees) went up in appeal before the High Court which was dismissed by a learned Single Judge vide order, dated 23-2-1981. Hence this appeal, by leave, to assail the said judgment of the High Court.
4. Here I may make a reference to the application for the amendment of the written statement moved in the High Court on behalf of the vendees (appellants) on 8-2-1982. The amendment in the written statement was sought in the following terms :- "(a) In para. 1 of the written statement, it is proposed to add that the gift-deed in favour of the plaintiffs is a fictitious one without transfer of possession. It had been executed under a plan to deceive the purchasers, when, in fact, the donor was the rightful owner and in possession.
(b) Para. 2 of the written statement is sought to be substituted by :-
(1) For the reasons stated in para. 1 above, the father of the plaintiffs was the actual owner of the property who planted the plaintiffs and his wife and transferred the property himself and recovered the consideration of the sale-deed and appointed his step-son as next friend of the plaintiffs in the suit brought by himself which was pursued by him.
(ii) In the alternative, the name of the mother of the plaintiffs was used fictitiously when in actual fact, the father of the plaintiffs himself completed the sale-deed at all stages and was actually associated personally as guardian of the minors. As such, the plaintiffs are legally and morally bound by the sale-deed.
(iii) That the father of the minors executed the sale-deed for their legal necessity and benefit and the consideration was spent on them of which the plaintiffs are bound.
(iv) That at the time of the gift, the value of the property was ten thousand rupees whereas in about four months, the said property was sold to the defendants for sixty-five thousand rupees recovering 6i times its value, which is in the interest of the plaintiffs and as such they are bound by the sale-deed.
(c) In para. 3 of the written statement, it is proposed to amend it as under ' That the reply of para. 3 is that for reasons stated above in this ,plaint/ application the sale-deed is quite valid which is binding on the plaintiffs. In the alternative, the defendants are entitled to Rs, 4,50,000 as compensation because if the defendants would have invested the amount of sixty-five thousand rupees in some business they would have earned more than four lacs rupees. In case of decree, the defendants are entitled to recover compensation for improvements.
(d) Para. 4 is wrong.. The plaintiffs have no right to the suit property. The proposed next friend is a step brother of the minors who has been collusively planted by their father to complete his vicious aims when the father himself pursues the suit.
(e) Para. 5 is to be amended as :- ' For reasons stated above, the sale-deed in favour of the defendants is legally valid and they are the owners of the property."
3. ' As said earlier, the High Court also disallowed this application by the very order which is sought to be assailed now.
5. The learned counsel for the appellants, Maulvi Siraj-ul-Haq, in support of the appeal, has raised the following points of objections :- (i)In the first instance, it has been submitted that the law always looks to the substance and not to the form. The whole law of "Benami transaction" is based upon this principle. Mere fact of conveyance, therefore, being made by the mother on behalf of the minors, would not change the true complexion of the transaction which actually was made by Ghulam Rasool, the father of the minors;
(ii) that amendment of the written statement was wrongly refused as the amendment only aimed at elucidating the defence originally set up in the written statement; and the learned Judge in the High Court was wrong to hold that the amendment intended to introduce an inconsistent defence in departure to one originally set up. Elaborating his point, it has been submitted that no doubt the mother executed the sale-deed on behalf of the minors but the master-mind behind the same was Ghulam Rasool their father and, therefore, it required to be added for clarification that it was only a "benami act" and the true seller on behalf of the minors was their father, Ghulam Rasool, who negotiated the transaction and actively participated in the execution of the deed. This fact would, it has been submitted, show that the amendment sought for is not at all inconsistent with the existing written statement;
(iii) that amendment application, no doubt, has been moved at a late stage but this delay may not be allowed to stand in the way of allowing amendment to decide the real questions in controversy because the Courts exist to dispense justice and not to become party to injustice by becoming prisoners of procedure;
(iv) that the Courts have to protect people against fraud of the nature in this case which is a matter of inference in all cases and direct evidence on the issue is seldom available. All that is necessary to show is that the circumstances exist which raise an inference that fraud in all probability must have been practised; but this aspect of the issue was ignored in the High Court;
(v) that father, in this case, who is a legal and natural guardian of the minors, has unlimited powers of making alienation under Muhammadan Law and it is he who has in fact sold the property to the appellants;
(iv) that the market value of the property being Rs, 65,000 it was beyond the pecuniary jurisdiction of the learned Sub-Judge to entertain the suit and thus the decree passed by the Sub-Judge is a nullity. This decision in fact had prejudiced the interests of the appellants in so far as the original suit was to be heard by the District Judge and the appeal would lay to Division Bench of the High Court and not to the Single Judge; and
(vii) that in any event the amount of Rs, 65,000 (the sale consideration) received by Ghulam Rasool, may be got refunded to the appellants.
6. As against this, Agha Ashiq Hussain, the learned counsel for the respondents, submitted:-
(i) that the amendment was rightly disallowed by the High Court as it aimed at setting up an inconsistent defence alien to the defence originally set out in the written statement inasmuch as it was not entered in the original written statement that the alienation was in fact made by Ghulam Rasool, the father of the minors, and their mother-Mst. Zahoora Begum-was acting as a dummy guardian. Elaborating the point it was contended that in fact the written statement entered that the guardian of the minors, the mother,had lawfully alienated the property under the legal power and the appellants (defendants) claimed title on the basis of this very sale-deed and they cannot now be allowed to make out an inconsistent defence;
(ii) that the defendants filed their written statement on 29-4-1974 and the belated application for amendment, made on 8-2-1981, after practically six years and nine months, has rightly been disallowed by the High Court as this application could not be said to be bona fide.
(iii) that the learned Sub-Judge had the jurisdiction to entertain the suit as it was a declaratory suit with the consequential relief covered by section 7 (v) (c) of the Court Fees Act which provides that in such like cases the value for the purposes of court fee shall also determine the pecuniary jurisdiction of the Court; and
(iv) that Ghulam Rasool, who is not a party in the case, cannot be required to refund the amount of sale consideration.
7. Maul.Vi Siraj-ul-Haq, in support of the objections regarding amendment, listed above, has submitted that the basic philosophy of the law of amendment contained in Order VI, rule 17, C. P. C., is that amendment in the pleadings shall be made as may be necessary for the purpose of determining the real questions in controversy at any stage. The Courts exist for doing justice and for determining the rights of the parties in the context of truth which is the duty of the Courts of justice to find out and make it the basis of their judgments. In this case the disposal of the property within three months by the mother of the minors coupled with the fact that the transaction was manipulated by Ghulam Rasool, the learned counsel submitted, makes it abundantly clear that it is a planned fraud committed by Ghulam Rasool which is the real question in controversy. % Ghulam Rasool has admitted himself as to have received full sale consideration and actually played master role in the execution of the sale-deed would show that he played fraud and deceit with the appellants. It is further contended that the so-called gift was made `Bename on 7-12-1972, Minors were only the figure-head and Ghulam Rasool continued to be the true and beneficial owner of the suit property. Right on the heel of so-called gift he was on the look out for a buyer and within less than 21 months of the making of the so-called gift, he was able to trap the appellants. It is a proven fact that Ghulam Rasool turned out to be a master tactician. He played upon the nerves of the appellants and actively prevented the sale being effected through a certificated guardian. He projected his wife as executant of the sale-deed and took the petition-writer to his own house where he got the sale-deed executed by his wife and himself became an attesting witness; then took the Registrar in whose presence he received the entire sale price from the vendees and thus gave impression that in fact he was the real executant. According to Maulvi Siraj-ul-Haq, the civil suit (present one) was also instituted by him through his elder son on behalf of the minors but in fact he was the real plaintiff and prosecuting the suit himself. He also submitted that before the learned trial Court both the parties fought the suit on the basis that a sale had been effected by the father albeit by using the mother's name. Amendment as such, it has been contended, is necessary to resolve the real question in controversy.
8. In opposition, Agha Ashiq Hussain, the learned counsel for the respondents, has argued that amendment application of the written statement moved on 9th of February, 1980, after the arguments in the High Court had been concluded, wanted a complete change of defence and so the application was rightly rejected by the learned Judge. In his view application for amendment of written statement shows that a complete departure from the original defence was sought inasmuch as the amendment application aimed at denying the admitted facts and introducing inconsistent pleas. In their written statement, the appellants, he submitted, admitted the validity of the gift-deed as well as lawful authority of Mst. Zahoora Begum, the mother of the plaintiffs, to alienate the property, but now it is being submitted that they may be allowed to amend the written statement that the gift-deed was fictitious; and that the sale-deed was effected by the father of the minors and mother was a mere name lender and the father was the real vendor who had executed the sale-deed for the benefits of the minors. Such an amendment is not competent, the learned counsel contended,
9. On the point, Maulvi Siraj-ul-Haq, the learned counsel for the appellant, in the first instance, has cited Sagarmull Nathany v. John Carapiet Galstaun (1), which observes that even if there be no averment in the pleadings on the point but the parties contested the case on that point and evidence was led pro and contra there cannot be a question of any surprise and the case can rightly be decided by taking notice of the point. On this analogy, the learned counsel maintained that amendment in the written statement is to be allowed. He has also referred me to Hardial Singh v. Sardarni Jaswa nti Kaur (2), Abdul Aziz v. The Multan Electric Supply Company Ltd. (3), Sh.
4. Alauddin v. The Central Exchange Bank Ltd., Lahore (4), Keramat Ali and another v. Muhammad Yunus Haji and others (5), Alokeshi Banik v. Aftabuddin (6), Muhammad Yaqub Khan v. Fateh Muhammad (7). The President v. Mr. Justice Shaukat Ali (8) and Ch. Muhammad Ashraf v. Ch. Muhammad Rashid (9).
(1) AIR 1930 P C 205 (2) AIR 1943 Lah. 159
(3) PLD 1958 (W. P.) Lah. 614 (4) PLD 1960 Lah. 446
(5) PLD 1963 SC 191 (6) PLD 1963 Dacca 87
(7) PLD 1969 Azad J & K 7 (8) PLD 1971 S C585
(9) PLD 1982 SC (A J & K) 2 ' Let me now have a analytical survey of the cases cited by Mr. Siraj-ul. Hag. Hardial Singh and others v. Sardard Jaswa nt Kaur observes that a plaintiff is entitled to set up in his plaint an alternate und'inconsistent case, a claim for ownership of a decree and in the alternative a change over the decree. BUt a 'plea- which: is inconsistent _with the-allegations in the plaint unless it'can be legally allowed by way of amendment cannot be set up for the first time in replication. While under the terms of Order VI, rule 17. C. P. C., leave to amend will be usually granted for the purposes of determining the real questions in controversy between the parties and a delay by a party is not a sufficient ground for refusing permission to amendment even at a stage of a trial, yet he cannot be permitted to do so if the proposed amendment happens to introduce a totally inconsistent case and the application for leave to amend is made after a great deal of delay. This case, it would appear, runs counter to the arguments of the appellant.
5. ' Abdul Aziz v. The Multan Electric Supply Company Ltd. Deals with the amendment of plaint. It has been observed in that case :- "An amendment of the plaint is almost the right of a party when it relates to the cause of action on which the suit is based. Apart from exceptional considerations an amendment is refused only when it is not bona fide and the intention is merely to delay the case. If a plea could have been taken originally I do not see why, if it is raised bona fide, it should not be allowed unless it be that a question of limitation arises, the defendant having gained some valuable right which in the circumstances it may not be proper to deprive him of."
10. The above case is distinguishable and has no similarity to the facts of the present case. In that case the plea which was being introduced by way of an amendment was found on an agreement which was already on the record and the contents of which had been reproduced in the plaint and the plea was apparent on reading that document. The plea itself embodied the substance contained in the plaint. This was certainly not introducing an inconsistent case. In these circumstances it was said that there is no inconsistency at all in saying that the agreement is invalid because of undue influence or because of section 23 of the Electricity Act but that even if neither of the grounds be correct and the agreement be valid, the plaintiff is not bound, in accordance with the agreement itself, to pay more than three pice per unit. Having these facts in view it was observed in that case :- "What better case could there be for an amendment than that the facts on which the plea is based have been duly mentioned in the plaint, that an issue on the point in dispute has been framed and evidence has been led, and the point on which the amendment is asked for is the real point of controversy between the parties."
6. (*Underlining is mine)
7. ' The observations made in this case are based on an earlier case decided by B. Z. Kaikaus, .1. And reported as Ala-ud-Din v. Mst. Farkhanda Akhtar (1). In that case it has been observed :- "Our law of procedure does place limitations on the power of parties to state facts, the result of which is that though alternative pleas can Were is italics)
(1) PLD 1953 Lab.
131. ' betaken, such pleas cannot include allegations of facts which would destroy each other.
8. ' A pleading cannot contain inconsistent allegations of fact. A criterion for finding whether allegations are inconsistent or not would be the answer to the question whether they can or cannot be verified at the same time. If two allegations be such that they cannot both be verified by one and th, same person they cannot be allowed to stand and the pleading will be defective. If, however, the allegations be such as can properly be verified at the same time, the pleading cannot be said to suffer from inconsistency.
9. ' Party is to state only the facts and it is for the Court to apply the law and work out the results, though as a matter of convenience and on account of lack of regard for rules of pleadings, such legal effects are generally made parts of pleadings."
10. (Underlining* is mine)
11. ' It is thus manifest that this case is distinguishable and dudes not support the amendment now prayed for in the written statement."
12. ' Sh. Sh. Allauddin v. The Central Exchange Bank Ltd., Lahore lays down that- the Courts should be lenient towards applications for amendment of pleadings and it matters little if the application has been put in after delay provided, it is bona fide. However, it has been held in this case that if the amendment seeks to take a plea of fact which is inconsistent with the plea already taken (as is the case before me), it is necessary for the applicant to satisfy the mind of the Court that the original written statement was the result of misapprehension. Inconsistent pleas cannot be taken but this general proposition is subject to the- proviso that if the original plea was due to misapprehension it may. Be withdrawn and new plea taken which prompted a party to take the original plea, now sought to be substituted. However, it must be shown that there was a misapprehension. No such grounds are either pleaded or established in the case before me.
13. ' In Keramat Ali and another v. Muhammad Yunus Haft and others, it has been held :- "The Judicial Committee of the Privy Council consistently maintained that it had undoubtedly full power to allow such amendments even where a legal right had accrued by lapse of time if the special circumstances of the case outweighed such considerations. Vide : M. D. Zahoor Ali Khan v.
14. Mst. Thakooranee Rutta Koer 11 M. I. A. 468 and Charan- Das and others v. Amir Khan and others AIR 1921 P C 50. That this Court possesses similar power to do complete justice cannot be disputed. In exercising this power no doubt, this Court would be reluctant to allow an amendment which would h ye the effect of totally altering the nature of the suit or of taking away a valuable right accrued by lapse of time, but where in the circumstances of a particular case it would be plainly inequitable to refuse such a relief this Court will not hesitate to do what the Judicial Committee did in the case of Md. Zahoor Ali Khan v. Mst. Thakooranee Rutta Koer."
15. ' This case hardly advances the case of the appellants. In this case, it was observed that the Judicial Committee of the Privy Council consistently maintained that the Courts had undoubtedly full powers to allow amendments even where a legal right had accrued by lapse of time if the special circumstances of the case outweigh such consideration. There are no two views about it and I respectfully agree with it. But in this very case it was held that in exercising its powers the Court would be reluctant to allow an amendment which would have the effect of altering the nature of the suit or of taking away valuable right accrued by lapse of time. This observation runs counter to the case of the appellants, who want to introduce a new and inconsistent defence by way of amendment in the written statement.
16. ' Alokeshi Banik v. Aftabuddin is a case in which it was found that amendment in a plaint changing the character of the plaint though not of the suit be allowed if it is more or less formal and does not change the nature of the suit. Obviously this case does not own the case of the appellants..:, ' In Muhammad Yaqub. Khan v. Fateh Muhammad and others, in the original plaint- as well as in the application for amendment the plaintiffs were claiming-as reversioners of `S' and also as reversioners of 'M' the deceased husband of 'S'. These pleas could be taken in the original suit and verified by the plaintiffs without contradicting themselves. In these circumstances, it was held that the plaintiff-applicants have made consistent pleas and in contradictory allegations of facts. In both the pleas. i,e, in the original plaint as well as in the application for amendment, the plaintiffs were calming as reversioners of Mst. Sanari Begum and also as reversionary of Makhan her deceased husband. These pleas could be put in the same plaint and the plaint could be verified by them without contradicting themselves. In these circumstances, it was said that the pleas now sought to be introduced in the plaint by way of amendment cannot be held to be inconsistent.
17. Obviously, this case has no application to the facts of the present case.
18. ' Another case, The President v. Mr. Justice Shaukat All has nothing common with the facts of the present case. In that case it was held that the trend of decisions since enunciation of law in Salamons case appears, however, to show that in a number of important respects both the Courts and the Legislatures have rent the veil. The growing tendency appears to be rather to look at the substance and not to allow vision to be clouded by the shadow of the corporate personality. Thus where the corporate personality is being used merely as cloak for fraud or improper conduct or where it can be established that the corporate personality is merely acting as an agent or trustee for someone else, the Courts would be justified to allow the amendment to determine such an issue. This case has no relevancy to the case before me because in the instant case no such defence-was obviously taken, rather the defence originally pleaded runs counter to this plea.
19. ' In Ch. Muhammad Ashraf v. Ch. Muhammad Rashid it has been observed :- "It may be remembered that all rules of the Courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose so that full powers and amendment must be enjoyed and should always be liberally exercised."
20. ' This case also hardly covers the point at issue in the instant case.
21. ' Besides, the learned counsel has also cited AIR 1969 SC 1267, AIR 1975 A P 155, AIR 1978 SC 484, AIR 1979 SC 551, AIR 1979 H P 54 and AIR 1979 P & H 161.
22. In AIR 1969 SC 1267 it has been observed :- "Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleadings of a party, unless it is satisfied that the party applying was acting mala fide or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side."
23. ' This case also has no common features with, the case before me. AIR 1975 A P 155 says :- "The object of Courts and the rules of procedure is to decide the rights-of parties and not to punish them for their mistakes. When the relief claimed by way of the amendment is based on the facts already disclosed in the plaint, it amounts to no more than a different or additional approach to the same facts and it cannot be said to be based on 'new cause of action' in the context it has to be understood. In the present case, the defendant knew that the suit was filed to obtain the payment of the amount which was due from him to the petitioner. Under these circumstances the defendant cannot legitimately claim that the amendment would prejudicially affect his rights. The mere fact that on the date of the amendment petition, the suit would be barred by time for the relief claimed without there being any other prejudice which would work against the defendant, cannot be a ground for disallowing the amendment."
24. ' This case hardly helps the appellant. It only applies to a case of amendment on the facts already disclosed in the plaint or written statement, which is not the case here.
25. ' In AIR 1978 SC 484 it has been observed :- "Provisions for the amendment of pleadings subject to such terms as to cost, and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed ge6erally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued."
26. ' This case has also no applicability to the case before me for the simple reason that the remedial steps in the plea will unjustifiably injure rights accrued to the other party.
27. In AIR 1979 SC 551 it has been held :-- "There is no impediment or bar against appellate Court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the appellate Court should observe the well-known principles subject to which amendments of pleadings are usually granted.
28. Naturally, one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the trial Court. If the necessary material of which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before this Court."
29. ' This case is also distinguishable as no application is coming forth as to why the amendment application was so much delayed. AIR 1979 HT 54 says :- "It is well-settled that when considering whether the amendment should be allowed, the Court need not or ought not to go into the , alleged falsity of the case in the amendment nor the Court ought to give its findings on the merits of the amendment sought for without first allowing the amenditunt, frame the issue thereon and allowing both the sides to adduce evidence. Where the defendants seek the amendment, the considerations that weigh with the Court in allowing amendments to the written statement are not to be covered by the same principle as amendment of a plaint. A plaintiff cannot be allowed to amend his plaint so as to alter materially or substitute his cause of action or the nature of his claim, but the same principle will not be applicable to the amendment of the defence or the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Hence the Courts are inclined to be more liberal in allowing amendment of defence than of plaint."
30. ' This case, it would appear, does not cover the point at issue in the instant case.
31. ' In AIR 1979 P & H 161 it has been observed :- "The law is well-settled that an amendment which goes to the root of the matter and which requires necessary adjudication for proper assessment of the matter, may be allowed at any stage of the proceedings. An appeal being a continuation of the original proceedings an amendment can be allowed even during pendency of appeal."
32. ' There is no quarrel with the proposition but it hardly advances the merit of argument in the present case, ' Some other case law has also been cited but the law enunciated thereunder covers the facts of those cases only and have very little similarity to the facts of the present case and, therefore, it would be an exercise in futility to discuss them. This view was owned by this Court in Sattar Muhammad and 6 others v. Chief Conservator of Forests, Azad .1 & K Government and three others (1). It has been observed in that case - "The judicial decision primarily applies to facts on which it is given. Such observation, generally is made on consideration of the peculiar facts of a particular case. If they are applied indiscriminately to other cases, it is likely that it may result in miscarriage of justice. A case in fact, is an authority applicable to the facts of a particular case and not for any general purpose, that may seem to follow logical from it. Obviously it would not be safe to rely on general proposition of law decided in any individual case to form foundation for general principle because the observation in a judgment separated from the context would not support the isolated data in another case. It would consequently be misleading to apply the inference drawn from certain facts and circumstances to other cases based on different facts and circumstances. In view of this stage of law, the law laid down in a case, generally only applies to the facts of that case and it cannot be said that such a law attains authenticity for every case of the nature."
33. ' As against the above case law, Agha Ashiq Hussain, the learned counsel for the respondents, has cited the following cases :--- "(1) Ma Shwe Mya v. Maung Mo Hnaung AIR 1922 P C 249.
(2) L. A. Subramania Lyer v. R. H. Hitchcock AIR 1925 Mad.
34. 950.
(3) Mt. Lugdi v. Har Prasad and another AIR 1934 All.
35. 11.
(4) G. Mckenzie & Co. (1919) Ltd. v. Tatanlal Surajmall AIR 1935 Pat. .
36. 463.
(5) Saradindu Mukherjee v, Jahar Lall Agarwalla AIR 1942 Cal.
37. 153.
(6) Hardial Singh and others v. Sardarni Jaswant Kaur AIR 1943 Lab.
38. 159.
(7) Zahur Din v. Jalal Din AIR 1944 Lah.
319. (8)_Chunnialal v. Deoram AIR 1948 Nag.
39. 119.
(9) Allah Wasaya v. Abdul Rahim PLD 1935 B J 77.
40. (10)Sh. Alauddin v. The Central Exchange Bank Ltd., Lahore PLD 1960 Lah.
41. 446.
42. (11)Haji Fateh Muhammad and another v. Sheikh Ghulam Sarwar and another PLD 1961 B J 62.
43. (12)Alokeshi Banik v. Aftabuddin PLD 1963 Dacca 87.
44. (13)Mian Niaz Hussain and another v. Imdad Hussain and another PLD 1965 Lab.
45. 172.
46. ' Out of these cases Ma. Shwe Mya v. Maung Mo Hnaung (2), G. McKenzie & Co. (1919) Ltd. v. Tatanlal Surajmall (3), Hardial Singh and others v. Sardarni Jaswant Kaur (4), Chunnialal v. Deoram and another (5), Allah Wasaya and another v. Abdur Rahim (6), Sh. Alauddin v. The Central Exchange Bank Ltd., Lahore (7) and Alokeshi Banik v. Aftabuddin (8), have some bearing on the issue and I propose to state in brief the law regards I; the amendment made
(1) PLD 1980 SC (A J & K) 46 (2) AIR 1922 PC 249
(3) AIR 1935 Pat. 463 (4) AIR 1943 Lah. 159
(5) AIR 1948 Nag. 119 (6) PLD 1953 B J 77
(7) F L D-1960 Lah. 446 (8) PLD 1963 Dacca 87 out of those cases only. The remaining cases having very little similarity with the present case need not be discussed.
47. ' In Ma Shwe Mya v. Maung Mo Hnaung, it has been observed :- "All rules of Courts are nothing but provisions intended to secure the proper administration of justice and it is therefore essential that they should be made to serve and be subordinate to that purpose so that full powers of amendment must be enjoyed and should always be liberally exercised but nonetheless no power has been given to enable one distinct cause of action to be substituted for another, nor to change, by amendment, the subject-matter of the suit.
48. (Underlining* is mine)
49. ' In this case the plaintiff sued in 1913 for specific performance of the verbal agreement made in 1912 by the defendant with him for transfer of certain land for oil wells in place of the first agreement of 1903 and when the Court found the verbal agreement not proved, the plaintiff applied to amend the plaint, by claiming damages for breach of the contract of 1903. The amendment could not be allowed as it was not open to the Court to permit a new case to be made out.
50. ' In G. McKenzie & Co. (1919) Ltd. v. Tatanlal Surajmall, it has been held :- "The significance of delay lies not in the quantity of time that has elapsed but in what has transpired during that time. The main point in considering whether leave should be granted to any party to amend his pleadings is whether in the words of Order VI, rule 17, C. P. C., the amendment is necessary for the purpose of determining the real questions in controversy between the parties.
51. ' On the, question of amendment of pleadings two complimentary pro, positions arise : firstly, that the determination of the real questions in controversy is the prime object of the frame and settlement of the pleadings ; and, on the other hand, that leave to amend should not be granted if the amendment would convert the case set up into another of a different and inconsistent character. The Court will not allow an amendment that would involve a complete change of front in the defence."
52. (Underlining* is mine)
53. ' In Hardial Singh and others v. Sardarni Jaswant Kaur, it was held :- "While under the terms of Order VI, rule 17 leave to amend will be usually granted for the purpose of determining the real questions in controversy between the parties and a delay by a party is not a sufficient ground for refusing permission to amend even at a late stage of a trial, yet he cannot be permitted to do so if the proposed amendment happens to introduce a totally inconsistent case and the application for leave to amend is made after a great deal of delay. "
54. (Underlining* is mine)
55. ' In Chunnialal v. Deoram and another, it has been observed :- 'No doubt a Court has very wide powers of allowing amendment but amendments will be allowed only for the purpose of determining *Mere in italics) the real questions in controversy between the parties. The real questions in controversy are those on which issues are framed in the trial Court.
56. Ordinarily, under law, a Court will not allow an amendment which involves a complete change of front in the defence. Just as a plaint cannot be allowed to be amended so as to introduce a new and inconsistent cause of action which would change the nature of the suit, so also the defence cannot be allowed to be altered so as to introduce a different set of circumstances inconsistent with the circumstances pleaded to begin with.
57. ' Where, therefore, in a suit by the lambardar for possession of an abadi site on the ground that the defendants-transferors had a nontransferable licence in respect of the same and the defendants could not acquire the site without the consent of the plaintiff, it was admitted in the trial Court that the transferors were mere licencees of the abadi, but the defendants by their amendment wanted to raise for the first time in appeal a new question of controversy, viz., that the transferors were proprietors and therefore bad transferable interest in the site : ' The plea that the transferors were owners was inconsistent with the plea that they were licencees and the amendment sought for being in the nature of a complete change of front in the defence ought not to be allowed.
58. ' Where the order of the appellate Court gives liberty to the defendants to make out a new case by amendment after they have failed in the trial Court and after they have virtually failed in appeal, the order is revisable by the High Court in revision."
59. (Underlining* is mine)
60. ' In Allah Wasaya and another v. Abdur Rahim it was observed "It would therefore be against the interests of justice to allow the defendams to amend the pleadings which will introduce an entirely different, new and inconsistent case. I admit that mere delay is no ground for refusing an amendment but when the amendment is being proposed with the object of making out a new and inconsistent case, it cannot be allowed."
61. (Underlining* is mine)
62. ' In Sh. Alauddin v. The Central Exchange Bank Ltd., Lahore it has been held :- "It is a general rule that Courts should be lenient towards applications for amendment of pleadings.
63. It does not even matter very much if the application has been put in after delay provided it is bona fide.
64. But if it is sought by an amendment to take a plea of fact which is inconsistent with a plea already taken, it is necessary for the applicant to satisfy the mind of the Court that the original wrong statement was the result of a misapprehension.
65. ' Inconsistent pleas cannot be taken. But this general proposition is subject to the proviso that if the original plea was due to a misapprehension it may be withdrawn. However, it must be shown that there was a (Here is italics) misapprehension. At the same time, one does expect that an application, which is being put in about six years after the proceedings commenced and at a time when the case had been fixed for orders, should be submitted after the applicant has fully informed itself of the material facts."
66. (Underlining* is mine)
67. ' In Alokeshi Banik v. Aftabuddin it has been observed :- "To grant amendment is in the discretion of the Court but certainly the discretion is a judicial discretion and not an arbitrary one. If any arbitrary amendment is granted, it is certainly in the illegal exercise of jurisdiction, and we think the contention of the learned Advocate for the petitioner is of substance.
68. ' It is undoubtedly true that the suit is one for specific performance of contract and after the amendment it will continue to be a suit for specific performance of contract. In dial sense, there has been no change in the character of the suit, but the character of his claim has been totally changed."
69. (Underlining* is mine)
70. ' In this case, the claim of the plaintiff was based on the agreement directly with the defendant and payment was said to have been made to the defendant and the memorandum of agreement prepared and alleged to have been signed by the lady herself and the receipt of payment of Rs, 6,000 as a part of the consideration money was also said have been signed by the lady herself by putting her thumb-impression.
71. ' Then the plaintiff came with a case that the agreement was not with the lady herself, but with her accredited agent simply because in the written statement filed by the defendant she had stated that for the last 14 years she was not in Dacca and was continuously living in k2alcutta and looking after her property through her accredited agent, Premananda Banik and that was why the plaintiff had become anxious to introduce Premananda Banik as an accredited agent of the defendant.
72. This sort of amendment, it was held, totally changed the character of the suit, and such an amendment would certainly prejudice the defendant in her defence which she had already filed in pursuance of the case set up by the plaintiff in the plaint.
73. ' The critical survey of the case law cited by the parties referred to above, would show that leave to amend the pleadings should always be A granted at any stage in the proceedings but such an amendment can only be allowed in order to resolve the real questions in controversy.
74. ' The learned Single Judge of the High Court in this case has regarded the new plea as inconsistent to the original defence set up in the written statement, because the case, as laid in the written statement, was that the sale deed executed by Mo. Zahoora Begum, the mother of the minors, in the capacity of the de fecto guardian was validly executed in their favour and she had the competency to do so.
75. ' Now the amendment is sought in terms that in fact the gift to the minors was `Benami' transaction and so the sale-deed on the evidence is to be treated as to have been executed by Ghulam Rasool who, at every stage of the transaction, actively participated in the transaction and it is he who 'ien is italics] had practised fraud upon the appellants and thereby allowed an invalid sale to be executed in their favour by Mst. Zahoora Begum on behalf of the minors. This plea obviously is inconsistent and runs counter to the case set up in the written statement where the powers of the de fecto guardian, namely, Mst. Zahoora Begum, to sell the property have not been challenged ; rather it is pleaded that she was competent to sell the land on behalf of the minors. The plea now sought is clearly inconsistent with the plea taken in the written statement.
76. It is settled that amendment is to be allowed when the circumstances so warrant though 1 believe that the Courts should be liberal to allow amendment. It is also undoubtedly true, as contended by Maulvi Siraj-ulHaq, that the defence put forth would not change the character of the defence but I cannot lose sight of the fact that the appellants in their written statement came with a case that Mst. Zahoora Begum was competent to transfer the suit property. The amendment now seeks that the sale-deed was, in fact, made by Ghulam Rasool who despite disposal of the property to the minor sons by way of gift continued to retain title in the suit land. This sort of amendment would totally change the character of the defence and cannot be allowed as it would prejudice the C respondent at this late stage. In the first instance the gift-deed executed in favour of the minors creates for them a title in the suit land. Therefore, the disposal of the property by the mother cannot bind them. May be that the father was behind the transaction but it would hardly make any difference because this method may be considered to be a legal device to avoid the rigor of law, but it cannot invalidate the gift. Whatever is now being said by the appellants if admitted to be correct it is only a device legally devised to get maximum out of the appellants. The appellants, however, are at liberty to seek any other remedy under law.
77. A defendant (as the case is before me) who had deliberately and under no mistake or misapprehension admitted a material fact in his written ,.' statement, cannot be allowed at a later stage in the proceedings to change" his front and make a new case for himself by denying that fact. The case here is not one of delay only, but it otherwise is also not sound to be accepted. The raising of a new plea involves obvious injustice to the other party as it changes the whole complexion of the written statement which cannot be allowed. If the amendment is allowed the written statement originally filed would be wholly displaced in so far as in the original F written statement the power of Mst. Zahoora Begum to transfer the suit property is admitted while the amendment now. Prayed for wants to establish the defence that Mst. Zahoora Begum had no power to do so and it was only Ghulam Rasool who, in fact, executed the sale-deed.
78. There are no doubt some exceptions to the general rule to allow amen-dents and such exceptions in certain cases do allow departure from the strict interpretation of the law relating to amendments. I he present case, in my view, is not of a type as to come within any exception. The amendment prayed for seeks to alter altogether the nature of the defence. It does not bring any additional claim which the appellants should have asked for in the written statement. In the written statement, as said earlier, they wanted to protect the sale-deed on Lhe ground that Mst. Zahoora Begum, the de fecto guardian, was competent to alienate the suit land on behalf of the minors.
79. Now, they, by way of amendment want to take an inconsistent stand to say that the very gift-deed in favour of the minors was `benami' transaction fraudulently executed by Ghulam Rasool and the sale-deed should also be construed as to have been executed by Ghulam Rasool, who still retained the ownership in the suit property.
80. It is undoubtedly true that the written statement in the present case is meant to defend the sale- deed and in that context it is being claimed in arguments by Maulvi Siraj-ul-Haq that the amendment would also protect the sale-deed. The argument, to me, is misconceived and cannot be accepted. I agree that there would be no change in the character of the defence but certainly it aims at putting up a different 4efence altogether EI unknown to the original one, which is not permissible under law. The defence as put forth is based on the fact that Mst. Zahoora Begum was competent to transfer the suit land but now it is being claimed that the sale-deed is to be protected as it in fact was manipulated by Ghulam Rasool, who despite the so called gift retained its ownership. The amend mint altogether changes the character of the defence originally put up.
81. This' sort of amendment if allowed would totally change the character of the written statement and will certainly prejudice the respondents' case which they have already fought out. Obviously, such an amendment cannot be allowed.
82. ' There may be, however, cases where facts on which the plea for amendment is based have been duly listed in the plaint or the written statement, and an issue on the point has also been framed (it is not the case here) ; in such cases, of course, the amendment touching the elucidation of the point so entered can be allowed because that amendment would relate to the cause of action on which the suit is based or it would relate to the matter on which defence is put up 'and it would not, be said that such amendment would introduce a new and inconsistent case in the plaint or written statement.
83. ' Besides, when the question was posed to Maulvi Siraj-ul-Haq as to whether in absence of Ghulam Rasool, who has not been impleaded as party, can the Court adjudicate that Ghulam Rasool was the person who has perpetrated fraud on the appellants, he was unable to satisfy the Court that any order, which may adversely affect Ghulam Rasool, can be passed in his absence and without hearing him. It is to be remembered that we have to administer law as it is though we may be morally convinced that the law is unjust. Of course, law must be administered justly if it can be done in a way which is considered to be just in the legal domain.
84. Inconsistency in the pleas, as said earlier it is settled, is not allowed to be raised in pleadings especially in written statement. What is inconsistency? It means mutually repugnant to pleadings or defence, which has been more ably dealt with in Chittaranjan Cotton Mills Ltd. v. Staff Union (1) and Province of West Pakistan and another v. Mahboob Ali and another (2).
85. ' In Chittaranjan Cotton Mills Ltd. v. Staff Union it has been held :- "The provisions of the two statutes are, in my opinion, not only dissimilar but also inconsistent and incompatible. It is true that mere dissimilarity may not be enough to establish inconsistency.
86. Inconsistency involves incompatibility iii-substance and .In spirit, and not merely in form. As defined in Black's Law Dictionary, 'inconsis-tent' means, inter alia, mutually repugnant So that both cannot
(1) PLD 1971 SC 197 (2) PLD 1976 SC 483 ' stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other'."
87. ' In Province of West Pakistan and another v. Mahboob Ali and another it has been observed :- "According to Corpus Juris Secondo Vol. 42 p. 541 the word `inconsistent' is of broad signification implying contradiction, qualities which cannot co-exist, not merely a lack of uniformity in details ; and judicially defined as meaning contradictory inharmonious, logically incompatible ; contrary the one to the other, so that both cannot stand ; mutually repugnant or contradictory. Things are said to be inconsistent when they are contrary the one to the other, or, so that one infers the negation, destruction, or falsity of the other ; or the acceptance or establishment of the one implies the abrogation or abandonment of the other, as in speaking of `inconsistent defences', or the repeal by a statute of all laws inconsistent herewith".
88. I am in respectful agreement with the observations made above and do note want to make any addition. The two cases evenly convey the meaning o inconsistency.
89. It is to be remembered that amendment can only be allowed for the purposes of determining the real questions in controversy between the parties. The real questions in controversy, as held in Chunialal v. Deoram and another, are those on which issues are framed in the trial Court, and ordinarily a Court would refuse to allow amendment which involves a complete change of front in the defence. Just as a plaint cannot be allowed to be amended so as to introduce a new and inconsistent cause of action which would change the nature of suit so also defence cannot be allowed to be altered so as to introduce a different set of circumstances inconsistent with the circumstances to begin with. No Court would allow an amendmen in a plaint or a written statement if the amendment would change the whole complexion of the case or defence or is sought to be made long after the litigation had started.
90. ' The whole case law cited by the learned counsel for the parries has thoroughly been examined by me. All the cases are one on the point that amendment should be allowed liberally but at the same time they also say that the amendment ordinarily should not be allowed to introduce an inconsistent case or an inconsistent defence which totally changes the complexion of the case or the defence. In the instant case, as detailed above, the amendment prayed for would totally change the character of the defence originally put up and naturally such an amendment has never been allowed in such like cases.
91. This brings me to the next point of objection which pertains to the incompetency of the trial Court to hear the suit for lack of its pecuniary jurisdiction. In the original plaint the respondents (plaintiffs) had asked for a declaration to the effect that the sale-deed executed by their mother, Mst. Zahoora Begum, being invalid, was not binding on them. Consequential relief for possessing of the suit property was also asked for. The suit had been valued by the plaintiffs presumably under section 7(iv) (c) of the Court Fees Act, both for the purposes of court-fee and jurisdiction at Rs,
130. The objection is that the suit for the purposes of court-fee and jurisdiction has wrongly been brought under section 7(iv) (c) of the Court Fees Act ; and it should have been valued under section 7(v) of the Court Fees Act because it is a suit for possession simpliciter and the market value of the property would determine the jurisdiction.
92. ' There are really three questions which are to be considered, in this connection- (i)What provisions of the Court Fees Act apply to the case ?
(ii) If clause (iv)(c) of section 7 of the Court Fees Act applies, what was the proper valuation in excess of the Sub-Judge's pecuniary jurisdiction (that being Rs, 65,000)?
(iii) If so, is the defect is the jurisdiction cured for all purposes by section 11, Suits Valuation Act?
93. ' On this point of objection it has been submitted by Maulvi Siraj-ulHaq, the learned Advocate, that the parties are in agreement that the suit property was sold for Rs, 65,000 ; and that there also does not appear any quarrel that if the suit is for possession simpliciter the value for the purposes of court-fee and jurisdiction would be the market value of the property.
94. ' Though the suit, as drafted, was one for declaration and possession yet the relief for possession, in the estimation of Maulvi Siraj-ul-Haq, was the substantive relief and the declaratory part of the suit being surplusage is to be ignored and the suit thus would be treated as a suit for possession simpliciter which is to be valued in accordance with the value of the property under section 7(v) of the Court Fees Act and the learned trial Court lacked pecuniary jurisdiction to hear the suit. It is the case of the learned counsel that the sale-deed by the de facto guardian of the minors, Mst.
95. Zahoora Begum, (their mother), being void, no declaration was needed at all to avoid it and, therefore, such a fake declaration would be construed as superficial and substantially the relief claimed would be considered only for possession which is always valued for the purposes of the jurisdiction at the market value of the property which admittedly in this case is more than the pecuniary jurisdiction of the trial Court. The entertainment of the suit by the trial Court beyond its pecuniary jurisdiction, therefore, the learned counsel contended, was void and the entire superstructure built on it must fall and melt away.
96. ' In fact the consensus of the judicial authorities on the subject, it has been further submitted, is to the effect that where the suit is declaratory and also for possession and it is found that the declaration is surplusage the suit would be substantively construed as one for possession which is specifically provided for under section 7(v) of the Court Fees Act and had to be valued accordingly.
97. It has been further contended by the learned counsel that when the suit was instituted on 20-3- 1973, the Sub-Judge's pecuniary jurisdiction admittedly was upto Rs, 5,000 and the value of the suit property being more than Rs, 5,000 the learned Sub-Judge lacked the pecuniary jurisdiction to entertain and hear the suit. Lack of jurisdiction, it was contended, cannot be rectified even by consent of the parties and statutory jurisdiction can neither be conferred nor taken away. No plea of estoppel or waiver would stand in the way. An act without Jurisdiction is coram non judice.
98. ' The dictum laid down by Lahore High Court . In Mst. Zeb-ui-Nisa and others v. Chaudhri Din Muhammad and others (i) and later on by a
(1) AIR 1941 LattL 97 ' Division Bench in Harkishun Lal v. Barkat Ai (1), to the effect that when the relief for possession is substantive relief, the valuation for the purposes of jurisdiction would be the value of property of which possession in sought, it has been submitted, is fully attracted to the present case. The former case AIR 1941 Lah. 97, was followed in Htsrkishan Lal v. Baricat Ali. At page 210 (last para.), the Division Bench observed :- "There is one exception to the above rule, namely, where on the allegations in the plaint itself the document, which is alleged to stand in his way, is not voidable but is void: In such a case it is obvious that a prayer for a declaration that the document be declared void is a surplusage and the suit again remains a suit for possession."
99. (Underlining* is mine).
100. ' On the point that where the basic entertainment of the suit is without jurisdiction all the successive orders would be liable to be quashed, I have been referred to Muhammad Tufail v. Settlement and.
101. Rehabilitation Commissioner (2), ibdul Rauf v. Aquil Ahmed (3), Major Syed Walayat Shah v.
102. Muzaffar Khan (4) and In re : Amirzada Khan and others (5).
103. ' I have looked into all these cases. Out of them Abdul Rauf v. Aquil Ahmed, has little relevancy to the facts of the present case and needs no critical survey. In Muhammad Tufail v. Settlement and Rehabilitation Commissioner it has been held :- "Ordinarily, the law is that, if any authority lacks jurisdiction to try a case, even a plea of waiver to its jurisdiction would not validate the order of that authority."
104. ' In Major Syed Walayat Shah v. Muzaffar Khan, it was observed :- "So far as the first ground is concerned, it is a question of law relating to the jurisdiction of the successor Deputy Settlement Commissioner to revlew his order. If he had exercised a jurisdiction he did not possess the High Court was quite competent to quash it and all successive orders based upon it. On this ground alone the writ petition was bound to succeed."
105. ' In Ramkhelawan Sahu v. Bir Surendra Sahi (6), the following observation is made :- "Declaration properly so-called, such, for instance, as declarations of public status, or a declaration that the plaintiff holds a public office, or a declaration as to the meaning of a will or a trust deed or other public document. It has no reference to the kind of declaration in the sense of finding of fact as to the plaintiff's title necessary for granting a decree for possession."
106. ' On the above premises of law, I am called upon to hold that the present suit being not one for declaration of the kind referred to in section 7 (iv) (c) of the Court Fees Act, the order passed by the trial Court would be deemed as to have been passed without its pecuniary jurisdiction and liable to be quashed.
107. 'There in italics]
(1) AIR 1942 Lah. 209 (2) PLD 1967 Kar. 258 (3)1969 SCMR 69 (4) PLD 1971 SC 184
(5) P L 11 1974 Note 87 at p. 136 (6) A 1 R 1938 Pat. 22 (F B)
108. ' When the attention of the learned counsel was drawn to section 11, Suits Valuation Act, which reads :- "(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 a 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 overvalued 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 (I), 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, 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 section 622 of the Code of Civil Procedure or other enactment for the time being in force.
(5) This section extends to the whole of Pakistan and shall come into force on the first day of July, 1887." ' and seems to validate such an order which does not affect prejudicially the merits of the case, the learned counsel submitted that this section cannot be attracted in the present case because the objection as to valuation was taken in the written statement and an issue (issue No, 2) framed on the point had been decided against the appellants and it was held that suit, as framed, is covered under section 7 (iv)(c) of the Court Fees Act. The objection, of course, the learned counsel conceded, could not be reiterated before the District Judge or the High Court or this Court. But despite this, where a defendant objects to the valuation (as is done in the instant case) ; such an objection can be heard in arguments even at the hearing of the appeal in this Court and especially in a case where the plaintiff deliberately undervalues his suit and files a declaratory suit with consequential relief for possession when in fact he had to sue for possession only. The provisions of section 11 of the Suits Valuation Act cannot, in any case, be attracted to validate the proceedings.
109. The learned counsel has cited Province of West
(1) PLD 1972 Kar. (2) AIR 1925 Oudh 561 ' Pakistan v. Allanditta (1), in support of his view point. It has been observed in that case :- "Section 11 of the Suits Valuation Act is not relevant because the respondent has not only deliberately under-valued his suit, but he has filed a suit for accounts when his only cause of action was for the recovery of the specified sum known to him."
110. ' The learned counsel has also argued that the disposal of the suit on the merits by a forum (trial Court) incompetent to hear the same has prejudicially affected the appellants' case inasmuch as the suit of the valuation of Rs, 65,000 was to be heard by the District Judge and appeal lay to the Division Bench of the High Court and not before a Single Bench as is done in this case. Sheoraj Singh v. Phulbesa Kuer (2), has been cited to support his view-point. In that case it has been held :- "Disposal of a suit on its merits is prejudicially affected within section 11 when that disposal is made by a District Judge while it ought to have been made by a Bench of two Judges of the Court of highest jurisdiction in a province. The lack of jurisdiction of the lower appellate Court is not cured by the provisions of section 11 of the Suits Valuation Act."
111. ' The learned counsel thus wants me to hold that the suit was undervalued and, therefore, the learned Sub-Judge's judgment is a. Nullity and all the subsequent judgments and decrees of the two appellate Courts, being bad in law, are to he recalled. No amount of consent, it has been submitted, can give jurisdiction to the trial Court which otherwise was incompetent to hear the suit.
112. Plaint was, therefore, to be returned to the respondents (plaintiffs) to be filed before a competent Court after fixing correct valuation under section 7 (v) of the Court Fees Act.
113. ' On behalf of the respondents, it has been contended by Agha Ashiq Hussain, Advocate :-
(i) that the suit has been properly valued under section 7 (iv) (c) of the Court Fees Act, as in essence it was a suit in seeking declaration that the sale-deed regarding the house along with the shops etc. Is a nullity qua the rights of minors and prayer for possession of the property was made as a consequential relief ;
(ii) that issue No, 2 in the suit, which reads :- "Is the suit invalid and less court-fee paid ? If so to what extent ?", has been decided in favour of the plaintiffs (respondents) by the trial Court in holding that the suit is properly filed and proper court-fee is paid under section 7 (iv) (c) of the Court Fees Act. This finding of the learned Sub-Judge, it has been contended. Had never been challenged before any of the appellate Courts including the High Court ; and even in this Court the point has been taken in arguments with the permission of the Court. The appellants, in the estimation of the learned counsel, cannot now be allowed to raise this objection at this stage ;
(iii) that the suit, being of declaratory nature alongwith the consequential prayer for possession of the property, was competently, tried by the Court of Sub-Judge. It is a declaratory suit with the consequential relief and has been correctly valued under section 7 (iv) (c) of the Court Fees Act ;
(iv) that the provisions contained in section 11 (b), referred to above of the Suits Valuation Act debar the appellants from raising objection on the ground of under-valuation or lack of pecuniary jurisdiction as no case had been made out that it has occasioned any prejudice to the appellants ; and
(v) that Ghulam Rasool, being not a party in the proceedings, cannot legally be required to refund the sale-consideration.
114. ' In support of his contention (first and second), the learned counsel has cited Ram B usan Das v.
115. Bachu Rai (1), Ishwar Dayal v. Amba Prasad (2), Khimanmal Tejanmal v. Hariram Lakumal (3), Akhouri Bikramajit Penhad v. Girwar Prasad Narain Singh (4), Mian Karam Bahl v. Muhammad Bashir (5) and B. Ghulam Qadir v. Messrs. Bulaqi Mall and sons (6).
116. ' In Ram Bhusan Das v. Bachu Ram it has been held :- `"In a case where there is mere matter of valuation and the Judge applies his mind to the question of valuation and ultimately comes to a decision, the Judge having exercised his jurisdiction no appeal will lie against the quantum of stamp duty which he directs shall be payable. But where the question is as to the particular category into which the suit falls, that is to say, whether duty is payable upon the suit as belonging to a particular class or whether another duty is payable as belonging to another class and the Court, quite irrespective of the question of the quantum of the duty payable in the particular case, decides that the case falls into a _class other than that contended for by the applicant and, therefore, is liable to payment of an amount which is larger than that which the plaintiff contends for and refuses to entertain the suit until the higher duty is paid, it amounts to a refusal to exercise jurisdiction upon legal grounds and, therefore, it is a matter proper for revision."
117. (Underlining* is mine)
118. ' In Ishwar Dayal v. Amba Prasadit has been observed :- "At the stage at which the consideration of the question of court-fee arises the Court is not concerned with the question as to what reliefs should have been prayed for by the plaintiff. It has to confine its attention to the relief contained in the plaint and to see whether the court-fee paid by the 'plaintiff is or is not sufficient in accordance with the provision of the Court Fees Act. Further in the decision of the question of court-fee the Court has to bear in mind the principle that a fiscal enactment is to be strictly construed and in favour of the subject.
119. ' Consequential relief means some relief which is a necessary corollary to the principal declaratory relief prayed for by the plaintiff.
120. ' Where a suit was filed for a declaration that the mortgage bond was not enforceable and that the family property mortgaged by that bond was not liable to be sold in execution of the mortgage decree the relief for a declaration that the family property was not saleable in *Mere in italics)
(1) AIR 1934 Pat. 641 (2) AIR 1935 All. 667
(3) AIR 1937 Sind 248 (4) AIR 1949 Pat. 363
(5) PLD 1949 Lah. 8 (6) PLD 1949 Lab 461 execution of the decree was a declaratory relief and not a consequential relief and the case was governed by Sch. 2, Art. 17 (iii)." (Underlining* is mine)
121. ' In Khimanmal Tejanmal v. Harirarn Lokumal dealing with the question as to what do we mean by consequential relief, it has been observed :- "Consequential relief means a substantial and immediate remedy in accordance with the title which the Court has been asked to declare. It does not mean any relief asked for alongwith the prayer for a declaration. The question whether the plaintiff must ask for a consequential relief in a suit for declaration depends upon the circumstances of each particular case. In deciding what the proper court fee payable should be, the Court must have regard to the substance of the thing and not to the mere form in which the relief has been prayed for."
122. (Underlining* is mine)
123. ' In Mian Karam Illahi v. Muammad Bashir the following observation is made : - "When a suit is ostensibly in the form of a declaration pure and simple but the defendant contends that the suit is in substance not a suit for declaration simplicitor but for a declaration and consequential relief, and the Court decides that the defendant's -contention is well-founded, it must require the plaintiff to put his own valuation on the relief under section 7(iv) (c) of the Court Fees Act, and the value of the suit for purposes of jurisdiction will then be automatically fixed."
124. ' It is settled that the valuation for the purposes of the court-fee which is payable ad valorem under the Court Fees Act would also determine the pecuniary jurisdiction of the Court. Section 8 of the Suits Valuation Act owns this view. It reads :- . "Where in suits other than those referred to in the Court Fees Act, 1870, section 7, paragraphs (v),
(vi) and (ix), and paragraph (x) clause (d), court-fees are payable ad valorem under the Court Fees Act, 1870, the value was determinable for the computation of court-fees and the value for purpose of jurisdiction shall be the same."
125. ' It is quite obvious from the terms of this section that a suit in which this section is applicable, is the value as determinable for the computation of .The court-fees that determines the value for the purposes of jurisdiction. Suits falling under section 7 (iv) (c) of the Court Fees Act not being included in section 8 of the Suits Valuation Act, are governed by the general rule enacted by the section to the effect that in case of suits not specifically mentioned in the section, the value for the purposes of court-fees determines the value for the purposes of jurisdiction. The Court Fees Act was passed in 1870 while the Suits Valuation Act was enacted 17 years later. To me the object of section 8 of the Suits Valuation Act is to fix the value of the suits for the purposes of jurisdiction and not for the purposes of court-fees. In fact the section assumes that the value for the purposes of court-fees has been determined or is determinable ; and this determines the value for the purposes of jurisdiction. The section has received this construction in a large number of cases including the Privy Council decision in Sunderabai v. The Collector of Belgaum (1) where the question was whether the forum of
(1) I L R 43 Bom. 376 *[Here in italics] appeal in suits falling under section 7 (iv) (c) of the Court Fees Act is determined by the valuation of the subject-matter or by the value put by the plaintiff on the relief under section 7 (iv) (c) of the Court Fees Act. The appeal in that case had originally been filed in the High Court under the mistaken belief that it is the value of the subject-matter for the purposes of the jurisdiction that determines the course of appeal in such cases but the High Court held that the forum of appeal is determined in this class of cases by the value for the purposes of court-fee under section 7 (iv) (c) of the Court Fees Act. Referring to the view taken by the High Court, the Privy Council observed :- "On objection taken on behalf of the defendents, the High Court on the 11th March, 1912, rightly decided that the appeal lay to the Court of District Judge of Belguam and not to the High Court and affirmed, a principle which had been previously applied by the High Court at Bombay, that- `Where a plaintiff sues for a declaratory decree and asks for consequential relief, and puts his own valuation upon that consequential relief, then for the purposes of court-fee, and also for the purposes of jurisdiction, it is the value that the plaintiff puts upon the plaint that determines both'."
126. It thus becomes clear from section 8 of the Court Fees Act that if the suit is to obtain declaratory decree or order where consequential relief is also prayed (as the case is before me) the plaintiff has to state the amount on which he values the relief sought and he has to pay the court-fee on the amount on which relief is valued in the plaint or memorandum of appeal. Q It seems that under this provision the plaintiff has an absolute discretion, of course, if law allows, to put his own valuation on the relief that he claims and assuming that the case falls under section 7 (iv) (c), the Court has no jurisdiction to question valuation however arbitrary it may be. The leading authority on this point is a Full Bench decision in Barru v. Lachhman (1) which has since been consistently followed in Nandan Mal v. Saling Ram (2), Gurdawara Mahant Jawala Singh v. Kala Singh (3), Ghulam Haider v. Bashamber Das (4), Seth Dongarai Das v. The Municipal Committee, Fazilka (5) and Mr. B. H. Skinner v. Mr. Thomas Skinner (6).
127. Under section 8 of the Suits Valuation Act the first step, therefore, in all cases is to ascertain the valuation for the purposes of court-fee. But such value can only be ascertained under section 7 (iv)
(c) of the Court Fees Act according to which the plaintiff had to state the amount at which he values the relief sought. Unless, therefore, the plaintiff states the amount the value for the purposes of court-fee cannot be fixed and if it is not done the value for the purposes of jurisdiction can also not be determined because it is made by law to depend upon the former. This view of section 8 of the Suits Valuation Act has been taken in Mst. Chhatarpali v. Mg. Kalap Devi (7), Maung Nyi Maung v. Municipal Committee, Mandalay (8), Jamnadas Vrillal v. Chandulal Jamnadas' (9) Biraj Charan Nanda v. Sailaja Charan Nanda (10), Mian Allah Yar v. Anjuman Imdad
(1) 111 P R 1913
(3) AIR 1931 Lah. 307 (5) 116 I C 908
(7) AIR 1932 All. 114 (9) AIR 1937 Boni. 167 (2) AIR 1922 Lah. 236 (4) P L R 458
(6) 40 P L R 204
(8) AIR 1934 Rang. 268
(10) AIR 1939 Cal. 155 ' Qarza, Basti Chah Kotwala Dakhli Jalalpur (1), Ghulam Nabi v. Umar Bakhsh (2), Bansilal Lalchand Firodia v. Bhikubai (3) and Ghulam Qadir v. Bulaqi Mal (4).
128. In Mst. Chhatarpali v. Mst. Kalap Devi it has been observed :- "As regards value for purposes of jurisdiction under section 8 the value should first be determined for the computation of the court-fee in accordance with the Court Fees Act, and when such value has been determined it will govern the value for the purposes of jurisdiction also."
129. (Underlining* is mine)
130. ' In Mautig Nyi Maung v. Municipal Committee, Mandalya it has been held :- "Section 8, Suits Valuation Act, 1887, provides that where in suits other than those referred to in the Court Fees Act, section 7, paras. 5, 6 and 9 and para. 10, Cl. (d), court Fees are payable ad valorem under the Court Fees Act, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same. This does not mean that if the suit is valued for purposes of jurisdiction the suit must be valued at the same amount for court-fees, but the valuation for court-fees determines the value for jurisdiction."
131. (Underlining* is mine)
132. ' In Biraja Charan Nanda v. Sailaja Charan Nanda the following relevant observation needs to be reproduced :- "In deciding the valuation for purposes of court-fee and jurisdiction under section 8, the proper method is to value for the court fee first and then to take that value for purposes of jurisdiction." <' i> (Underlining* is mine)
133. ' In Bansilal Lalchand Firodia v. Bhikubai it has been observed :- "Where in a suit for declaration and injunction falling under section 7 (iv) (c), Court Fees Act the value for computation of court-fees is determined on the plain, iff exercising his option in that behalf, the value for purposes of jurisdiction shall, under section 8, Suits Valuation Act; be the same as that for court-fees. Under section 8, Suits Valuation Act, the determination of the value for court-fees decides the value for iurisdiction and not vice versa. The fact that in such a suit the plaintiff has, through mistake, oversight or carelessness, put in the plaint a different valuation for purposes of jurisdiction will not estop him from contending even in appeal that the valuation for the purposes of jurisdiction is wrong."
134. (Underlining* is mine)
135. It would thus appear that section 8 of the Suits Valuation Act provides that where in certain kinds of suits, including suits referred to in section 7 (iv) (c), Court Fees Act, court-fees are payable ad valorem under the Court Fees Act, 1870, the value as determinable for the computation of court- feesS and the value for purposes of jurisdiction shall be the same. This section at first sight gives the impression that in suits to which this section applies, *[Here is italics]
(1) AIR 1941 Lah. 284 (2) AIR 1941 Lah. 307
(3) AIR 1948 Born. 8 (4) PLD 1948 Lah. 461 the value for purposes of court-fees and the value for purposes of jurisdiction must be the same and that if one is known the other must follow it. This, however, is a superficial and wholly erroneous view as the section is not susceptible of any interpretation other than that in order to determine the value for purposes of jurisdiction in such suit the value for purposes of Court Fees must first be ascertained, and that the value so ascertained shall be the value for purposes of jurisdiction. The first step, therefore, in all such cases is to ascertain the value for purposes of court-fees."
136. Here the suit was brought for declaration with the consequential relief only. The amount of court- fee would be deemed to be correct because under section 7 (iv) (c) of the Court Fees Act in a suit to obtain a declaratory decree where the consequential relief is also claimed, the amount of fee payable shall be computed according to the amount at which the relief sought is valued in the plaint. Under section 8, Suits Viluation Act, where (except in certain cases) the court-feis are payable ad valorem, the value as determinate for the computution of the court-fees and the value for purposes of jurisdiction shall be the same. It is pertinent that in this case objection to the valuation for the purposes of court-fee was only taken before the trial Court which was overruled while deciding the case as a whole. The appellants, it appears, felt contented with this decision and kept silent in the first and second appeals. But it is now contended before me that the suit fell within clause (v) of section 7-of the Court Fees Act and was not entertainable in the Court of Sut- Judge. The value of the property, being Rs, 65,000, the suit, it is claimed, was beyond the pecuniary jurisdiction of the Sub-Judge.
137. ' On the point as to whether the suit was beyond the pecuniary jurisdiction of the trial Court, in Ramkhelawan v. Bir Surendra Said it has been held : - "The valuation of a suit for court-fee purposes is to be determined by the question of whether the suit is really one for a declaration in the true sense of the word, or whether it is a suit for possession ; and, if there be a claim in the plaint for a declaration, the plaint should he examined to see whether it is a declaration properly so-called, or whether it is an unnecessary claim and the suit is really a suit for possession."
138. ' Ishwar Dayul v. Amba Prasad and others (1) is the case which deals with court-fees. Dealing with the point it has been said that at the stage at which the consideration of the question of court-fee arises the Court is not concerned with the question as to what reliefs- should have been prayed for by the plaintiff. It has to confine its attention to the reliefs contained in the plaint and to see whether the court-fee paid by the plaintiff is or is not sufficient in accordance with the provision of the Court Fees Act. Further in the decision of the question of court-fee the Court has to bear in mind the principle that a fiscal enactment is to be strictly construed in favour of the subject. It has further been stated that consequential relief means some relief which is a necessary corollary to the principal declaratory relief prayed for by the plaintiff. On the point it has been observed that where a silty was filed for a declaration that a mortgage bond was not enforceable and that the family property mortgaged by that bond was not liable to be sold in execution of the mortage decree, the relief for a declaration that the family property was not saleable in execution of the decree was a declaratory
(1) AIR 1935 All. 667 relief and not a consequential relief and the case was governed by Sch. 2, Art. 17 (iii), and the value of the suit property will determine the pecuniary jurisdiction of the Court and the present case being identical one was beyond the jurisdiction of the Sub-Judge.
139. ' However, the distinction was made by the Nagpur High Court in Murlidhar v. Gorakhram Sadhuram (1). In that case it has been observed that where the Court has no jurisdiction over the subject-matter section 11 has no application. It was said that section 11 would apply only if the Court was competent to try the suit and no objection was raised by the defendant during the trial.
140. It was held that Bombay High Court had no jurisdiction to pass a decree on the basis of equitable mortgage when no part of the property over which the decree is intended to operate was situate in the jurisdiction of that Court.
141. ' I may here make a reference to a case Motiram and others v. Daulat (2), in which the following analogous question had been referred to the Full Bench for its opinion :- "Whether the Court is authorised to interfere with any value put on a relief sought by the plaintiff in a suit which falls under section 7 (iv) (c), Court Fees Act, if the valuation so put by the plaintiff appears to be arbitrary and unreasonable."
142. ' Owing to the, practical importance of the question and the divergence of the opinion amongst various High Courts in India it was considered desirable to place the matter before a Full Bench.
143. The difficulty arose owing to the wording of section 7 (iv) (c), Court Fees Act which I would like to refer here. It reads "(iv) In suits-(a)
(c) for a declaratory decree- and consequential relief-to obtain a declaratory decree or order, where consequential relief is. Prayed, (d)
144. ' After a thorough discussion it has been observed by the Full Bench :- "The amount of fee is computed ad valorem according to the value fixed in the plaint and the plaintiff is required to state that value. That value controls the value for court-fee purposes and controls the jurisdiction. That value (like any ether of the values which should appear in a plaint) is not necessarily final. If another of the subsections of section 7, for example subsection (iii), be looked at it will be seen that in suits for movable properties the value is the market value at the date of presenting the plaint. That market value may be stated by the plaintiff as Rs, X. The Court may consider, on objection taken by the other side, that it exceeds Rs, X and can reject the plaint as undervalued.
145. ' In a case under S. 7 (iv) (e) though the plaintiff values it at a certain figure the Court can refuse to accept that figure. The difference between the two cases lies in this: that in the first case the Court has something definite to go on, whereas in a suit to obtain a declaration it is difficult to determine what the true value of the relief (1.)-AIR 1236 Nag. 1 (2) AIR 1939 Nag. 50 sought is. Therefore, a Court in such a case, even where objection is taken should not lightly disturb the plaintiff's valuation and should only do so if it is apparent that valuation could not have been given by any reasonable man as the valuation of the relief sought. In other words, unless the relief sought can be given some sort of a value and unless that value which any reasonable man would give, is altogether disparate from the value that the plaintiff has given the plaintiff's valuation stands. In other words we do not understand section (iv) (c) to demand a construction which would be appropriate if the relevant part of the Act abovequoted ended with the words `and such value shall be binding on the Court'. There is nothing in the Court Fees Act which shows that in this type of case the power which the Court is given by the Civil Procedure Code to challenge an under-valuation is taken away. The only difficulty is the practical difficulty of saying what is an under-value. In many cases, it would be impossible to say what is an under-valuation for the relief sought might be of such a nature that no one could say with any definiteness whether the value is great or small. But, although there are such cases the plaintiff's value . Must be accepted, there are other cases we apprehend (otherwise the question put is meaningless) in which it would be possible to say that the value assigned is unreasonable though it might be impossible to say with precision what the true value is for a value can be great or a value can be small without one being able to say with certainty exactly how many rupees are involved. In such a case, if the Court thought that the value assigned was unreasonable we see no reason why it could not treat that unreasonable valuation as an under-valuation and exercise its power under Order VII, rule 11."
146. ' The majority of the decisions in various High Courts tend in the direction indicated above.
147. ' In Harkishan Ldl v. Barkat Ali and others. Dalip Singh, J. (as he then was), while writing the judgment for the Court observed :- "The next fundamental proposition to my mind is that where it is open to the plaintiff to frame his suit in one or two ways there is no obligation in law that he should frame his suit in any other way than he would choose to frame it. In other words, if it is open to the plaintiff to bring a suit for possession or to bring a suit for a declaration with consequential relief for possession; it is entirely for the plaintiff to choose in which form he brings the suit and to the results that may flow from his choice in the way of limitation or otherwise the question of court-fee payable is wholly irrelevant.
148. The court-fee will be determined on the nature of the suit as framed at the choice of the plaintiff always provided it is legally open to him to do so. I will add short illustrations to bring out my meaning.
149. ' If the plaintiff brings a suit for possession of certain property then that suit would fall under section 7(v), Court Fees Act. If the plaintiff chooses to frame his suit which is essentially a suit for possession and asks that it be declared that he is the owner or a limited owner of certain property and then asks for possession as a consequential relief such a suit is in substance no more than a suit for possession and the plaintiff cannot merely by splitting the relief of possession into two distinct reliefs, namely, one for a declaration declaring his right to possess and another for actual possession, convert the suit for possession into a suit for declaration coupled with a consequential. Relief."
150. ' Further it has been observed : (This portion is relevant here) :)- "But there may be other classes of cases where*, though the plaintiff may be entitled to bring a suit for possession pure and simple yet he is also entitled to bring a suit for declaration coupled with a relief by way of possession. Such cases are generally cases where the plaintiff alleges that he has a right to possess but a certain decree or other document whether by way of alienation or otherwise stands in the way of his right to possess which would arise from his title. In such a case, it may be open to the plaintiff to ignore the decree or document entirely treating it as a nullity and bring a suit for possession pure and simple. But there is no compulsion on him to do so and if he chooses to bring a suit in the form of a declaration that the document in question does not bind him and that therefore, his title to the property gives him a right to possession he is entitled to do so, provided there is no other objection to the suit. If there is such an objection this will appear later when the Court goes into the matter but initially the suit as framed will lie and, as I have stated, court-fee will be determined by the initial frame of the suit. It may well be that a suit brought in this form may be subject to a variety of objections which will later arise in the disposition of the suit according to law but this has nothing to do with the question whether the suit as framed demands a court-fee according to section 7(iv)(c) or demands a court-fee under section 7(v), Court Fees Act. It is not possible to hold that in all suits where the consequential relief claimed is possession the suit must of necessity fall under section 7(0.
151. ' As regards the cases from Madras High Court, I have also been referred to Amina Bibi v. Kadir Bat, ha Rowther (1), Venkatakrishniah v. Allisahib (2) and Kuuanb Sastri v. Bala Tripura Sundaramma (3). From Rangoon I have been referred to Maung Shein v. Ma Lon on (4) and from Oudh High Court Deoraj v. Kunj Behari (5). I have been also referred to Lahore High Court in Mst. Zeb-ul-Nisa v. Din Muhammad (6). I do not think it necessary to go into lengthy analysis of rulings of the various High Courts, more especially as it appears to me that the matter can be settled on principles (I would discuss it presently) approved by all Courts to the best of my knowledge, and at any rate, no ruling has been brought to my notice here which refutes these principles.
152. The principle is that the Court has to look at the substance of the plaint in each case to determine whether the suit is really one for a declaration with a consequential relief or is merely a camouflage attempt in , words to disguise a specific relief claimed in the garb of a suit for dec-i' laration occupied with a consequential relief. With this proposition I mayi
(1) A I It 1937 Mad. 529 (2) AIR 1938 Mad. 921
(3) AIR 1939 Mad. 462 (4) AIR 1931 Rang. 319
(5) AIR 1930 Oudh 104 (6) 34 P L R 100 say with all respect that I entirely agree and hold that the suit was triable by the Sub-Judge.
153. ' It may be noted that where the want of the jurisdiction is not ' apparent on the face of the proceedings but the absence of the jurisdiction depends on a fact within the Knowledge of a party and he does not bring it forward but allows the Court to proceed with the judgment, he ought not to be allowed to impeach the jurisdiction of the Court in any collateral proceedings. I observe so because in the instant case, want of jurisdiction of the trial Court (though pleaded in the trial Court) was not pleaded by the appellants in the first or second appeal and, therefore, the appellants are now estopped to raise it for the first time in this Court and that too during the course of arguments.
154. ' In Girwar Nary an v. Kamal Prasad (1), a Bench of the Patna High Court drew the distinction ,between an inherent want of jurisdiction and want of jurisdiction on grounds which have to be determined by the Court itself. The first makes the decree a nullity which may be ignored and need not be set aside. The second does not make the decree a nuirity. Such a decree can be set aside by adopting proper proceedings but cannot be collaterally impeached.
155. ' In Sheo Behari Lal v. Makrand Singh (2), a Full Bench of the Court considered the question whether the executing Court can refuse to execute a decree only on the ground that Court had no jurisdiction to pass it and refuse to execute on the ground of flunky of the decree. The answer by the Full Bench was that an executing Court can refuse to execute a decree on the ground of its being nullity in the sense of its not being a decree at all in the eye of law, either for want of inherent jurisdiction to pass it or for any other reason. It was said that it is only when the lack of jurisdiction is such as to make a decree coram non judice, a mere nullity or what is not a decree at all in the eye of law that it can be treated as a nullity and disregarded by the executing Court.
156. But defect to the territorial or pecuniary jurisdiction can be cured by section 21, C. P. C., or section 11, Suits Valuation Act, and so the decree would not be considered to be ab initio void or coram non judice.
157. ' In Kemmran Nabiar v. Valia Ramunni (3), it was said that section 11, Suits Valuation Act and section 21, C. P. C. Are exceptions to the fundamental rule of law that a judgment of Court without jurisdiction is a nullity and that want of jurisdiction cannot be waived.
158. The conclusion that I draw from the consideration of the case law on the subject is that the distinction must be drawn between the cases where there is an inherent lack of jurisdiction apparent upon the face of the record and the cases where it is doubtful or at least not so apparent as to whether the Court possesses jurisdiction or not. It would be clearly undesirable in cases of the latter kind where either there had been no objection to the jurisdiction of the Court or where upon objection (as the case is before me) the Court has held that it has jurisdiction and the decision has not been upset in appeal, that a party should be allowed subsequently to question the Court's jurisdiction, I would hold in such cases that the questions have been settled finally between the parties. I may state here that it is recognised by the Legislature that doubt as to
(1) AIR 1933 Pat. 104 (2) AIR 1935 Oudh 358
(3) AIR 1938 Mad. 257 jurisdiction may sometimes arise ; and it was presumably for this reason that that provisions were enacted in the U. P. Tenancy Act of 1939, to ensure that question of jurisdiction as between the revenue and civil Courts, arising in suits, shall be determined by the Courts before whom those suits have come.
159. As regards the provision in section 11, Suits Valuation Act, it should be noted that the restriction is of a special kind. It applies only to cases of the nature where it might be alleged that by reason of overvaluation or under-valuation that there was defect in jurisdiction. The section assumes there is no apparent defect. The Court has jurisdiction on the valuation given. The section merely limits the power of the appellate Court to consider an objection, and it is to be inferred, I think, that the decision on the point, express or implied, possesses the same finality as the decision on any issue in the suit. I would, therefore, say that the decree of the Sub-Judge here cannot be treated as a nullity even though proper valuation of the suit may be beyond its jurisdiction.
160. ' My view is that in a suit to obtain the declaration it is difficult to determine what the true value of the relief sought is. Therefore, a Court shall not lightly disturb the plaintiff's valuation if apparently I is correct ; and if the Court accepts the plaint even after objection (as is done in this case) that is an end of the matter and thereafter all the proceedings must be controlled by the valuation fixed by the plaintiff.
161. Even, I assume, the defect in the jurisdiction of the Sub-Judge, it stands cured by section 11(b) of the Suits Valuation Act. Section 11 of the Suits Valuation Act provides that an objection that by reason of the over-valuation or under-valuation of the suit a Court has no jurisdiction to try it, shall not be entertained by an appellate Court though taken in the Court of first instance unless the appellate Court is satisfied that there was over-valuation or under-valuation and this fact had prejudicially affected the disposal f the suit on its merits. The view, which appears to have been constantly taken of this provision, is that (as also section 21, Code of Civil Procedure which deals with the territorial jurisdiction) there are exceptions to the general rule that the judgment of a Court without jurisdiction is nullity and that want of jurisdiction cannot be waived.
162. ' Many of the rulings which have been cited on the issue are rulings of general nature to the effect that a decree passed by a Court without jurisdiction is a nullity and cannot be attracted to the facts of this case. Some of the rulings cited have little or no bearing on the point. For instance in Inayat Hussait v. Bashir Ahmed (1). It was only held that the Court Fees Act and Suits Valuation Act are purely fiscal enactments and they have no bearing on the question as to which was the proper Court for the institution of the suit having regard to the value of the property. All that was held was that upon objection taken in the trial Court as to valuation and its consequent effect on jurisdiction the Court must determine the valuation and must not allow the' plaintiff to put an arbitrary valuation on his claim or over-value or under-value it with a view to choose his forum. A case more in point is Raghubir Saran v. Hor Lal (2). The decision in that case related to section 21 of the Code of Civil Procedure but the observation made with respect to this section certainly appears applicable to the analogous provision in section 11,
(1) AIR 1933 All. 413 (1) AIR 1931 All. 454 Suits Valuation Act. It was pointed out that under section 21 a party is precluded from raising the question of jurisdiction at appellate stage and in revisional Courts unless the question of jurisdiction was raised at the earliest possible opportunity and a failure of justice had also occasioned thereby. I entirely agree with the law enunciated in that case.
163. I think that the principle of expediency would bar the raising of the question subsequently, for it cannot be doubted that it is in the general interest that a cause should finally dispose of the litigation if, of course, somebody does not stand adversely affected by such a disposal. It would not, therefore, make the decree of the Sub-Judge a nullity unless it can be shown that the Sub- Judge had no jurisdiction and that it had caused prejudice to a party. Both the elements must co- exist. The decree or judgment, in absence of such an element, cannot be said to be a nullity. In this respect Maulvi Siraj-ul-Haq, the learned counsel for the appellants, submitted that if the suit is treated as one for possession simplicitor the appeal in the High Court was to be heard by a Division Bench and as the appeal in the present case is heard and disposed of by a Single Judge it has caused prejudice to the appellants. The argument cannot be accepted as no prejudice to the appellant stands established or pointed out.
164. I may state here that on the point in Sheoraj Singh v. Mt. Phulbas Kaur (1), it was held that the disposal of a suit on its merits had been prejudicially affected within section 11 of the Suits Valuation Act because the disposal was made by the District Judge while it ought to have been made by a Bench of two Judges of the Court of highest jurisdiction in a province. But on the other hand in Narsimham v. Subramaniam (2), (I am in respectful agreement with the law enunciated in it) it has been observed that the mere fact that a party was deprived of the right of appeal on facts before the High Court, cannot be held to have prejudicially affected the disposal of the appeal on merits. It is to be seen as to whether the conditions requisite to make clause (b) of section 11 of the Suits Valuation Act are present, namely, whether the suit was under-valued and that under-valuation has prejudicially affected the disposal of the suit on its merits ? Both the conditions must co-exist to make the decree or order a nullity. Even on the first point I am of the opinion that the suit was not under-valued and it was properly valued. But even if I assume that the suit was under-valued, the appellants have not been prejudicially affected by the disposal of the suit on its merits as stipulated under section 11 of the Suits Valuation Act and the second condition, being absent, the order by the trial Court would stand. In Narsimham v. Subramaniam referred to above, law on the point has been correctly enunciated and I own the same.
165. ' Even earlier in Kelu Achan v. Cheriya Parvathi Nethiyar (3), dealing with the point, it has been observed :- "The argument, that the mere fact of under-valuation, involving a trial before the District Munsif, must be prejudicial to the unsuccessful party, because an appeal from him lies to a District Court and then to the High Court by second appeal where the questions of fact are not open to discussion, whereas, if the suit had been .Brought originally before the subordinate Court, it would come by First Appeal to this Court, where questions of fact are open to
(1) AIR 1925 Oudh 561 (2)AIR 1927 Mad. 201
(3) AIR 1924 Mad. 6 discussion, is untenable. The clause in section 11 of the Suits Valuation Act when referring to prejudicially affecting the disposal of a suit or appeal on its merits, is not considering at all the different rules of procedure that there may be an appeal from one Court to another Court."
166. ' In Mool Chand Moti Lal v. Ram Kishan and others (1), while discussing section 11 of the Suits Valuation Act, it has been held :- "The mere fact that a suit has been over-valued or under-valued, shall not be allowed to affect the decree unless the disposal of the suit on the merits has been prejudicially affected owing to the over-valuation or under-valuation."
167. ' The point was examined in Sheikh Magsood Ali and another v. Hunter and others (2). It was held that :- "The restriction under the provisions of section 11, Suits Valuation Act, is of a special kind and applies only to cases where it might be alleged that by reason of over-valuation or under- valualion there was a defect in jurisdiction. The section assumes that there is no apparent defect ; the Court has jurisdiction on the valuation given the section merely limits the power of an appellate Court to consider such an objection and the decision on the point express or implied possesses the same finality as the decision on any issue in the suit.
168. ' The earlier suit was brought for a declaration of the plaintiff's maintenance allowance being a charge over certain property and for arrears of maintenance for one year. The arrears claim amounted to Rs, 200 with Rs, 16 interest thereon and the valuation of the suit as shown in the plaint was Rs, 216. The amount was correct if the suit fell within section 7 clause (iv) (c) as a suit to obtain a declaratory decree where consequential relief is claimed. No objection to valuation was taken at any stage of the case. The plaintiff was granted the declaration prayed for. In a subsequent suit to recover arrears of maintenance, it was contended that the declaratory decree in the previous suit was a nullity on the ground that the suit fell within section 7 (ii) and therefore the proper value of the subject-matter of the suit was beyond the Court's jurisdiction. The declaratory decree in the previous suit could not be treated as a nullity even though the proper valuation of the suit was beyond the Court's jurisdiction.
169. ' If section 11 does not apply, the general principle of res judicata cannot be appealed to, because it would be excluded by the terms of section 11. That is to say if a point was not res judicata because the Munsif in the previous suit was not competent to try the subsequent suit, the general principle cannot be invoked against the section itself. It can be invoked only to extend the doctrine to cases analogous to those referred to in section 11."
170. ' Similarly in Sri Rajah Ravu Venkata Mahipathi Gangdhara Rama Rao Bahadur Garu, Yuvarajah of Pithapuram and another v. Province of Madras, represented by the Collector of Godavari Coconda (3), it was held :- "Unless the appellate Court is satisfied that the under-valuation has prejudicially affected the disposal of the suit on merits, it has no
(1) AIR 1933 All. 249 (2) AIR 1943 Oudh 238
(3) AIR 1947 Mad. 135 right to entertain the plea of jurisdiction and act upon it by directing the plaint to be returned to the proper Court. The mere fact that the objection to under-valuation was taken at the earliest opportunity does not mean that the other condition required by the section can be overlooked.
171. ' What exactly is the meaning to be attached to the words of sub-clause (b) is rather difficult to say or determine. It should however, be noted that as the words stand it is not enough for the party concerned to prove that the decision of the suit is wrong or that some of the points in dispute have not been correctly determined. He must go further and show that the under- valuation has affected the disposal on merits prejudicially ; he must establish an intimate connection between the under-valuation and the wrong disposal or the merits.
172. ' The mere fact that by reason of the under-valuation the suit is tried as a suit of a small cause nature instead of as an original suit or that because of the under-valuation the party is deprived of a trial by a Court of higher jurisdiction from whose decision an appeal would lie on the facts to the High Court, cannot be regarded as a prejudicial disposal on merits."
173. ' I have given my deep thought to all the decisions and feel inclined to agree with the view taken by the Madras and Allahabad High Courts which appears to me in view of the expression (on the merits), to be more in consonance with the spirit of clause. (b) of section 11 (0 of the Suits Valuation Act. It may be noted that most of the High Courts in India and Pakistan also agree with the Madras High Court in holding that the mere fact that an appeal had to be brought in a subordinate Court instead of the High Court cannot be held to have prejudicially affected the disposal of the appeal on its merits. So was held in Musa Imran v. Bhagwan Das (1) and Ambica Charan Das v. Emperor (2). It is thus clear that it does not now lie in the mouth of the appellants to raise a plea of jurisdiction.
174. In fact in such cases, as held by Oudh Chief Court in Sheikh Magsood All v. H. Hunter (Full Bench), the parties cannot sub,equently be allowed to question the Court's jurisdiction and the question must be regarded as having been settled finally between the parties. Therefore, the failure of the appellants to challenge the jurisdiction before two appellate Courts and to object to the valuation for the purposes of the payment of court-fee would operate as estoppel. It is interesting that the appellants did not feel aggrieved by the judgment of the trial Court ; rather they all along and even before this Court have prayed for its restoration. How can they be allowed to wriggle out of the consistent stand and say that the decree of the trial Court, for lack of pecuniary jurisdiction, was a nullity. This would be a complete volte face not permissible under law. On the one hand they want restoration of the judgment passed by the Sub-Judge and at the same time they also want that it should be declared that the learned Sub-Judge had no pecuniary jurisdiction to entertain the suit.; suc inconsistent stand is not permissible.
175. ' For the abovestated reasons, the second objection raised by. Maulvi Siraj-ul-Haq, also stands overruled.
176. ' Now remains the third and the last contention that Ghulam Rasool may be required to refund the sale consideration. No doubt Ghulam Rasool, in his statement, admits to have received an amount of Rs, 65,000
(1) AIR 1927 All. 359 (2) AIR 1931 Cal. 344 the sale consideration, and also admits that the amount has been spent on the marriages of his daughters, yet I think before passing any order, he must be heard in the matter. Notice shall, therefore, be issued to him to show cause on 29-10-1984 at Mirpur, Supreme Court Branch Registry, as to why he may not be called upon to refund the amount to the appellants. His case, however, shall be taken separately.
177. ' The appeal, therefore, stands dismissed. In the circumstances of the case, no order as to costs.
178. ORDER OT THE COURT ' This judgment shall immediately be sent to the Deputy Registrar, Branch Registry, Mirpur, who would announce the judgment in presence of Mr. Sharif Tariq, the learned counsel for the appellants, and Agha Ashiq Hussain, the learned counsel for the respondents.