1. This is a petition under Article 199 of the Constitution, directed against the order passed by learned Additional District Judge, Rawalpindi on 18-3-1986, by which he set aside the order of Civil Judge, dated 2-3-1986 as also order, dated 4-3-1986 of learned District Judge, Rawalpindi, and observed that the plaint be returned for its presentation to a Court of proper and competent jurisdiction. The fact material to the petition are these; Plaintiffs Mehmood Akhtar and Mst. Hassan Jan, brought a civil suit against the defendant Ch. Muhammad Zaman, for recovery of possession of certain lands and perpetual injunction as consequential relief restraining them from making bricks, altering the nature of land as also from demolishing the 'Kothris' existing on the suit property. The suit was instituted in the Court of Senior Civil Judge, Rawalpindi, on 25-2-1986. Learned Senior Civil Judge entertained the plaint and in exercise of powers vested in him under the provisions of Ordinance II of 1962 (West Pakistan Civil Courts Ordinance, 1962), marked it to the Court of Mian Murid Hussain, Civil Judge, 3rd Class. On receipt of file from the Court of Senior Civil Judge, the original Court registered the suit and issued process to the defendant.
2. Defendant appeared, submitted written statement, and, among other pleas, objected to the valuation given in the plaint. Plaintiffs valued the suit for purposes of jurisdiction and court-fee at Rs.200. The defendant contended that the suit should have been valued at the annual rental value under section 7(xi) (cc) of the Court Fees Act and same should also be the value for the jurisdiction.
3. Objection as to valuation was readily conceded and the plaintiffs provided that deficit court-fee stamps calculated on the annual rental value. Learned Civil Judge came to the conclusion that this value exceeded his pecuniary jurisdiction and accordingly sent the case to learned District Judge with the request that it be withdrawn from his Court and be given to a Court of proper jurisdiction.
4. On 4-3-1986, learned District Judge recorded the presence of the parties, withdrew the suit from the Court of Mian Murid Hussain, as also the connected suit (Ch. Muhammad Zaman v. Hassan Jan and others) from the Court of Mr. Khaliq-uz-Zaman, Civil Judge and transferred both the suits to the Court of Muhammad Jehandar, Civil Judge, Rawalpindi for their trial and disposal in accordance with law. ` Defendant felt aggrieved of the action taken by the Civil Judge as also the transfer order made by learned District Judge and brought the same under challenge in revisionary jurisdiction before District Court. Petition for revision was entertained by learned District Judge on 4-3-1986 and the same day it was entrusted to learned Additional District Judge. Revisional Court took the view that the valuation of the property made on the basis of right of the defendant to enjoy the property namely as a tenant exceeded the pecuniary jurisdiction of the Civil Judge, and, on this view, found that proper order in these circumstances was return of plaint under Order VII, rule 10, Civil P. C.
5. This order of the revisional Court has been contended in constitutional jurisdiction by the plaintiffs.
6. The petition raises two points; (1) whether suit on the value given in the plaint properly instituted, on discovery that the value was erroneous and on correct value exceeded pecuniary jurisdiction of the Court trying the suit, the Court could sent the case to District Judge for its transfer to a Court of proper jurisdiction or was bound to order return of the plaint as envisaged by Order VII, rule 10, Civil P.C.; and (2), whether order of transfer made by District Judge under section 24 of the Civil P.C.
7. Could be assailed before Additional District Judge in revisional jurisdiction.
8. For the petitioners, it was contended that the learned Civil Judge acted with jurisdiction in sending the case to learned District Judge and his action was supported by decision of Lahore High Court in Allah Bakhsh and others v. Said Ali Shah and others PLD 1960 (W.P.) Lah. 327. Strength was also derived from the procedure given in Volume I, Chapter 13 (para. 4) of the High Court Rules and Orders. It was also contended that rule 10 of Order VII, Civil P.C. Applied only to a case of initial lack of jurisdiction and not to the case when pending adjudication the value of the subject-matter was increased and exceeded pecuniary jurisdiction of the trial Court.
9. Maulvi Anwarul Haq, for the respondents supported the revisional order and argued that the revisional Court was amply justified to strike down the order of the trial Judge and also that of learned District Judge when both were without jurisdiction and void ab initio. It was argued that the power of transfer flows out of a valid institution of the suit and in case the Court before whom the proceedings were pending had no jurisdiction to entertain it or proceed with trial, District Judge could not competently withdraw the same and cure defective jurisdiction.
10. After hearing learned counsel for the parties and examination of the relevant material, I find that revisional order cannot stand. It is not in dispute that before a suit, appeal or other proceedings could be withdrawn from a Court, it must be found that the suit, appeal or other proceedings, as the case may be, were validly pending in the Court, for it there was no suit, appeal or proceedings so pending, then no question of their transfer arose. The word "pending" in section 24 as their Lordships of the Supreme Court in Mst. Razia Shaft v. Major M.S. Malik PLD 1971 SC 247, observed must mean "duly pending". So the legal proposition that for purposes of section 24, proceedings must be duly pending before a proper Court of jurisdiction, admit of no dispute.
11. Short question which, therefore, arises for consideration is whether on discovery that the value given in the plaint for purposes of jurisdiction and Court-fee was incorrect and correct value found exceeded pecuniary jurisdiction of the Court trying the proceedings, the plaint is to be returned under Order VII, rule 10, Civil P.C. Or the case could be sent to District Judge for its transfer to a Court of proper jurisdiction? I have attempted to examine the point in the light of provisions of Ordinance II of 1962, Civil P.C. And the explanation to section 3 of the Limitation Act, 1908. Examination of the relevant provisions of law on the question raised before me leads me to a firm conclusion that the Court in such circumstances was not under legal compulsion to order return of the plaint and could properly sent the case to District Judge for exercise of powers under section 24 of the Civil P.C. On a clear reading of the provisions of sections 15 and 26, Civil, P. C . And rules 1 and 2 of Order IV of the Code together with the provisions contained in sections 15 and 16 of Ordinance II of 1962, it appears that plaints are presented in the first instance to the Court of Senior Civil Judge who is clearly entitled to receive them. Suit, therefore, is properly and legally instituted when the plaint is presented to a Court or officer competent to receive it. It is after the plaints have been received that the Senior Civil Judge distributes them to the proper Courts. Therefore, it cannot be successfully urged that the. Suit was not instituted when the plaint was presented before Senior Civil Judge, Rawalpindi, who undisputably was competent and authorised to receive and entertain the plaint. It is correct that defendant objected to the value of the suit and it is also correct that plaintiff without loss of further time conceded the objection and paid the deficit court-fee. It is equally true that on the value found, subject-matter of the suit exceeded pecuniary jurisdiction of the Civil Judge then Incharge of the proceedings. It is here that real difficulty arose. In my opinion, in the circumstances found, learned Civil Judge was not totally bereft of jurisdiction and could competently sent the case to the District Judge for its transfer to a Court of proper jurisdiction. It was not a case of either party that the trial Judge lacked total jurisdiction. Term "competent" refers to pecuniary, territorial and subject-matter competence of the Court to entertain the matter. It is not disputed that the Court had jurisdiction both territorial and subject-matter. Objection to the pecuniary jurisdiction became available in the course of hearing of the civil suit. Once a Court assumes jurisdiction, in my opinion, any subsequent increase in value of the subject-matter s not deprive the Court of its jurisdiction. Order VII, rule 10, t P. C. In my opinion, therefore, applied only when the Court init: lacked jurisdiction to entertain and try the civil suit and was not; a attracted to the facts of the case in hand. It is no body's case the Court initially had no jurisdiction. In fact, objection to pecun jurisdiction became visible when it was found out that the value g in the plaint was not worked out properly in accordance with sec 7(xi) (cc) of the Court Fees Act. In these circumstances, only per course open to the trial Judge was to send the case to District JU with a request to withdraw it from his Court and entrust the same Court of proper jurisdiction. View taken by him stands amply support by decision of this Court in Allah Bakhsh and others v . Said Ali and others as also the High Court Rules and Orders aforenoticed somewhat similar facts which- arose for consideration before Bom. Court in Babubhai Vamalchand Kachra v . Hiralal Vamalchand Ka and others AIR 1941 Bombay 69, Broomfield, J. With whom Div J. Agreed observed "We are of opinion that there is no legal object to our passing an order under section 24 transferring the case to Court of the first class subordinate Judge. We think the present is distinguishable from any case which has been cited before us by facts that the two Courts with which we are concerned are in parts of one Court, and that the suit was properly instituted registered in the first instance and would have been properly install even if the amendment had been part of the original plaint, sine suits whether of special or ordinary jurisdiction are according to recognized practice instituted in the Court of the first class sub-board Judge. As at present advised we are not in agreement with the taken by the learned first class Judge that the only legal we dealing with the case was that the second class subordinate J should have made an order under Order VII, rule 10. Speaking myself, I must say that if the learned first class subordinate J was of the opinion that a representation of the plaint to him necessary before he could proceed with the case, there was nothing prevent him returning the plaint to the plaintiff in order that it s be represented. But in the view we take Order VII, rule 10application in a case like the present when the suit was pro instituted in the first instance. In 46 Bom. 229 Macleod, C.J. a said Under Order VII, rule 10 it is no doubt obligatory the plaint, if instituted in the wrong Court shall at any stage of the be returned to be presented to a Court in which the suit should been instituted. But it is only in a case where the suit is institute a wrong Court that the plaint must be returned.
12. If it transpired during the hearing of a suit that the plain been instituted in a wrong Court, everything that has been dot that Court is without jurisdiction, and, therefore; the suit has instituted afresh in the proper Court. But, in the present everything that was done by the second class subordinate Judge the time when the amendment of the plaint was allowed was with jurisdiction.
13. We are not aware of any authority for the view to such a case it is .Necessary that the suit should be instituted and re-registered as a fresh suit under Order IV. The amendminster the plaint did not make it a new suit and no re-institution of was necessary. Although, we propose to make an order under 24, we should not be taken to have decided that an order of transfer is really necessary. 59 Bom. 466 to which the learned first class subordinate Judge has referred, did not deal with- similar facts. There a suit had been sent for disposal to a subordinate Judge subordinate to the first class subordinate Judge by administrative order. It was afterwards removed from his file and transferred to another subordinate Judge also by administrative order. The learned Chief Justice said there is a clear distinction between orders of transfer and administrative order allocating business to Courts of particular Judges. When once a Judge has taken cognizance of a suit it seems to me that any order removing the suit from his file is an order of transfer.
14. Holding that the order made by the first class subordinate Judge, there was an order of transfer, he ruled that it was invalid because the first class subordinate Judge has no powers of transfer under section 24, Civil P.C., but only the District Judge or the High Court. It is to be noted that in that case the subordinate Judge from whose Court the case was transferred was competent to try it. He had not only taken cognizance .Of it, but, apart from the order removing the suit from his Court, he would have been competent to proceed with it and dispose of it. In our opinion, the position is not the same when, as in the present case, the Judge to whom a suit has been sent by an administrative order has become functus officio because by reasons of an amendment of the plaint the valuation of the suit exceeds his pecuniary jurisdiction. Where under those circumstances an administrative order for the allocation of business has become inoperative, we can see no G reason why the difficulty should not be removed by the first class subordinate Judge ,resuming control administratively of the suit which was properly instituted in his Court. He might in our opinion himself send for the papers in exercise of his powers under section 23, Bombay Civil Courts Act, but whether he sends for the papers or whether they are sent to him makes no material difference. However, for the reasons already given, we have decided to make an order under section 24 ex majore cautela". This view of law also receives support from the decision of this Court in Raminder Singh v. Mohinder Singh and another AIR 1940 Lah.
186. I express my respectful agreement with the view of law expressed in the aforenoticed case-law and old accordingly.
15. Different view may give rise to manifold complications-including that of limitation. Accordingly, learned District Judge was perfectly right to act on the request of learned Civil Judge to order transfer of proceedings. I also have grave doubts on the powers of learned Additional District Judge to interfere with the transfer order made by learned District Judge under section 24 of Civil P.C. Being a Court of H co-ordinate jurisdiction and may be subordinate for purposes of section 24, Civil P.C., learned Additional District Judge was not competent to interfere and quash order of transfer. Accordingly,. I find his action illegal and without jurisdiction and. Entertain no hesitation in declaring it to be so. In the result of -foregoing, petition is allowed, impugned order is set aside and is declared to have been passed without lawful I authority. Result is that proceedings shall continue in the Court as directed by learned District Judge, Rawalpindi. In the circumstances, I direct the parties to bear their own costs.