1. ' By this application the applicant has invoked the jurisdiction of this Court under section 115, C.P.C.
2. To impugn the judgments passed by the learned Ex-Officio Additional District Judge, Karachi and the Seventeenth Civil Judge, Karachi, dated 13-5-1984 and 16-2-1978 respectively.
3. ' Briefly stated, the facts are that the respondent filed a suit in the Court of the learned Seventeenth Civil Judge, Karachi for possession and mesne profits in respect of servant quarters of a house situated on plot bearing Servey No. 7/1, sheet F-T-2, Frere Town Quarters, Karachi. For the purposes of jurisdiction and court-fee, the suit was valued by the respondent at Rs.600 and the same was done on the basis of annual' rental value of the property which at the time of filing of the suit property which at the time of filing of the suit was determined as Rs.600. The applicant filed written statement wherein an objection was taken as to the valuation of the suit, as according to the applicant, the same was to be done according to the market value of the property which was about Rs.20,000 at that time and not on rental basis. It was, therefore, averred that the suit was liable to be dismissed for want of payment of proper court-fee.
4. ' The learned Civil Judge framed six issues in the case and issue No.5, which related to insufficiency of court-fee reads as follows:- "(5) Whether the court-fee paid by the plaintiff is insufficient? If so, what is the effect?
5. ' This issue was decided by the learned trial Court in favour of the respondent, holding that relief could be valued on the basis of annual monthly rent which the property in question was fetching at the relevant time and ultimately the suit was decreed in favour of the respondent.
6. ' The applicant filed appeal against the judgment of the learned Civil Judge which was heard by the learned Ex-Officio, Additional District Judge, Karachi. Before the learned Additional District Judge, besides the question of insufficiency of court-fee an objection to the pecuniary jurisdiction of the learned Civil Judge also taken but the objection did not find favour with the learned Additional District Judge who rejected the same holding that the applicant should have led some evidence to first establish that the value of the property was Rs.20,000 as alleged in his written statement. Consequently the appeal filed by the applicant was dismissed and the suit was decreed as prayed and hence this application.
7. ' Mr. Muhammad Ishaq Shams, learned counsel for the applicant has assailed both the judgments of the Courts below, on the question of want of jurisdiction as well as payment of sufficient court- fee. The main contentions of the learned counsel before this Court have been the same, i.e. That the suit could not have been valued by the respondent on the rental basis but according to the value of the subject-matter. It has been further argued that the learned Civil Judge who originally tried the suit was exercising powers of Civil Judge Third Class, therefore, if the suit had been properly valued the learned Civil Judge could not have tried the suit owing the limits of his pecuniary jurisdiction. Reliance has been placed on Mian Rahim Bux Qadri v. Bashir Ahmad PLD 1976 Kar. 738 and Rashid Ahmad v. Haq Nawaz and others 1982 CLC 8 wherein it has been held that suit for possession of immovable property must be valued according to its subject-matter and not on the rental basis.
8. ' As far as the legal proposition advanced by Mr. Muhammad Ishaq Shams is concerned, Mr. Hussain Adil Khatri, learned counsel for the respondent has not contested the same, but the plea taken by the learned counsel has been that there was no evidence brought on record by the applicant in respect of the market value of the subject-matter of the suit thus enabling the trial Court to decide the issue in his favour. As to the question of jurisdiction, the contentions of Mr. Khatri have been firstly that the question is interlinked with that of the valuation of the suit and secondly, that objection to jurisdiction should have been taken at the earliest opportunity before the trial Court which was not done and the same, therefore, could not have been taken either before the appellate Court or this Court.
9. ' The contentions of Mr. Muhammad Ishaque Shams do not appear to be without force. The legal position is canvassed by him has not been contested by Mr. Khatri as admittedly, the suit could not have been valued on the rental basis but according to the value of the subject-matter in dispute.
10. When an objection to this effect was raised in the written statement filed by the applicant, the issue should have been forthwith tried as a preliminary issue and of sufficient evidence could be adduced in support of the objections, the respondent could have been directed to either amend his plaint and correct the valuation or otherwise the plaint could have been rejected under Order VII, Rule 11, C.P.C. No doubt, it is the valuation made by the plaintiff which determines the pecuniary jurisdiction of the Court and also the court-fee payable on the plaint, but if it is clearly manifest that the suit has not been properly or sufficiently valued or that sufficient court-fee has not been paid, then the Court can require the plaintiff to suitably amend the plaint to correct the valuation or to pay proper court-fee. However, if, thereafter, the plaintiff fails to suitably amend the plaint or pay sufficient court-fee, the plaint can be rejected under Order VII, Rule 11, C.P.C. It is, therefore, clear that the learned Civil Judge committed a material irregularity by proceeding with the suit despite the objection raised by the applicant. The question raised by the defendant could easily have been tried by the learned Civil Judge as a separate issue as the same- was not in extricably mixed up with other issues in the case. The correct valuation made by the respondent in the case could also have determined the question of jurisdiction of the Court as both these issues were inter-related.
11. Although the applicant had not specifically raised the question of jurisdiction in the written statement as only the issue in regard to insufficiency of court-fee was raised, but since the question raised also could have determined the jurisdiction of the learned Civil Judge as well, he could have gone into the question even suo motu. The contention of Mr. Hussain Adil Khatri that there was no evidence before the learned Civil Judge to determine the question of valuation or jurisdiction, in view of the circumstances of the case appears to be completely devoid of force.
12. ' I am, therefore, of the view that the learned Civil Judge has clearly exercised jurisdiction with material irregularity by not determining the question of valuation of the suit or jurisdiction first. For such reasons this application is allowed and the impugned judgments are set aside and the case is remanded to the learned trial Court for determination of the said issues first. Needless to say that after determination of the said issue if the Court ceases to have pecuniary jurisdiction in the matter, the plaint can be returned to the plaintiff for presentation before the proper Court. In view of the question raised, the parties are left to bear their own costs.