The appellants were cited as defendants in a suit filed by the respondent for possession invoking superior right of pre-emption. The relevant facts are that the respondent purchased suit land measuring 22 Kanals and 6 Marlas situated in Chak Sher Khan, Tehsil Kabirwala, District Khanewal for consideration of Rs.55,000 vide sale-deed dated 10-9-1976. The superior right was claimed on account of relationship and ownership in the estate. The petitioners resisted this suit on legal as well as factual planes. The learned trial Court in accordance with the pleadings framed issues and the parties led their respective evidence. The Trial Court after hearing the arguments proceeded to decree the suit vide judgment and decree dated 13-5-1980. The appellants assailed this judgment through an appeal, which was dismissed by the Addl. District Judge, Multan vide judgment and decree dated 13-9-1983. The present appeal is directed against the judgments and decrees of both the Courts below. The appeal was admitted for hearing and notice issued to respondent, who has entered appearance and contested the appeal.
2. The appellants during the pendency of the appeal has moved an application under Order 41, rule 2 read with section 151, C.P.C. For permission to take additional ground to the effect that the value of the suit for the purposes of court-fee and jurisdiction was Rs.20,017.65, therefore, the trial Court which was presided by Civil Judge 3rd Class had no pecuniary jurisdiction to entertain and decide the suit, therefore, whole proceedings were vitiated.
3. The learned counsel for the appellants has argued that since it is purely a legal question, therefore, can be raised at any stage. It is added that even consent of the parties cannot confer jurisdiction. The learned counsel in this behalf has referred to cases of Jiando Khan v. Hakeem Muhammad Ishaq PLD 1964 Karachi 61, Hassan Imdad v. DC/Collector Lesbella (PLD 1985 Quetta 1) and Riazuddin v. Malik Haji Aslam and others PLD 1985 Karachi 411.
4. On the other hand, the learned counsel for the respondent has resisted the application and argued that since this objection was neither raised in written statement nor in memo of appeal before the lower appellate Court nor in the grounds of this appeal, therefore, the same cannot be allowed to be agitated at the time of final disposal of the appeal for the first time. He has referred to provisions of section 11 of the Suits Valuation Act and has relied on the cases of Nawab Din v. Mst.
Hussain Bibi and others PLD 1965 Lahore 214; Imarat Khan v. Ahmad Din etc. 1988 SCMR 1928 and Malik Muhammad Ashiq v. Okara Zamindara Co-operative Society and others PLD 1967 Lahore 75. It is added that the jurisdictional value fixed by the appellants themselves before the lower appellate Court was well within the competency of Civil Judge Third Class. The learned counsel for the respondent has referred to section 11 of the Suits Valuation Act to argue that until and unless all the three ingredients are present such objection cannot be entertained.
5.Before proceeding any further I would like to refer to section 11 of the Suits Valuation Act, which reads as under:- "11. Procedure where objection is taken on appeal or revision that a suit or appeal was not properly valued for jurisdictional 12urposes.--(1) Notwithstanding anything m 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 (1), 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 for 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, 1987:'
6. The argument of the learned counsel for the appellants was that value for purposes of court-fee is to be determined in accordance with the provisions of Court Fee Act while the value of the suit for purposes of jurisdiction was to be determined in accordance with the rules framed under section 3 of this Suits Valuation Act, 1887 and more particularly rules 1(c) and 2 which reads as under:- "(c) Where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue, and net profits have arisen from the land during the year next before the date of presenting the plaint,--fifteen times such net profits. But where no such net profits have arisen there from---the market-value."
"2. Suit for pre-emption.--In suits to enforce right of pre-emption in land, the value of the land, for the purposes of jurisdiction, shall be calculated by the preceding rules."
The learned counsel also referred to section 56-A of the Land Revenue Act, which reads as under:- "56-A. Exemption of land revenue.--Notwithstanding anything to the contrary contained in this Act, no land-owner, from Rabi, 1976-77, shall be liable to pay land revenue or any rate or cess chargeable under the provisions of this Act, if he owns--
(a) irrigated land not exceeding 25 acres;
(b) unirrigated land not exceeding 50 acres;
(c) irrigated and unirrigated land the aggregate area of which does not exceed 25 acres of irrigated land as determined under section 70-B."
The learned counsel in support of the arguments has referred to the case of Suba Khan v. Rehmat Din and 2 others 1980 CLC 589. The relevant portion of the judgment, which reads as under:- "14. This argument has not impressed me since neither such a concession or admission can confer any jurisdiction upon the Court where it has none nor can take away the jurisdiction from the Court where it vests. If there is evidence on record to prove the ratio on which the valuation can be assessed, it will become the dues of the Court to discover the valuation in order to find out whether it has really any iurisidction over _the matter or not."
The precedent case has no bearing on the present case because in this case the learned trial Court did fix the valuation vide order dated 13-5-1980 and this order was not challenged by the appellants in any form or even objected to before the trial Court. Therefore, the Court has discharged its duty and it is appellant, who has failed to get the order corrected.
A Court shall not lightly disturb the valuation as given in the plaint if it is apparently correct and if the Court accepts the plaint even after objection or makes its own determination, which is accepted by the plaintiff, as done in this case, then it is end of the matter and thereafter all the proceedings must be controlled by the valuation so fixed by the Court. The parties cannot be subsequently allowed to question the Courts jurisdiction. The question must be regarded as haring been settled finally between the parties. The failure of the appellants to challenge the jurisdiction before the appellate Court, operated as estoppel. The reference in this behalf, can be made to the case of Sh. Maasud All v H Hunter (AIR. 1943 Oudh 338). The decision on the point of valuation given expressly or impliedly possess the same finality as decision on any issue in the suit.
The raising of question subsequently would be barred by well-settled principle of expediency, also, because it cannot be doubted that it is in the greater and general interest that a Court should finally dispose of the litigation. This is, of course, subject to the condition that somebody should not be adversely affected by such disposal. It would not, therefore, make the decree of trial Court nullity until it can be shown that the Civil Judge had no jurisdiction and that it has caused prejudice to the party agitating the matter. Both these ingredients must co-exist. The decree or judgment, in absence of both these ingredients, cannot be said to be nullity.
The learned counsel for the appellants then submitted that since it is a legal question, therefore, can be allowed to be raised in second appeal. In this behalf, the learned counsel has referred to case of Jiando Khan. The relevant portion reads as under:- "5. On behalf of the respondent it was objected that a question of jurisdiction cannot be allowed to be raised at this late stage in the proceedings. This contention, however, does not appear to me to have any substance in view of the dictum in Mongal Muchi v. Abu Musa Mustafa and others PLD 1958 Dacca 26 to the effect:- "When a question of law is raised for the first time in a Court of last resort, upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent, but expedient, in the interest of justice, to entertain the plea."
I am in respectfully agreement with these observations and would, therefore, proceed to consider the question of jurisdiction raised on behalf of the appellant."
The precedent case is clearly distinguishable and does not advance the case of the appellants as the facts in the case in hand. Are not admitted. The same remarks applied to the cases of Riazuddin and Hassan Imdad relied by the learned counsel for the appellants. The first case pertained to land acquisition proceeding while the other case pertained to proceeding under Rent Restriction Ordinance.
7. Now coming to counter-arguments of the learned counsel for the respondent, who in support of his contention has referred to case of Nawab Din, in which case the defendant did not raise objection to the jurisdiction in the trial Court and also failed to take objection in the appeal filed by him. The objection was, however, raised at the time of the hearing of the second appeal and was overruled.
The relevant para. Of the judgment reads as under:- This failure on his part clearly brings the case within the purview of section 11 of the Suits Valuation Act. For all these reasons, I am of opinion that the learned Additional District Judge ought not to have given effect to the objection raised before him at the time of hearing. I would, therefore, accept this appeal and, setting aside the order of the lower appellate Court, remand the case for decision according to law."
The learned counsel for the respondent thereafter referred to the case of Imrat Khan. The relevant portion of the judgment reads as under:- "In addition to the point regarding Court-fee noted above, in one of the cases (C.A. No.97) there is an additional point that in the judgment therein the High Court also took note of the defect in the presentation o the plaint before a Civil Court which lacked pecuniary jurisdiction and considered this aspect, as relevant so as to non-suit the plaintiff/the appellant therein.
None has appeared to oppose the Appeals Nos.96 and 98. In Appeal No. 97. However, the learned counsel for the respondents while "conceding" the point regarding deficiency in the court-fee on the ground noted in the Leave Granting Order with reference to the case of 5 -Siddique Khan, contended that the said appeal merited to he dismissed on the point regarding pecuniary, jurisdiction When questioned, whether the conditions laid down ;n section 11 of the Suits Valuation Act regarding this point were satisfied, he referred only to one of them having been satisfied; namely, that the point was raised in the. High Court. He, nonetheless, remained unable to satisfy us regarding the other that any prejudice had been caused to the respondents on this issue. His further reply that the suit had become time-barred due to presentation of the plaint before wrong Civil Court would not displace the considerations regarding section 11."
The learned counsel for the respondent then referred to the case of Malik Jan Muhammad. The same is not relevant to the case in-hand as it is not a case of rejection of plaint under Order VII, rule 11, C.P.C. The objection is only to the pecuniary jurisdiction of the trial Court. The learned counsel finally referred to case of Muhammad Ashiq. This Court after noticing the provisions of section 11 of the Suits Valuation Act, held as under:- "The above provision is expressly prohibitory and therefore mandatory. It seems to me to be perfectly clear that the section requires all objections as to improper valuation of a suit to be raised before the settlement of issues and if a defendant omit, to raise objection at the proper stage he ''' - will not be permitted to raise, it subsequently. 1t is a self-contained provision complete in itself and no objection as to the value of suit for purposes of jurisdiction can be raised or entertained otherwise than in accordance with it ...."
It is by now settled legal position that in order to invoke the provisions of section 11 of the Suits Valuation Act, following three conditions should be present:- Firstly, the objection was taken in the trial Court before framing all the issues or in the lower appellate Court in the memorandum of first appeal as the case may be; Secondly, the appellate Court is satisfied as to the validity of the objection; and Thirdly, such wrong valuation of the suit or the appeal has prejudicially affected the merits of the suit or appeal as the case may be.
8. Now to attack a judgment and decree one has to satisfy the above said three conditions. It is to be seen as to whether the conditions, which are prerequisite to make clause (b) of section 11 of the Suits Valuation Act applicable are present. All the conditions must co-exist to make the decree or order a nullity. The present suit was properly valued. But even if it is assumed that the suit was not properly valued then this will not help the appellants because they have not been prejudicially effected by the disposal of the suit-on merits in terms of section 11 of the Suits Valuation Act. The appellants having failed to show prejudice, therefore, the third ingredient is absent and the judgment and decree of the trial Court would stand. In this behalf reference can be made to case of Kelu Achan v. Cheriya Parvathi Neihiyar AIR 1924 Mad. 6, 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 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."
In "Mool Chand Moti Lal v. Ram Kishan and others" AIR 1933 All. 249 while discussing section 11 of the Suits Valuation Act, it has been held:- "The mere fact that a suit has been overvalued 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."
The point was examined in "Sheikh Maqsood Ali and another v. H. Hunter and others" AIR 1943 Oudh
338. 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-valuation 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.
The earlier suit was brought for a declaration of the plaintiffs 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 cl.(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.
If S. 11 does not apply, the general principle of res judicata cannot be applied to, because it would be excluded by the terms of S.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.
Similarly in "Sri Rajah Ravu Venkata Mahipathi Gangdhara Rama Rao Bahadur Garu, Yuvaiajah of Pithapuram and another v. Province of Madras represented by the Collector of East Godavari Coconada" AIR 1947 Mad. 135 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 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.
What exactly is the meaning to be attached to the words of sub-clause (b) is rather difficult to say or determine. 1t 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 on the merits.
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."
9I, therefore, hold that the argument is against the spirit of section 11 of the Suits Valuation Act. It does not lie in the mouth of the appellants to raise the plea of jurisdiction at this late stage.
10. Now, conversely speaking where the want of jurisdiction is not apparent on the face of the record but the absence of jurisdiction depends on facts within the knowledge of a party and it does not press the same and on the other hand allows the Courts to proceed with the trial or adjudication in that forum and pronounce the judgment. In the circumstances such a party is not to be allowed to impeach the jurisdiction of the Court in any collateral proceedings.
11. The appellants in the present case although pleaded that the valuation for the purposes of court-fee and jurisdiction as fixed by the plaintiff-respondent is not correct but failed to object to the jurisdiction of the trial Court in the written statement as well as in the memorandum of appeal before the lower appellate Court and in the grounds of appeal in this Court. Therefore, they are now estopped to raise it for the first time in this Court through present application.
12. There is a clear distinction between the inherent want of jurisdiction and want of jurisdiction on grounds which have to be determined by the Court itself. The first type of lack of jurisdiction makes the decree or order a nullity which may be ignored and need not be set aside while cases falling in the second category decree or order arc not nullity and the same has to be set aside by adopting proper proceedings. In this behalf reference can be made to the cases of Giwar Naryan v. Kemal Prasat AIR 1933 Patna 1(W; Sheo Behari Lai v. Makran Singh AIR 1935 ibid 358; Muhammad Suleman etc. v. .Laved lqbal, etc. PLD 1985 SC (AJ&K) 1 and S. Sharif Ahmad Hashmi v. Chairman Screening Committee, Lahore 1978 SCMR 367. I need not refer to all the cases and suffice here to refer to the judgment of the Hon'ble Supreme Court in S. Sharif Ahmad Hashmi's case:- Additionally I have to observe here that the petitioner assumed in his arguments before us that a Court always struck down a void order regardless of the consequences of its decision. The assumption is a total fallacy, because a void order is only a type of an illegal order. This is described as void because it is so illegal that it does not exist in the eye of the law, but this does not alter the fact that it was passed and by describing it as void Courts cannot alter the fact that the order was passed. And an order which has been passed can create consequences, therefore, there cannot be a hard and fast rule that void order must always be struck down. The true position has been clarified by Munir, C.J., with us usual lucidity (I say so with respect) in Yousaf Ali v. Muhammad Aslam Zia PLD 1985 SC (Pak.) 104 where Munir, C.J., observed at page 117: "And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of taw recognizing as legal the changed position, of the parties is in operation, fall to the ground because such orders have as little foundation as the void order on which they are founded."
This passage does not mean that a void order is always to be struck down regardless of the consequences of such decision, but that a void order must be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike down the void order.
This qualification is very important, and that is why, for example, a writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute of limitation.
(See this Court's judgment in Civil Appeals 150 and 166 of 1970 (Jalal-ud-Din and others v. Mst. Noor Sain and others) and Jalal-ud-Din and others v. Shamas-ud--Din and others respectively. Similarly in Ghulam Mohi-ud-Din v.Chief Settlement Commissioner and others ~PLD 1964 SC 829, a writ petition had been filed against an order which this Court held was void. Nonetheless the writ petition was dismissed on the .Round that it was barred by acquiescence on the part of the petitioner. There is also ample authority for the proposition that a writ against a void order may be dismissed if the petitioner is estopned by his conduct from challeneine it or if he has been guilty of laches
13. The lack of or defect in jurisdiction on account of pecuniary jurisdiction is covered by second category. It applied only to the cases where it is alleged that by reason of over-valuation or under- valuation there was defect in the jurisdiction which caused prejudice to one party. In plain words the Court seized of the lis lacked pecuniary jurisdiction which prejudiced the party. It is clear from the scheme of the section that the legislature did not deem such objection so as to be covered by the first category i.e. Inherent lack of jurisdiction, therefore, the order or judgment will not be nullity.
The section assumes that there is no apparent defect and provides that until and unless there is an objection to the jurisdiction, it will be deemed that the Court has the jurisdiction and decision cannot be upset in appeal. It is clear from the fact that the powers of the appellate Court to interfere have been clipped and curtailed. There is uninterrupted chain of authorities that until all the three ingredients as to the under-valuation or over--valuation are present the objection to the jurisdiction cannot be allowed to be raised. In other words the legislature clearly meant to condone any such jurisdictional defect and to keep and treat the judgment as valid.
14. I, therefore, conclude that there is no merit in the arguments of the learned counsel for the appellants that the trial Court lacked pecuniary jurisdiction, therefore, the decree is nullity and liable to be set aside.
15. In the present case, as already noted the appellant has moved an-- application to take additional ground as to the lack n( jurisdiction of the trial on account of under-valuation of the suit for the purposes of jurisdiction. The application is liable to be dismissed on the short ground that it is in clear violation of the provisions of section 11 of the Court Fee Act as discussed above. The appellants not only failed to raise objection in the written statement and memorandum of appeals both in the lower appellate Court as well as, in this Court but have also failed to show any prejudice cause to them. On the other hand, the valuation fixed by the appellants in the lower appellate Court themselves was well-within the pecuniary jurisdiction of the trial Court.
16 The result is that I do not find any merit in this application.
17, Now coming to the merits of the appeal. The learned counsel for the appellants argued that the appellants were directed to make up the deficiency in court- fee vide order dated 13-5-1980 to the extent of Rs.227 whereas he only affixed court-fee of Rs.50, therefore, the plaint was liable to be rejected. The learned counsel for the respondent has pointed out that the argument is against record. In fact the respondent-plaintiff complied with the order of the trial Court and supplied the deficiency of court -fee of Rs.227 and not to the extent of Rs.50. I have seen the record. The argument of the learned counsel for the appellants is falsified by the additional stamp paper supplied by the plaintiff respondent. It seems that the appellants happened to look at the application moved by the plaintiff to the effect that he has wrongly been directed to supply court- fee of Rs.227 whereas the deficiency only comes to Rs.50. The plaintiff made it clear that he is complying with the order of the Court.
18. The other argument was that the respondent-plaintiff got the statement of net profits prepared on the basis of irrelevant crops in order to avoid the payment of proper court-fee. It is concluded that, in this view of the matter, the plaintiff was not entitled to any indulgence. The argument is against record and provisions of Order VII, rule 11, C.P.C. It ie for the Court to determine the proper court-fee and pass order directing the plaintiff to supply the deficiency The plaint can only he rejected in case the plaintiff fails to comply with the order This is not the case here, therefore, there is no merit in the argument. In the, behalf reference can be made to the case of Siddique Khan and 2 others v. Abdul Shakoor Khan and another PLD 1984 SC 289.
19. The result is that I do not find any merit in this appeal and the same is dismissed. However, there is no order as to costs.