' This revision is directed against the order dated 12-12-1987 passed by the learned District Judge
(West) Karachi in Civil Appeal No,58 of 1987 rejecting the present applicant's application under Order VI, rule 17 read with section 149, P.P.C. And Order VII, Rule 10, C.P.C.
2. The brief facts leading to the filing of the above revision are that the present applicant filed Suit No,2131 of 1985 in the Court of the learned Second Senior Civil Judge, Karachi, West, against the respondent for the recovery of plot, bearing No,R-381, situated in Block-20, Alnoor Society, F.B. Area, Karachi with the construction thereon (hereinafter referred to as the suit house) and mesne profits from the date of the purchase of the suit house. The applicant also claimed the past mesne profits on the basis of the assignment by the previous owner.The above suit was resisted by the respondent inasmuch as a written statement was filed. On the basis of the pleadings of the parties the learned trial Court framed the following eleven issues:
(1) Is the suit undervalued? If so, to what effect?
(2) Is the suit bad for non-joinder of parties? If so, to what effect?
(3) Whether the defendant was a licensee living in the suit premises of Mst. Shirin Begum, ex- owner? If so, to what effect?
(4) Whether the suit is bad for non-joinder of parties?
(5) Whether the defendant is in possession of the suit premises in interest of late Mr. A.M.I. Nomani or as licensee of Mst. Shirin Begum?
(6) Whether the defendant is a trespasser unauthorisedly living in the suit premises and liable to pay mesne profits at Rs,700 per month to the plaintiff?
(7) Whether the plaintiff is entitled to recover possession of the suit premises from the defendant?
(8) Whether the plaintiff is entitled to recover future mesne profits @ Rs,700 per month from the date of suit till handing over possession of the suit premises from the defendant?
(9) Whether the mutation of the name of the plaintiff in the record of rights in respect of suit land and sale agreement in respect of the suit premises have been created?
(10) Whether the plaintiff is entitled to recover the sum of Rs,25,000 and Rs,8,400 towards arrears of mesne profit and further a sum of Rs,10,000 towards value of the articles?
(11) What should be the decree be?
After that following four additional issues were framed;
(12) Whether the suit is maintainable without declaration of title of the plaintiff in the suit premises?
(13) Whether it is late Mr. A.M.I. Nomani, who at his cost got the suit land allotted in Benami of Mst.
Shirin Begum as well as built the premises on it at his own cost and was in his possession in his own right?
(14) Whether Mst. Shirin Bcgum has lost the right, title or interest, if any, in the suit premises being out of possession exceeding 12 years adversely to her interest by late Mr. A.M.I. Nomani?
(15) Whether the suit premises is situated in Calcutta Co-operative Society Ltd. Or in Al-Noor Society?
' After recording of the evidence of the parties and hearing the learned counsel, the learned trial Court decreed the suit by the aforesaid judgment/decree dated 7-4-1987. Against the above judgment/decree the respondent filed Civil Appeal No,58 of 1987, which was allowed on the ground that the learned trial Court had no jurisdiction in the matter as the value of the suit house was Rs,70,000 plus the mesne profits from the date of the purchase plus the mesne profits assigned by the ex-owner, the total of which was more than Rs, one lac. Thereupon, the appellant moved the aforesaid application for the amendment of the plaint which application was declined. The applicant has, therefore, filed the present revision.
3. In support of the above revision petition Mr. Khalilur Rehman, learned counsel for the appellant has vehemently urged that as under rule 33 of Order 41, C.P.C. The learned appellate Court had the same power as the original trial Court, it could have allowed the dropping of the claim for the previous mesne profits: and that the case could have been remanded to the learned trial Court by the learned appellate Court on the above issue as to the valuation. In furtherance of his above submission, he has referred to the case of Mst. Hawabai v. Abdus Shakoor and 8 others PLD 1981 Karachi 277, wherein a Division Bench of this Court while dealing with a case in which a suit was filed in the Court of the Civil Judge, the plaint of which was returned for presentation of the same to a proper Court, the plaintiff filed a fresh suit in the High Court, the learned Judges of the Division Bench after referring to the case-law on the subject analysed the options available to a plaintiff after he received the plaint from the Court for re-presentation in the proper Court. The relevant portion of the above judgment reads as follows:-- "In view of the above discussion we have reached the conclusion that after a plaint is returned to a plaintiff by a Court under Order VII, rule 10, C.P.C. He may adopt any of the following courses:--
(i) he may challenge the order, returning the plant for presentation to the proper Court by filing an appeal against such order, or
(ii) he may present the same plaint after its return to him to a Court having jurisdiction in the matter, or
(iii) he may amend the plaint by giving up a part of the relief or reduce the valuation so as to make it cognizable by the Court which returned the plaint and then re-present the same to the same Court or amend the plaint and present it before a Court having jurisdiction in the matter, or
(iv) he may file a fresh suit in the Court having jurisdiction in the matter."
In my view, the above judgment does not support Mr. Khalilur Rehman's above submission. On the contrary it indicates that after the return of the plaint the plaintiff has the options mentioned hereinabove and one of the options is to amend the same plaint and to represent the same to the Court of competent jurisdiction. In the instant case, if the applicant wanted to give up certain portions of the claim in order to bring the suit within the pecuniary jurisdiction of the learned trial Court he was to amend the plaint after the same was returned to him and to re-present the same to the trial Court, upon which fresh summons were to be issued to the defendant. The rule 33 of Order 41, C.P.C. Does not empower an appellate Court to entertain the plaint as an original Court for adjudication. In my view, the order passed by the learned District Judge seems to be in consonance with law.
5. The revision is, therefore, dismissed but there will be no order as to costs.