1. ' WALI MUHAMMAD KHAN, J---Abdul Majid appellant, through leave of the Court, calls in question the judgment dated 29-1-1992 passed by a learned Single Judge of the Lahore High Court, whereby the appeal filed by the appellant against the judgment of first appellate Court dated 7-11-1991.
2. Returning the appeal for want of pecuniary jurisdiction, was dismissed. The leave granting order is as follows:-- "It is to be noticed that by virtue of Law Reforms Ordinance, 1972, the definition of the term 'decree' as appearing in section 2 (2), C.P.C. Has been amended and by fiction of law, the rejection of the plaint declared as a decree. Against a decree the only remedy provided by law is an appeal under section 96, C.P.C. While amending section 2 (2) no corresponding amendment was made in Order VII, rule 13, C.P.C., under which rejection of plaint does not pose a bar to the filing of a fresh suit. Even if the dismissal of the suit is converted into rejection of the plaint, which now amounts to a decree, can a fresh suit be instituted? How the two provisions can be reconciled? These questions and the allied issues including the trial Court's failure to give an opportunity to the petitioner to make good the deficiency in the court-fee require examination. The leave prayed for is, therefore, granted."
3. ' The facts of the case, briefly stated, are that Abdul Majid appellant filed a suit for declaration against Muhammad Afzal Khokhar respondent to the effect that the agreement dated 12-5-1984 on his behalf in respect of house No,195/1/C, Sector V-B, Area Development Scheme, Khayaban-e- Sir Syed, Rawalpindi, is wrong, illegal and liable to be set aside and as a consequential relief also prayed for the possession of the said house. No valuation was mentioned in the plaint for the purpose of court-fee and jurisdiction but it was mentioned in para. No,11 of the plaint that the court-fee is exempt. The suit was contested by the defendant/respondent and in his written statement challenged the non-fixation of valuation in the plaint and it was specifically agitated that the plaintiff/appellant is liable to pay court-fee ad valorem on the value of the house which is Rs,3,50,000. Another suit was filed by the respondent against the appellant for declaration that the cancellation of power of attorney executed by the appellant in his favour and registered at serial No,989, Book No,4, Volume No,19, pages 51/52 was illegal, mala fide, null and void, of no legal effect and ineffective on his rights and that he was still general attorney for him and entitled to act for him, and with a prayer for permanent injunction. Both the suits were consolidated, necessary issues in the case framed and evidence led thereon recorded. Issue No,5-C related to the valuation of the suit and the learned trial Judge came to the conclusion that the suit had not been properly valued for the purpose of court-fee and jurisdiction which should have been Rs,3,50,000 and, in consequence, dismissed the suit of the appellant vide judgment and decree dated 10-12-1990. The appellant's appeal before the Additional District Judge was not proceeded with and was returned to the appellant for want of pecuniary jurisdiction. The appellant filed the appeal before the High Court but with no success. Hence the instant appeal through leave of the Court.
4. ' We have heard Mr. Bashir Ahmed Ansari, advocate, for the appellant; Kh. Yousaf Saraf, Advocate, assisted by Mr. M. Munir Peracha, Advocate, for the respondent; and have perused the record of the case.
5. ' As stated earlier, no valuation was mentioned in the plaint for the purpose of court-fee and jurisdiction. The defendant/respondent challenged the same in his written statement resulting in the framing of an issue thereon but while deciding the issue the trial Court did come to the conclusion that the valuation should have been at Rs,3,50,000 on which the court-fee should have been paid and the suit was held as undervalued but without making any direction for insertion of the said value in the plaint and making up of the deficiency in the court-fee, out rightly dismissed the suit of the plaintiff/appellant on merits. Consequently, while preparing the decree sheet no valuation was recorded therein which presumably misled the counsel for the appellant who filed appeal in the wrong forum. Under Order 7, rule 11 it is provided that the plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit' appears from the statement in the plaint to be barred by any law.
6. Under rule 13 thereof the rejection of the plaint on any of the grounds mentioned above shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. However, under the amended provision of section 2 (2) rejection of plaint has been included in the definition of decree but rule 13 of Order 7 has not been amended and reading the two provisions in conjunction, the result deducible therefrom can only be that the rejection of plaint, being a decree is appealable but if the remedy of the aggrieved party is not barred by limitation or there is no legal impediment in his way, he can present a fresh plaint in respect of the same cause of action. However, in the instant case the Court has not resorted to Order 7, rule 11 but has dismissed the suit though specifically held the same as undervalued. It was mandatory for him to have required the plaintiff to correct the valuation mentioned in the plaint and also direct the plaintiff to make up the deficiency in court-fee within a time to be fixed by the Court and on his failure to comply with the direction had to reject the plaint. Noncompliance with this provision of law on the part of the Court resulted in the incorporation of improper valuation in the decree-sheet which led to the filing of the appeal in wrong forum. It is by now well settled that "the act of Court shall prejudice no one" therefore, the filing of appeal in the wrong forum was not exclusively on account of negligence or carelessness on the part of the plaintff/appellant but on account of Court as well, for which the plaintiff/appellant is not to be penalised. Additionally, the suit from which the instant appeal has arisen was for declaration and as a consequential relief for possession of the house in dispute as well. The learned trial Court while deciding issue No,5- has not given a definite finding whether in case of relief of possession asked for as a consequential relief, payment of court-fee ad valorem is required or not.
7. ' In view of what has been stated above, there is no alternative but to remand the case back to the trial Court for determining the valuation of the suit for the purpose of court-fee and jurisdiction afresh and after observing the above stated legal formalities, to decide the case on merits according to law. There is no order as to costs.