' On 2-1-1971 respondent herein (Imdad Hussain) filed suit for possession of land measuring 81 Kanals 14 Marlas situate in Mauza Jatoi Janubi (now Tehsil Jatoi, District Muzaffargarh), through pre-emption on the ground that the pre-emptor was the son of the vendor and, therefore, had a superior right to purchase the land. The suit was initially and tentatively valued for the purpose of court-fee and jurisdiction at Rs,120 being the amount of 15 times of the net profits. On 25-3-1971, the trial Court ordered the plaintiff/preemptor to make good the deficiency on the basis of net profits.
On 28-4-1971, the plaintiff/pre-emptor replied that according to the Revenue Record no net profits were accruing, therefore, the value of the suit has to be according to the market value which he assessed at Rs,1,000 and paid the court-fee accordingly. The suit was contested and issues framed. On 26-4-1973, an additional issue No,5-A was framed which reads:--- "Whether the suit has not been properly valued for purposes of court-fee and jurisdiction?"
' When the case was progressing, on 22-9-1973, Lal Khan, the present appellant, now represented by his legal representatives, made statement wherein he admitted the superior right of the plaintiff/pre-emptor. Another statement was made by the counsel for the pre-emptor/plaintiff on 27-5-1974 wherein the sale price of Rs,6,000 was duly accepted. On 22-7-1974, the counsel for plaintiff/pre-emptor further made a statement agreeing to pay Rs,1,000 as costs of improvement and this was accepted by the counsel for Lal Khan, the present appellant/vendee. On the same date, i.e,, 22-7-1974, the trial Court decreed the suit on deposit of Rs,7,000 excluding 1/5 already deposited on or before 7-10-1974 and also directed the plaintiff/pre-emptor to make good the deficiency as the market value was determined at Rs,6,000 by the same date. It was directed that failing the deposits, the suit shall stand dismissed.
2. Two days later, i.e,, on 24-7-1974 the pre-emptor/decree-holder filed an application under section 151, C.P.C. Stating that the value of suit now determined i.e, Rs,6,000 exceeded the pecuniary jurisdiction of the Court, therefore, the Court lacked the jurisdiction to pass the decree which had already been passed. The prayer made was that the suit be restored and appropriate order be issued. After notice on this application and hearing the parties, vide order, dated 31-7-1974, the trial Court directed the plaint to be returned for presentation to proper Court. It may be stated here that the case was proceeding in the Court of Civil Judge 3rd Class and the pecuniary jurisdiction of such a Court at that time extended up to Rs,5,000. The plaint was accordingly taken up by the pre- emptor/plaintiff and on 2-9-1974, was filed in the Court of Civil Judge 1st Class at Muzaffargarh alongwith an application under section 14 of the Limitation Act, 1908. Fresh trial started. Issues were re-framed and this time, as per learned counsel for the appellant, the most relevant issues were Issue No,5 (Limitation) and Issue No,6 (Exclusion of time under section 14 of the Limitation Act). Vide judgment dated 19-10-1976, the trial Court decided the above two issues against the plaintiff/respondent and dismissed the suit. An appeal was preferred to the District Court and the learned Additional District Judge, after hearing the appeal, allowed the same and decreed the suit vide judgment and decree dated 7-6-1977. This second appeal under section 102 of the C.P.C. Is directed against the judgment and decree dated 7-6-1977.
3. In support of this appeal Mr. Muhammad Yasin Zafar, Learned counsel for the appellant, has contended that after passing the decree on 22-7-1974, the first trial Court became functus officio and, therefore, had no jurisdiction to pass order dated 31-7-1974. He contended that since the order, dated 31-7-1974 is void, the superstructure built on the same also falls down once the order dated 31-7-1974 is withdrawn. And since the preemptor/decree-holder did not comply with the conditions of deposit etc. As directed by the decree dated 22-7-1974, therefore, in terms of that decree the suit stood dismissed automatically. The next submission of the learned counsel for the appellant is that the findings of the lower appellate Court in its judgment dated 7-6-1977 under Issue No,5 (Limitation) and Issue No,6 (exclusion of time) are contrary to law as suit of the pre- emptor, respondent herein, was hopelessly barred by time, inasmuch as, the plaintiff cannot be said to be entitled to the exclusion of time consumed before the first trial Court as the proceedings in the first trial Court have neither been prosecuted bona fide nor with due diligence. In support of this submission, the learned counsel has referred to Tanveer Jamshed and another v. Raja Ghulam Haider 1986 CLC 456 (Karachi) which explains as to what is the bona fide and Mst. Jamila Begum and others v. Abdullah Jan and others PLD 1988 SC 409 which describes the expression "due diligence". He also cited Habib Bank Ltd., Khanpur v. Mst. Munawar Sultana and another 1993 M LD 36 (Lah.) and Mst. Zeba and others v. Member-III, Board of Revenue, Balochistan and others 1986 CLC 233, which are in the same lines.
4. In reply to the contentions raised by the learned counsel for the appellant, Mr. Nazir Ahmad Siddiqui, learned counsel appearing for the respondent/pre-emptor, has attempted to save the order dated 3-7-1974 by submitting that the application made by the respondent/plaintiff on 24-7- 1974 under section 151, C.P.C. Could be treated as a review application and, therefore, dated 31-7- 1974 can be said to have been validly passed. On the question of limitation etc. The learned counsel by relying on Aziz Ahmad and another v. Munir Ahmad and 2 others 1994 SCM R 2039, has supported the findings of the lower appellate Court and asserted that the bona fides of the plaintiff/pre-emptor were present all along, therefore, he was rightly extended the benefit of section 14 of the Limitation Act.
5. This is another cause where the fate hinges upon the answer whether the technicality is to prevail as against the real and substantial justice. The argument that after passing the decree dated 22-7-1974, the first trial Court became functus officio and could not have passed the order dated 31-7-1974 for returning the plaint, is beyond the challenge. If any body was aggrieved against the decree, the forum left was the appeal or the revisional forum. The first trial Court itself could not have directed the return of plaint without expressly recalling the decree. The tenor of the order, dated 31-7-1974 shows that the Court did not recall the decree dated 22-7-1974 but simply ordered the return of the plaint. Of course it can be said that by implication the Court recalled the decree dated 22-7-1974, but in my judgment, the Court had absolutely no jurisdiction at all to pass the order, dated 31-7-1974. As laid down in Yousaf Ali v. Muhammad Aslam Zia and others PLD 1958 SC 104, the superstructure built upon the said order had to fall down. This finding alone does not solve the problem. Since admittedly, the plaintiff/decree-holder did not comply with the conditions of deposit etc. By the due date and if the decree dated 22-7-1974 stand restored, the further serious question which seeks answer is whether to give fresh time to the plaintiff/pre-emptor for deposit or whether he should be penalized straightway? The answer to the question would depend upon the further question whether it was the plaintiff alone who contributed to the illegal proceedings or the Court and the defendant-petitioner also participated unwittingly in the same? It will also have to be seen whether directing the plaintiff-respondent to pay court-fee according to the agreed amount of Rs,6,000 upon which the plaintiff/pre-emptor was to exercise his right of pre-emption, would enhance the valuation of the suit and, therefore, taking the same out of the pecuniary jurisdiction of the Court?
6. The pecuniary jurisdiction in pre-emption suits is not determined by market values or sale considerations. Such a suit is valued for- the purposes of court-fee under section 7(v) and (vi) of the Court Fees Act (VII of 1870) and for purposes of jurisdictional valuation, under section 3 of the Suits Valuation Act. The method given in the Court Fees Act is that the valuation is to be made on the basis of land revenue where the land yields profits and where the land does not yield profits, according to the market value. Under the Suits Valuation Act normally the jurisdictional value is the same as determined under the Court Fees Act. In this case the suit was originally valued at 15 times the net profits which comes to Rs,120 and the court-fee was paid accordingly. Subsequently, on an application dated 28-4-1971, the plaintiff/pre-emptor fixed the market value at Rs,1,000 and paid the court-fee accordingly. It was only vide judgment dated 22-7-1974 that the Court while decreeing the suit also directed the plaintiff/pre-emptor to fulfil the deficiency in the court-fee by calculating the value at Rs,6,000. It is clear that the first trial Court rightly entertained the suit because the initial value was within its pecuniary jurisdiction. The question is whether the subsequent change in valuation deprives the Court of its pecuniary jurisdiction? The answer can be found by a B decided case of the Supreme Court namely, Illahi Bakhsh and others v. Mst. Bilqees Begum PLD 1985 SC 393 wherein the Court held that valuation of the original suit as determined under section 3 of the Suits Valuation Act, 1887 for purposes of jurisdiction would be the determining the factor and not market value or sale price of subject-matter of suit. Further, the Court disapproved the fixation of a notional value for purposes of court-fee and jurisdiction in case of pre-emption suit for possession of agricultural land and directed remedial legislative action. It is clear from the above judgment that it is the valuation under section 3 of Suits Valuation Act, 1887 and not "market value or sale price of subject-matter of suit". This means that the view of the first trial Court that because the parties have agreed that pre-emption amount be fixed at Rs,6,000, therefore, the Court lacked the jurisdiction, is incorrect. For this reason as well the order, dated 31-7- 1974 has no validity. It is not valid for the other reason also, i.e, that the Court became fungus officio by passing the decree.
7. Once the decree dated 22-7-1974 is restored then it is the next question which has to be answered. The question whether to penalize the successful pre-emptor or to give him time for deposit of money etc. I would lean in favour of equity and in favour of granting the time to the successful preemptor for the reason that it is not the plaintiff/pre-emptor alone who is responsible for the events which took place after the decree dated 22-7-1974. In my judgment the defendant/petitioner as also the first trial Court were equally responsible for the happenings after 22-7-1974. It is well-established that the act of Court will not prejudice any litigant.
8. Alternatively the second round of proceedings commencing in pursuance to order dated 31-7- 1974 of the first Court, even if for the sake of argument, are held to be valid, the plaintiff/pre-emptor remains entitled to the exclusion of time consumed in the first Court. The reasons are the same. The plaintiff/pre-emptor are not responsible for the events following the decree dated 22-7-1974. As has been held by Supreme Court in Aziz Ahmad's case (supra) the question of pecuniary jurisdiction and trial by a wrong forum is a technical error and in such a case the benefit of section 14 of the Limitation Act is to be extended to the affected litigant. In this reported judgment the Court upheld the findings of the lower Courts which allowed the benefit of section 14 in similar circumstances. From this point of view also the findings of the lower Court under Issues Nos.5 and 6 are correct and are hereby upheld. This also results in the success of the plaintiff/pre-emptor- respondent. It may also be noticed that the pre-emptor had succeeded on the question of superior right by consent and the other issue regarding price and costs of improvement was also decided by consent. On merits, therefore, the decree dated 22-7-1974 was a consent decree and the petitioner/vendee is trying to get rid of it by resorting to extreme technicalities. As has been well- settled now, technicalities have little room in the administration of justice and the Courts lean in favour of substantive justice. From this point of view, the appellant-vendee cannot be allowed to succeed.
For all that has been stated above, I would dismiss this appeal and uphold the decree passed by the lower appellate Court on 7-6-1977. However, I would give time up to 31st of December, 1994, to the successful plaintiff/preemptor for deposit of .The decretal amount under the decree and the balance of the court-fee, unless the plaintiff/pre-emptor has already done so. As difficult question is involved, I would leave the parties to bear their own costs.