1. This application under section 115 of Civil Procedure Code is directed against the order of the learned 1st Additional District Judge at Karachi East passed in Civil Appeal No.132 of 1994 dismissing the appeal and upholding the judgment and decree of the Trial Court in F.C.S. No.1577 of 1991 passed by Senior Civil Judge Court No.VI East Karachi.
2. The facts are that on 21-10-1991 Respondent filed Civil Suit No.1577 of 1991 in the Court of VI-Senior Civil Judge, East, Karachi claiming ownership of Plot No.C-44 measuring 448 Sq. yds. situated in Block No.32/1 Korangi, Karachi with the prayers for possession of Plot No.C-14 measuring 448 Sq.yds. situated in Block No.32/A Korangi, Karachi. For declaration to the effect that the defendant has no right or any interest in the suit plot and the sale agreement, dated 12-7-1988 purported to be executed between the defendant and Noor Muhammad Merchant is a forged document and has no legal effect on the rights of the plaintiff in respect of the said plot. For mesne profits at the rate of Rs.100 per day from the date of institution of the suit till the possession and for permanent injunction restraining the defendant from transferring the suit-property. Applicant filed written statement on 27-1-1992. Issues were settled by the Trial Court on 30-7-1992. On an application under Order 14, Rule 5, C.P.C. moved by the learned counsel for the present applicant on 24-8-1992 additional issues were framed on the same day.
3. In support of his claim the respondent Malik Lal Muhammad Iqbal was examined as P.W.1, Exh.5. He Exhibited the allotment order, dated 11-1-1972 in the name of Noor Muhammad Merchant, Exh.5-A, Agreement for purchase of plot between the respondent and Noor Muhammad Merchant Exh.5-B, Application made to K.D.A. on 18-7-1990 Exh.5-C, Mutation in favour of respondent Exh.5-D, Lease Deed, dated 12-2-1990, Exh.5-E, Application to S.H.O. Police Station Korangi, dated 8-12-1990. Exh.5-F followed by the subsequent application Exh.5/F/1, Possession letter, dated 10-3-1972, Exh.5-G, Acknowledgment of possession issued by K.D.A. in favour of Noor Muhammad Merchant, dated 25- 3-1972, Exh.5-H, Site Plan of the suit premises Exh.5/H/1, payment receipt issued by the K.D.A. in the name of Noor Muhammad Merchant, dated 26-9-1990, 28-4-1971, 23-7-1972, 19-3-1973, 27-11-1990, 13-2-1989, 24-7-1990 as Exhs.5/1, 5/1/1 to 5/1/6 respectively, N.I.C. of Noor Muhammad Merchant bearing No.5-2-40-322888, Exh.5/J. Another Identity Card of Noor Muhammad Merchant was produced through respondent as Exh.5-K, Receipt, dated 18-7-1990 as Exh.5-L, Vakalatnama filed by respondent in Suit No.870 of 1990 as Exh.5-M. Respondent further examined Noor Muhammad Merchant as P.W.2 who also exhibited the written statement in Suit No.870 of 1990 as Exh.6-A. The third witness examined was P.W.3, Exh.7 Mumtaz-ul-Haq, Assistant Director, K.D.A. who on 19-5-1993 exhibited Indemnity Bond executed by Noor Muhammad Merchant as Exh.7-A. Respondent closed his side on 19-5-1993.
4. Applicant through his Attorney Muhammad Ismail was examined as D. W.1 Exh.8; he produced General Power of Attorney executed by defendant in his favour as Exh.8-A the original sale agreement, dated 12-7-1988 between Noor Muhammad Merchant and Muhammad Naqi Khan appellant as Exh.8-B; produced certified copies of bill of Mehran Floor Mills, dated 27-7-1988 as Exh.8-C, certified copy of receipt, dated 13-12-1990 as Exh.8-D, certified copies of three receipts of payment of Octroi to Baldia Shandadpur all, dated 25-12-1989 bearing No.1660, 1665 and 1659 as Exh.8/E, Exh.8-E/1 and Exh.8 E-2, he produced certified copies of letters written to Director-General K.D.A. by defendant on 11-12-1990 as Exhs.8/F and 8/G, the contempt application under Order 30, Rule 2(3), C.P.C. filed in Suit No.870 of 1990 in the Court of VIII-Civil Judge Karachi, East,Exh.8-H, dated 7-3-1991. In cross- examination the Attorney of Appellant produced allotment Order in original, dated 11-1-1972 in the name of Noor Muhammed Merchant as Exh.6/1, and produced challan, dated 19-3-1973 paid by Noor Muhammad Merchant to K.D.A. as Exh.8-J, he produced Site Plan as Exh.8/K in original and acknowledgment of delivery of physical possession, dated 10-5-1972 as Exh.8/L in original, appellant examined Muhammad Khalil as D.W.2 as Exh.9 on 21-12-1993 and after statement of Miran Jan Chowkidar as D.W.4 and Exh.11 on 26-11-1994, learned counsel for the defendant/appellant also closed the side of defendant/appellant on 26-1-1994.
5. The suit was decided by the trial Court in favour of the respondent vide judgment, dated 12-5-1994 followed by decree, dated 17-5-1994.
6. Being aggrieved by the judgment and decree applicant filed Civil Appeal No.132 of 1994 in the Court of 1st Additional District Judge, East, Karachi; the same was decreed on 7-12-1995 in favour of respondent upholding the judgment and decree of the trial Court.
7. Learned counsel for the applicant challenged the judgment, dated 29-11-1995 on the ground that the trial Court failed to exercise its jurisdiction vested in the Court under sections 6, 7 and 9 of the Court Fee Act. This point was agitated and was dealt with under additional Issues Nos.2 and 3. The second ground is that the Courts below failed to exercise the jurisdiction vested in them while deciding the question of maintainability of the suit under section 42 of the Specific Relief Act as prayer for the cancellation of the documents was not made by respondent. The third ground is that the judgment is in violation of Articles 17, 79 and 126 of Qanun-e-Shahadat Order as the sale agreement was not proved through evidence of the attesting witnesses and all subsequent evidence was unreliable. He further argued that the judgment being violative of the above is liable to be set aside. He placed reliance upon the reported cases of Abdul Khaliq v. Muhammad Asghar Khan PLD 1996 Lah. 367, S. Zafar Ahmed v. Abdul Khaliq, PLD 1964 Kar. 386, Muhammad Anwar Khan v. Additional District Judge, Rawalpindi, PLD 1978 Lah. 716 and Mirza Daud Baig v. Additional District Judge, Gujranwala, 1987 SCMR 1161. The fourth ground is that the subject-matter of the suit was beyond the pecuniary jurisdiction of the learned Trial Court and the mesne profits have been wrongly allowed. Fifth ground of attack was his reliance on clause (12) of the Sale Agreement and claimed that the subsequent lease in favour of the respondent is illegal.
8. In reply the Learned counsel for the respondent argued that it is only the respondent who has produced and legally proved the original documents. The alleged set of documents of title relied upon by the applicant is not proved. Even the Assistant Director of K.D.A. who appeared as a witness was not confronted with any of the alleged documents during his cross-examination. He further stated that P.W.2 and P.W.3 personally appeared and admitted the execution and signatures on the sale-deed and under these circumstances as the documents were admitted by both the executing parties thereto alongwith their respective signatures thereon its execution stood proved and attesting witnesses are not required to be examined. Learned counsel further argued that in case of dispute of valuation the burden was upon the applicant to lead evidence regarding valuation. He placed reliance on Gulzar Hussain v. Abdur Rehman and Muhammad Yamin 1985 SCMR 301 for purposes of valuation shown in the document and the same is not to be used as a weapon as held in the case of Walayat Khan v. Muhammad Sadiq, PLD 1993 Lah.
90. On the ground of not including the prayer for the cancellation of fraudulent agreement learned counsel argued that the respondent is not a party to the agreement as such it is a document between two strangers for which a prayer for cancellation is not required. Reliance is placed on Abdul Hamid alias MD. Abdul Hamid v. Dr. Sadeque Ali Ahmed PLD 1969 Dacca 357. That plaintiff can institute suit for declaration to the effect that the document is forged as held in Mafizuddin Khan v Jadu Pramanik PLD 1960 Dacca 103. Against the stand taken by the applicant on the ground of pecuniary jurisdiction, learned counsel stated that at the time of institution of suit the matter was within the jurisdiction of the trial Court and mere increase in the amount of mesne profit due to efflux of time is only a matter of accounts which does not bar the jurisdiction of the Court as held in the case of Farman Ali Dewan v. Mansur Ali PLD 1962 Dacca 214. Learned counsel has further argued that this is a case of concurrent findings of facts by two Courts and not liable to be interfered with under the present set of facts. He placed- reliance on the case of Mst. Tabassam Bibi Abdur Rashid Khan 1999 CLC 1216, Sheikh Muhammad Bashir Ali v. Sufi Ghulam Mohi-ud-Din 1996 SCMR 813, Anwar Zaman v. Bahadur Sher 2000 SCMR 431, Abdul Khaliq v. Rashid Ahmed 1999 MLD 2156 (Lahore), Municipal Committee Bat= v. Muhammad Iqbal Khan 1998 CLC 1714, Kanwal Nain v. Fateh Khan PLD 1993 SC 53 and Haji Zareen Khan v. Mureed Khan 1998 CLC 1794 (Quetta).
9. Perusal of the record and the case-law relied upon by the learned Advocates on the question of maintainability of suit under section 42 of the Specific Relief Act, and perusal of the judgments of the learned Trial Court as well as the learned Appellate Court reveal that the question has been agitated and considered in detail before both the Courts below. The case of Abdul Khaliq v.
10. Muhammad Asghar Khan (supra) pertains to the proof of an agreement relied upon by one executant and denied by the other. In the present case both the executing parties to the agreement affirmed the contents and their respective signatures thereon and the execution of the agreement. It is settled law that witnesses are only witnesses to the signatures of the executing parties as such when both the executs admit their respective signatures on the document further proof is not necessary and this report does not apply to the facts of the present case. In the instant case where the document is executed between strangers with the objective of depriving the plaintiff of his property, is null and void ab initio. Mere declaration would suffice and omission of prayer of cancellation is immaterial as laid down in Abdul Hameed's case, (supra).
11. "There is ample authority for the view that a distinction should be drawn between the case where the plaintiff is a party to the deed and the case where he is stranger to it. Where a document is to be set aside or declared null and void by a person who is a party to the deed, mere declaration would not do and cancellation of the deed is a necessary relief unless the document is void ab initio. But a person who is not the party to the deed is not bound to have it set aside or cancelled and a mere declaration that it will not affect the plaintiff's right would be quite enough. If the plaintiff is bound to have the document set aside or declared null and void the plaint must be treated as including a prayer for consequential relief, but if it is not incumbent on the plaintiff to get rid of the document the plaint must be treated as one for a declaration pure and simple.
12. A distinction has to be made between documents that are void and those that are voidable only. A document which is null and void ab initio need not be set aside. It may be treated as non-existent.
13. But a avoidable contact is valid until it is avoided or specifically set aside. In case of void document a person may rely on its invalidity as against himself without suing for its cancellation and a suit by him for declaring its invalidity is not a suit for declaration with consequential relief. But in a case of a document that is only voidable the case is otherwise as the party cannot impeach the arrangement effected by it without having it cancelled."
14. The original suit was instituted in the Court competent to entertain the plaint at the time of filing of suit. The amount of mesne profits was neither ascertained nor determined and, increased with the efflux of time which is only a matter of calculation to arrive at the final figure. The decision in Zafar Ahmed's case (supra) cited by the learned Advocate for the applicant pertains to the payment of deficit court-fee does not support him and the Court was pleased to uphold the view of the learned subordinate Court and held:-- "In the present case the petitioner in the suit filed by him neither has put any valuation for purposes of court-fee nor for purposes of jurisdiction under section 7(iv)(c). On the other hand he has valued the suit separately for purposes of court-fee treating the suit as falling under Article 17, clause (v) of Schedule II and for purposes of permanent injunction under section 7(iv)(d) of the Court Fees Act and has paid fixed court-fee separately on that basis. It is quite correct that on the view taken in the abovementioned Lahore Full Bench case the plaintiff should be allowed to fix valuation for purposes of court-fee and jurisdiction under section 7(iv)(c). But since in this region uptill now the Full Bench decision of the Sindh Court reported in Lakhomal Deepchannd v. Deepchand Tolaram is followed, I am not inclined to review the case law on the subject and disturb the view hitherto followed by the Court. According to the Sindh Full Bench Decision the valuation for purposes of court-fee under section 7(iv)(c) in a suit for setting aside a decree should be the amount involved in the impugned decree. I would, therefore, uphold the view of the learned subordinate Court in calling upon the petitioner to pay deficit court-fee on that basis. The petitioner is allowed to pay the deficit court-fee within one month."
15. The cases of Muhammad Anwar Khan and Mirza Dawood Baig (supra) are also distinguishable as the question before the Honourable Court for consideration was regarding -payment of ad valorem court-fee on the subject-matter of appeal against a decree of the Family Court which was an ascertained amount and not a figure to be determined by the Trial Court. To a question if the applicant affixed the court-fee on his Appeal before the learned District Judge as per the law being stressed by him to be laid down in these reports the learned counsel candidly admitted that the court-fee on the Appeal was affixed on the same value as that of the plaint in spite of the fact that at the time of institution of suit the amount was not ascertained and it increased with the efflux of time while at the appeal stage the amount was ascertained and the figure was also available. The objection as to the subject-matter going beyond the pecuniary limits of jurisdiction of the Trial Court as is not maintainable as has been dealt with in detail in the case of Farman Ali Dewan where the decree for Rs.15,000 was upheld as increase in the decretal amount was only due to efflux of time during pendency of the proceedings and the objection that the pecuniary jurisdiction of the Munsif was to the extent of Rs.5,000 only was turned down holding that:-- "Now coming to the merits of the case, it is not correct to say that the learned Munsif, Manikganj, is incompetent to pass the decree for the amount exceeding his pecuniary jurisdiction. Section 6 of the Code of Civil Procedure provides as follows: 'Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction."
16. This section is to be read subject to the provision of section 8 of the Suits Valuation Act, which provides that the valuation for the purpose of jurisdiction shall follow the value for the purpose of court-fee (but not vice versa) vide In re: Kalipada Mukerjee ILR 58 Cal. 281 section 11 of the court- fees Act provides procedure for payment of court-fee in suit for mesne profits or for land and mesne profits for account when the amount found due exceeds the amount claimed in the suit.
17. Order VII, Rule 2 provides that- Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed: But where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, the plaint shall state approximately the amount sued for'.
18. These provisions clearly show that a Court passing a decree for mesne profits or for accounts can award a decree for an amount in excess of its pecuniary jurisdiction if found due upon taking of accounts. In this connection reference may be made to the case of Bidyadhar v. Manindra ILR 53 Cal.
14. The decided cases have gone so far as to hold that Court has jurisdiction even though by addition of subsequent mortgagee as party the total claim exceeds its pecuniary limit. (Vide the case of Sailendra v. Hari Charan ILR 58 Cal. 829. Therefore, it is not correct to say that the learned Munsif, Manikganj has no pecuniary jurisdiction to pass a decree for Rs.15,000 which exceeds his pecuniary jurisdiction' . "
19. The question of the validity of sale agreement and clause 12 raised by the learned counsel has no force as both the Trial Courts have dealt with the facts of the case as well as the case-law applicable in detail and no material irregularity could be pointed out.
20. This is a case of concurrent finding of facts and law. No ground for interference with the judgment is made out in view of the above and does not call for interference in the Revisional jurisdiction under section 115 of the Civil Procedure Code, 1908 as held in Mst. Tabassam Bibi v. Abdur Rashid Khan. Sheikh Muhammad Bashir Ali v. Sufi Ghulam Mohiuddin, Anwar Zaman v. Bahadur Sher, Abdul Khaliq v. Rashid Ahmed, (Lahore) Municipal Committee Bannu v. Muhammad Iqbal Khan, Kanwal Nain v. Fateh Khan, and Haji Zareen Khan v. Mureed Khan (supra).
21. In view of the above discussion as no case for exercise of revisional jurisdiction on the ground of error of jurisdiction exercised nor any material irregularity under the provisions of section 115 of the Civil Procedure Code, 1908 is made out, this application is hereby dismissed but with no order as to costs.