' IFTIKHAR. MUHAMMAD CHAUDHRY, J.---This petition for leave to appeal has been filed against judgment, dated 19-10-2001 passed by High Court of Balochistan whereby order of Additional District Judge dated 14-3-2001 directing return of appeal filed by the petitioner for presentation before the competent forum because the subject-matter of the appeal was beyond the pecuniary jurisdiction of the Appellate Court was maintained.
2. Precisely stating facts of the case for disposal of instant petition are that petitioner being legal heirs of Nazir Khan filed a suit for declaration, partition, possession and injunction against the respondents (legal heirs of Abdul Wahid Khan) in respect of House No,2-33/26, Archer Road, Quetta. It may be noted that originally property, the subject-matter of dispute was allotted in the name of Nazir Khan by the Settlement and Rehabilitation Department but somehow his son Abdul Wahid Khan got the same transferred in his own name and during his lifetime he transferred House. No,2-33/26 in favour of his wife Mst. Rahima Bibi whereas the shop bearing Khatooni No,218, Khewat No,270, Khasra No,171, measuring 170 square feet situated in Ward No,22 remained in his name. After death of Abdul Wahid Khan petitioners filed suit claiming that as originally the property was allotted in favour of Nazir Khan, therefore, they are also entitled to have share out of the same being his legal heirs.
3. Learned trial Court dismissed the suit of petitioners to the extent of House No,2-33/26 situated at Archer Road, Quetta but as far as the shop in dispute is concerned it was transferred on the name of petitioner as well as other legal heirs Nazir Khan with consent of the parties.
4. The petitioners feeling aggrieved to the extent of decree whereby their suit in respect of house was dismissed preferred appeal before District Judge, Quetta which came up for hearing before Additional District Judge, Quetta who dismissed the same for want of pecuniary jurisdiction.
Relevant para. From the judgment is reproduced hereinbelow:- ' "Perusal of record shows that the appellants filed this appeal against the decree/decree, dated 31-8-2000 impugned herein passed by learned Civil Judge-IV, Quetta whereby the suit filed by the petitioner was dismissed. Initially the appellants filed the above suit for declaration, partition and possession and permanent injunction. The plaint shows that the appellants valued the suit for the purpose of court-fee and jurisdiction of declaration as Rs,1,000 for the purpose of court-fee and jurisdiction for possession suit has been flied by the appellants. The prayer clause shows that the appellants prayed for cancellation of Mutation No,477 has been carried out is sale consideration of Rs,14,50,000. The appellants claim for cancellation and possession of the said property too. The appellants filed court-fee of Rs,15,000 which means that they valued the suit for possession is Rs,14,50,000. In the circumstances this Court have no pecuniary jurisdiction to entertain the appeal as the subject-matter is above Rs,5,00,000. In the circumstances the application is accordingly allowed. The memo. Of appeal is returned for lack of jurisdiction and they are directed to file the same before the competent court for adjudication in accordance with law. File after completion be consigned to record."
5. Against the above order, the petitioner preferred civil revision before the High Court of Balochistan which has been dismissed vide impugned order, dated 19-10-2001. As such instant petition for leave to appeal has been filed.
6. Learned counsel for the petitioners contended that under section 18 of the Civil Courts Ordinance, 1962 (hereinafter referred to as the "Ordinance") the Appellate Court is bound to determine the valuation of appeal on the basis of valuation clause in the plaint whereas in the instant case the question of jurisdiction has been decided on the basis of mutation wherein the value of the house has been shown as Rs,14,50,000. According to him in view of the judgment reported in PLD 1999 Quetta 36 and 1999 SCMR 394 the Additional District Judge erred in law in non-suiting the petitioners for want of its pecuniary jurisdiction.
7. On the other hand learned counsel appearing for the respondents on Court notice stated that in instant case the evaluation clause in the plaint was not drafted properly because for the purpose of relief of partition and possession the suit was not valued. However, court-fee of Rs,15,000 has been affixed for all the reliefs, therefore, according to him in such-like situation wherein the valuation clause has not been properly assessed, the Court had no option but to make reference to the documents on the basis of which the parties were claiming the title over the property. He further stated that under section 7(2)(e) of the Court Fees Act, suit is to be valued for partition and possession according to its market value and the market value can be determined on the basis of the documents brought on record during trial according to Qanun-e-Shahadat Order, 1984.
8. We have considered the respective contentions put forth by both the learned counsel. In order to understand the controversy it would be appropriate to reproduce hereinabelow the valuation clause from the plaint:- "6. That the valuation of the suit for the purpose of court-fee and jurisdiction so far it relates to declaration, the same is fixed at Rs,1,000, for the purpose of court-fee and jurisdiction so far as relief of partition and possession is concerned, the same is fixed at Rs, (sic) and for the purpose of injunction the same is fixed at Rs,1,000. The maximum court-fee is being paid."
A perusal of above para. Indicates that for the purpose of partition and possession the suit has not been valued nor it is mentioned that how much court-fee has been paid for such relief. However, the decree-sheet indicates that on the plaint court-fee of Rs,15,000 was affixed. Learned counsel for the petitioners also admitted that before the District Judge again court-fee of Rs,15,000 was paid by the petitioners.
9. There is no cavil with the proposition that the valuation for the appellate forum is to be determined in view of section 18 of the Ordinance as has been decided by this Court in 1999 SCMR 394, but in the instant case important question for consideration is that when for the relief of partition the suit has not been valued at all either for the jurisdiction of the court or for the purpose of court-fee, whether in such situation the Court is competent to make reference to any other proved document available on record, and it not so whether the Appellate Court has not travelled beyond its jurisdiction under section 18 of the Ordinance. Thus, to examine this proposition leave to appeal is granted.