' MUNIR A. SHEIKH, J.--This appeal under Article 185(2)(d) and (e) of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the judgment, dated 7-2-2000 of the learned Judge in -Chamber of the Lahore High Court, Lahore through which while reversing the judgments of the two Courts below, the suit filed by the respondents for pre-emption has been decreed.
2. Learned counsel for the respondents has raised a preliminary objection that direct appeal is not maintainable, for the value of the subject-matter of dispute i.e, the land in question is less than Rs,50,000 as per valuation of the suit fixed for the purposes of court-fee and jurisdiction in the plaint and in the memo. Of appeal filed before the First Appellate Court and the High Court and the same remained unaltered even up to the date of filing of this appeal, therefore, the appeal could he maintained only by leave of the Court.
3. Article 185(2)(d) and (e) of the Constitution reads as under:-- "185(2)(d).---If the amount of or value- of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf of Act of [Majlis-e-Shoora (Parliament)] and the judgment, decree or final order appealed from has varied or set aside the judgment decree or final order of the Court immediately below; or
(e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or"
4. The submission of learned counsel for the respondents was that the expression "the amount or value of the subject-matter of the suit in the Court of first instance and also in appeal" used in these clauses does not mean that real or market value of the subject-matter of the suit but the value which had been fixed in the plaint for the purposes of jurisdiction. According to him, the expression "in the Court of first instance" used in this provision of the Constitution means reference to the value of the suit fixed in the plaint for the purposes of jurisdiction.
5. In pre-Constitutional period, the appeal before the Supreme Court from the judgment and decree of the High Court was regulated and governed by sections 109 and 110 of the Civil Procedure Code which as they stood before their repeal or amendment respectively were as under:-- "109. Subject to such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of Pakistan, and to the provision hereinafter contained, an appeal shall lie to the Supreme Court--
(a) from any judgment, decree or final order passed on appeal by a High Court or by any other Court of final appellate jurisdiction;
(b) from any judgment, decree or final order passed by a High Court in the exercise of original civil jurisdiction; and
(c) from any judgment, decree or final order, when the case, as hereinafter provided, is certified to be a tit one for appeal to the Supreme Court.
110. In each of the cases mentioned in clauses (a) and (b) of section 109, the amount or value of the subject-matter of the suit in the Court of first instance must be twenty thousand rupees or upwards and the amount or value of the subject-matter in dispute on appeal to the Supreme Court must be the same sum or upwards.
' Or the judgment, decree or final order must involve, directly or indirectly, some claim or question to or respecting property of like amount or value, ' And where the judgment, decree or final order appealed from affirms the decision of the Court immediately below the Court passing such judgment, decree or final order, the appeal must involve some substantial question of law."
6. The expression used in section 110, C.P.C. i.e,, "the amount or value of the subject-matter of the suit in the Court of first instance" is identical, therefore, the interpretation of these provisions of the Civil Procedure Code earlier made would be applicable to the relevant clauses (b) and (e) of Article 185(2) of the Constitution.
7. Mr. Gul Zarin Kiani, learned counsel for the appellants has referred to judgment in the case of Rai Rajendra Kumar Ghosh Bahadur and others v. Rash Behari Mandal and others (AIR 1931 Privy Council 125) in which it was held that the said expression used in section 110, C.P.C. Does not mean the valuation of the subject-matter of the suit fixed in the plant but the real and market value thereof. The same view was taken in the cases reported as State of Maharashtra v. Mishrilal Tarachand Lodha and others (AIR 1964 Supreme Court 457) and Sm. Rukmani Bai v. Joshi Ram Kishan Joshi Bhawani Shanker (AIR 1950 Allahabad 2420) referred to by Mr. Gul Zarin Kiani, ASC.
8. In our view also, the expression "subject-matter of dispute in the Court of first instance" in clauses
(d) and (e) means that market value thereof at the time of institution of the suit and also filing of appeal before this Court should be more than Rs,50,000 and not the "valuation" fixed in the plaint, for if that was the intention, the expression to that effect would have been used by the framers of the Constitution by adding the expression "as fixed in the plaint".
9. We may also observe here that as is clear from section 112, C.P.C. That rules framed by this Court under the Constitution have overriding effect. Order XII in Part II of the Supreme Court Rules regulates the appeals under Article 185(2)(d) and (e), rule (1) of which reads as under:- "1. No notice of motion in relation to a Civil Appeal under this order shall be entertained unless it is accompanied by a certificate issued by the High Court concerned that the case involves a substantial question of law as to interpretation. Of the Constitution or by a certificate as set out in Form 13 or 14 of the Sixth Schedule to these Rules."
10. According to this rule, learned counsel for the appellant is required to append with the appeal a certificate of valuation of subject-matter of dispute as prescribed in the Schedule appended to these rules. A certificate to the following effect is clearly reflective of the intention of framers of the rules that value of the suit as fixed in the plaint was not intended to be the determining factor for maintainability' of appeal before this Court under Article 185(2)(d) and (e) of the Constitution but it was the market value of the subject matter of dispute itself which was the basis, for maintainability of appeal which was to be ascertained from the certificate of the learned counsel for the appellants:--- VALUATION CERTIFICATE ' Certified that value of subject-matter of the appeal in the Court of First Instance and in Appeal was more than Rs,50,000. Accordingly maximum Court Fee Stamp of Rs,2,000 has been paid."
11. It may be mentioned here that in the suit- for recovery of possession of land according to the provisions of the Court Fees Act, notional value of subject-matter of dispute is to be fixed for the purposes of court-fee at fifteen' times the amount of net profits accrued. From the land in the preceding one year and for the purposes of jurisdiction at thirty times the amount of land revenue if the land is assessed to the land revenue. Which is not merely the real or market value of the land.
The value thus fixed is relevant only for the purposes of payment of court-fee or determining the forum of appeal under the West Pakistan Civil Courts Ordinance, 1962 up to High Court and not before this Court, for as discussed above, in pre-Constitutional period, the appeals from judgments and decrees of the High Court before this Court were governed by sections 109 and 110, C.P.C. And thereafter under Article 185(2)(d) and (e) of the Constitution.
12. The words "value of the subject-matter of dispute in the Court of first instance" as argued by learned counsel for the respondents does not mean the value thereof as fixed in the plaint but the market value at the time of filing of the suit. We find that with the memo. Of appeal, learned counsel for the appellants has appended the requisite prescribed certificate of the value of the subject-matter of dispute according to which it is more than Rs,50,000. No counter-certificate has been filed by the respondents disputing the correctness of the said certificate. Therefore, the- same shall be deemed to have gone unchallenged, as such, could be the basis to assume that value of the subject-matter of dispute given in .It is correct to maintain appeal under Article 185(2)
(d) and (e) of the Constitution.
13. For the foregoing reasons, we hold that this appeal directly under Article 185(2)(d) and (e) of the Constitution is maintainable and the objection is answered accordingly.