' RANA BHAGWANDAS, J.---This appeal by leave of the Court arises out of Lahore High Court judgment, dated 4-11-1997 passed in R.S.A. No,182 of 1987 allowing the same, setting aside the judgment and decree passed by Civil Judge Second Class, Gujranwala and remanding the case to learned District Judge, Gujranwala with a direction to entrust it to a Court of competent jurisdiction for final decision.
2. The case has a chequered history and the parties are locked in legal battle arising from a suit for possession through pre-emption filed by the appellants in relation to sale of land measuring 149 Kanals, 2 Marlas, situated in village Naulanwali, Tehsil and District Gujranwala through registered sale-deed, dated 5-4-1972. Appellants sought the decree on the grounds of being collaterals of the vendor, co-sharers and owners of the land in village estate. The suit was hotly contested on the ground, inter alia, that the same was not properly valued for the purpose of court-fee and jurisdiction: Accordingly, issue No,1 was framed as to "whether the suit was correctly valued for court-fee and jurisdiction. If so to what effect?" After recording evidence, trial Court decreed the suit vide judgment, dated 22-4-1977. Appeal preferred by the respondents was allowed owing to incorrect finding on issue No,1 and suit was remanded to the trial Court with direction to record finding on issue No,1 afresh. Remand order was challenged in F.A.O. No,122 of 1980, which was accepted and the case was remanded to Additional District Judge for a fresh decision on the issue aforesaid on the basis of evidence already on record.
3. In post remand proceedings, finding of trial Court on issue No,1 was maintained and the appeal was dismissed on 5-1-1985. R.S.A. No,9 of 1985 challenging the judgment of the appellate forum was allowed on the basis of agreement between the parties remanding the appeal to Additional District Judge vide High Court order, dated 7-6-1987. The points of agreement between the parties were that upon determination ofthe court-fee, after receiving additional evidence of the parties, both parties would make good deficit court-fee in accordance with the provisions of section 7(v)(c) of the Court Fees Act 1870. Both the parties adduced additional evidence on the question of valuation of suit for court-fee and jurisdictional purpose. Even the arguments on the issue were heard when learned counsel for the parties made a statement at the Bar that 15 times the net profits arising out of land at the relevant time were Rs,22,500 while the value of the land, not assessed to land revenue, was Rs,7,500 and, thus, total value for court-fee and jurisdiction would be Rs,30,000.
Learned Additional District Judge accordingly recorded a finding that valuation of the suit for court-fee and jurisdiction was Rs,30,000 and, after hearing arguments on merits, he dismissed the appeal on 25-10-1987. This judgment as well as that of the trial Court were assailed in R.S.A. Before the High Court, which has been allowed as aforesaid leading to this appeal.
4. Leave to appeal was granted to consider the contention whether the learned Judge in Chambers while setting aside the judgment and decree of the trial Court failed to take into account the provisions of section 11 of the Suits Valuation Act, 1887 and section 7(vi) of the Court Fees Act 1870. Another question that cropped up for consideration was; whether, in absence of the allegation by respondents that prejudice was caused to them on account of proceedings of the suit before Civil Judge Second Class, High Court should not have interfered with the judgment and decree passed in the suit.
5. We have heard Messrs Muhammad Munir Peracha and Muhammad Anwar Bhaur, leaned ASCs for the parties and gone through the record. Section 11 of the Suits Valuation Act, 1887, which is crucial and of vital importance to the resolution of the question raised in this appeal may be reproduced for the sake of convenience and ready reference:--- "11. Procedure where objection is taken on appeal or revision that a suit or appeal was not properly valued for jurisdictional purposes.--- Notwithstanding anything in section 578 of the Code of Civil Procedure, an objection that by reason of the over valuation or under valuation of a suit or appeal a Court of first instance or lower Appellate Court which had. No jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an Appellate Court unless---
(a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or inthe lower Appellate Court, in the memorandum of appeal to that Court, or
(b) the Appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit or appeal was over-valued or undervalued, and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.
(2) If the objection was taken in the manner mentioned in clause (a) of subsection (1), but the Appellate Court is not satisfied as to both the matters mentioned in clause (b) of that subsection and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance or lower Appellate Court.
(3) If the objection was taken in that manner and that Appellate Court is satisfied as to both these matters and has not these materials before it, it shall proceed to deal with the appeal; under the rules applicable to the Court with respect to the hearing of appeals; but if it remands the suit or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, it shall direct its order to a Court competent to entertain the suit or appeal.
(4) The provisions of this section with respect to an Appellate Court shall, so far as they can be made applicable, apply to a Court exercising revisional jurisdiction under section 622 of the Code of Civil Procedure or other enactment for the time being in force.
(5) This section extends to the whole of Pakistan, and shall come into force on the first day of July, 1887."
6. It may be observed that initially the suit was filed in the Court of learned Senior Civil Judge, Gujranwala. Later, the suit was transferred to the file of Administrative Civil Judge, First Class, Gujranwala. During the pendency of the suit, on his transfer. Civil Judge First Class was replaced by Khan Sanaullah Khan Sial, Civil Judge, Second Class, leading to controversy of pecuniary jurisdiction of the Civil Judge, Second Class at the relevant time. Objection of respondents, however, in the written statement was confined to the question of valuation for the purpose of court-fee and jurisdiction of the Court, as the appellants had valued the suit for the purpose of court-fee at Rs,123.90 being ten times the land revenue and valuation for the purpose of jurisdiction atRs,371.70. It was in this backdrop that issue No,1 struck down as under:--- "1. Whether the suit has been correctly valued for court-fee and jurisdiction and the plaint has been sufficiently stamped? If not, its effect? OPP"
7. It may also be pertinent to note that while Civil Judge Second Class decreed the suit on 22-4- 1977 on the basis of valuation fixed by the appellants in the plaint, and Additional District Judge determined the valuation of Rs,30,000 vide judgment and decree dated 25-10-1987, thus, there was no occasion for the respondents, in the peculiar circumstances, to take an exception to the pecuniary jurisdiction of the Court. It is borne out from the pleadings of the respondents that they had raised relevant objection at the very earliest opportunity, which has been duly noticed in the impugned judgment of the High Court. Nevertheless, respondents nowhere demonstrated by any overt act or representation whether before or after the decision of the suit by Civil Judge having Second Class powers, that they were materially prejudiced and there has been any miscarriage of justice. It may also be borne in mind that litigation between the parties has been going on for the last more than three decades and an order of remand at this stage is most likely to further consume a great deal of time till final determination of the lis between the parties.
8. Adverting to the merits of the case, it may be pertinent to observe that section 11 (ibid) constitutes an exception to the general rule that want of jurisdiction will render the proceedings null and void. The principle underlying section 11(ibid) is that a decree passed by a Court, which would have had no jurisdiction to hear a suit or appeal but for over-valuation or under-valuation, is not to be treated as, what it would be but for the section, null and void, and that an objection to jurisdiction as regards under valuation or over-valuation should be dealt with under this provision of law and not otherwise. The spirit of law behind section 21 and section 99 of the Code of Civil Procedure 1908 appears to be the same as under section 11 (ibid) namely that when a suit had been tried by a Court on merits and judgment delivered, it should not be liable to be reversed purely on technical grounds unless it had caused failure of justice. The policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an Appellate Court unless it has resulted in grave prejudice on the merits. It would, thus, appear that the object of section 11 (ibid) is to provide a mechanism for curing the original lack of jurisdiction and also to place this defect at par with other curable irregularities.
9. In order to attract the provisions of section 11 (ibid) it would appear that three conditions must exist. Firstly, that the objection was taken in the trial Court before framing of the issues or in the Appellate Court in the memorandum of first appeal, as the case may be; C secondly that the Appellate Court is satisfied as to the validity of the objection and thirdly that such wrong valuation of the suit or appeal must have prejudicially affected the merits of the suit or appeal, as the case may be.
10. True, that when a Court suffers from want of inherent jurisdiction, no amount of consent or acquiescence in the proceedings can invest such Court with such jurisdiction. Question of waiver or estoppel in that case would not arise and where a Court does not lack in its inherent jurisdiction but the procedure or mode of hearing, it adopts, is defective or irregular and in such a position a party joins issues and participates in the proceedings without raising any objection of such defect or irregularity touching upon jurisdiction; later on, it cannot be allowed to challenge the jurisdiction when the result of the proceedings goes against it. In the first case, order of the Court will be a nullity in the eye of law but not so in the second case. In view of section 1I (ibid), a decree passed by the Court, whose jurisdiction is assailed, is not void. The defect of jurisdiction contemplated by the section is not of a fundamental character as it is no more than an irregularity in the exercise of jurisdiction.
11. A reference may be made to Chief Engineer Building Departmentv. Pakistan National Construction 1988 SCMR 723, in which distinction between want of inherent jurisdiction and irregular exercise of assumption of jurisdiction was highlighted by this Court. Zafar Hussain Mirza, J.
(as his lordships then was) ruled that a want of inherent jurisdiction results in vitiating the proceedings taken by the Tribunal and is incurable, notwithstanding, waiver by conduct or otherwise; whereas, an irregular assumption of jurisdiction is always subject to waiver. Way 'back in 1954, Supreme Court of India in Kiran Singh v. Chaman Paswan AIR 1954 SC 340 expressed the view that jurisdiction conferred by section 11 of the Suits Valuation Act on Appellate Court is equitable, to be exercised when there has been an erroneous assumption of jurisdiction by a subordinate Court as a result of over-valuation or under-valuation and a consequential failure of justice. In Khizar Hayat v. Saleh Muhammad PLD 1986 Lah. 242, a Division Bench of the High Court, after resume of various precedents placed similar interpretation on the provisions of section 11 (ibid). In Abdul Majid v. Muhammad Walayat Khan 1987 SCMR 1139, a five members Bench of this Court was confronted with similar situation in an appeal arising out of a pre-emptionsuit. It was held that it is well established that section 11 of the Suits Valuation Act has the effect of curing want of jurisdiction caused by erroneous or improper valuation and treats over-valuation or undervaluation as a mere irregularity within the contemplation of section 578 (section 99 of the present C.P.C.).
12. In our considered opinion, since no objection was raised by the respondents to the jurisdiction of the Court in the first instance or the first appeal, learned High Court was not justified in non-suiting the appellants on this score. Conduct of the respondents clearly suggests that they had all along waived the objection and acknowledged the jurisdiction of the Court by making good the deficit amount of court-fee, after determination of the valuation of the suit for the purpose of jurisdiction F and court-fee at Rs,30,000. Furthermore, the respondents have failed to demonstrate if any prejudice has been caused to them by decision of the suit by Civil Judge invested with Second Class powers. Indeed this aspect of the case escaped the notice of the learned Judge in Chambers otherwise the High Court would not have set aside the judgment of the trial Court or ordered remand of the suit after 24 years of the commencement of litigation.
13. Learned counsel for the respondents, confronted with this position was not able to convince the Court on the question of jurisdiction and, in any event, he failed to establish from the record whether, by reason of assumption of jurisdiction by learned Civil Judge Second Class, with powers to try the suits up to the valuation of Rs,20,000 the respondents were materially prejudiced. Learned counsel attempted to justify the opposition and relied upon Mathura Das v. Jalal Din AIR 1993 Lahore 8 expressing the view that hearing of an appeal by a Court of inferior jurisdiction must raise a presumption that the party concerned has been materially prejudiced by hearing of the appeal before such Court. The precedent is clearly distinguishable in that there can be no cavil with the jurisdiction of the Appellate Court in the present case and it is rather the jurisdiction assumed by the Civil Judge, which was found to be defective by the High Court. Learned counsel also referred to Ali Muhammad v. Muhammad Shafi PLD 1996 SC 292, which hardly advances his case and rather reaffirms the legal position approved in the earlier cases. It may be pointed out that, among others, the case reported as Kiran Singh v. Chaman Paswan AIR 1954 SC 340 was not only referred to but also relied upon in the last precedent.
14. For the aforesaid facts, circumstances and reasons, we are of the view that the judgment of the High Court cannot be sustained in law and is liable to be set aside. Accordingly, appeal is allowed and the said judgment is set aside. Since the High Court did not decide the R.S.A.Against judgment of the First Appellate Court on merits, the case is remanded to the Lahore High Court for decision afresh on merits with the expectation that some priority would be assigned to it, as the parties are locked in litigation for the last more than thirty years.