PLJ 2006
[
Present: Muhammad Akhtar Shabbir, J.
M/s. VOYAGE DE-AIR GENERAL SALES AGENT
SHAHEEN AIR INTERNATIONAL
versus
SHAHEEN AIR INTERNATIONAL PVT. LTD.
KARACHI and others--Respondents
F.A.O. No. 132 of 2005, heard on
7.11.2005.
(i)
Jurisdiction--
----Validity--No pecuniary jurisdiction
to hear the appeal then Court was not even to competent to entertain or hear
cross objection--No objection was raised by defendant to jurisdiction of Civil
Court and such objection was also not raised before lower appellate Court by
defendants. [P. 396] D
(ii)
Jurisdiction--
----Jurisdiction value was fixed and
determined by plaintiff of the plaint as Rs. 20,000/- and the forum of appeal
would be determined from original value of suit. [Pp. 396 & 397] E
(iii)
Jurisdiction--
----Court lacking
jurisdiction--Effect--When Court came to conclusion that it had no jurisdiction
over matter in question of the suit or appeal, it could not decide any question
on merits and could decide the question of jurisdiction--First Appellate Court
after remanding the appeal was not competent to entertain cross-objection filed
by defendant--Order passed by first appellate Court remanding the appeal for
its presentation before forum was set aside by High Court and appeal would be
deemed pendency before First Appellate Court. [P.
398] H & I
(iv)
Pecuniary Jurisdiction--
----Pecuniary jurisdiction of appellate
Court is less than specified amount--Appeal was returned to appellant for its
presentation before proper forum. [P.
395] A
(v)
Suits Valuation Act, 1887 (VII of 1887)--
----Ss. 9 & 11--Value of--Value of
the original suit would mean the amount or value of subject matter of the suit
and forum of appeal would be decided according to value of the suit which would
mean that irrespective of what may be amount for which decree is passed--Appeal
will lie in the Court according to value of the suit. [P. 396] B
(vi)
Suits Valuation Act, 1887 (VII of 1887)--
----S. 11--Jurisdiction--Appellate Court
was precluded from entertaining an objection as jurisdiction of trial Court or
of lower appellate Court founded on the ground of over-valuation or
under--valuation unless such objection of Court of first instance was raised by
party at or before hearing of the case when issues were settled in case--Suit
or appeal was over--Valued or under valued and that over--Valuation or
under-valuation had prejudicially affected disposal of the suit or appeal on
its merits. [P. 396] C
(vii)
West Pakistan Civil Court Ordinance, 1962 (II of 1962)--
----S. 18--Suits valuation Act (VII of
1887) Ss. 3, 9 & 11--Specific Relief Act (I of 1877) Ss. 42, 52 &
53--Suit for declaration--Appeal forum of--S. 18 of West Pakistan Civil Court
Ordinance, 1962 provided that pecuniary jurisdiction of District Judge always
derived from valuation in plaint--Appeal against decree or order of civil Judge
would lie to High Court if value of suit in which decree or order made exceed
rupees 25,000/- and District Judge in any other case--Determination--Neither
defendant nor trial Court or appellate Court had determined original
jurisdiction value and Court if disgrace with determination of jurisdiction
value of the suit could pass order fixing value but that too after framing an
issued and affording opportunity to parties for production of evidence Court
having not done such exercise had wrongly observed that it lacked pecuniary
jurisdiction to hear the appeal--Appeal was therefore, competently filed. [Pp. 397 & 398] F & G
PLD 1996 SC 292; PLD 1985 SC 393; 2005
SCMR 1388; 2003 YLR 2226 and 1992 MLD 833.
Sh. Muhammad Akram and Mr. Muhammad Ilyas
Sheikh, Advocates for Petitioners.
Mr. Mustafa Ramday, Advocate for
Respondents Nos. 1 to 7.
Mr. Babar Ali, Advocate for Respondent
No. 8.
Mian Abdul Rauf, Advocate for Respondent
No. 9.
Date of hearing : 7.11.2005.
Judgment
This judgment will dispose of FAO No. 132
of 2005, Civil Revision No. 597 of 2005 and Civil Revision No. 617 of 2005,
arising out of the same impugned judgment involving identical common question
of law and facts.
2.
Brief resume of the case is that the appellant M/s. Voyage de-Air,
General Sales Agent of Shaheen Air International Pvt. Limited and Babar Hussain
Shah son of Muhammad Hussain is the Managing Partner of M/s. Voyage
de-Air-plaintiff, who had instituted a suit for declaration with permanent
injunction against the defendant petitioner in Civil Revision No. 597 of 2005
in the Court of Senior Civil Judge, Islamabad, on 7.12.2004, for issuance of
decree for declaration to the effect that the letters actions for
claiming/recovering the illegal/disputed amounts from the plaintiff by the
defendant are illegal, mala fide, tainted with ulterior motives, qua the
approvals granted by the management against the principles of natural justice
and terms and conditions governing the subject and ineffective qua the rights
of the plaintiffs with permanent relief of injunction restraining defendants
Respondents Nos. 1 to 7 from encashing the bank-guarantees or from terminating
the above agreements (management agreement and GSA agreement dated 10.12.2001
Ex. C-2 and 3) in any manner or from interfering into the business affairs of
the plaintiffs or reservation system and codes or from physical possession
control over all the offices, outlets, equipments, revenue documents/stock,
including outlets at Islamabad Airport and reservation system and codes in any
manner. Alongwith the suit, the plaintiffs also filed an application for
temporary injunction under Section 39, Rules 1 and 2 CPC. The plaint as well as
the application was contested by the defendants/Respondents Nos. 1 to 7 herein
in the appeal. The learned trial Court after hearing the preliminary arguments
issued interim injunction in favour of the plaintiffs/appellants vide its order
dated 7.12.2004.
3.
The plaintiffs filed an application for initiation of proceedings under
Order 39, Rule 2 sub-rule (3) read with Section 151 CPC against the defendants
for violation of the order dated 7.12.2004. Notice was issued by the Court in
this application. During the course of hearing, an application under Order 1,
Rule 10 CPC was filed. On 10.6.2005, the Court called reply from the parties
for 11.6.2005. The reply was not filed on the aforesaid date, but the learned
Senior Civil Judge vide his order dated 11.6.2005 directed the plaintiffs to
deposit an amount of 29,36,840/- in Court with a further direction to deposit
an amount of Rs. 95,33,628/- to Defendants Nos. 1 to 7 or to furnish the proof
of payment of this amount. Furthermore, the plaintiffs were also directed to
submit copies of FSRs alongwith cheques of that amount to the defendants or in
Court uptil 25.6.2005 and in case of default the Court observed that the stay
order shall stand vacated. The said order dated 11.6.2005 has been impugned by
the appellants before the learned District Judge,
4.
The appellants in view of the above order preferred the instant FAO No.
132 of 2005 as well as Civil Revision No. 617 of 2005 challenging the impugned
order dated 16.8.2005 regarding return of appeal for its presentation before
the proper Forum.
The condition imposed by the appellate
Court that all injunctive orders already passed shall remain operative has been
challenged by Respondent No. 1/Shaheen Air International Pvt. Limited, through
Civil Revision No. 597 of 2005.
5.
I have heard the learned counsel for the parties and have perused the
record. The appellants as well as petitioners in Civil Revision No. 617 of 2005
have preferred FAO No. 132 of 2005 against the order dated 11.6.2005 passed by
the learned trial Court. Both the revision petitioners/plaintiffs as well as
the defendants have challenged the vires of the order dated 16.8.2005,
therefore, I have decided to dispose of these revision petitions as a notice case.
6.
The question that boils down for determination in this case is, whether
the appeal against the order dated 11.6.2005 passed by the learned trial Court
was maintainable before the learned District Judge or before the High Court.
The plaintiffs in paragraph-45 of the plaint has determined/fixed the
jurisdictional value of the suit as Rs. 20,000/- which reads as under:-
"That the value of the suit for the
purposes of Court-fee and jurisdiction is fixed at Rs. 20,000/- which is
exempted from the levy of Court-fee."
7.
In paragraph-40 of the plaint, the plaintiffs have stated that Defendant
No. 4 issued inter office "Memo dated 25.9.2004 whereby he called upon
Defendant No. 5 to ensure recovery of Rs. 2776,340/- against group fare and Rs.
160,500/- against cash incentive and some other amounts from the plaintiffs. On
the basis of these entries, the lower appellate Court has observed that the
pecuniary jurisdiction of the appellate Court is less than the said amount,
therefore, the appeal was returned to the appellants/petitioners for its
presentation before the proper forum.
8.
Section 3 of the Suits Valuation Act, 1887, contemplates as under:--
"Section 3.--Power of Provisional
Government to makes rules determining value of land for jurisdictional purposes.
(1) The Provincial Government may make rules for determining the value of land
for purposes of jurisdiction in the suits mentioned in the Court Fees Act,
1870, Section 7, paragraphs (v) and (vi), and paragraph (x), clause (d).
(2)
The rules may determine the value of any class of land, or of any
interests in land in the whole or any part of a local area, and may prescribe
different values for different places within the same local area."
9.
In this regard, a schedule is annexed with the Act showing the valuation
of the suit for the purpose of computing the Court-fee and determining the
jurisdiction of the Courts respectively. The suit filed by the
plaintiffs/appellants pertains to the moveable property for declaration and
permanent injunction. The plaintiffs as per Suits Valuation Act has fixed the
valuation of the suit for the purpose of Court-fee and jurisdiction as Rs.
20,000/- less than Rs. 25,000/- which is exempted from the levy of Court-fee.
As per Sections 9 and 11 of the Suits Valuation Act, the value mentioned in the
plaint would govern the jurisdiction of the Court. The value of the original
suit would mean the amount or value of the subject-matter of the suit and forum
of appeal would be decided according to the value of the suit, which would mean
that irrespective of what may be the amount for which decree is passed, the
appeal will lie in the Court according to the value of the suit. In this
context, reference can be made to the case of Sardar Din vs. Elahi Bakhsh and
another (PLD 1976 Lahore 1).
10.
Section 18 of the Civil Courts Ordinance, 1962, provides as under:--
"Section 18.--Appeals from Civil
Judges: (1) Save as aforesaid, an appeal from a decree or order of a Civil
Judge shall lie:--
(a) to
the High Court if the value of the original suit in which the decree or order
was made exceeds twenty five hundred thousand;
(b) to
the District Judge in any other case."
11.
Section 11 of the Suits Valuation Act, 1887 would show that an Appellate
Court was precluded from entertaining an objection as to the jurisdiction of
the trial Court or of a lower Appellate Court founded on the ground of
over-valuation or under valuation unless such objection, in the case of the
Court of first instance, was raised by the party at or before the hearing of
the case when the issues were settled in the case, and in the case of lower
Appellate Court the objection had been raised in the memo of appeal. Another
condition which was required to be satisfied for entertaining the above
objection was that the Appellate Court must record its reasons of satisfaction
that the suit or appeal was over-valued or under-valued and that the
over-valuation or under-valuation had prejudicially affected the disposal of
the suit or appeal on its merits.
12.
Another important aspect of the case is that the defendant/revision
petitioner in Civil Revision No. 597 of 2005 have filed cross-objections before
the lower Appellate Court, which was not returned by the Court for its
presentation in this Court. It is still pending before the Court and if the
Court has reached to the conclusion that it has no pecuniary jurisdiction to
hear the appeal, then the Court was not even to competent to entertain or hear
the cross-objections. In the instant case, no objection was raised by the
defendants to the jurisdiction of the Civil Court and this objection was also
not raised before the lower Appellate Court by the defendants/revision
petitioners in Civil Revision No. 597 of 2005 (M/s Shaheen Air International
Limited). It is an admitted fact that the jurisdictional value was fixed and determined by the
plaintiffs in Paragraph-
45 of the plaint as Rs. 20,000/- and the
forum of appeal would be determined from the original value of the suit. In
this context, reference can be made to the cases of Ali Muhammad and others vs.
Muhammad Shafi and others (PLD 1996 Supreme Court 292) and Illahi Bakhsh and
others vs. Mst. Bilqees Begum (PLD 1985 Supreme Court 393). The relevant
portion of the judgment of the apex Court for further ready reference and
guidance is reproduced as under:--
"A perusal of the provisions of
Section 18 of Ordinance 11 of 1962 also does not provide anywhere that the
forum of appeal is to be determined on the basis of the sale price or the
market value of the land. It only lays down that this is to be determined on
the basis of the value of the original suit. The value of the suit in such
cases being the one which is nationally fixed, it will be the same value which
will determine the forum of appeal. In fact, the question is really no longer
resintegra. This Court in the case of Jan Muhammad and others vs. Dr. Abdul
Ghafoor etc. (PLD 1966 SC 461) already clarified that the value for purposes of
jurisdiction in the matter of appeal shall be the same as in the plaint. In
this connection, the following observation appearing at page 463 of the report
is relevant:--
"The plaintiff went up in appeal
before the District Judge on the valuation for the purposes of jurisdiction
stated in the plaint, namely, Rs. 3,091,14 that was the correct forum of
appeal."
13.
The aforesaid view was upheld by the Hon'ble Supreme Court in the case
of Munawar Hussain and 2 others vs. Sultan Ahmad (2005 SCMR 1388). In this
case, the Hon'ble Judges have observed that under Section 18, West Pakistan
Civil Courts Ordinance, 1962, pecuniary jurisdiction of the District Judge was
always derived from the valuation in the plaint. An amendment has been made in
Section 18 of the Civil Courts Ordinance, 1962, wherein it is clearly provided
that the appeal against the decree or order of the Civil Judge shall lie to the
High Court if the value of the original suit in which the decree or order was
made exceeds rupees twenty-five hundred thousand and to the District Judge in
any other case.
14.
In the instant case, neither the defendants have determined or fixed the
original jurisdictional value of the suit nor the trial Court or the Appellate
Court had determined the original jurisdictional value and the Court if
disagrees with the determination of jurisdictional value of the suit could pass
an order fixing the said value but that too after framing an issue and
affording an opportunity to the parties for production of their evidence. No
such effort was made by the lower Appellate Court to determine the original
jurisdictional value of the suit. Without such exercise, the Court could not
observe or come to the conclusion that it lacks the pecuniary jurisdiction to
hear the appeal.
In this view of the matter, the appeal was
competently filed by the appellants against the order dated 11.6.2005 of the
learned trial Court and while admitting the appeal the order dated 20.6.2005
was rightly passed by the learned, lower appellate Court.
15.
It is settled preposition of law that where the Courts having no
jurisdiction over subject-matter of suit or appeal, it cannot decide any
question on merits. It can simply decide question of jurisdiction and order
return of plaint for its presentation to proper Court if it comes to conclusion
that it has not jurisdiction. Reference in this context can be made to the
cases of Athmanathaswami Devasthanam vs. K. Gopalaswami Ayyangar (A.I.R. 1965
Supreme Court 338(V 52 C 63), Karachi Electric Supply Corporation Limited
through Secretary vs. Messrs Haji Hashim Haji Ahmad Brothers (2003 YLR 2226),
Maqsood Ali Khan vs. National Bank of Pakistan through President, Head Office,
I.I. Chundrigar Road, Karachi and 3 others (2003 PLC (CS) 226) and Qabool
Muhammad Shah vs. Bibi Bushra and others (1992 MLD 833).
16.
For the foregoing reasons, Civil Revision No. 597 of 2005 and Civil
Revision No. 617 of 2005 are accepted and the impugned order dated 16.8.2005
passed by the lower Appellate Court returning the appeal for its presentation
before the appropriate Forum in toto is set aside, as a result of which the appeal
preferred by the appellants before the lower Appellate Court shall be deemed to
be pending before the said Court. The Office to return the present Memo. of
Appeal alongwith its all annexures to the appellants for its presentation
before that Court within a period of fortnight and the said Court will decide
the same strictly in accordance with law after affording an opportunity of
being heard to both the parties.
(R.A.) Order
accordingly.