FATEH ALI Versus TASSADAQ HUSSAIN

The impunged orders dated 14‑10‑1971 and 30‑10‑1971, passed by the learned Additional District Judge, Lahore, have been challenged through this civil revision.

2. The facts of the case are that the petitioner filed a suit for possession of the land in question and fixed its value for the purposes of court‑fee and .jurisdiction at Rs. 18.12 and 54.37, respectively. Apart from the other objections raised by the respondents, an objection was also raised with regard to the valuation of the suit for purposes of court‑fee and jurisdiction. Issue No. 4 was accordingly framed as to whether the suit was properly valued for such purposes. It was held by the learned trial Court, after recording evidence, that the land in question was no more under cultivation and as such was a building site; it was contiguous to the building owned by the petitioner. It was also found that an area measuring two kanals, owned by the petitioner, was sold by him for Rs. 12,000 and the area of the land in question being one kanal, its market price was Rs. 6,000. The suit was ultimately dismissed by the trial Court.

3. The petitioner filed appeal against the judgment and decree passed against him before the Additional District Judge, but did not pay court‑fee according to the value determined by the trial Court. He instead paid court‑fee according to the value fixed by him in his suit. An objection was raised by the respondent, before the appeal could be argued, that the court -fee being deficient, the appeal was incompetent. The learned Additional District Judge, therefore; after hearing the parties on this point, passed his order on 14‑10‑1971 directing the petitioner to make up the deficiency in the court‑fee on or before 30‑10‑1971. Since the said deficiency was not made up, therefore, the appeal was dismissed on 30‑10‑1971.

4. It has been argued that singe the point with regard to deficiency or otherwise in the payment of Court‑fee was sub-judice, therefore, the petitioner was not obliged under the law to pay the court‑fee on the appeal according to the value of the property determined by the trial Court. It is contended that since the purpose of the appeal was to finally determine this aspect of the case, therefore, it was arbitrary to call upon the petitioner to pay the court- fee as directed in the impugned orders.

5. The question which arises for consideration is whether the value of the suit for purposes of court‑fee and jurisdiction fixed by the plaintiff is final or tentative. 1 am of the view that it cannot be considered as final, but is subject to ascertainment by the Court. If the Court is satisfied that such value has not been fixed properly then the correct value will be determined by it. In the present case, the petitioner showed the subject matter of the suit as agricultural land whereas it was found to be a building site by the Court on the objection having b; en raised by the other party. According to section 7(v)(e) of the Court Fees Act, where the subject‑matter is a house or garden, court‑fee has to be paid according to the market value thereof. There is no doubt that the petitioner described the property to be agricultural land and if it had been found to be so then the value of the suit so fixed by the petitioner might have been found to be correct. But after it has been found by the trial Court that the subject‑matter of the suit is not agricultural land, but building site, the question would be as to how much court‑fee is to be paid by the petitioner on the appeal. According to law, the value so ascertained or determined in such cases by the Court would be the value of the suit for court‑fee and jurisdiction purposes in the first instance as well as in appeal. Reliance in this respect can be placed upon Abdur Rehmam v. Chiragh Din and others ((1908) 19 P R 124).

It is true that the valuation of the subject‑matter of the suit in such cases may be sub judice in appeal, but that does not mean that the court -fee should not be, paid according to the value ascertained or determined by the Court contrary to the value fixed by the plaintiff in his suit. After all court‑fee has to be paid according to the nature of the property. If the value as fixed by the plaintiff in his suit has been found to be incorrect then the value so determined would be the value according to which court‑fee will have to be paid, otherwise the appellate Court will have no jurisdiction to deal with the matter, the appeal being incompetent on account of the deficiency in the payment of the court‑fee. The appellate Court may ultimately find the value ho assessed by the trial Court to be incorrect, but in that case the amount so paid in excess of the value determined by the appellate Court would be liable to be refunded to the appellant.

6. Since the petitioner failed to make up the deficiency in the payment of court‑fee in spite of clear direction made by the learned lower appellate Court, therefore, the appeal has been rightly dismissed being incompetent.

7. There is yet another aspect of the case which needs consideration. The order dated 30‑10‑1971 was passed by the learned Additional District Judge dismissing the appeal preferred by the petitioner. According to law, second appeal was competent against the said order. It was not an order which was passed on interim basis ; it was judgment and decree passed by the learned Additional District Judge whereby the appeal preferred by the petitioner was dismissed. It has been challenged through civil revision which appears to be otherwise incompetent under the law.

It has been argued by the learned counsel that since the value of the suit was less than Rs. 2,000 therefore second appeal is not maintainable and in such a case civil revision has to be filed. I am afraid, this contention has no force. As discussed above, since the value of the suit property has been found to be Rs. 6,000 and that is the value according to which court‑fee should be paid on appeal, therefore, second appeal alone is competent. It is conceded by the learned counsel that civil revision cannot be converted into appeal.

The civil revision in the present case being incompetent and the second appeal having not been filed, the revision petition is liable to be dismissed as such.

8. For the aforesaid reasons the civil revision is hereby dismissed without any order as to costs.

K. M. A Revision dismissed.