GHULAM RASOOL Versus AHMAD
This is a defendants' second appeal from the judgment and decree, dated 5‑5‑1980 of the learned Additional District Judge, Jhang whereby while reversing the decree of the Civil Court, dated 12‑4‑1980 he decreed the suit of the respondent.
2.In view of the limited nature of controversy it is not essential to state the facts in detail. Suffice it to say that the dispute arises out of a suit for possession through pre‑emption brought by the respondent against the appellant which was contested by them by filing a written statement in which various objections inter alia as to the valuation of the suit for the purposes of court‑fee and jurisdiction had been raised. The learned trial Court framed the necessary issues. Issue No.l which is important for the present purposes reads as under:‑‑
The learned trial Court found that although the respondent had a superior right of pre‑emption left his suit was liable to be dismissed as the court‑fee paid was ridiculously low and despite time given to him the plaintiff did no make up the deficiency. These findings were reversed by the learned Additional District Judge who came to the conclusion that the plaintiff had made good the deficiency in the court‑fee within the period allowed by the trial Court.
3. As is obvious from the above the only controversy between the parties is with respect to issue No. 1. Learned counsel for the appellant has argued that the suit was deliberately undervalued for the purposes of court fee and jurisdiction by the respondent‑plaintiff and as such he was not entitled to any indulgence. It was further argued that the respondent failed to make up the deficiency within the time allowed by the trial Court and as such the suit was rightly dismissed and that the Additional District Judge acted illegally in reversing the findings of the trial Court on issue No. 1.
4. On the other hand learned counsel for the respondent has maintained that there were contumacious delay or disregard of either the provisions of Court Fee Act, 1878 or of the order passed by the Court. He went on to elaborate that as soon as the statement of net profits was prepared the respondent made good the deficiency by supplying the requisite court‑fee.
5. In order to appreciate the respective contentions of the learned counsel for the parties certain facts may be recapitulated. The suit was instituted by the respondent on 1‑4‑1976. He fixed the valuation for the purposes of court‑fee and jurisdiction at Rs.45 averring that the net profits which had arisen from the land during the preceding years were Rs.3 and the valuation has been fixed at fifteen times the net profits on 2‑4‑1976 the trial Court directed the respondent to have the statement of net profit prepared and make up the deficiency in court‑fee before the next date of hearing which was 27‑5‑1976. However, when the case came up on the said date no order was passed about preparation of statement of net profit or making up the deficiency in court‑fee. It appears that as one of the grounds taken by the appellant in the suit was that he had a superior right of pre‑emption being the tenant of the land the case was transferred to the Assistant Commissioner/ Collector. The A.C./Collector on 13‑8=1977 directed the respondent to have the statement of net profit prepared and to make up the deficiency in court fee before the next date of hearing which was 24‑10‑1977. Admittedly the requisite court‑fee was paid on that date. No objection of any sort was raised at that time. The respondent gave up his plea of being a tenant of the land with the result that the suit was transferred back to the civil Court, which after hearing the arguments of the learned counsel for the parties dismissed the suit holding that the deficiency in court‑fee should have been made up before 24‑10‑1977 and not on 24‑10‑1977 and as there was no extension of time by the trial Court, the plaint was liable to be rejected under Order VII, Rule 11, C.P.C.
6. On appeal the learned Additional District Judge took the view that the respondent/plaintiff had made an application on 23‑10‑1977 that he had not been able to obtain the statement of net profits on 23‑10‑1977 and that he may be allowed one day's time to make up the deficiency by purchasing the court‑fee stamps. This application was not decided on 23‑10‑1977 but was fixed on 24‑10‑1977 when the proper court‑fee was presented and placed on record without any objection on the part of the appellant.
7. From perusal of the record one thing which becomes evident and is floating on its surface is that at no stage had the trial Court determined the amount of court‑fee payable. Consequently no order directing the specified amount to be paid as court‑fee was ever passed. The Supreme Court of Pakistan in Shahna Khan v. Aulia Khan and others PLD 1984 SC 157 has clearly laid down that unless a specific amount of court‑fee has been determined as payable by the Court and time has been given to deposit that amount the plaint cannot be rejected or suit dismissed in case of failure to pay proper court‑fee. Another judgment of the Supreme Court also takes the same view. That judgment is reported as Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289. In a later judgment in the case of Muhammad Hanif v. Muhammad PLD 1990 SC 859 the Supreme Court of Pakistan observed as under:‑‑‑
"It has been held in .the case of Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 that in suits and appeals at least one chance for supplying the deficiency in court‑fee has to be granted as of right. Learned counsel for the respondents in this case tried ‑ to overcome this difficulty by the argument that this _ one chance was granted by the Court to the appellants on their asking, therefore, the rule laid down in the.case of Siddique Khan stood satisfied. We do not agree with him. The High Court while granting time for the supply of the deficient court‑fee had not specified the amount of deficiency. Therefore, in substance the condition was not satisfied. The revisions, if they would have been converted into appeal, could not have been treated as time‑barred.
8. In the present case though the plaintiff‑respondent was directed to make up deficiency in court‑fee after having the statement of net profits prepared but at no point of time was the valuation of the suit for the purposes of court‑fee and jurisdiction determined by the trial Court. Consequently even if the orders passed in this behalf were not complied with the suit of the plaintiff‑respondent could not be dismissed. Moreover, as observed by the learned Additional District Judge the respondent was allowed time to make up deficiency in court‑fee before 24‑10‑1977. He applied for extension of one day by making an application before the said date in which it was stated that he had obtained the statement of net profits and the court‑fee was not available. That case came up for hearing on 24‑10‑1977 although no orders were passed on the application filed by the respondent yet the court‑fee was accepted in presence of the appellant without any objection. In this view of the matter the learned Additional District Judge was justified in reversing the finding of the trial Court on issue No. 1.
In view of what has been stated above, this appeal has no force and is dismissed with no orders as to costs.
Q.M.H./M.A.K./G‑163/L Appeal dismissed.