ZAFAR ALAM vs MEMBER (REVENUE) BOARD And 3 Other
This petition for leave to appeal was filed by a vendee challenging the High Court's dismissal of his writ petition in a pre-emption suit based on a right of tenancy. The petitioner contended that the respondent's plaint should have been rejected under Order 7, Rule 11(b) of the Code of Civil Procedure 1908 due to deficient court-fee. The petitioner argued that the precedent established in Siddique Khan v. Abdul Shakur Khan (PLD 1984 Supreme Court 289) was distinguishable because it applied only to clause (c) of Order 7, Rule 11, and not clause (b), and asserted that the court was not obligated to determine the correct court-fee before requiring the plaintiff to make up the deficiency. The Supreme Court rejected this argument, holding that the distinction between clauses (b) and (c) of Order 7, Rule 11 is invalid in this context. The Court reaffirmed that while the initial duty to fix the correct court-fee lies with the plaintiff, the Court is obligated to determine the correct value if stamps are deficient, and the plaintiff is entitled to one opportunity to rectify the deficiency.
- Is a plaintiff entitled to an opportunity to make up a deficiency in court-fee before a plaint can be rejected under Order 7, Rule 11 of the Code of Civil Procedure 1908?
- Does the duty to determine the correct court-fee rest solely with the plaintiff, or is the court obligated to determine the correct value when stamps are deficient?
- Order VII Rule 11, Code of Civil Procedure 1908
ORDER
1. MUHAMMAD AFZAL ZULLAH, CJ. ---Leave to appeal has been sought by a vendee, against the dismissal by the High Court of his Writ Petition in a pre-emption suit based on right of tenancy.
2. The only question raised is with regard to the court-fee. Learned counsel has contended that notwithstanding the judgment of this Court in the case of Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 Supreme Court 289), the respondent/plaintiff should have been non-suited because his plaint was liable to be rejected under Order 7, Rule 11, clause (b), C.P.C. According to him the said case of Siddique Khan had dealt with the cases only under clause
(c) and not (b). While elaborating the argument learned counsel contended that it was not obligatory on the Court to determine the court-fee before requiring the respondent to make up the deficiency and that it was the plaintiffs duty alone to bring the material for determination of the correct court-fee. It is true that the initial duty was of the plaintiff to determine and fix the court-fee but in case he had fixed stamps which were deficient in value, it was the duty of the Court to determine the correct value and the plaintiff was entitled as of right to one opportunity to make up the deficiency. This was clarified in the case of Siddique Khan. The distinction made by the learned counsel is thus not valid-valuation alone is not involved.
3. After hearing him in support of this petition we do not find any merit in the same. Leave to appeal, accordingly, is refused.