1984 PLP 2284 (CLC)

MUHAMMAD AFZAL LONE, J.‑This judgment shall dispose of R. F. A. Nos. 244 and 225 both of 1980 as common questions of law and facts are involved therein. It shall however, remain on the file of R. F. A. No. 224/80.

2. The facts are that Sana Ullah and another brought two pre emption suits against the respondents, The suit giving rise to R. F. A. No. 224 of 1980 was registered against No. 250 of 1974. The land involved therein measures 27 kanals 10 marlas and for the purposes of court‑fee, the suit was valued at Rs. 4,

665. This figure was stated to be 15 times of the net profits yielded by the land during the preceding year. Accordingly, the plaint was stamped with a court‑fee of Rs. 311 only. The second suit relatable to R. F. A. No. 225/80 which bears No. 249/74 was filed by payment of court‑fee of Rs. 600 only. The land sued for in this suit is 53 kanals 17 marlas. In the plaint, net profit arising from this land during the year next before the presentation of the plaint has been assessed at Rs. 533.33, and so 15 times thereof at Rs. 8,000.

3. It is discernible from the record that on 19th July, 1974 when for the first time the files came up for perusal before the learned Senior Civil Judge, be adjourned the cases to 28th October, 1974 with a direction to the plaintiffs‑appellants to file the statement of net profits, before the next date of bearing, so that the court‑fee may be ascertained. However, this direction was not complied with.

4. Muhammad Anwar respondent initially contested both the suits inter alia on the grounds that the valuation for the purposes of court‑fee and jurisdiction was not made bona fide and it was obligatory for the appellants to have produced the schedule of net profits, in respect of land under cultivation and paid court‑fee according to the market value for the uncultivated land. It was also pleaded that the suits were barred by time. On 10th February, 1975, in both the suits, the learned trial Court framed nine identical issues which arose out of the pleadings of the parties. Only issues Nos. 1 and 2 are relevant for the purposes of these appeals, which are reproduced below :‑ (1) Has the suit been correctly valued for the purposes of court‑fee and jurisdiction ? If not, what is the correct valuation for both the said purposes ? (2) Is the suit barred by limitation ? It may be observed that out of the 9 issues, onus of proof of issue No. 1 and another issue relating to the appellant's superior/right of pre emption was placed on them.

5. After the formulation of the issues, the cases were fixed for evidence of the plaintiffs‑appellants. On 24th November, 1975 the appellant's learned counsel produced a copy of the Sale‑Deed and copy of the Registrar Haqdaran for the year 1971‑72 and closed their evidence on the issues, in respect whereof the burden to prove, lay on them, but reserved the right to examine one of the appellants by way of affirmative evidence as well as in rebuttal.

5. Before the suits could make some further progress, a new develop ment took place. Muhammad Anwar vendee sold away the land in dispute to Ch. Almas Mahmood, herein shown as respondent No. 2 ; whereupon the appellants moved the learned trial Court to implead him as a co‑defendant. This request was allowed by means of orders, dated 13th December, 1976. Consequently, the amended plaints were filed in which Ch. Almas Mahmood was arrayed as respondent No.

2. On 24th March, 1977 the latter filed written statement in which amongst others, an objection was taken that the plaints were contumaciously under valued for the purposes of court-fee and jurisdiction ; neither the schedule of net profits nor the copy of Khasra Girdawari was appended therewith. The plea that the suits were barred by time, was also raised. The appellants submitted the replication on 27th September, 1977 along, with schedule of net profits and copy of Khasra Girdawari and controverted these contentions. In the light of these written statements, the learned trial Court reframed the issues. The reconstituted issues Nos. 1 and 2 are as under :‑

3 S (1) Whether the suit is incorrectly valued, for the purposes of court fee and jurisdiction ? O. P. D. (2) Whether the suit is time barred ? O. P. D.

7. The case were then adjourned to 14th March, 1978 for evidence on the parties. However, on this date respondent No. 2, in both the suits, moved application under Order VII, rule 11, C. P. C. on the plea that the court‑fee was payable according to the market value, but the appellants deliberately paid insufficient court‑fee the suit had become barred by time and, therefore, the plaints were liable to be rejected In reply, appellants took up the stand that since the statement of net profits, was not available the court‑fee was affixed on the basis of an estimate and as by then it had been procured, they were prepared to pay the court‑fee according to said statement.

8. On 23rd November, 1978 when these applications came up for hearing before the learned trial Court, the respondent's counsel stated that he would not press the same, if issues Nos. 1 and 2 were treated as preliminary issues. This request was allowed ; resultantly the applica tions were dismissed. On the same date the respondent's counsel produced copy of Khasra Girdawari and closed the evidence on issues Nos. 1 and

2. The learned trial Court proceeded to pass an order, main tained that the appellants had already adduced their affirmative evidence ; the copy of Khasra Girdawari produced by the respondent's counsel was evidence on issue No. 1 and as issue No. 2 flowed from this issue, the appellants had no right to produce evidence in rebuttal on the said issue. Accordingly, by its order, dated 23rd November, 1978 the learned trial Court closed the evidence of both the parties and fixed the case for arguments. But despite several adjournments, for one reason or another, the arguments could not be heard. In the meanwhile on Ist April, 1980 respondent No. 2 again put in application under Order VII, rule 11, C. P. C. for rejection of the plaints on the grounds similar to the one urged in the previous applications. The learned trial Court, however, took the view that as regarding court‑fee, issue No. 1 had already been framed, the application was superfluous and rejected the same.

9. The two preliminary issues were decided on 28th September, 1980 by two separate but similar judgments. The learned Senior Civil Judge held that the appellants neither filed the statement of net profits with the plaint nor they became vigilant on the respondent's applications under Order VII, rule 11, C. P. C. He maintained that the suits were brought on 18th July, 1974 and thus Kharif 1973 and Rabi 1974 were relevant for the purposes of determination of net profits, but as per Khasra Girdawari, during both the crops, the land did not remain under culti vation. This led him to the conclusion that the court‑fee should have been paid on the basis of the sale price mentioned in the sale‑deed which in Suit No. 250 was found to be Rs. 62,

063. The court‑fee payable thereon was calculated at Rs. 4656.72. In the other suit as well, on the strength of the sale‑deed, the sale price was fixed at Rs. 1,20,

469. Accordingly it was held that a court‑fee of Rs. 9,035.17 had to be levied on that plaint. Reference was also made to Mst. Walayat Khatoon v. Khalil Khan and another (P L D 1979 S C 821) to lay down that by paying insufficient court fee, the appellants committed a wilful default. It was concluded that the plaints being without proper court‑fee, the suits had become barred by time. Both the preliminary issues were thus, answered against the appel lants and their suits dismissed. The unsuccessful appellants have now come to this Court in appeal under section 96, C. P. C.

10. We have heard the learned counsel for the parties and examined the record. It is argued on behalf of the appellants that there is no law requiring them, to have filed statement of net profits with the plaints ; there are valid reasons for not producing the same, within the time limit fixed by the learned trial Court and, therefore, the suits could not be dismissed for such an omission. According to the appellant's learned counsel, since in the plaints, they had disputed the correctness of the sale price, mentioned in the sale‑deeds, if at all court‑fee was payable on the market value, and their assessment of the net profits was wrong, the learned trial Court should have held an investigation ; estimated the amount of court‑fee under sections 9 and 10 of the Court Fee Act, and then given them an opportunity to make good the deficiency, if any. The arguments thus, was that the suits could be dismissed only, if a direction was given to the appellants to pay the requisite court‑fee and they failed to comply with the same. It was further argued that the alienation of the land in favour of respondent No. 2, during the pendency of the suit was bit by the doctrine of lis pendens and so no right in question was conferred on the latter. Thus he had no locus standi to oppose the suits. The counsel laid much stress on the submission that the learned trial Court failed to extend opportunity to the appellants, to lead evidence in the rebuttal on the preliminary issues, which rendered the impugned judgment as illegal.

11. To begin with the last argument first, we notice that this conten tion finds ample support from the statement of facts, given in the earlier part of this judgment. The burden of proof of both the reconstituted preliminary issues was on the respondents, who had the right to begin and produce their evidence first. In this connection respondent No. 2 alone adduced evidence. Respondent No. 1 had earlier been proceeded against ex parte, After the respondents had led their evidence, the trial Court should have called upon the plaintiffs‑appellants to examine their evidence in rebuttal The learned Senior Civil Judge, however, did not flow this procedure which is an essential requirement of Order XVIII, rules, 2 and 3, C. P. C. The tenor of the order, dated 23rd November, 1978 shows that he was under the impression that the onus probandi was on the appellants. Presumably, for this reason, in his order aforesaid, he observed that they had already produced their evidence in support of the issues. However, in the face of the form of the issues, this observation is wholly misplaced. It is not worthy that even when the appellants led evidence on the issues as originally formulated, they had reserved their right to examine one of the plaintiffs, after the respondents had closed their evidence.

12. The learned counsel for the respondents, however, contend that the procedure adopted by the learned Senior Civil Judge, did not cause any prejudice to the appellants as except the statement of one of the plaintiffs, whatever the evidence they wanted to produce, had already been brought by them on the record. They toed the reasoning which pre vailed with the learned trial Court and emphatically urged that as during the relevant period, the land was not under cultivation, the court‑fee was leviable on the market value, but the appellants paid only an insignificant amount of court‑fee. Under these circumstances, they argued, the state ment of one of the plaintiffs‑appellants, even if recorded would not have made any difference. Much stress was laid by them on the appel lant's failure to produce the statement of net profits with the plaint and even by the date fixed by the trial Court.

13. There is a little merit in these submissions. The deprivation of the appellants to produce evidence, on the amended preliminary issues, in our view, is fatal to the sustenance of the impugned judgments. They had every right to explain through their evidence the circumstances which prevented them from obtaining the statement of net profits and to pay the requisite court‑fee at the appropriate time. According to the pro visions of Order XVIII, rule 3, C. P. C. the stage for exercise of such right arrived when the respondents closed their evidence. Obviously, such opportunity was not afforded to the appellants. The learned trial Court, therefore, acted illegally in closing their evidence.

14. Significantly in the plaints, the appellants did not accept as correct the sale price recorded in the sale deeds, dubbed the same as fictitious and quoted therein, a lessor amount at which according to them, the land was actually sold to respondent No.

1. In these circumstances, if the court‑fee had to be paid on the market value, the learned trial Court was hardly justified to place implicit reliance on the entries in the; sale‑deeds. Surely, the appellants were entitled to substantiate by the evidence, the basis for discarding of the sale‑deeds, by them. Indeed, it is of paramount importance for a party to enter the witness box, toil support his case. This right has been denied to the appellants and their evidence closed by trial Court, without any cogent reason. It, therefore, cannot be said, that the closure of their evidence, did not cause any prejudice to the appellants. Furthermore, as pointed out by the appel lant's learned counsel in case of wrong estimation of the profits, or the market value, the Court can proceed under sections 9 and 10 of the Court Fee Act, but in the instant case, the learned Senior Civil Judge, was not even conscious of these provisions.

15. The learned counsel for the respondents then vainly argued that the impugned judgment was delivered on 28th September, 1980 but the appellants evidence was closed about 1 years earlier. In their submis sions, if the appellants felt aggrieved by the order, dated '23rd November, 1978 they should have challenged the same.

16. This argument seemingly, has been advanced in oblivion of the provisions of section 105, C. P. C. under which when an appeal preferred against a decree, any defect or irregularity affecting the decision of the case, can be attacked through such appeal. It being so, there is no embargo on the appellants to call in question the validity of the order, dated 23rd November, 1978 in the instant appeal.

17. We are left with no doubt that the trial Court's failure to give opportunity to the appellants to produce their evidence on the preliminary issues, renders the order, dated 23rd November, 1978 is wholly' illegal. Consequently, the judgment and decree impugned through this appeal, which are anchored on such an illegal order, suffer from the same infirmity and are liable to be set aside. As the appellants succeed on this ground, it is idle to embark upon the discussion of their other argu ments. Thus, both the suits have got to be remanded to the learned trial Court, to decide the preliminary issues afresh, after allowing the appel lants an opportunity to lead their evidence. We may observe that though the respondents had closed their evidence, and this would normally disentitle them to the right to supplement their evidence, but in our opinion the solitary document comprising a copy of the Khasra Girdawari, tendered by them, is hardly sufficient for the purposes of adjudication of issue No. 1 and to pronounce the judgment. Particularly, if the court‑fee is to be paid on the market value, some further material shall be required, for determination of the controversy. We, therefore, feel that it would be conclusive to justice, if both the parties are permitted to produce evidence.

18. For the foregoing reasons these appeals are accepted and the impugned judgments and decrees set aside. The suits stand remanded to the learned trial Court with the direction to allow the parties to produce evidence on the preliminary issues and decide the same afresh, in accordance with law. There shall be no order as to costs. M. B. A. Case remanded.