2005 PLP 797 (MLD)

Vide a registered sale-deed dated 17-1-1977, the respondents purchased the suit-land, mentioned in the plaint, for a consideration of Rs.50,

000. On 16-1-1978, the appellant filed a suit for possession of the suit-land by pre-emption. According to him, the land had been purchased for Rs.25,

000. He claimed to be a collateral of the vendor as also a co-sharer. I may further note here that in para. 9 of the plaint, it was written that a court-fee of Rs.2 is being affixed and upon receipt of revenue papers the deficiency will be made up. Along with the suit, an application was filed for grant of time to do the needful. The suit was put up before a learned Civil Judge, Layyah, on 17-1-1978. The learned Judge directed the suit to be registered and issued summons to the defendants in the case. Further issued a direction for deposit of 1/5th of the price. Thereafter, he passed the following orders:-- "Deficiency of court-fee in accordance with the net profits table of the suit-land preceding the presentation of plaint or in the alternative in accordance with the market value of the suit-land before the date fixed above." The case was then taken up on 27-2-1978. After noting the facts regarding the service of the defendants and the deposit of the 1/5th of the price, it was noted that the plaintiff has filed an application for extension of time on the ground that the amount of court-fee has been deposited in the treasury but net profits table has not been prepared in time. It was then noted that the court-fee of Rs.1335 along with the net profits table along with a copy of Khasra Girdawari has been filed. The extension was allowed upto 27-2-1978. The respondents filed their written statement and, inter alia, took the objection that court-fee has not been properly assessed and paid. The following relevant Issues Nos.1 and 2 were framed:-- (1) Whether the suit has been correctly valued and stamped for the purposes of court-fee and jurisdiction? OPD (2) If Issue No.1 is not proved, what is the correct valuation of the suit? OPD. Evidence of the parties was recorded. On the said issues, the finding ultimately recorded after appointing a local commissioner and receiving his report was that the value of the suit for purposes of court-fee is Rs.44096.85 and the court-fee payable is Rs.3307. A sum of Rs.1337 had already been paid and the appellant was directed to make up the deficiency by 8-10-1983. On this date, it was noted that an amount of Rs.1975 has been paid. In the judgment dated 1-11-1983, it was accordingly noted that issues stand decided and the deficiency has been made up. The ultimate decree passed was that the suit was decreed on payment of Rs.85,

000. Against this judgment and decree, a first appeal was filed by respondents Nos.1, 2 and

3. This appeal was heard by the learned District Judge, Layyah, who allowed the same on 16-4-1984 and dismissed the suit of the appellant. It may be pertinent to note here that before the learned DJ, only said Issues Nos.1 and 2 were urged and the finding recorded was that the learned trial Court had no jurisdiction to extend the time or to grant the time for making up deficiency in court-fee. Reliance was placed, inter alia, on the case of Mst. Walayat Khatun v. Khalil Khan and another (PLD 1979 SC 821).

2. Learned counsel for the appellant contends that the impugned judgment is violative of the law laid down in the cases of Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 SC 289), Shahna Khan v. Aulia Khan and others (PLD 1984 SC 157) and Mst. Parveen v. Ms. Jamsheda Begum and another (PLD 1983 SC 227). According to the learned counsel, the plaint could not have been rejected unless and until the Court had assessed the exact amount of court-fee and had issued a direction to the plaintiff to make up the deficiency and upon ultimate failure of the plaintiff to comply with the said order. Learned counsel for the respondents, on the other hand, supports the impugned judgment and decree of the learned District Judge with reference to the said case of Mst. Walayat Khatun.

3. I have gone through the trial Court's record with the assistance of the learned counsel for the parties. The relevant details have already been narrated by me above. Now apart from the said judgments cited by the learned counsel for the appellant, a larger Bench comprising of five Hon'ble Judges of the Supreme Court of Pakistan recapulated some of the case-law in the case of Sardar Ahmad Yar Jang v. Sardar Noor Ahmed Khan (PLD 1994 SC 688). The leading opinion was delivered by Mr. Justice Saeeduzzaman Siddiqui (as his Lordship then was). The following observations of his Lordship at page 692 of the report need be reproduced here:-- "Secondly, in order to entail rejection of plaint under Order VII, rule 11(c), C.P.C. two conditions must be satisfied. Firstly, the Court should have positively and specifically determined the amount of deficient court-fee which the plaintiff was required to pay/affix on the plaint and secondly, a reasonable time must be allowed to the plaintiff to make up the deficiency in the amount of court-fee. None of the above two conditions was satisfied in the case. On the contrary, both the trial Court as well as the First Appellate Court held that the valuation of the suit and the amount of court-fee paid by the appellant/plaintiff on the plaint was proper. In these circumstances, the learned Judge in Chambers could not order rejection of plaint under Order VII, rule 11(c), C.P.C. The assumption on the part of the learned Judge in Chamber, that the orders passed by the trial Court on order sheets Nos.24 to 29 amounted to a direction to the appellant plaintiff under Order VII, rule 11(c) C.P.C., to pay the deficit amount of court-fee on the plaint and, therefore, non-compliance thereof could result into rejection of the plaint, was not legally sustainable. As earlier pointed out these orders passed by the trial Court on the order Sheets Nos.24 to 29 during the pendency of the suit stood merged into the decree passed in the suit and, therefore, these orders had no legal existence apart from the decree in the suit. In addition to it, the order of the trial Court relied by the learned Judge in Chambers as a direction to appellant/plaintiff under Order VII, rule 11(c), C.P.C. required the plaintiff to file the Goshwara of net profit of the pre-empted land from the Revenue authorities and pay the deficient court-fee after calculating the proper free on the basis of the net profits disclosed in the Goshwara. This order of the Court left the calculation of proper court-fee and the deficit court-fee to the plaintiff which could not be treated as the direction of the Court to pay a deficient amount of court-fee within a specified time. Therefore, non-compliance of such an order could not result in the rejection of plaint in view of the law laid down by this Court in the case of Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289) and Muhammad Hanif v. Muhammad and others (PLD 1990 SC 859)." Now applying the said dictum of the Hon'ble Supreme Court of Pakistan to the case in hand, the learned trial Court had not ascertained the exact amount of court-fee on the first date on which the case was put up before it. On the other hand, it left the matter in the hands of the plaintiff either to get the net profits table, calculate the court-fee and pay the same or to pay it on the market value of the suit-land. Needless to state that there was an initial controversy regarding market value also which was to be determined by the Court. According to the Hon'ble Supreme Court of Pakistan, non-compliance of such an order could not result in rejection of plaint. Now it is a matter of record that ultimately, the learned trial Court determined the exact amount of court-fee vide order dated 1-10-1983 and after determining the deficiency directed the plaintiff to pay the same and there is no denial that this order was duly complied with. The plaint could not, therefore, have been rejected by the learned District Judge. Needless to state here that there is no question of the suit being barred by time as it was admittedly filed within the period of limitation.

4. At this stage, learned counsel for the respondents also tried to argue that the decree having not been passed before the target date, i.e. 31-7-1986, fixed in Said Kamal Shah's case, the suit is liable to be dismissed having been brought on a ground which has been held to be repugnant to the Injunctions of Islam. I am afraid, the said contention has no force in view of the answer recorded by the Hon'ble Supreme Court of Pakistan to question No.6 (para.5 of the judgment) at page 310 read with para. 64 of the judgment at pages 344 and 345 in the case of Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287).

5. No other point has been urged. The R.S.A. is accordingly allowed; judgment and decree dated 16-4-1984 passed by the learned District Judge, Layyah, is set aside and the one passed on 1-11-1983 by the learned trial Court is restored. No order as to costs.

6. The lower Courts' records be remitted back immediately. H.B.T./M-824/L Appeal allowed.