1994 PLP 62 (SCMR)

MUHAMMAD AFZAL LONE, J.‑‑‑This appeal by leave to appeal, directed against the High Court's judgment, dated 24‑4‑1989, rendered in revision, arises out of a pre‑emption suit relating to agricultural land filed by the respondents on 1‑4‑1975. On such a suit, court‑fee is payable on the basis of 15 times of the net profits from the land accruing during the year immediately preceding the date of institution of the suit, ascertained from the "table of net profits" prepared by the Patwari or Girdawar of the Revenue Department. The plaintiffs‑respondents filed such table with the plaint but subsequently it was found missing from the file. The District Judge passed an order for re‑construction of the record. The respondents thereupon placed on the file another table of net profits and on its footing a court‑fee of Rs.907.50 was payable; against which only Rs.145 court‑fee was paid on the plaint. This table of net profits was for Kharif and Rabi 1974 crops and did not cover the year prior to the date of institution of the suit. The respondents raised objection against this table. The respondents applied to the trial Court on 26‑3‑1986 for permission to furnish the requisite table of net profits. It being an old case, to avoid delay in its disposal, the trial Court granted the permission without obtaining reply to the respondents' application from the appellants. Accordingly, the respondents filed a fresh table which, too, was discovered discrepant. The trial Court noticed that it related to Kharif 1984 and Rabi 1975 crops. On further scrutiny the Court presumed that the figure 1984 was in fact, 1974, but inadvertently written as 1984. Further observations made by the trial Court in this behalf are:‑‑ "I have examined this document and have come to the conclusion that the rates of crops mentioned in the table of net profits are very meagre, and that no evidence was led so as to place on the file any order from the Board of Revenue showing the rates of produce of the crops mentioned in the said document. Furthermore, the deduction of expenses for the "neuneenan" is also unexplained as no one appeared from the Revenue Department for explanation as to how these expenses were deducted from the produce of crops of the suit land. This document does not bear the seal of the office of Tehsildar or the issuing officer. As such it could not be believed that the document is a genuine one. The most important aspect is that Khasra No. 920 of the disputed land and Khasra Nos. 1182/15, 1183/15, 1184/15, 1185/15 and 1186/15 were under self‑cultivation and only Khasra No. 800 under tenant Noor Dad. Whereas the share of owner was mentioned in the tahlc of net profits as 2/5 amounting to Rs. 694.93. It is not understood as to why the share of owner was mentioned as 2/5 and why not as a whole. It was incumbent upon the plaintiffs to have produced the document for the right period that is Kharif 1974 and Rabi 1975 but in spite of affording him reasonable opportunities and sufficient time he failed to place on the file table of net profits for right periods. However, his table of net profits placed on the file for wrong periods also does not fulfil the legal requirements as none from Revenue Department appeared to get the same exhibited and verified the contents of the table of net profits as correct. The table of net profits also does not bear the certificate that the same was prepared in accordance with the record and rules prescribed in this behalf." In view of these findings, the trial Court concluded that the suit was under valued, insufficiently stamped and thus not properly instituted. Resultantly, it was dismissed.

2. The respondents assailed this dismissal through an appeal. The learned Additional District Judge, who was seized of the matter, concurred with the opinion of the trial Court and after thorough examination of the table of the net profits filed by the respondents, in pursuance of the orders on their application aforesaid, found that the omissions and mistakes spotted by the trial Court were not significant but were clerical one, which could have been corrected by it by summoning the Girdawar, who prepared the table. He referred to the law laid down by this Court in Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289) and maintained that it was the obligation of the trial Court to have assessed the correct court‑fee and give the respondent an opportunity to make good the deficiency, if any. The learned Additional District Judge came to the conclusion that on computation of the court‑fee on the strength of table of net profits produced by the respondents there was deficiency of Rs.1,100 and permitted them to pay the same. As on other material issues, the trial Court's decision was in favour of the respondents and that finding was not disturbed, there appeal was accepted and the suit decreed. The learned Additional District Judge's Judgment is dated 8‑3‑1988. In revision the High Court referred to Siddique Khan's case and some other cases‑law, declined to interfere with the judgment of the First Appellate Court and dismissed the appellant's revision.

3. Leave to appeal was granted to examine the appellants' contention that no reliance could be placed on the table of the net profits produced by the respondents and, in any case, the appellants should have been given an opportunity to rebut the same.

4. The learned counsel .for the appellants has been heard and the available record examined. It is not disputed that the enunciation of law of court‑fee made by this Court in Siddique Khan's case holds the field. According to this judgment, it cannot be said that it is only the duty of the litigant to find out that what is the proper court‑fee and not of the public functionary concerned, and that it is mandatory for the Court to grant time to the plaintiff to supply the deficient court‑fee; it is only on his contumacy that the penal provisions as to the rejection of the plaint may be invoked. In this case it is evident from the record that the First Appellate Court has recorded a definite finding that the respondents' conduct was not contumacious, with which the High Court did not intervene. The First Appellate Court as well as the High Court correctly followed the law laid down in Siddique Khan's case. As regards the furnishing of opportunity to the appellants to produce evidence in rebuttal of the table of net profits, it is to be seen that amongst various issues framed by the trial Court arising out of the pleadings of the parties, issue No.3 covers the controversy as to the valuation of the suit and insufficiency of court‑fee. Both the sides had the opportunity to lead evidence on this issue. It, therefore, cannot be said that the appellants were deprived of the opportunity to support their case before the trial Court. For the foregoing reasons this appeal having been found without merit is dismissed, but the parties are left to bear their own costs. AA./F‑276/S Appeal dismissed.