1989 PLP 1103 (MLD)

The circumstances under which the two applications have arisen may be stated as follows: The plaintiff has filed a suit (Suit No.804/85) against the defendants for rendition of accounts and possession of shop premises. According to the averments in the plaint, there was a partnership between the plaintiff and the defendant No.1 which stood dissolved on the death of one of the partners namely Mst. Maryam. Thereafter the parntership business was carried on by the plaintiff and the defendant No.1 with the assets of the dissolved partnership. It appears that differences arose between the partners and consequently the Suit has been filed as pointed out above. The suit has been resisted by the defendants and the defendant No.1 has also instituted a counter‑claim against the plaintiff for rendition of accounts which has been valued for the purposes of jurisdiction and court‑fee at Rs.4,00,000. tentatively. However, no court‑fees have been paid try the defendant No. 1 to respect of his counter‑claim. During the pendency of the Suit the defendant No.1 filed an application under Order VIII, Rule 10 read with Order VIII, Rule 6(3), C.P.C. for pronouncement of judgment against the plaintiff since the plaintiff had failed to file the written statement in respect of the counter‑claim. Before this application could come up for hearing, the plaintiff also filed an application under Order VII, Rule 11, C.P.C. for rejection of the counter‑claim, since the defendant No.1 has failed to affix any proper court‑fee on the counter‑claim in accordance with the valuation of the counter‑claim made by him. I propose to dispose of both the applications together. So far as the application under Order VII, Rule 11, C.P.C. is concerned, Mr. Syed Inayat Ali, Advocate has pointed out that according to Schedule I to the Court Fees Act, 1870, entry No.], the defendant is bound to pay ad‑valorem court‑fee according to the value of the counter‑claim shown by him in the written statement. According to the counsel, since no proper court‑fee has been affixed on the counter‑claim, the counter‑claim has to be treated at par with the plaint for the purpose of Order VII, Rule 11, C.P.C. and the same must be rejected. Mr. Ali Ahmed Tariq, learned Advocate for the defendant No.1, on the other hand, has argued that since the suit and the counter‑claim both relate to the rendition of accounts, the defendant No.1, according to section 7(iv)(f) of the Court Fees Act was entitled to fix the value for the purpose of payment of the court‑fee at any amount at his option and consequently, he was not bound to pay court‑fee on the entire amount of Rs.4,00,

000. Reliance has been placed by him on the case of Sh. Muhammad Ali v. Sh. Muhammad Hussain 1988 M L D 2610. In this case the plaintiff had valued his suit for the purpose of court‑fee and jurisdiction at Rs.200 and had paid court‑fee accordingly but while doing the same the‑tentative value of the suit for the purposes of Order VII, Rule 2, C.P.C had been shown by him as Rs.10,00,

000. When the matter reached the Lahore High Court, it was held that in suit for rendition of accounts and dissolution of partnership, the value for the purposes of jurisdiction and court‑fee could be fixed by the plaintiff at Rs.200 and the order rejecting the plaint on the ground of insufficiency of the court‑fee stamps was consequently set aside. It may lie pointed out that the case relied upon by Mr. Ali Ahmed Tariq is not fully attracted to the facts of the instant case as in the reported crate the plaintiff had himself fixed the ‑,:due of his suit as Rs.200, although he had also tentatively valued it as Rs.10 lacs for the purpose of Order VII. Rule 2, C.P.C. The same does not appear to be the case in the present case as the counter‑claim, according to para. 1 of the written statement, has been specifically valued by the defendant at Rs.4 lacs. Since that value has been fixed by the defendant himself, A he was bound to pay court‑fee according to the above value. However, merely because the plaint has not been properly valued, the plaintiff cannot be penalized by out right rejection of his plaint as according to section 149 of C.P.C. and ; section 28 of the Court Fees Act, the Court can always allow him time to pay proper court‑fee. Even if it is accepted that Order VII, Rule 11, C.P.C. would also he attracted to counter‑claim, the defendant can always be allowed to pay proper court‑fee on his counter‑claim and the counter‑claim would he rendered invalid only after the defendant fails to pay the court‑fee within the time allowed by the Court. Under the circumstances, the defendant No.1 is granted two months time to pay proper court‑fee on his counter‑claim. Turning tar C.M.A. No.7863/88, the same has been moved by the defendant No. 1 as pointed out above. It may be pointed out that judgment can be f pronounced against the defendant on account of his failure to file a written statement as provided in Order VIII, Rule 10, C.P.C. provided it is shown that the plaint filed by the plaintiff is a valid plaint according to the law. Now the counter?claim, according to Rule 6(3) of Order VIII, C.P.C. is also to be governed by the same rules and the rules relating to the written statement which may be filed by a defendant would also apply to a written statement which may be filed in answer to a claim of set off (or a counter‑claim). However, since the defendant has not affixed proper court‑fee on his counter‑claim, the same cannot he held to he valid and in absence of a valid counter‑claim, the penal provisions of Order VIII, Rule 10 cannot be applied to the plaintiff in this case. Since I have already held above that the defendant has failed to affix proper court‑fee on the counter‑claim, the same is not a valid document on the basis of which any judgment can be pronounced against the plaintiff. In the result, C.M.A. No.7863/88 is dismissed. However, when proper court‑fee is paid by the defendant No.1 on the counter‑claim, the plaintiff may file a written statement within one month or within such time as is directed by the trial Court thereafter. M.Z.S./G‑112/K ???????????????????????????????????????????????????????????????????????????????? Order accordingly.