1983 PLP 1502 (CLC)

Ch. Nabi Ahmad Cheema for Petitioner. Mushtaq Ahmad Khan for Respondent No.

1. Nemo for Respondent No.

2. Dates of hearing : 28th November ; 21st December ; 9th, 15th and 16th March, 1983. This regular second appeal is directed against the judgment and decree dated 11th May, 1977 passed by the learned Additional District Judge Sialkot, whereby he dismissed the appellants' appeal against the judgment and decree dated 9th May, 1975 passed by the learned Civil Judge Narowal on account of appellants' failure to make up the deficiency in the court‑fee re‑the memorandum of appeal despite of having been allowed reasonable opportunity for the same.

2. Briefly stated tae facts giving rise to the instant appeal are that Nazar Khan respondent No. 1 filed a suit for possession of the land in dispute, the subject‑matter of this litigation, as described in detail in the head note of the plaint against the appellants and Muhammad Din respon dent No. 2 contending that the suit land belonged to Nazar Khan respon dent No. 1 and that Muhammad Din respondent No. 2 fraudulently obtained general power of attorney from him and on the basis of that power of attorney alienated the suit land in favour of the appellants vide two mutations, one being for the sale and other being that of exchange. It was also contended in the suit by Nazar Khan that he was not paid any consideration for the. land sold or exchanged. The suit was resisted by the present appellants and respondent No. 2.

3. As many as eight issues arising out of the parties' pleadings were framed by the learned Civil Judge, Narowal and after considering the oral as well as documentary evidence adduced before him by the parties, he found that general power of attorney purporting to have been executed by Nazar Khan respondent No. 1 in favour of Muhammad Din respondent No. 2 was not voluntarily executed by Nazar Khan and the same was the result of fraud. Consequently, the suit of Nazar Khan respondent No. 1 for tile possession of the land in dispute was decreed by the learned Civil Judge, Narowal on 9th May, 1975,

4. Feeling aggrieved, the appellants preferred appeal against‑the afore mentioned judgment and decree passed by learned trial Court before the learned Additional District Judge, Sialkot. Muhammad Din, however, did not join the appellants in appeal. He was thus impleaded as respondent. The appeal before the learned lower appellate Court was filed on 28th May, 1975. A court‑fee of Rs. 1.970 was affixed on the memorandum of appeal. The value for the purposes of court‑fee was fixed as Its. 23,977.20.

5. It appears that t a appeal was admitted by the learned lower Appel late Court for regular tearing and it directed issuance of notice to the res pondents. On 2nd April, 1977, the learned counsel for respondent No. 1, the contesting respondent, raised an objection about the insufficiency of the court‑fee on the memorandum of appeal. The learned lower appellate Court, therefore, directed the appellants to correctly assess the net profits and to make good the deficiency in the court‑fee accordingly before the next date of hearing viz. 16th April, 1977. A statement of net profits was filed before the learned lower Appellate Court on 15th April, 1977. It was explained at the time of filing the new statement of net profits that on the basis of the said new statement of net profits, the court‑fee payable worked out to be Rs. 825.27 while the appellants had already paid a court fee of Rs. 1,

970. However, on the date of hearing; the contesting respon dent again objected about the insufficiency of court‑fee on the memo. of appeal. The learned lower appellate Court noticed that the appellants had deducted half share of the income from the suit land for the relevant period as share of tenants and on the remaining half, after deducting the expenses of tube well, land revenges and seeds etc., they have worked out the net pro fits. He found that the share of tenants could not legally be deducted and particularly with regard to the land which was not being cultivated by the tenants. He further held that no share of produce on account of tube well could be deducted from the produce of the lard. According to him, the net profits' meant net income or yield from the land after deducting charges of labour and cultivation. In his estimation, net profits of the suit land, after deducting tubewell expenses, land revenues and seed expenses and also even half of the income in regard to the land under cultivation of the tenants, worked out as Rs. 5,393 and court‑fee payable on fifteen times of these net profits amounted to Rs. 6,075 and thus still there was deficiency of Rs. 4,

105. He opined that the appellants acted with gross negligence and carelessness. They were guilty of positive mala fides. They were allowed reasonable opportunity for making up the deficiency in the court‑fee but they failed to pay the deficient court‑fee although the period of limitation had already expired long ago. In the circumstances, by passing the impugn ed judgment and decree, he dismissed the appellants' appeal.

6. It has been vehemently argued on behalf of the appellants that (a) the term "net profits" as occurring in the Court Fees Act, has been wrongly construed by the learned lower Appellate Court and while doing so, it has disregarded the provisions of section 4(16) of the Land Revenue Act; (b) it was the duty of the Court to first ascertain itself the definite deficiency in the court‑fee and, thereafter to have directed the appellants to pay the said deficiency by the time which was to be allowed by the court ; and (c) a reasonable opportunity should have been allowed by the lower Appellate Court to the appellants for making up the deficiency in court‑fee as required by the provisions of rule I1 of Order VII of the Code of Civil Procedure and section 149.

7. It is true that the term "net profits" has not been defined in the Court Fees Act but this expression has also not been defined in the Land Revenue Act: 1967. Section 4(16) of the said Act provides definition of the term "net assets" which means the estimated average annual surplus pro duce of an estate or group of estates remaining after deduction of ordinary expenses of cultivation as ascertained or estimated. Ordinary expenses of cultivation, which can be deducted while working out the "net assets" of an estate, are explained in section 4(16). The "net assets" are not the "net profits" accruing from a land for a particular period. "Net assets" and 'net profits" are two different terms having different connotation occurring in two different statutes, namely, the Land Revenue Act and the Court Fees Act. In this view of the matter, it cannot be said that the learned lower Appellate Court has wrongly construed the term "net profits" ignoring the provisions of section 4(16) of the Land Revenue Act. As a matter of fact, these provisions pertaining to the term "net assets" have no direct relevancy for the purpose of interpretation of the term "net profits." Section 9 of the Court Fees Act empowers the Court to ascertain net profits accruing from the suit land or the market value of suit land by issuing a commission to any proper person where such net profits or market value have been wrongly estimated. Section 10 of the Court Fees Act is to the effect that if as a result of such investigation, it has been found that the court‑fee paid was insufficient, the Court can require the plaintiff to pay so much additional fee as would make good the deficiency. Section 28 of the Court Fees Act provides that no document which ought to bear a stamp shall be of any validity unless and until it is properly stamped. It is further provided that if the Court directs that such document be stamped and it is stamped accordingly, the same shall be as valid as if it had been properly stamped in the first instance. In this manner, section 28 has empower ed the Courts to allow making up of the deficiency in the court‑fee, if any and when this is done, to treat the document i. e. the plaint, memorandum of appeal etc., as if it had been properly stamped in the first instance. In the circumstances of the instant case, however, as already, the observed, learn ed lower Appellate Court allowed an opportunity to the appellants to properly work out the net profits accruing from the suit land for the year immediately preceding the suit. And to make good the deficiency in the court fee. The appellant unluckily failed to avail of this opportunity. They cannot be allowed to say that it was obligatory for the court to ascertain in the first instance the correct amount of net profits and the court fee payable thereon and thereafter to allow an opportunity to make good the deficiency in the court fee. It has been held in Fateh Muhammad v Abdul Ghani and others (P L D 1981 S C 371) that the use of word "may" in section 9 of the Court Fees Act makes it not incumbent upon the Court to order investigation for ascertain ing the net profits or market value in all cases. Such investigation may not be required in certain cases, for instance, when enough material, like `Goshwara Paidawar', is already available on the file. It was further held in this case that section 10 of the Court Fees Act is applicable only where investigation has been ordered by the Court under section

9. In Malik Muhammad Waryam v. Mst. Shahnaz Masood (1983 C L C 109.), it has been held by this Court that it is no' incumbent upon the Court to order investigation for ascertaining the net profits or the market value: of the property and section 10 makes a reference to the investigation to be held' under section 9 of the Court Fees Act. It means that where no investigation had been ordered under section 9, .the provisions of section 10 would not be attracted at all. In Muhammad Anwar v. Syed Imam (1982 C L C 436), it has been ruled that plaint or memorandum of appeal is not to be treated as properly presented so long proper court‑fee is not paid.

8. The learned counsel for the appellants has placed reliance on Mahmood Arshad etc. v. S. M. Ishfaq Ali etc. (P L D 1974 Note 32 at p. 69). In this case Mr. Justice Zaki‑ud‑Din Pal (as his Lordship then was) was pleased to find that plaint, appeal or review application once admitted cannot be thrown away at arguments stage as insufficiently stamped without affording an opportunity to party concerned for making up the deficiency in the court‑fee. This authority is distinguishable from the under consideration case on facts inasmuch as in the present case, the learned lower Appellate Court did allow opportunity to the appellants to make good the deficiency in the court- fee but they failed to avail of the same although period of limitation for appeal had already expired. In Mirza Ghulam Hussain v. Muhammad Bashir (1981 C L C 1689), it has been held that where the appellant had not made good the deficiency in court‑fee within the period of limitation, a valuable right had accrued to the respondent due to the running out of the period of limitation which could not be taken away from him specially when the appellant had not shown sufficient cause for his default. The Supreme Court of Pakistan in Mst. Walayat Khatun v. Khalil Khan and another (P L D 1979 S C 821) has considered the import of the provisions of Order VII, rule 11 and section 148/149 of the Code of Civil Procedure and also of section 28 of the Court Fees Act. After considering these provisions, it has been found that though such pro visions of law are helping the suitors yet their indiscriminate and reckless exercise may destroy the plea of limitation available to defendants. It has been observed that Court has thus to strike a balance between the two and apply its independent mind carefully and attend to detailed facts and circum stances judicially and fairly. It has been held that a plaintiff who is thoroughly negligent, contumacious and careless of his duty in affixing proper court‑fee, is not entitled to any indulgence for grant of time having effect of causing prejudice to defendant whose title may have become perfect by expiry of time of limitation.

9. Needless to say that primarily the provisions of Order VII, rule 11 of the Code of Civil Procedure are applicable to suits and not to appeal and if deficient court‑fee is not paid within the period of limitation, the appeal is liable to be dismissed. In Balwant Singh v. Jagit Singh (A I R 1947 Lah. 210), it has been held that provisions of Order VII, rule 11, C.P.C. do not apply to appeals.

10. In the light of the above discussion, it is concluded that the appellants were allowed by the learned lower Appellate Court, a reasonable opportunity for making up the deficiency in the court‑fee on the memoran dum of appeal which was in fact deficient, but they failed to do so. The period of limitation had also already expired. The learned lower Appellate Court was, therefore, justified in dismissing the appeal. There is thus, no merit in the present regular second appeal which is dismissed with costs. M. Y. H. Appeal dismissed.