1983 PLP 3087 (CLC)

Masood Akhtar Shah v. Fazal Ahmad arid another 1979 C L C 705 ref. (d) Civil Procedure Code (V of 1908)‑ ‑‑ S. 149‑Court‑fee‑‑Deficiency‑Plaintiff, held, required to ascter tion correct amount of court‑fee as soon as plaint is filed and make up deficiency at earliest opportunity irrespective of fact whether Court issued specific directions in that behalf or not. 1982 C L C 425 ref. Muhammad Iqbal Sargana for Appellants. Mushtaq Ahmad Niazee for Respondents. Date of hearing : 12th February, 1983. This first appeal is directed against the order dated 12th May, 1981 of the learned Additional District Judge, Jhang, whereby he set aside the decree of dismissal of suit passed by the learned trial Court and remand ed the case for disposal of the suit on merits after allowing the parties adequate opportunity to produce evidence on the issue already framed, The suit for possession through pre‑emption filed by the respondent was dismissed as barred by time. On the plaint instituted on 14th May, 1976 a court‑fee of the value of Rs. 15 only was affixed and in para. 8 of the plaint it was stated that the value of the suit for purposes of court‑fee and jurisdiction is Rs. 200, i. e. 15 times of the annual net profits of the last year and that requisite court‑fee has been axed accordingly. The Ahmad of the trial Court appended a note dated 14th May, 1976 to the effect that the court‑fee is not correct and that "Naqsha Dal" should be got prepared and deficiency in court‑fee be made good. The learned trial Court in its order dated 15th May, 1976 directed production of "Naqsha Dal" after having the same prepared on the next date on hearing. On the adjourned date, it was noted that the aforesaid statement was not filed. Thereafter, on 23rd September, 1976 it was noted in the order that the statement of net profit has not been filed. The matter was then adjourned and the file was directed to be put act the learned District Judge, for necessary orders in view of the fact that another pre-emption suit in respect of the same land was pending in another Court The learned District Judge, vide his order dated 2nd October, 1976 entrusted this suit to the Court of Mr. Saleem Q4areshi, Civil Judge, 1st Class Jhang before whom the other suit was already pending. On transfer the suit was taken up by the transferee Court and ultimately on 13th November, 1976, court‑fee of the value of Rs. 792 was deposited in Court and the same was ordered to be placed on record. There after, the proceedings went on and then on 24th July, 1978 certified copy of the statement on net profits filed in the present suit. The rent profit statement was produced by the other pre‑emptor in his suit and certified copy of the said statement was obtained and produced as mentioned above. The appellants then filed an application on 25th November, 19'79 for dismissal of the suit on the ground of limitation. This application was replied by the respondent and the assertion made was that the order to produce the net profits was passed on 15th May, 1976 and the time was being extended thereafter and that now when the deficiency in the court‑ fee has been made good and the Court has accepted the sane in the presence of We opposite party the said acceptance, implies that time was extended. The learned trial Court after hearing the parties dismissed the suit vide order dated 3rd March, 1980. On appeal of the respondent, the learned Additional District Judge, Jhang, vide judgment dated 12th May, 1981 set aside the order of dismissal of suit and remanded the suit for dis posal on merits observing that no direction having ever been given by the trial Court to make up the deficiency in the court‑fee there was no question of any failure of the plaintiff to comply with any such direction and that the trial Court should not have dismissed the suit without deciding issue No. 1 and without providing opportunity to the parties to lead evidence thereon. Hence this appeal.

2. Learned counsel for the appellants submitted that the approach of the learned Additional District Judge was misconceived as the respon dent plaintiff never sought extension of time and as such the question whether there was any contumacy and non‑compliance of the order does not arise. He submitted that the plaintiff in the plaint asserted with exactitude that Rs. 200 was the value for the purposes of court‑fee accord ing to 15 times of the net profits accruing a year preceding the institution of the plaint. He argued that definite averments were made as to value of the suit for purposes of court‑fee and that value was admittedly incorrect as the plaintiff without seeking extension of time deposited court‑fee of Rs.

792. He submits that in these circumstances the suit bad become barred by time and was rightly dismissed by the trial Court.

3. Learned counsel for the respondent, on the other hand, submit. tea that the Court had ordered the production of statement of net profits and as such it was incumbent upon the Court to determine the question whether the court‑fee paid was deficient and in case it was found that court‑fee was deficient an order should have been passed for allowing the plaintiff‑respondent to make good the deficiency. Ha argued that in the absence of such an order the suit should not have been thrown out on the ground of limitation,

4. There is no merit in the submission of the learned counsel for the respondent. The initial responsibility is of the litigant to institute a plaint by affixing proper court‑fee. It is well'‑established that a plaint which is deficient in court‑fee is not a valid plaint in the eye of law. It is also to be noted that the plaintiff made a definite assertion as to the value of the suit for purposes of court‑fee and the order of production of the statement of net profits was for the purposes of verifying the correctness of the assertion made. The plaintiff‑respondent without filing statement of net profits deposited the court‑fee on 13th November, 1976 i. e. almost 7 months after the presentation of plaint and that too without seeking permission to make good the deficiency and also without seeking exten sion of time. The deposit of court‑fee at that stage cannot mean that the Court had granted extension of time in exercise of the power vesting under section 149, C. P. C. In these circumstances, the question whether there was any non‑compliance of any order of ‑the Court does not arise as no order was made by the Court allowing the plaintiff- respondent to make up the deficiency in the court‑fee. The trial Court, as observed in Masood Akhtar Shah v. Fazal Ahmad and another 1979 C L C 705 was right in asking the plaintiff to satisfy it that the court‑fee paid was proper by producing statement of net profits. The fact that the plaint when instituted was deficiently stamped stood established on the record as plaintiff deposited stamps of the value of Rs. 792 later on. The deposit so made cannot save the limitation and in these circumstances the learned trial Judge was perfectly justified in dismissing the suit on the ground of limitation. Moreover, it is incumbent upon the plaintiff to ascertain correct amount of court‑fee as soon as the plaint is filed and make up deficiency at the earliest opportunity irrespective of fact whether Court issued specific direction in that respect or not (See 1982 C L C 425).

5. For reasons given above this appeal is accepted with the result that the order dated 12th May, 1981 of the learned Additional District Judge, is set aside. There shall be no order as to costs. M. Y. M. Appeal allowed.