P L D 1971 Karachi 22 (PLP)

"That the plaintiff contends that the defendants have not paid a penny of her legitimate share in the said business after the death of Mr. Agha Ghulam Ahmad which may come to approximately Rs. 23,C00 after accounts are taken from the defendants."

3. In view of the above statements, an objection was taken on behalf of the present applicant, who was defendant No. 3 in the suit, that the plaint was not correctly valued and, therefore, it was liable to be rejected under Order VII, rule 11, C. P. C. The relevant part of the rule is as follows:‑

11. The plaint shall be rejected in the following cases:‑ (a) ............ (b) where the relief claimed is under‑valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court .to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; (d) ............ According to counsel for the applicant, reply to the application of the present applicant for rejecting the plaint was submitted on behalf of the plaintiff‑respondent, and arguments were being heard by the learned trial Court; during the course of hearing the Court suggested that the plaintiff might amend the plaint by removing the mention of Rs. 23,000 in paragraph

6. An application was accordingly made for the amendment of the plaint, which was accepted by the order against which this revision application has been made.

4. The question before me in these revision proceedings is as to whether the order allowing the amendment should be allowed to stand or should be set aside. The contention of Mr. Lakhani is that the amendment of the plaint could not be allowed by the trial Court because the question of payment of proper court‑fees had been raised and could not be circum vented by the plaintiff by changing the valuation. The legal point behind this contention is that if the plaint vi‑as not properly stamped, then it was not a valid document and, therefore, could not be allowed to be amended because no notice can be taken of a document which is not valid from the point of view of court‑fees or stamp duty on it. Additionally, counsel has contended that, in terms of clause (b) of rule 11 of Order VII, C. P. C., reproduced above, the plaint must be rejected if it is under‑valued and the plaintiff on being required by the Court to correct the valuation bas failed to do so within the time fixed by the Court. This second contention has been supple mented by counsel by referring to the judgments in which it has been held that the Court has the discretion to correct a valuation if it is arbitrary and obviously wrong. In support of this view he has referred to Shivandas v. Hariram (A I R 1933 Sind 322), Imamuddin v. Abdul Ghani (P L D 1959 Kar. 802) and Kashinath Oke v. Tukaram Nilkanth (A I R 1936 Nag. 95). He said that there is a string of precedents in which the contrary view has been taken, and the findings have been that Court has no jurisdiction to disagree with a valuation made by the plaintiff in a suit which falls under section 7 (iv) (f). Such rulings, counsel said are: (1) Karam Hahi v. Muhammad Bashir P L D 1949 Lab. 8; and (2) B. Ghulam Qadir v. Bulaqi Mall & Sons P L D 1949 Lab.

461. But the Lahore view, according to counsel, has not been followed by the former Sind Chief Court and the Karachi Seat.

5. In so far as the first contention is concerned it is not precisely applicable to this case because up to the time of the order of amendment, the valuation which was given by the plaintiff in paragraph 8 of the plaint was the one which governed the plaint. The plaint was not, up to that amendment, held to be undervalued, nor was the plaintiff called upon to correct the valuation and to pay any higher amount of court‑fees. There was, therefore, no question of the plaintiff failing to carry out the order of the Court in terms of clause (b) of rule 11 A of Order VII, C. P. C. Moreover, up to the time at which the amendment was ordered, the plaint could not be said to have been insufficiently stamped because no such finding had been given. In this view of the matter the order allowing the amendment cannot be said to have been affected either by Order VII, rule 11 (b) or by rule I 1 (c) of the Civil Procedure Code.

6. Now, turning to the second contention, I may point out that the question as to whether the Court has the power and jurisdiction to interfere with a valuation which is obviously wrong has not arisen in the case because the trial Court has not yet decided whether it has such power and jurisdiction. nor has it ordered the correction of the valuation that has been placed by the plaintiff in paragraph 8 of the plaint. Mr. Lakhani said that one of the main grounds of attack on his part on the plaint was that a higher valuation was given in paragraph 6 of the plaint; owing to that amendment he will not be in a position to use that valuation or criticise the valuation that has been given in paragraph

8. This objection is more of an equitable character than technical. But as against this we have also to see that the suit has been filed by a sister against her brother in respect of a share which she claims in a property left by their father, and the chances are that if Mr. Lakhani succeeds in his objection, then the plaintiff‑respondent may not be able to get the help of the Court at all. These are, however, considerations which can equitably influence judgment, but they are not of a technical or decisive nature. In so far as the technical and purely legal considerations of decisive nature are concerned, I have adverted to them above and feel that, in the circumstances of this case the correct conclusion cannot be that the amendment allowed by the trial Court was illegal or without jurisdiction.

7. In view of the above conclusion, the revision application is dismissed. A. E.Application dismissed.