2000CLC82 (PLP)

This Regular Second Appeal is directed against the judgment and decree 14‑9‑1978 passed by the Additional District Judge, Gujrat whereby he dismissed the appeal of the appellant.

2. The facts giving rise to the instant appeal are that the suit for possession through pre‑emption was decreed in favour of the respondent by the learned trial Court vide judgment and decree dated 1‑7‑1974. In the plaint the value for the purpose of court‑fee was given as Rs.300 and value for the purpose of jurisdiction was fixed as Rs.900. The appellant preferred an appeal on 1‑8‑1974 by fixing the court‑fee stamps of the value of Rs.22.50 on the memorandum of appeal and affixed court‑fee of the value of Re. l instead of Rs.2 as shown on the decree‑sheet. The appeal was entertained and admitted to full hearing. On 3‑6‑1978 the respondent moved an application for the dismissal of the appeal on the ground that the court‑fee affixed on the decree‑sheet was insufficient by Re. l and on the memorandum of appeal the court‑fee stands on 15 times of the net profit, is not affixed. The reply was filed by the appellant submitting that he had paid the court‑fee and if it is deficient, he is prepared to make up the deficiency as the same has been affixed due to inadvertence and he was misled by the value for the purpose of court‑fee as stated in the decree‑sheet. The learned Additional District Judge, Gujrat vide judgment and decree dated 14‑9‑1978 dismissed the appeal on the ground of deficient court‑fee. Hence the instant appeal challenges the aforesaid order.

3. The submission of the learned counsel for the appellant is that dismissal of appeal without allowing an opportunity to fulfill the deficiency of court‑fee is arbitrary and illegal. As the increase of court‑fee was affected by the Punjab Finance Act, 1973 and the question, whether the appellant was entitled to affix the same court‑fee as was affixed on the plaint, according to law then enforced, was a difficult question of law and the mistake committed in these circumstances, was bona fide, specially when the decree‑sheet indicated that the value for the purposes of court‑fee is Rs.300. Moreover, the conduct of the appellant was neither contumacious nor negligent as he showed his readiness to make up the deficiency of court‑fee according to law. But the learned lower Appellate Court has illegally refused his right ‑to make up the deficiency in court‑fee following the view taken in Balwant Singh v. Jagjit Singh AIR 1947 Lah. 210, subject to the rules laid down by the Supreme Court in Muhammad Nawaz Khan and another v. Makhdoom Syed Ghulam Mujtaba PLD 1970 SC 37, which stands disapproved from the view taken in Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289, therefore, the impugned order is liable to be set aside.

4. The learned counsel for the respondent submits that the appeal was fixed on 1‑8‑1974 while the Punjab Finance Act came into force on 10‑7‑1973. According to this Act the appellant was bound to affix the court‑fee stamp paper of 15 times of net profit under section 7(v) A of the Punjab Finance Act, 1973. He also did not give any reason for extension of time and did not produce net profit; therefore, the learned Additional District Judge has rightly dismissed his appeal in view of Balwant Singh v. Jagjit Singh AIR 1947 Lah. 210 and Syed Manzoor Hussain Ghazi v. Syed Ejaz Hussain Shah, Settlement Commissioner, Lahore Division, 'Lahore PLD 1972 Lah. 743. 5.I have heard the learned counsel for the parties and have also perused the record.

6. The contention of the learned counsel for the appellant seems to be correct as the 'value for the purpose of court‑fee is shown as Rs.300 in the decree‑sheet. Now whether the appellant', conduct was contumacious and negligent in not affixing the court‑fee to, the increase in the court‑fee being effected by the Punjab Finance Act, 1973 or whether the change of law effected by the Punjab Finance Act, 1973 was only regulatory and procedural type and the suitor has no vested right in any particular procedure‑and court‑fee leviable on first appeal in such cases to be calculated in accordance with the Punjab Finance Act, 1973 and not law which prevailed at the time of filing of suit at a time earlier to the said amendment and whether the provisions of section 107, C.P.C. operate amongst others, as main link between the provisions or Order VII, Rule 11 (b) (c), C.P.C. and whether the divergent view taken by Indian Courts on the matter of application of clause (c) of Order 7, Rule 11, C.P.C. in respect of appeal was set at naught by the aforesaid judgment. It was held that despite the conflict of authorities in Muhammad Nawaz Khan and another v. Makhdoom Syed Ghulam Mujtaba Shah and another 1984 SCMR 579 the leave to appeal was granted to consider the' argument that when that a suitor has no vested right in any particular procedure whether regulatory or procedural kind. Moreover, the application of Order VII, Rule 11(b)(c), C.P.C. to appeals in one sense at least is salutary for the progress of the appeal, for hearing. If it. is applied then `as would be presently shown it might not be possible to reject a memorandum of appeal on grounds of deficiency of court‑fee unless in accordance therewith an opportunity is provided, to supply the required court fee and at least one opportunity should be given to supply the deficient court‑fee A before‑rejection of the memorandum of appeal as Order 7, Rule 11(b)(c) applies to plaint as also to memorandum of appeal.

8. As far as the question of limitation is concerned it is also set at naught in Siddique Khan and 2 other's v., Abdul Shakur Khan and another PLD 1984 SC 289 and Muhammad Nawaz Khan and another v. Makhdoom Syed Ghulam Mujtaba Shah and another 1984 SCMR 579, as cited above, limitation is saved in cases where law requires the Court to allow the plaintiff to correct valuation of relief claimed in suit which must necessarily entail making up deficiency in stamp paper affixed on the plaint time to be automatically enlarged incases in which the Court has jurisdiction to grant time to pay whole of part of court‑fee prescribed.

10. The upshot of the above discussion is that I accept this appeal, set aside the impugned order dated 14‑9‑1978, remand the case back to the learned first Appellate Court for re‑decision on the appeal directing the appellant to pay the court‑fee in accordance with the then amended law within a month from today.

11. No order as to costs. Q.M.H./M.A.K./Z‑93/L Appeal allowed.