1979 PLP 705 (CLC)

5. This appeal arose out of a suit filed by one Maula Bakhsh alias Maula respondent against the appellants and Fazal Hussain respondent No. 2 pre-empting the sale of land measuring 54 kanals and 4 marlas out of the aforementioned total land sold measuring 161 kanais 17 marlas.

6. All the four suits out of which these four appeals have arisen were filed on 2-5-1974 and issues in all were framed on 3-10-1974. On 26-11-1974 the respondents; plaintiffs closed their affirmative evidence in their respective suits. In the evidence, the plaintiffs themselves produced copies of Jamabandis and khasra Girdawaris which were exhibited. The trial Court on the same day, i.e. on 26-11-1974 noticed that valuation of the suits for the purposes of court-fee as given in the plaints was arbitrary and directed the plaintiffs to produce Jhar Pedawar and Nirkh Nama and correct the valuation accordingly. It also directed them to affix proper court-fee up to the next date and adjourned the case td' 19-12-1974. On 19-12-1974 the trial Court found that neither the court-fee had been made up nor the requisite Naqsha Jhar Pedasvar and Nirkh Nama had been placed on record. The trial Court afforded a further opportunity to the respondents plaintiffs to make up the deficiency in court-fee before the next date which was fixed as 13-1-1975. The respondents-plaintiffs again failed to comply with the orders of the trial Court whereupon their plaints were rejected under Order VII, rule I1(b) of the Code of Civil Procedure.

7. Each respondent-plaintiff took separate appeal to the learned District Judge, Jhelum against the order of rejection of the plaint who by his judgment dated 14-11-1975 accepted all the appeals and setting aside the orders of the trial Court remanded the cases for further proceedings according to law.

8. It is against this judgment of the learned District Judge that the present appellants have come up in these appeals

9. The learned counsel for the appellants contended that-- (i) the premises of -the judgment of the District Judge that in the absence of an objection as to the valuation for purposes of court fee in the written statement, the Court on its own could not call upon the plaintiff to correct the valuation and pay court-fee accordingly, is not well-founded: He relied in this regard on Pakistan through Secretary, Ministry of Refugees and Rehabilitation and another ban v. Dera Chand Muljimal and others P L D 1968 Kai. 10?, Ashiq Ali and others v. Imtiaz Begum and others A I R 1917 All. 78 Pt. And Bhagwati Prasad Misra v. Deputy Commissioner, Barabanki A I R 1945 Oudh 177. (ii) Reading sections 9 and 10 of the Court Fees Act together, it becomes clear that if the Court can enquire into the matter through a Commission, it can hold the necessary inquiry itself. It was in this context he submitted that the Court had directed the production of Naqsha char Pedawar and Nirkh Nama. In support of the first limb of his this contention, the learned counsel relied on Hari Ram v. Akbar Hussain I L R 29 All. 749. (iii) In view of the authorities reported as Saeed Ahmad and others v. Karam Singh and another P L D 1949 Lab. 380 and Rahim Bakhsh v. Muhammad Bakhsh and 2 others P L D 1976 Lab. 686 which held that the right of a pre-emptor is a weak right and if he fails to comply with the direc tions and orders of the Court to make up deficiency in court-fee or to do any other act required for the further progress of the case, any technical default committed by him should be strictly taken notice of and no indulgence should be shown to the plaintiff-pre-emptor.

10. Elaborating his last contention the learned counsel for the appel lants contended that in view of the contumacious conduct of the respondents plaintiffs in not complying with the orders of the Court to properly value their suits for the purposes of court-fee despite having been afforded opportunities, the provisions of Order V11, rule Il(b) were manifestly applicable and rightly applied by the trial Court and that in any case the suits were liable to be dismissed under Order XVII, rule 3, C. P. C. It was further urged by him that in case this Court comes to the conclusion that the rejection of plaint was not in consonance with the provisions of Order VII, then it should dismiss the suit under Order XVII, rule 3, C. P. C. as it has the power to do so by virtue of section 107 read with Order XLI, rule 33 of the Code of Civil Procedure. Il. Mr. Moor Muhammad Butt, Advocate appearing for the cross objector in all the appeals adoptod the arguments advanced by the learned counsel for the appellants.

12. Mr. Abdul Samad Hashmi, learned counsel for the respondents submitted firstly that there is nothing provided in C. P. C., Pre-emption Act or in the Court hee Act to require the plaintiff to furnish Jhar Bandobast or Fard Khalis Monafa and as such the Court could not ask for furnishing the same; secondly that by virtue of section 9 of the Court Fee Act, the Court was obliged to make inquiry and determine the court-fee itself, and only thereafter order for making up deficiency of court-fee; .thirdly that since the Court had not determined the deficiency in court-fee, it could not reject the plait-it; and fourthly that since the filing of char Bandobast and Fard Khalis Monaja could not be directed there was no lawful order of the Court which was not complied with and as such Order XVII, rule 3, C. P. C. was also not applicable. The last contention raised on behalf of the respondents was that since the matter of court-fee is between the party and the State, it gives no right to the other contesting party to ask for rejection of plaint and the definciency in court-fee could be mad; up at any time.

13. The main point involved in all these appeals is as to whether the trial Court could reject the plaint under Order V 1I, rule 11 (b) of the Code of Civil Procedure and if it could do so, what material should have been available or enquired into before such an order could be passed. Order VII rule lI(b) reads as under :- "The plaint should 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;" A plain reading of the above provision clearly shows that the Court has the power to call upon the plaintiff to correct the valuation of the suit within time to be fixed by it and if the plaintiff fails to do so, to reject the plaint. It necessarily implies that when it comes to the notice of the Court that the value for the purposes of court-fee has not been correctly given, then in order to satisfy itself the Court shall have inherent powers to call upon the plaintiff to satisfy the Court about the valuation. This power is supplemented by the provision as contained in section 9 of the Court Fees Act, 1970. It has been rightly argued by the learned counsel for the appellants that if the Court has the power to inquire into the matter through a Commission, it shall necessarily have the power to enquire into the matter itself and adopt any of the procedures and measures therefore. The measure could be as adopted by the trial Court in the instant case i.e. to call upon the plaintiff to produce Naqsha Jhar Pedawar and Fard Khalis' Monafah to iesolve the controversy as to the value of the suit for the purposes of court-fee. In this regard reference may usefully be made to Hari Ram v. Akbar Hussain (29 All. 749), wherein it was observed as under :- "Section 9 of the Act simply empowered the Court to issue a com mission : it did not take away the powers of the Court given by sec tion 392 of the Code of Civil Procedure. If the Court had not got the power to hold an inquiry itself, there was nothing to .be delegated to a Commissioner." The order of the trial Court, therefore, calling up the respondents-plaintiffs to file Naqsha Jhar Pedawar and Fard Khalis Monafa cannot be objected to on any valid ground. I am fortified in my view that the provisions of Order VII, rule 11(17), C. R. C. can be invoked by the Court to compel a plaintiff to correct the value of the suit for the purposes of court-fee if it has been affixed wrongly ort",\when on arbitrary valuation has been put by the plaintiff, by the case Pt. BhagWatti Parsad Alisra v. Deputy Commissioner, Barabanki (A I R 1945 Oudh 177) cited on behalf of the appellants. The trial Court, therefore, correctly invoked the provisions of Order VII, rule 11(b), C. P. C. for asking the respondents-plaintiffs to correct the valuation of the suits for the purposes of court-fee within the time fixed by it and on the failure of the plaintiffs-respondents it could rejected the plaints.

14. The contentions raised by the learned counsel for the respondents that. there was no power with the Court to call for filing of Naqsha Jhar Pedawar and Fard Khalis Monafa and that the Court could only proceed under section 9 of the Court Fees Act, are thus devoid of force.

15. The second, third and fourth contc: tions being subsidiary to the first and dependent thereon also fail. I am also not impressed by the arguments advanced on behalf of the respondents that the matter of court-fees being such as arises between a party and the State, the opposite-party cannot make grievance as no right vests in it. If this argument is accepted, this would mean taking away of the right that accrues to the opposite-party under the Law of Limitation.

16. The observation in the judgment of the first Appellate Court to the effect that since no objection was raised by any party as to the value of the suit fixed in the plaint for the purposes of court-fee, the Court could only have recourse to the provisions of sections 9 and 10 of the Court Fees Act and could not call upon the respondents plaintiffs to correctly value their suits and to make up the deficiency in court-fee is patently incorrect. Refer Pakistan through Secretary, Ministry of Refugees and Rehabilitation and another v. Deva. Chand Muljimal and others (P L. D 1968 Kar. 107). If the position as mentioned above and taken up in the lower Appellate Court judgment is accepted this would in many cases render the provisions of Order V11, rule 11(b), C. P. C. redundant. The order of the first Appellate Court, therefore, cannot be maintained. In fact it is the duty of the Court to see that the suit is valued properly for the purposes of court-fee and .that proper court-fee is paid thereon. This position becomes patently obvious by reading Order VII, rule 11(b), conjunctively with sections 9 and 10 of the Court Fees Act. The importance of this point can be judged from the fact that failure of a plaintiff to comply within the directions of the Court in this ,regard entails penalty of rejection off plaint.

17. I am, however, of the view that before invoking the provisions of Order VII, rule 11(b) of the Code of Civil Procedure and rejecting the plaints it would have been more appropriate and in the interest of justice to ascertain whether the non-filing of the Nagsha Jhar Pedawar and Fard Monafa by the .respondents-plaintiffs was on account of their neglect or occurred on account of non-co-operation of the Revenue staff in providing the same.

18. In view of the foregoing discussion, I accept the appeals and cross objections partly and setting aside , the judgment of the learned District Judge dated 14-11-1975 remand the cases to the learned trial Judge to ascertain after affording opportunity to tire parties, whether the plaintiffs respondents were a fault in nut pl2cing on record the statement of net profits within the time allowed by the trial Court or that the failure occurred due to the act of the Revenue officials. If the non-compliance of the order of the trial 'Court by the plaintiff-respondents was on account of their own failure and on account of lack of any attempt to obtain the, net profits by making an application before the expiry of the 'time granted try the Court, the power of rejecting the plaint by invoking the provisions Order VII, rule 11, C: P. C. can be exercised again by the trial Judge. The parties are, however, left to bear their oven costs. . K. M. A. Appeals accepted.