P L D 1959 (W (PLP)

Date of hearing : 7th November 1958. The respondent filed a suit for possession of some land against the defendants‑appellants which was decreed by the trial Court. The defendants having failed before the lower appellate Court have now come up to this Court in second appeal. A court fee of Rs. 1,040 was paid on the plaint. When this appeal was filed in this Court the memorandum of appeal bore a court fee of Rs. 15 only. The office, by notice dated the 19th May 1958, called upon the appellants to pay Rs. 1,025 more by way of court fee. The appellants paid no heed to this notice and filed an application on the 4th of November 1955: along with court fee stamps of the value of Rs. 33‑12‑0, alleging that the court fee payable in appeal is Rs. 35‑12‑0, and not Rs. 1,

040. Admittedly the Court‑Fees Act‑ was applied to the. Kalat State on the 1st of April 1955. The appellants contend that as this appeal was filed after that date, that is to say on the 29th of November 1955, the court fee has to be paid in accordance with the provisions of the Court‑Fees At. There is no doubt that this contention is correct; but the question is as to the amount which is payable on the memorandum of appeal in accordance with the provisions of the Court Fees Act. Reliance is placed by the appellants on section 7 (v) (c) of the Court‑Fees Act which runs as follows :‑ " (v) In suits for the possession of land, houses and gardens‑ according to the value of the subject‑matter ; and such value shall be deemed to be where the subject‑matter is land, and‑ (a) * * * * * * (b) * * * * * * (c) where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue, and net profits have arisen from the land during the year next before the date of presenting the plaint‑fifteen times such net profits but where no such net profits have arisen there-from‑ the amount at which the Court shall estimate the land with reference to the value of similar land in the neighbour hood :" Admittedly, the land in suit pays no land revenue to the Government it yielded profits from the year 1953‑54 on words; it did not yield any profits at all in 1952 and it has riot been shown that any profits arose from the land "during the year next before the date of presenting the plaint". On these facts, the court fee would, prima facie, be payable on the value of the land. The appellants' learned counsel contends that since the Act was not applicable when the plaint was presented and became applicable only before the presentation of the present appeal, the court fee should be determined with reference to the net profits which had arisen during the year next before the date of presenting the memorandum of appeal. This con tention is negatived by the express words of the section, There also does not appear to be any principle which would justify the conclusion that in the circumstances of the present case the word " plaint " should be read as including a memorandum of appeal. In cases to which Court Fees Act was applicable bet ore the filing of the suit itself, it cannot be contended that at the time of the presentation of the appeal the court‑fee should be recalculated with reference to the income of the property in the year preceding the filing of the appeal. The rule for assessing court fee in appeal has to be the same as that applicable to the plaint because the word "suit" in the third Chapter of the Act (sections 6 to 19) includes the proceedings in the trial as well as in the appellate Courts and no separate formulae for court fees have been prescribed for the plaints and the memoranda of appeals. The obvious intention of the seventh section of the Act is that in cases to which that section is appli cable the basis for determination of the court fee payable on a memorandum of appeal should be the same as that for the deter mination of the court fee on the plaint. For reasons stated above court fee must be paid in this appeal on the value of the land in suit, because the land did not yield any profits " during the year next before the date of presenting the plaint ". The appellants' contention that the court fee paid by them is sufficient is rejected and their application dismissed with, costs. As the appellants' learned counsel has stated that his clients are not willing to make up the deficiency in court fee let this appeal be laid before a Division Bench for appropriate orders. K. M. A. Petition dismissed.