2002 PLP 1590 (YLR)

Sana Ullah Zahid for Respondents. This revision petition is directed against the order and decree, dated 2‑3‑2001 passed by a learned Civil Judge, Rawalpindi whereby the plaint of the petitioner filed under section 9 of the Specific Relief Act was rejected under Order 7, rule 11, C.P.C. as the petitioner had failed to pay the court‑fee despite having been given the opportunity to do the same.

2. The facts are that the suit under section 9 of the Specific Relief Act, 1877 was filed by the petitioner for recovery of possession of immovable property described as the Potohar Homeopathic College Plot No.9 Sector 4‑B, Khayaban‑e‑Sirsyed, Rawalpindi alongwith its college and hospital equipment from the respondents. The suit was filed on 11‑10‑2000. In the plaint itself the valuation of the suit was placed as worth lacs of rupees. A list of the articles sought to be recovered and the plan of the building whose possession was sought to be recovered was also annexed. That despite this the value of the suit for the purposes of court‑fee and jurisdiction was fixed at Rs.20,000 which was claimed to be exempt from court‑fee.

3. The respondents appeared before the trial Court on 22‑12‑2000 and filed an application for a direction to the petitioners/plaintiffs to make up the deficiency in the court‑fee. The petitioners contested the said application through their reply filed on 2‑2‑2001. Vide order, dated 2‑2‑2001 the trial Court held that the suit was not correctly valued for the purposes of court‑fee and jurisdiction and the petitioner/plaintiff was directed to correct the value of the suit. On 15‑2‑2001 the learned counsel for the petitioner stated that the valuation of the property in suit as about Rs.10,00,

000. Accordingly the petitioner was directed to affix the court‑fee in the sum of Rs.7,500 on the plaint being a suit under section 9 of the Specific Relief Act and fixed 2‑3‑2001 for making up the deficiency of the court‑fee. The record reveals that on 2‑3‑2001 as the proper court‑fee had not been affixed despite opportunity, the plaint was rejected under Order 7, rule 11, C.P.C. The instant revision petition is directed against the said order and decree. The learned counsel for the petitioner has submitted that the adequate opportunity to make up the deficiency of court‑fee was not given by the trial Court. According to him the petitioner was willing to make up the deficiency in the court‑fee on 2‑3‑2001 but the learned trial Court acted in a hasty manner in rejecting the plaint on 2‑3‑2001 at 11‑55 a.m. In support of his contention he has relied upon the case of Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289, to contend that the proper opportunity to make up the deficiency in the court‑fees should be allowed and that the petitioner of this case is entitled to such indulgence, as the petitioner was not guilty of contumacy or mala fides. He also referred to the case of Sher Muhammad and another v. Ghulam 1993 CLC 1027 to contend that opportunity to pay court‑fee should be granted if there is no element of contumacy or mala fides attributable to the petitioner. The petitioner, in aid of the same proposition relied upon Sohara v. Rashid Ahmad and others PLD 1981 Lah.

261. Safdar Khan v. Ch. Muhammad Saleem and 2 others PLD 1994 Lah. 261 and Mst. Surayya Begum v. Abdul Rahman and 2 others 1992 CLC 676.

4. On the other hand, Mr. Sana Ullah Zahid. Advocate for respondent No.1 contended that the conduct (sic) from the institution of suit. According to him the petitioner was in full knowledge of the valuation of the suit property and he deliberately and contumaciously placed a wrong value on the plaint and claimed exemption from payment of court‑fee. Even when an application was moved by the respondent for affixing correct court‑fee, the petitioner obstinately defended his earlier action and it was only upon the order of the trial Court dated 2‑2‑2001 that the petitioner was constrained to value his suit at Rs.10,00,

000. The learned trial Court then gave an opportunity to the petitioner. The petitioner having failed to make up the deficiency of the court‑fee his plaint was rightly rejected by the trial Court. According to the learned counsel for the respondent the petitioner has displayed contumacy and is not entitled to any indulgence. In support of his contention the learned counsel for the respondent has relied upon Zafar Alam v. Member (Revenue) Board and 3 others 1991 SCMR 1153 to contend that it is the initial duty of the plaintiff to determine and affix the court‑fee but in case the plaintiff had failed to do so, the plaintiff was entitled as of right to only one opportunity to make up the deficiency in the court‑fee.

5. Arguments have been heard and record perused.

6. It is correct that the conduct of the petitioner in conducting the suit before the trial Court does not appear to be above board. Ignorance of law is no excuse and the petitioner should have exercised due care and caution and should have valued the suit correctly for the purposes of court‑fee and jurisdiction. Having said that this Court is also conscious of the fact that on account of the omission of the petitioner to pay court‑fee in time before the trial Court he was obliged to pay court‑fee upon this appeal/revision. This Court is also conscious of the fact that payment of court‑fee being a fiscal matter between a plaintiff and the State, an omission of the plaintiff should not arm an adversary defendant with a weapon to throw his opponent out of the Court on a technical ground.

7. In this view of the matter, it will be in the interest of justice if the petitioner is given one final opportunity to make good the court‑fee before the trial Court failing which the law shall take its own course.

8. In view of the above discussion, this Civil revision is allowed and the order and decree of the trial Court dated 2‑3‑2001 is set aside, the petitioner is directed to affix the necessary court‑fee as assessed by the trial Court vide order, dated 15‑2‑2001 within a period of 15 days from today failing which the plaint of the petitioner shall be liable to be rejected. T.A.F./A‑529/L Order accordingly.