1982 PLP 1411 (CLC)

Date of hearing :16th June, 1981. This revision petition which is confined to question of court‑fee alone, is directed against the judgment and decree dated 15th November, 1980 of the learned District Judge, Faisalabad, whereby be dismissed the appeal of the petitioner Mst. Kaniz Bibi against the judgment and decree of the Civil Judge, dated 9th December, 1979.

2. The facts of the case are that Muhammad Ali and three others, plaintiffs‑respondents filed a suit for possession through pre‑emption against the petitioner‑defendant and another in respect of 19 kanals and 6 marlas of land situated in Chak No. 69/RB, Tehsil Jaranwala, District Faisalabad. The land is said to have been sold by Mst. Saleem Bibi in favour of the petitioner by virtue of registered sale deed dated 7th January, 1978,'for a sum of Rs.22,

000. In para. 10 of the plaint it was stated that the value of the suit for the purpose of court‑fee was Rs.22,000 which was the sale price of the land in dispute and no court‑fee was payable on the plaint according to prevalent law. In her written statement, petitioner/ defendant replying to this para. stated that the value of the suit for the purpose of court‑fee should have been determined after the preparation of Fard Khalis Munafa and the full court‑fee should have been paid thereon. On the pleadings of the parties, alongwith other issues, following issue was framed as issue No. 2 :‑ "Whether the suit has been insufficiently valued for the purposes of court‑fee and suit valuation Act." O. P. D.

3. According to the case of both parties, no evidence was given on this issue, either by defendant‑petitioner on whom onus of the said issue had been placed or by the plaintiffs‑respondents. It is stated in the judg ment of the learned Civil Judge, that the counsel for the petitioner‑defen dant did not argue this issue at the time of arguments, nor did petitioner defendant adduce any evidence. The Civil Judge decided this issue against the petitioner‑defendant on the ground that main burden to discharge the onus was on petitioner‑defendant which she had failed to discharge. On the basis of finding on this issue and findings on other issues with which I am not concerned, the Civil Judge by his judgment and decree dated 9th December, 1979, decreed the suit of the plaintiffs‑respondents. The peti tioner‑defendant filed an appeal against the judgment and decree of the Civil Judge. 1n the appeal a ground was taken that the trial Court had decided the legal issues (including issue No. 2) against the petitioner /defendant on the ground that her counsel had not advanced any argument on the same, although the Court itself should have decided these issues in accordance with law, especially the issue of court‑fee which had clearly been wrongly determined. There is no mention in the judgment of the District Judge of any arguments having been addressed on the said point xsised in the memo. of appeal, and it appears that the said point was again given up there at the time of arguments. The petitioner‑defendant has filed this revision petition against the judgment and decree dated 15th November, 1980 of the District Judge, Faisalabad. 4. 1n support of this revision, learned counsel for the petitioner has argued that according to amendment in para. 7 (v) (a) of the Court‑Fees Act, by means of Punjab Finance Act, 1973, the court‑fee was now to be affixed on 15 times of the net profits of the land and not on the sale‑price of the land in question. ‑He further contends that it is the duty of the Court to get proper court‑fee stamp affxed on the plaint as in section 7 of Court Fees Act, the word `shall' has been used which is mandatory and imposes a duty on the Court to have such court‑fee stamp affixed on the plaint as was exactly in accordance with law.

5. Learned counsel for the respondent has urged that there is no evidence on the record to show that the valuation of the suit for purpose of court‑fee was more than Rs.25,000 for which any court. fee was to be paid and as such there was no ground for interference by this Court.

6. I have considered the arguments of the learned counsel for the parties. Issue in respect of adequacy of court‑fee had been framed at the instance of the petitioner‑vendee and the onus had also been placed upon her. However, it is a case of both the parties that no evidence was pro duced on this issue by either of the parties. According to the learned counsel for petitioner‑defendant, court‑fee should have been paid on 15 times of the net profits. But this plea could have been urged if there was any evidence on the record that the land was cultivated during the year prior to the institution of suit and had fetched profits therefrom. However, there is no evidence on the record to that effect at all. The suit was instituted on 4th January, 1978. There is no girdawari on the record of the trial Court for Khartf 1978 and Rabi 1977‑78 and, therefore, it is not known as to whether the suit land was actually cultivated during the year previous to the filing of the suit or had been left fallow or Banjar during that year. There is no oral evidence either to that effect. Learned counsel for the petitioner, therefore, cannot successfully, contend that the court fee should have been assessed on 15 times of the net profits which had accrued on the land in question during the last year. No doubt, the law imposes a duty upon the Court to have proper court‑fee paid on a plaint, but there is no material on the record for the court to act and require the respondents to pay court‑fee on 15 times of the net profits of the land. In view of this, there is no substance in the plea of the petitioner. 7.. There is no merit in this revision which is dismissed with costs. M. Y. M. Revision petition dismissed.