P L D 1980 Lahore 145 (PLP)

This is a regular second appeal directed against the judgment and decree dated 1-3-1979 passed by the Additional District Judge, Gujrat, whereby he reversed the judgment and decree dated 14-2-1975 passed by the Civil Judge, Gujrat in a pre-emption suit.

2. The brief facts of the case are that Akbar Ali and others, the vendees (defendant/appellants) purchased the suit land measuring 3 kanals, 18 marlas situated in the Revenue Estate of Kharian, District Gujrat, for an ostensible sale price of Rs. 7,000 through an oral sale evidenced by a Mutation bearing No. 8488 attested on 1-5-1968. This transaction of sale was pre-empted by Ehsan Elahi respondent, the son of the vendor. The relevant plaint was filed on 7-4-1969 in the Court of Civil Judge, Gujrat. The vendee-defendant resisted the suit and out of the pleadings of the parties the following issues were framed : (1) Whether the plaintiff is estopped by his conduct? O. P.. D. (2) Whether the valuation of the suit is incorrect for the purposes of court-fee and jurisdiction? O. P. D. (3) Whether the ostensible sale price was actually paid or fixed in good faith? O. P. D. , (4) Market value? O. P. P. (5) Whether the suit is time barred? O. P. D. (6) Whether the property in dispute is urban property if so with what effect? O. P. D. (7) Relief. The parties led their evidence and the learned Civil Judge after hearing the parties found Issue No. 6 in favour of vendees defendants and dismissed the suit on the basis of that finding on 14-2-1975. Ehsan Elahi the plaintiff/respondent directed the first appeal against the judgment and decree dated 14-2-1975, which was heard and decided by the learned Additional District Judge, Gujrat, who accepted the appeal, set aside the decree of the trial Court vide his judgment and decree dated 1-3-1979. Akbar Ali and others, the vendees (defendants/appellants), feeling aggrieved thereby have come up in Second Appeal to this Court.

3. The only two questions which call decision in this Regular Second Appeal are as follows : (a) Whether the appeal before the Additional District Judge was deliberately under-valued and under-stamped, and the same should have been thrown out on this ground alone? (b) Whether the finding of the trial Court on Issue No. 6 was erroneous and was rightly reversed by the First Appellate Court?

4. The fate of this appeal hinges on the answers . of the questions raised above. I have heard the learned counsel for the parties and perused the record of the Courts below. In order to arrive at a just conclusion it will not be improper to make a survey of the history of modes prescribed for assessing the valuation of plaint and appeal, seeking possessory relief regarding land, etc. for the purposes of court-fee prescribed under the Court Fees Act from time to time in this region of the country. The relevant provision prescribing the different modes of assessment of valuation for the purposes of court-fee is contained in section 7, para. (v) of the Court Fees Act, which was .-originally as under : For, possession of lands, houses and gardens.-In suits for the possession of land, houses and gardens-according to the value of the subject-matter; and such value shall be deamed to be-where the subject-matter is land, and (a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Collector's register as separately assessed with such revenue, and such revenue is permanently settled-ten times the revenue so payable: (b) where the land forms as an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid; and such revenue is settled, but not permanently-five times the revenue so payable; (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 therefrom. The amount at which the Court shall estimate the land with reference to the value of similar land in the neighbourhood. . (d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as above-mentioned-the market value of the land: (Proviso as to Bombay Presidency). Omitted by G. G.-O. 4 of 1949, Schedule.) ' Explanation.-The word "estate" as used in this paragraph means any land subject to the payment of revenue, for which the . proprietor or farmer or . raiyat shall have executed a separate engagement to Government, or which, in the absence of such engagement, shall have been separately assessed with revenue; (e) for houses and garden.-Where the subject-matter is a house or garden-according to the market-value of the house or garden: Section 7, para. (VII.-In suits to enforce a right of pre-emption-according to the value (computed in accordance with paragraph V of, this section) of the land, house or garden in respect of which the right is claimed: In para. V(b) for the word `five' the word `ten' was substituted vide Punjab Act, 1918. (12-6-1918).

5. Section 7 of the Court Fees Act has been further amended and for the existing clause (v) the following new clause is substituted; "(v) In suit for possession of land, house and garden, according to the value of the subject-matter,. and such value shall be deemed to be; (a) Where the subject-matter is land and where the net profit has arisen from such land during the year next before the date of presenting the plaint-fifteen times of such .yet profits; (b) Where the subject matter is land and where no such profit has arisen therefrom-the market value of such .)and. (c) Where the subject-matter is a house or garden-according to the market value of the house or garden."

6. The latest amendment in Court Fees Act, came into force on 1st July 19.73. It is evident from the record that the appeal in hand was presented on 8-3-1975 by a court-fees of Rs. 23 on the value of the suit land calculated under section 7(v)(a) on the basis o f fifteen times of the net profit allegedly arisen during the year next before the date of presenting the appeal and the statement of net profit which is at page 72 of Appellate file, was got prepared regarding the suit land for Kharif 1973 and Rabi 1974 on 31-3-1975. A further court-fees of Rs. 2 was subsequently placed on the record on 14-4-1975. On 25th April 1978 the Reader of the Lower Appellate Court reported the deficiency of court-fees affixed on the Appeal and on that report the learned Additional District Judge fixed 10-6-1978 for arguments on the question of sufficiency of the court-fees payable on the appeal. On 10-6-1978, an application under sections 149 and 151, C. P. C. which is at page 25 of the file, praying for the extension of time to make up the deficiency of court-fees on the appeal, was presented, by the counsel of the respondents in which the deficiency of court-fee due to under-valuation of the appeal was admitted. This application was resisted by the present appellants for the reasons that the appeal being highly deficient of court-fee was not a proper document on the file and the same was liable to be dismissed as barred by limitation. However, the learned Additional District-Judge, without first deciding the questions of deficiency of court-fees and Limitation raised by the present appellants, proceeded with the case, overruled the aforesaid objections and accepted the appeal vide impugned judgment and decree dated 1-3-1979.

7. As stated above, the appeal was filed in the District Court on 8-3-1975. As the law regarding the court-fees had already undergone a change since 1-7-1973, much before the institution of the appeal, hence the court-fee, payable on the memorandum of appeal will be, which was prevalent at the time of presenting the appeal. The learned counsel for the respondents did not contest this proposition of law. Being fully conscious of such change in law, the respondent did not follow the old mode of assessment of valuation for court-fee adopted in the plaint, but valued the subject matter of appeal on the basis of fifteen times of nett profit provided in section 7(v) of the Court Fees Act as amended up-to-date. According to section 7(v) of the Court Fees Act, in a suit for possession of land, the value of the subject-matter shall be deemed either to be fifteen times of such net profits arisen from such land during the year next before the date of filing the suit, or the market value of such land where no such profit has arisen therefrom. In the instant case, the respondent preferred to value the subject-matter of appeal at fifteen times of the net profit despite the fact that the suit land had ceased to yield any net profit much before the sale in dispute.

8. In view of the above, the respondent was precluded from adopting the aforesaid mode of assessment of valuation for the simple reason that the suit land which was the subject-matter of the appeal, was not under cultivation and no net profit had arisen therefrom during the year next before 8-3-1975, the date of presenting the appeal. Admittedly the suit land has been lying fallow since the date of sale uptil now. Even in the statement of net profit which was prepared at the instance of the respondent after the institution of the appeal for fixing the valuation of appeal for the purposes of court-fees before the District Judge, the suit. land is shown as vacant in Rabi 1974. The respondent is the son of the vendor and he is supposed to know all about the suit land. Therefore, the respondent instead of getting prepared the statement of net profits pertaining to the year next before the filing of the appeal consisting of Kharif 1974 and Rabi 1975 crops, deliberately got prepared the statement of net profit, solely for Kharif 1973 simply for this reason that the suit land was lying as vacant in those crops and no net profit could be accrued from it. Even the crop of Kharif 1973, by no stretch of imagination forms the part of the year next before the filing of appeal. All this shows that in order to evade the payment of greater court-fee, chargeable on the basis of market value of the suit land, the respondent, cunningly valued his appeal, on the basis of fifteen times of so-called net profits despite the fact that the suit land being uncultivated throughout had ceased to yield any net profit since 1968 within his knowledge.

9. This deliberate and wilful default on the part of the respondent disentitled him to any indulgence of a Court of law by way of enlargement of time for making up the deficiency of court‑fees. In fact simply for the sake of saving the court‑fee of Rs. 500 he went to the extent of committing a fraud on the Court as well as on the statute by affixing a very low court‑fee of Rs. 25 under the cover of false statement of so‑called net profits whereas he was .required to affix a court‑fee worth of Rs. 525 on his appeal on the basis of the market value of the subject‑matter which had been determined as Rs. 7,000 by the trial Court. However, he deliberately preferred to pay a ridiculously low court‑fee worth of Rs. 25 on the basis of a fake and fictitious statement of net profit. All these facts clearly show that the respondent intentionally got prepared a fake statement of net profits and used it as a pretext in order to evade the payment of high court‑fees. Therefore, keeping in view the conduct of the respondent, I am of the opinion that it will not be a case of enlargement of time so as to demolish the defence of limitation which in the meanwhile had accrued to the appellants (vendee‑defendants).

10. Being faced with this situation the learned counsel for the respondent unsuccessfully tried to meet with the above legal objections by arguing that the appeal is a continuation of the suit land, therefore, the same court‑Fee should be paid on the appeal. On the basis of this proposition he argued that the original plaint was filed by a court‑fee of Re. 1 calculated on Rs. 6.10, the ten times of the annual land revenue payable on the suit land and as such the first appeal should have also been stamped with the same court‑fee. According to him the appeal presented in the Court of District Judge by a court‑fee of Rs. 25 cannot be treated as deficient of proper court‑fee. This point was ably discussed in Manzoor Hussain v. Ejaz Hussain (1), wherein it was observed that right of appeal is one thing and payment of court‑fees is another, and a court‑tee for appeal to be filed in future though arising from the same suit can undergo a change. Therefore, an appeal, must be valued according to the provision of law in operation at the time; of its presentation, and the original value put in the plaint under the repealed enactment is to be disregarded. This proposition of law meets the objections raised by the learned counsel for the respondent.

11. The appeal filed by the respondent was deficient of court‑fee chargeable under the prevalent law and the appellant as well as the Reader of the Appellate Court objected to such under valuation. It may,‑however, be mentioned that the present appellants have themselves affixed a court‑fee worth of Rs. 525 on the memorandum of this second regular appeal, and as such they have every right to object .to the deficiency' of court‑fee on the first appeal.

12. At this stage learned counsel for the respondent orally requested for the enlargement of time in order to make up the deficiency of court‑fee in accordance ‑ with the concerned prescribed mode of valuation of the subject matter of appeal and requested this Court to proceed under section 28 of the Court Fees Act, alongwith section 149 of Code Civil Procedure. I feel myself unable to accept such prayer at this late stage when the valuable right in the suit land has accrued to, the present appellant. The combined effect of section 24 of Court Fees Act, section 149 of Code of Civil Procedure and section 3 of Limitation Act, has been thoroughly discussed and thrashed out by the Supreme Court of Pakistan in a most enlightened judgment delivered in Mst. Walaya! Khatoon v. Khalil Khan (1). (1) P L D 1972 Lah. 743 wherein it is laid down as under : "The Court has therefore, to strike a balance between these two, and whereas at one place it should not be harsh on the plaintiffs, equally and at the same time it should not be harsh on the defendants to easily take away a `valuable defence of limitation from them. The Court must, therefore, in all cases apply its independent mind carefully and attend to their detailed facts and circumstances judicially and fairly. If in a case the plaintiff has been thoroughly negligent, contumacious and careless of his duty in affixing a proper court‑fee he would not be entitled to any indulgence for grant of time, which has the effect of causing prejudice to a defendant or to his rights and title to a property which 'may have become perfect by expiry of the relevant period of limitation in the meantime." .

13. In the light of the above discussion I am firmly of this view that the appeal before the Additional District Judge was deliberately undervalued and under stamped and the respondent, instead of Laking any step towards making up the deficiency of court‑fee purposely tried to escape from the payment of proper court‑fee and fraudulently pleaded the sufficiency of court‑fee under a cover of fictitious and fake statement of so‑called net profit right from 8‑3.1975 upto 1‑3‑1979. During this long interval of about four years the appeal had really become barred by time for he insufficiency of court‑fee. Unfortunately this crucial aspect of the instant case escaped from the notice of the learned Additional District Judge.

14. The next point urged by the learned counsel for the appellants is that the learned Additional District Judge has grossly misread the evidence on record, misconstrued the report of the local Commissioner and upset the well‑considered finding of the learned trial Court on issue No. 6, merely on surmises and conjectures. With the assistance of the learned counsel of the parties, I went through the report of the Local Commissioner, ' dated 8‑4‑1974 as well as the evidence adduced by the parties on the record. The Local Commissioner's report is undisputed and un-objected piece of evidence on the record. According to this report the land in suit is situated in a well‑placed residential zone lying in the suburb of Marian Town where the population has enormously increased and consequently various residential colonies lave sprung up, since the establishment of Kharian Cantonment. This report speaks that the suit land which is surrounded by various Pacca residential houses, Kothies, Bungalows and factories, was purchased for residential purposes and had acquired the character of immovable property lying in the close proximity and vicinity of a famous Marian Town and Cantonment.

15. The defendant/appellants further produced some oral evidence in support of their plea. On the other hand the respondent has not produced even a scintilla of evidence in rebuttal, and also did not cross examine the D. Ws. on this point. The onus of an issue in a civil case is not permanently fixed but is constantly shifting, the moment some evidence is placed on record, this shifts the onus on the other side who would fail if he is unable to rebutt. In the presence of such convincing and reliable evidence I hold that the suit land had acquired the character of an urban immovable property at the time of impugned sale and was not subject to a right of pre-emption asserted by the respondent under section 15 of the Punjab Pre-emption Act, 1912. (1)PLD1979SC821 In view of the findings and observations made above I hold that the decision given by the learned Additional District Judge, is contrary to law and the same is liable to be reversed. I therefore, allow this appeal, quash the impugned judgment and decree of the Additional District Judge, Gujrat, and restore and maintain the judgment and decree of the lower Court, dismissing the plaintiff's/respondent': suit. However, the parties are left to bear their own costs. M. y. M. Appeal dismissed.