P L D 1967 Lahore 154 (PLP)

"The plaintiffs acted otherwise on 16-10-61, i.e., they did not pay the previous costs, did not submit `naqsha dal' and did not bring the evidence. The plaintiffs do not seem to be in a fit mood to peruse the case, hence I dismiss the present suit for want of evidence under Order XVII, rule 3 of C. P. C. The plaintiffs to bear costs of the suit."

3. The first question which arises for consideration is whether under the circumstances it was competent for the learned Civil Judge to have dismissed the suit under rule 3 of Order XVIL Rule 3 of Order XVII reads as:- "Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith." The Court under the said rule had to "proceed to decide the suit forthwith". By a decision "forthwith" it is meant that the Court must decide the case on the same day and cannot adjourn the hearing to some other date and then purport to decide it under this rule. The Court, therefore, rightly proceeded to decide the case on the same date. A decision "forthwith" has, however, to be a decision on the merits. It must be on consideration of such materials on the record as is necessary. It does not at all mean that it should be a summary decision. The rule can be pressed into service when it is possible to decide the `t case on merits and it, therefore, cannot apply when the suit is at a preliminary stage. If a party is to discharge the onus of proof of an issue which .is only a preliminary issue and fails to do so, the suit cannot be decided under rule 3 of Order XVII, unless the decision also affects the merits of the case. Since the decision has to be on merits, the Court cannot only because a party is in default decide the suit against him under this rule without adverting to the facts. It does not at. all mean a summary decision. It was so held in Naurang Ram Salue v. Bhakhori Mandar (A I R 1920 Pat. 600), Sher Ali v. Mangu and others (A I R 1919 Lah. 344), Karam Chand v. Jinda Ram (A I R 1924 Lah. 404), Ghulab Rai-Bhola Ram Guraya Ram v. Farid (A I R 1927 Lah. 388) and Sukhu Koeri v. Ram Lotan and others (A I R 1919 All. 253). In a case where the Court has not proceeded to decide the case or, merits but has based its decision on the default of the parties, does not come within rule 3 of Order XVIL Since it was -not possible for the Court to decide the case forthwith. under rule 3, the Court should have granted a further adjournment in the case in this view of the matter, the order of the Civil Judge and that of the Additional District Judge are not sustainable in law.

4. The rule, moreover, is permissive and not mandatory. The provisions of rule 3 are clearly penal in nature and have to be strictly construed as held in Dayalji Wasanji and another v. Kedarnath Onkarmai & Co. (A I R 1953 Nag. 222). The stringent provisions thereof should not be applied unless the facts clearly admit of the application of rule

3. In Tekchand v. Kalusing (A I R 1943 Sind 94), it was held by the Sind Chief Court that the provisions of rule 3 of Order XVII should be used only in exceptional cases. - It was further held in that case that "ordinary powers under this rule should not be exercised unless case of both sides is on record and arguments have been in the main heard."

5. Could the Court on the 16th of October 1961 at all proceed under rule 3 of Order XVII? To answer this question, it is necessary to see that the plaintiff was required to do on that date. He was required only to prove that the suit had been properly - valued for the purposes of jurisdiction and court-fee. He did not lead any evidence on that date. The Court, therefore, at best could hold that the suit had not been properly valued for., the purposes of court-fee and jurisdiction. It would have only meant that there was not the proper plaint filed in the case. The suit becomes legally instituted only on the presentation of a plaint, which means a valid plaint. If in a case the plaint is not properly stamped or is insufficiently stamped, it is no plaint in the eye of law and there is no suit instituted. In this view of the matter, the Court cannot pass an order in such a case under Order XVII, rule 3 of the Code of Civil Procedure which provision can be pressed into service only when a suit is pending.

6. When the plaint is insufficiently stamped, an action is competent only under clause (b) of rule 11 of Order VII, which reads as: "The plaint shall be rejected in the following cases: (a) (b) Where the relief claimed is undervalued 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." In that case the Court has to direct the plaintiff to make up the deficiency in the court-fee and as held in Garapati Venkanna v. Mullapudi Atchutaramanna and others (A I R 1938 Mad. 542) on his failure to do so, can reject the plaint. The Court, therefore, has first of all to determine that the relief claimed is under valued and then give a direction to make up the deficiency. There is nothing on the record of this case to show that the plaint was under valued except the allegation of the defendant. The defendant respondent also had not stated as to what extent it was deficient. In the absence of any material on the record it was impossible for the Court to hold that in fact there was deficiency and the Court, under the circumstances, could not make any direction for making up of the deficiency. It may be for this reason that no action under rule 11 of Order VII was taken in the case.

7. I may also refer to another characteristic, of this litigation. The plaintiff had valued the suit for the purposes of court-fee and jurisdiction on the basis of annual profits at the rate of Rs. 20.00 The respondent-defendants challenged the valuation of the suit on the basis of the court-fee. Ordinarily the statement in the plaint had to be accepted as correct unless it was proved to the contrary. It was, therefore, for the defendants to prove that the valuation of the suit was not correct. E Moreover, the defendants were in possession and not the plaintiff. They were, under the circumstances, in the best position to state as to what were the annual profits of the land. The onus of the issue in the nature of things had to be on the defendant and not on the plaintiff. It is the error committed by the trial Court by wrongly placing the onus on the plaintiff that the whole trouble has arisen and consequently a considerable time has been wasted in litigation.

8. There is yet another aspect of the case. The Court fixed the 6th of April .1961 as the date for evidence. It is not clear from the record if the parties had brought any witness and were they in a position to produce any evidence. All that is stated in the order sheet of the 6th of April is that naqsha dal had not been produced: It means that the Court wanted naqsha dal to be produced for the purpose of finding out as to what was the annual profits of the land. In cases like this where .the Court considers that the suit has not been valued correctly on the ground that the annual profits had not been correctly stated, it should ordinarily proceed to hold the inquiry under section 9 of the Court-fees Act, which reads as:- "

9. If the Court sees reason to think that the annual nett profits or the market-value of any such land, house or garden as is mentioned in section 7, paragraphs 5 and 6, have or has been wrongly estimated, the Court may, for the purpose of computing the fee payable in any suit therein mentioned, issue a commission to any proper person directing him to make such local or other investigation as may be necessary and to report thereon to the Court." On the failure of the plaintiff to make up the deficiency, the Court could take further proceedings under section 10, which is:- " 10. (1) If in the result of any such investigation the Court finds that the tiett profits or market-value have or has been wrongly estimated, the Court, if the estimation has been excessive, may in its discretion refund the excess paid as such fee- but, if the estimation has been insufficient, the Court shall require plaintiff to pay so much additional fee as would have been payable had the said market-value or nett profits been rightly estimated. (ii) In such case the suit shall be stayed until the additional fee is paid. if the additional fee is not paid within such time as the court may fix the suit shall be dismissed."

9. I am of the opinion that there was no material on the record on the 16th of October 1961, for the Court to proceed under rule 3 of Order XVIL The order is illegal. The decrees of the trial Court and the Additional District Judge are set aside with costs. The case is remanded to the trial Court and he shall proceed with the case in accordance with law. The parties are directed to appear before the trial Judge on the 13th of June 1966. There shall be no order as to costs. K. M.A Appeal accepted.