P L D 1981 Supreme Court 371: (PLP)

ASLAM RiAz HussAiN, J.‑This petition is directed against the judgment of a learned Single Judge of the Lahore High Court dated 9‑2‑1981 dismissing the petitioner's F. A. O.

2. The facts giving rise to this petition are briefly as follows: One Jalal Din sold 67 kanals and 17 marlas of land in Kotli Miani, Tehsil Daska, District Sialkot to Abdul Ghani and Ghulam Nabi, respondents, for a sum of Rs. 27,300 vide Mutation No. 37 attested on 19‑6‑1974.

3. Fateh Muhammad who is collateral of the vendor, filed a suit in the Court of the learned Civil Judge, Daska for pre‑empting the afore mentioned sale. Since the `Goshwara Paidawar' (statement of net annual profits) had not been supplied to him by the Revenue officials, he did not attach a copy thereof with his plaint. He estimated his net profit for the previous year at Rs. 6,375 and paid a court‑fee of Rs. 480 on the said amount. ‑

4. The learned Civil Judge directed the petitioner to produce the 'Gosh wara Paidawar' to ascertain the correct amount of court‑fee. The petitioner obtained the Goshwara Paidawar from the office of Qanoongo and produced it in the Court on 23‑9‑1975 along with a chart of net profits, after deducting ex penses incurred by him on various items. The court‑fee calculated by the peti tioner on the basis of the said chart was Rs.

540. The learned Civil Judge sought further clarification of the Goshwara so as to consider whether deductions on account of expenses incurred on purchase of manure and transplanting rice saplings should be allowed, and adjourned the case to 13‑9‑1975. On that date Mr. M. Afzal Hameed, Advocate, appeared for the petitioner's counsel. The learned Civil Judge after considering the `Goshwara Paida war' did not allow the petitioner deductions claimed by him on account of the said expense and passed the following order :‑

5. The petitioner was directed to make up the balance of court‑fee which, calculated on the basis of the above‑noted order, was Rs. 952.50 by the next date of hearing, i.e., 25‑5‑1975. But the petitioner paid Rs. 62 towards the court‑fee on 23‑10‑1975 and did not make up the deficiency till the suit came up for final hearing on 15‑4‑1976.

6. On that date after hearing the argument of the counsel for the parties the trial Court started dictating the judgment in their presence and decreed the suit. At that stage the counsel for the defendant pointed out that the plaintiff had not made up the deficiency in the court‑fee as directed by the Court by its order dated 13‑9‑1975, reproduced above. The learned Court thereupon straightaway took notice of that point and observed that the plaintiff had not made up the deficiency in the court‑fee, nor had he submitted any application for extension in the period for its payment. The Court, therefore, immediately proceeded to modify its order and dismissed the suit under Order VII, rule 11, C. P. C.

7. The petitioner filed an appeal against the order before the Additional District Judge who accepted the same and remanded the suit for trial with the direction that the learned trial Judge should first determine the precise amount of court‑fee after giving plaintiff another opportunity to make up the deficiency vide his judgment dated 1‑2‑1978.

8. Aggrieved by the remand order the respondents filed an F. A. O. (No. 101 of 1976) in the High Court which accepted the same vide the impugned judgment, holding that the learned trial Court had rightly dismissed the suit on account of failure on the part of the plaintiff to comply with the direction of the Court regarding the payment of the court‑fee. Hence the present petition.

9. The learned counsel for the petitioner submitted that the order of the learned trial Court was bad inasmuch as it failed to follow the provisions of section 10 of the Court Fees Act, which lays down the procedure for determining the court‑fee where net profits or market value has teen wrongly estimated by the plaintiff. Section 10(I) reads as follows "If in the result of any such investigation the Court finds that the net 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 the plaintiff to pay so much additional fee as would have been payable had the said market value or net profit been rightly estimated. (ii) In such case the suit shall be stayed until the additional foe is paid. If the additional fee is not paid within such time as the Court shall fix, the suit shall be dismissed."

10. The learned counsel submitted that this section provides that the Court must first order an investigation for determining the net profit or the market value and that only thereafter can it order the payment of additional court‑fee, if in its view the fee already paid is incufiieient. In support of this contention he relied on Bahadur Shah v. Sharf Major and others (P L D 1967 Lah. 154).

11. We have carefully considered this contention and are of the view that it is wholly misconceived because the words "such investigation" in the very first line of section 10 make a reference to the investigation ordered to be held under section 9 of the Court Fees Act and it is under section 9~ that an investigation can be ordered. It follows that where no investigation had been ordered under section 9 the provisions of section 10 would not be attracted at all.

12. Section 9 provides that if the Court has reason to think that the annual net profits or market value of the property in question have been wrongly estimated, the Court may, for the purpose of computing the court fee payable in any suit mentioned in section 7, paras. (v) and (vi), issue a commission to any proper person directing him to make local or other investigation into the matter and to report thereupon to the Court. It i obvious from the use of the word may in section 9 of the Court Fees Ac that it is not incumbent upon the Court to order investigation for ascertaining the net profit or the market value of the property because such investigation may not be required in, certain cases where, for example, enough material is already available on the file to enable the Court to determine the market value or the net annual profits of the property in question, specially if the material is supplied by the party itself. In such cases the Court need not order a time consuming investigation through a commission. In the present case the petitioner had himself produced before the Court the 'Goshwara Paidawar' obtained by him from the revenue authorities. He had, however, claimed certain deductions on the ground that he had incurred expenses for procurement of manure and transplantation of rice saplings. The learned Civil Judge found that according to the figures supplied by the petitioner/plaintiff himself, the cost of procuring manure comes to Rs. 635.50 and not Rs. 900 as calculated by him, and further that the expenses for transplantation of rice saplings had been incurred by the tenant cultivating the land and not by the plaintiff. He. therefore corrected these figure and calculated the net profits at Rs. 841.16 and directed the plaintiff/petitioner to pay court‑fee at a sum 15 times the said net profits. Obviously in vie of the material made available to the Court by the plaintiff himself it was! mot at all necessary for the Court to order an investigation into this matter under section 9 of the Court Fees Act. Moreover as observed. by the High, Court . "It is also to be noticed that at no stage during the trial the respondent challenged the ‑estimate prepared by the trial Court or asked for the appointment of a commission for purpose of determining the net profits."

13. It may be mentioned that the judgment I.e. in the case of Bahadur Shah v. Sharf McUor and others is not applicable to the present case as the facts in that case were wholly different although that too was a pre‑emption case. The plaintiff in that case valued the suit for the purposes of court‑fee and jurisdiction by asserting that the net annual profits of the land in question were Rs. 20 per year. On this, the Court framed an Issue, inter alia, as to whether the suit had been correctly valued for the purpose of court‑fee. The case was fixed for evidence for 6th April, 1961. On that date the Court directed the plaintiff to produce the jhar paidawar on 22nd of May, 1961. The plaintiff, however, did not produce it on that date and was given further time on payment of costs. The case was then fixed for 13th June, 1961 but on that date also the plaintiff did not produce the said document. More dates were then given for that purpose but each time the plaintiff failed to produce the jhar paidawar. On 16th October, 1961 the Court gave up all hopes and observing that the plaintiff did not seem to be in a mood to pursue the case, dismissed the suit for want of evidence under Order XVII. rule 3, C. P. C. The plaintiff in that case finally appealed to the High Court and the question that arose was whether under these circumstances the learned trial Court could have dismissed the suit under Order XVII, rule 3, C. P. C. which provides that where any party to the suit has been granted time to produce evidence or to do any other act necessary for the further progress of the suit but any party fails to do so, the Court may proceed to decide the suit forthwith. While interpretting the underlined" words the learned Single Judge of the High Court observed, in that case, that under Order XVII, rule 3 of the C. P. C. the Court should decide the cases on merits on whatever material is available on the record and should not, only because a party is in default, decide the suit against a party, without adverting to the facts. It is in these circumstances that the Court held, inter alia, that on the failure of the plaintiff to produce the jhar paidawar the trial Court should have.ordered an investigation under section 9 of the Court Fees Act and then proceeded to act under section 10 thereof. Since in the present case the plaintiff had produced the jhar paidawar (statement of net profits) the above‑noted observations have no relevance and do not apply to the fact of the present case.

14. The counsel then attempted to argue that the calculation made by the learned trial Court on the basis of 'Goshwara Paidawar' were not correct. But since he has not placed the said 'Goshwara' on the file before us, we are not in a position to ascertain the correctness of this contention.

15. This counsel contended next that the trial Court could not have reviewed its own order and dismissed the suit after first having decreed it. In support of this contention he relied on Bashir Begum v. Abdul Rehman (P L D 1963 Lah. 408).

16. This contention has no force. The case cited by the learned counsel does not apply to facts of the present case. In that case the High Court had delivered a judgment ordering the partition of the property between the parties on 18‑4‑1962. One of the parties filed an application for review of the said judgment on the ground that the parties had subsequently entered into an oral compromise on 19th of July, 1962. It is on these facts that the High Court held that after the Court had disposed for a tatter it ceased to be seized of it and could not, therefore, exercise the powers of review under section 151 of the C. P. C. even if the decree is yet to be drawn up.

17. It would be noticed that in the present case the learned trial Judge, who was dictating the judgment in the presence of the counsel for the parties, had not yet finished the. judgment or signed it, when the counsel for the defendant brought to his notice the fact that the petitioner/plaintiff had not yet made up the deficiency in court‑fee despite the Court's order dated 13‑9‑1975. On this the Judge changed his decision and proceeded immediately to dismiss the suit. The learned Judge was within his right t alter the decision at any time before it was signed by him, for a judgment becomes final only after it has been signed.

18. The counsel then submitted that the trial Court should have given him further time to make up the deficiency. In support of this contention he cited Ram Ratan v. Raj Ram etc. ((1923) 24 P L R 269) wherein it has been held that even if the Court does not extend the time suo motu it should not, all the same, act with such haste as not allow the plaintiff any time for reflection or action. But the authority which is in fact applicable to the facts of the present case is Mst. Walayat Khatoon v. Khalil Khan (P L D 1979 S C 821) which too was a case of pre‑emption. In that case also the plaintiff had filed a suit with insufficient court‑fee. He was directed to make up the deficiency before 18‑3‑1976 but he did not make it up until on. 12‑4‑1976 (i.e. 25 days after the expiry of the time allowed by the Court). The defendant then raised the objection that the plaint was not properly stamped. In these circumstances the learned Civil Judge accepted the objection and dismissed the suit and rejected the plaint under Order VII, rule 11, C.P. C. The first and second appeals filed by the plaintiff against that order were dismissed by the Additional District Judge and the High Court respectively. The petitioner then came to the Supreme Court and it was argued on his behalf that the Courts below had erred in failing to extend the time to enable the plaintiff to make up the deficiency in the. court‑fee. The, plea was, however, rejected and this Court held that the 'learned Civil Judge justified in rejecting the plaint in exercise of his discretion under Order VII, rule 11, C. P. C. Although section 149, C. P. C. provides that the Court may in its discretion allow a person by whom the court‑fee is payable to pay the whole or a part thereof, as the case may be, and such payment, if made, shall have force and effect as if the court‑fee had been paid in full in the first instance. In other words even if by that time the suit has become barred by time the defect will stand cured. This is indeed a great concession shown by law to suiters whose suit would otherwise become liable to dismissal for want of proper court‑fee and for becoming barred by time by the time the deficiency is actually made up by them. But while this provision of law helps the suiters, its indiscriminate exercise may deprive the defendant of the valuable plea that the plaint is liable to be dismissed due to its being insufficiently stamped or that it has become barred by limitation. As observed by Mr. Justice K. E. Chauhan in the above‑noted judgment, the Court has, therefore, to slake the balance between these two and whereas at one place it should not be harsh on the plaintiff, at the same time it should not exercise the power of extending time for making up the deficiency in the court‑fee so as to deprive the defendant of the above‑noted pleas which may be avilable to him.

19. In the present case, on finding that the plaint had been insufficiently stamped the learned trial Court had granted extensions of time to the plaintiff/petitioner on 13‑9‑1962 but he was negligent and contumacious in no bothering to make up the deficiency. Moreover, the petitioner had never an made application requesting for the extensions of time for this purpose. The trial Court was, therefore, justified in dismissing the petitioner's suit on coming to know of his failure to obey its direction to make up the deficiency in the court‑fee.

20. As a result of the above discussion we feel that the petition has no force and is consequently dismissed. s. A. H. Petition dismissed.