1994 CLC 461 (PLP)

Muhammad Anwar Khokhar‑for Appellant. Ch. Mumtaz Ahmad for Respondent. Date of hearing: 14th November, 1993. A father and a son were in dispute on a small piece of land in Chak No.20 of Tehsil Phalia. Eight Kanals of agricultural land and an Ihata of eight Marlas in the aforesaid Chak were owned by Mst. Fatima Bibi. Ghulam Murtaza respondent was her brother. Ghulam Ghaus appellant was son of Ghulam Murtaza. Thus, Mst. Fatima Bibi was paternal‑aunt of the petitioner. He claimed that she had, in her lifetime, gifted above two pieces of property to him and delivered their possession also. Mst. Fatima Bibi died, on 12‑12‑1975. since the land and the Ihata were still recorded in her name, petitioner brought a suit on 12‑1‑1977 against his father Ghulam Murtaza for affirmation of gift from Mst. Fatima Bibi and stopping his father from causing interference with his possession on the land. The father entered appearance and filed his written statement. He denied the gift by his sister to his son and submitted that as an heir to her, he was owner of the property left by her. He objected to the form of the suit by pleading possession of the land in him. He also objected to the valuation of the suit for purpose of Court‑fee and pleaded that market value of the property in dispute was Rs.30,000 on which the plaintiff was liable to pay court‑fee on the plaint. The trial Court settled the appropriate issues arising from pleadings for decision of the suit. These were given in the judgment of the trial Court. Issue No.4 covered the objection regarding incorrect valuation of the suit for the purposes of Court‑fee and jurisdiction. Upon taking of evidence from the parties and its scrutiny, the trial Court dismissed the suit on 20‑5‑1977. On issues No.4 and 5, the trial Court held that the valuation of the suit was incorrect and deficient court‑fee was paid on the plaint. However, it gave no decision on the amount of court‑fee payable on the plaint. Nor it gave an opportunity to the appellant to make good the deficiency in court‑fee. Petitioner preferred an appeal. It was dismissed, on 4‑11‑1978, by learned Additional District Judge, Gujrat on account of less payment of Court‑fee on the memorandum of appeal. It was held that "the property in dispute comprises an area of 8 Marlas of land which at the time of the bringing of the appeal would be definitely fetching Rs.5,000 as its value. Learned trial Court held that the plaint was insufficiently stamped. Even then the appellant did not show his vigilance in the matter". Relying upon a ruling in AIR 1947 Lahore 210, learned lower appellate Court declined to exercise discretion in favour of the appellant for allowing him an opportunity to make good the deficient court‑fee. It may usefully be observed that merits of the appeal were not touched. Thereupon, petitioner came in further appeal to this Court. It was admitted to hearing, on 4‑1‑1979, and, has been heard today in presence of learned counsel for the parties. . Admittedly, in view of the pronouncement of the Supreme Court in case of Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289, without a prior determination of the precise amount of court‑fee payable on the document, be it a plaint or memorandum of appeal, and allowing an opportunity for making good the discovered deficiency in court‑fee, the document could not be rejected. This is the settled law of the land now and a all courts are bound to follow it. As I have said above, even the trial Court gave no decision about the amount of court‑fee payable on the plaint, though it found to be deficient. In terms of section 7(iv‑A) of the Court Fees Act, 1870, the petitioner was obliged to pay the court‑fee on the plaint, according to the value of the property. What value it was, he was bound to disclose to the Court and in default, the Court was obliged to determine it. In nutshell, prior determination of the amount of court‑fee payable and an opportunity for its payment was legally necessary. Upon this view of the matter, the appeal is bound to succeed. Having regard to the aforesaid, second appeal is allowed; impugned judgment and decree of learned Additional District Judge, Gujrat dated 4‑11‑1978 are set aside and the case is remanded to learned District Judge, Gujrat for redecision of the appeal filed by the appellant on the premises indicated above. Learned Judge hearing the appeal shall determine the amount of court‑fee payable on the memorandum of appeal and allow an opportunity to the appellant to make good the deficit Court‑fee by the specified time. In default of payment of Court‑fee, the law shall take its own course. In the event of payment of the required amount of Court‑fee, the appeal shall be decided? on merits. It is necessary to notice that the plaint was also deficiently stamped. This matter shall also be examined in light of section 12(2) of Court Fees Act, 1870 by the learned Judge below. Since the matter was between father and son, they shall bear their own costs in this Court. Records be returned. Parties shall appear before learned District Judge, Gujrat on 18‑12‑1993 who shall either hear the appeal himself or entrust its hearing to any of the learned Additional District Judges in the District. AA.G‑174/L ?????????????????????????????????????????????????????????????????????????? ??????????? Case remanded.