1992 S C M R 1306

[Supreme Court of Pakistan]

Present: Nasim Hasan Shah, Actg CJ.

and Saad Saood Jan, J

SEWA---Appellant

versus

Mst. SANTI and others---Respondents

Civil Appeal No.591 of 1988, decided on 22nd May, 1991.

(On appeal from the judgment dated 6-3-1983 of the Lahore High Court passed in Regular
Second Appeal No.139 of 1978).

(a) Civil Procedure Code (V of 1908)---

---S. 1050) & O.VII, R.11---Rejection of plaint for deficiency of court-fee--Plaintiff did not
appeal against Trial Court's order directing him to pay proper court-fee, but filing appeal against
rejection of plaint---Effect---Order of Court directing plaintiff to pay proper court-fee was not
appealable; apart from it plaintiff had option to postpone challenge to said order till a final order
viz. of rejection of plaint had been passed against him---Plaintiff, under provision of S. 1051),
Civil Procedure Code, while preferring appeal against rejection of plaint could call in question
legality of order directing him to pay proper court-fee---Finding of Courts below that order of
Trial Court directing plaintiff to pay proper court-fee having not been challenged had become
final, was erroneous;' Courts below should have considered plaintiffs assertion that he had paid
proper amount of court-fee.

(b) Civil Procedure Code (v of 1908)---

----O.VII, R. 11---Rejection of plaint for non-payment of proper court-fee--Plaintiff in appeal

against rejection of plaint could call in question legality of order directing him to pay proper
court-fee.

(c) Court Fees Act (VII of 1870)--

----S. 7(iv)(c)---Suit for declaration and consequential relief-: -Question whether plaint lore
proper amount of court-fee had to be decided in accordance with provisions of Court Fees Act,
as they stood on the day when suit was filed viz. 3-2-1971---Plaintiff had discretion allowed to
him by law, to value the relief sought by him---Trial Court had no power to interfere with
plaintiff's discretion---Finding of Courts below that plaint did not bear proper amount of
court-fee was not warranted---Case was remanded to be disposed of in accordance with law.

Birjees Nagi, Advocate Supreme Court and Iqbal Ahmad Qureshi, Advocate-on-Record for
Appellant. '

M. Rafiq Iqbal, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for
Respondents.

Date of hearing: 22nd May 1991.

JUDGMENT
SAAD SAOOD JAN, J.---This is an appeal by special leave from the judgment dated 6-3-1983
of the Lahore High Court dismissing the second appeal preferred by the appellant.

2. One Bahali who was a, Christian by faith died in 1967. He owned 1/9th share in occupancy
rights in respect of 248 Kanals and 16 Marlas of land in village Saraich of Tehsil Lahore. On
23-4-1969 a mutation of inheritance was attested by the local Revenue Officer whereby his
widow Mst. Santi, respondent No.1, was shown to have succeeded to his rights till death or
remarriage. About 7 months later she sold her rights to Khalil Ahmad, respondent No.2, for a
sum of Rs. 13,650,00. The transaction was an oral one and was evidenced by a mutation attested
on 23-11-1969. The appellant who was the brother of Bahali filed a civil suit on 3-2-1971 for a
declaration that the said sale was illegal, void and liable to be cancelled. By way of consequential
relief he sought joint possession of the land. Alongwith respondent No.2 and Mst. Santi he also
impleaded the local Patwari as defendant. He fixed the value of the suit for purposes of court-fee
at Rs.200 and paid court-fee in the amount of Rs.15.00.

3. The suit was resisted by the respondents who raised a number of legal objections to the
maintainability of the suit. On 'the basis of these objections,. the trial Court framed the following
preliminary issues:--

(1) Whether the suit is not maintainable in the present form?

(2) Whether the suit has not been properly valued for purposes of court-fee and jurisdiction; if
so, what is its correct valuation?

(3) Whether the suit is bad for misjoinder of parties?

During the course of arguments issue No.l was not pressed by the respondents. As regards issue
No.2, the learned trial Court found that the proper value of the suit for purposes of court-fee was
Rs.13,650 which was the price paid by respondent No.2 to respondent No.l. As regards issue
No.3, it held that the local Patwari was neither a necessary nor a proper party to the suit and that
his name should be struck off. Accordingly, by its order dated 11-12-1971 it called upon the
appellant to file an- amended plaint deleting the name of the local. Patwari from the list of the
defendants and make up the deficiency in the court-fees within one month. ,

4. In compliance with the order of the learned trial Court the appellant filed an amended plaint.
However, he again valued the suit for the purpose of court-fee at Rs.200 and did not pay extra
court-fee as required by the trial Court. In the written statement filed by the respondents to the
amended plaint, they took up the objection that the appellant had failed to comply with the order
of the trial Court with regard to value of the suit and payment of proper court-fee and for that
reason the plaint was liable to be rejected. The appellant then moved an application for extension
in time to make up the deficiency. The trial Court rejected the application on the ground that it
had been made after a delay of one year. It then rejected the plaint.

5. From the' order of the learned trial Court the appellant preferred an, appeal before the
Additional District Judge. In his memorandum of appeal as well as during the hearing of the
appeal his contention was that the court-fee paid by him was not deficient. This contention did
not find favour with the Additional District Judge who rejected it with the following
observations:--

"I am unable to agree with him for the simple reason that the perusal of the plaint has made out
that the appellant instituted a suit for declaration and prayed for the possession of the property in
dispute as a consequential relief. This being the position the said order dated 11-12-1971which
was not appealed against within limitation shall play the legal role according to which the
appellant was made liable to make up the deficiency of the court-fee on the said amount. The
application for extending the time in the relevant matter was made after one year and the learned
trial Court was justified in dismissing the same because the penal provisions contained under
Order VII, rule 11, C.P.C. had come into operation after the lapse of a period of one month fixed
by the trial Court for making up the deficiency of court-fee."

As a result he dismissed the appeal.

6. From the judgment of the learned Additional District Judge the appellant preferred a second
appeal in the High Court. A learned Single Judge dismissed the appeal with the observations:--
"There is no doubt that the plaintiff Sewa was directed to pay. proper court-fee within one month
vide order dated i1-12-1971. He neither complied with the order, nor, challenged the same ever.
It had become final and binding on him. That being so, the plaint was rightly rejected and so also
the appeal. He has persistently refused to pay court-fee when directed by the triel Court or by the
High Court."

The appellant has now come in appeal to this Court.

7. The High Court as well as the Additional District Judge did not examine the plea of the
appellant that the court-fee already paid by him was not deficient, for, they seemed to be under
the impression that the appellant was bound to file an appeal against the order of 11-12-1971 and
as he failed to do so the said order had become final. It was not disputed by the learned counsel
for the respondents that the said order was not an appealable one. Apart from that, it was open to
the appellant to postpone his challenge to the order of 11-12-1971 till a final order had been
passed against him. This was exactly what he did. Under section 105(1), Code of Civil
Procedure, he could while preferring the appeal against the rejection of his plaint call in question
the legality of the said order. Thus the finding of the Courts below that it had become final was
clearly erroneous and they should have considered his contention that he had paid the proper
amount of court-fee.

8. As regards the question whether the plaint bore proper amount of court-fee it has to be decided
in accordance with the provisions of the Court Fees Act as they stood on the day when the suit
was filed, that is, 3-2-1971. Admittedly, it was a suit for a declaration and consequential relief.
Now under section 7(iv)(c), Court Fees Act, it was the appellant who was required to value the
relief sought by him. He exercised the discretion allowed to him by law and fixed it at Rs.200. It
was not open to the trial Court to interfere with his discretion. It was not the case of the
respondents that the amount of court-fee actually paid by the appellant was deficient even if the
value of the suit for, purposes of Court-fee was fixed at Rs.200. We are, therefore, unable to
support the finding of the trial Court that the plaint did not bear the proper amount of court-fee.
For the reasons above we accept this appeal, set aside the judgments of the Courts below and
remand the suit to the trial Court with the direction that the suit should be treated as still pending
and be disposed of in accordance with law. There will be no order as to costs.

AA./S-653/S. Suit remanded.