' This is the defendant's Regular Second Appeal from the judgment and decree passed by the District. Judge, Vehari, on 9-10-1978, dismissing his appeal from the judgment and decree in a suit for possession by pre-emption passed by the civil Court on 30-3-1978.
2. The point which is being raised here and had been raised in the first appeal also, relates to the extension of time allowed by the trial Court to make up the deficiency in the court-fee. The suit had been instituted on 12-11-1975, by affixing court-fee of Rs, 23 only. On 17-4-1976, the Court ordered the plaintiffs to make up the court-fee in accordance with the statement of annual net profits by 6-5- 1976. On this latter date, the plaintiffs applied for extension of time stating that they had already applied for supply of the statement of net profits. They were accordingly given further time till 14-5- 1976. The plaintiffs furnished a copy of the statement of annual net profits relating to Rabi, 1974 and Kharif, 1974 on 13-5-1976 and on the basis of the same paid court-fee of Rs, 6,715 on 14-5-1976.
Issues were framed on that date and the matter proceeded until 22.12-1977, when the Court decided to summon the Kanoongo who had prepared the statement. The Kanoongo appeared on 15-2-1978 and was directed to prepare and file the statement for Kharif, 1974 and Rabi, 1975. Such statement appears to have been furnished to the 'Court on 9-3-1978. When the matter came up before the trial Court on 16-3-1978, the question of the deficiency in the court-fee was again raised by the defendant who urged that the relevant crops were Rabi, 1975 and Kharif, 1975. As the parties wanted to argue the matter, it was adjourned to 18-3-1978. After hearing the arguments, the trial Court ultimately passed judgment in the case on 30-3-1978, and while decreeing the suit directed the plaintiffs to make up the deficiency of Rs, 2,471 by 10-4-1978 "failing which the plaint would be treated as rejected".
3. The question had arisen for the first time before the lower appellate Court but that Court relying on the authority in Muhammad Nasarullah v. Mahammad Ayaz Khan and another (1) rejected the defendant's objection.
4. It is contended that it was the duty of the plaintiffs to have brought the correct statement of annual net profits and to pay the required court-fee according to it, that the plaintiffs had not only been grossly negligent but had been even contumacious in the matter inasmuch as they had brought the plaint with court-fee of only Rs, 23 which was highly deficient, that when they brought the statement, the same was not relevant being for Rabi, 1974 and Kharif, 1974 and that as they had not paid the proper court-fee by 14-5-1976, upto which date, time had been given by the trial Court, they were not entitled under the law to any further extension. It is also submitted that the trial Court had no jurisdiction to give time beyond the date of the decree for making up the deficiency because that was direct conflict with section 10 of the Court Fees Act.
(1) PLD 1975 Lah. 886
5. The Court has discretion in the matter of extending time to pay or make up the deficiency in court-fee. In a suit for pre-emption, the court-fee is to be computed as given in paragraph (vi) read with paragraph (v) of section 7 of the Court Fees Act, i,e, at fifteen times the annual net profits arising from the land during the year next before the date of presenting the plaint. Where the Court has reason to doubt the correctness of the estimate, it may, as contemplated under sections 9 and 10 of the Court Fees Act, direct an enquiry and if the estimation is found to be insufficient, it may require the plaintiff to pay the additional fee by a certain date, in which situation the suit has to be stayed and if the additional fee is not paid within the time fixed by the Court, the suit becomes liable to dismissal.
6. In the instant case, the plaintiffs had been given time till 14-5-1976 to furnish the statement of annual net profits and to make up the deficiency. The plaintiffs had complied with this inasmuch as they had submitted the statement though relating to Rabi, 1974 and Kharif, 1974, and paid up the deficient court-fee on that basis. It is not shown that any objection had been taken either to the relevancy of that statement of net profits or to the computation of court-fee made thereupon, by the defendant or by the Court itself. At a late stage in the trial, i,e, at the time of hearing the arguments, the question had arisen and after obtaining the relevant statement of annual net profits, the Court had passed the decree conditional upon the plaintiffs making up the deficiency. It is, thus, obvious that the basis for the correct computation of the court-fee had not been available until towards the end of the trial. It would, therefore, not be correct to say that merely because the plaintiffs had failed to file the relevant statement of net profits and to pay a court-fee A thereon by 14-5-1976, the trial Court was bound to have rejected the plaint under Order VII, rule 11, C. P. C. The Court, in my view, had to, in the circumstance, proceed under sections 9 and 10 of the Court Fees Act. See Bahadar Shah etc. v. Sharaf Major etc. (1). Even Order VII, rule 11 stipulates that where the relief claimed is undervalued, the Court shall require the plaintiff to correct the valuation within a time to be fixed by the Court and it is only after the failure of the plaintiff to comply with such B requirement that the provision of the rule can be invoked. There is ample case-law on the point that unless the plaintiff is guilty of contumacy or positive mala fides, the discretion in regard to the extension of time for making up the deficiency in the court-fee, has to be exercised in his favour. It may suffice to refer to Shah Nawaz etc, v. Muhammad Yousaf etc. (2).
7. As regards the legality of the trial Court's passing the decree conditional upon the payment of the deficient court-fee after the date of the decree, learned counsel for the appellant has relied on Amir Ali v. Gul Muhammad (3). In this case, the trial Court, while dismissing the suit on merits on 7- 1-1963, had also directed the plaintiff to make up the deficiency in the court-fee on the plaint by 12- 1-1963. It appears that the consequence of the non-compliance, if any, of this direction had, however, not been spelled out in the decree. It was in this context that it had been held, on the authority of Walaiti Ram v. Gopi Ram, etc. (4) that the direction (1) PLD 1967 Lah. 154 (2) 1972 SCMR 179 (3) PLD 1968 Pesh. 106 (4) AIR 1935 Lah. 75 given by the trial Court was without jurisdiction as the plaint could not have been rejected on that ground after the final disposal of the suit because the Court had become functus officio and could not continue the process of adjudication thereafter. The gist of the ruling in Walaiti Ram's case is that such a direction, while dismissing the suit, was unjustified. The view is quite correct because as the failure to pay up the court-fee could be visited only by rejection of the plaint, the Court could not, after having passed the decree, assume jurisdiction to recover the court-fee or to reject the plaint. Walaiti Ram's case had been considered in a subsequent case of Sis Ram v. Sohan Lal etc. (1) and the Court had decided to regularise the matter by extending time in favour of the plaintiff.
8. A situation similar to the one before me had come up for discussion in the aforecited case of Muhammad Nasaruliah v. Muhammad Khan before my brother Aftab Hussain, J., and the view taken was : "If the conditional order of restoration of suit subject to payment of costs can be passed under rules 9 and 13 of Order IX, C. P. C., there is no reason why such an order cannot be sufficient compliance with the provisions of Order VII, rules 11 and 12, C. P. C. If the Court gives reason for calling upon the plaintiff to correct the valuation or make up the deficiency in the court-fee.
' It was further observed that failure to decide the question of the correct court-fee as a preliminary issue was merely an irregularity and did not vitiate the proceeding. On the question of the Court having become functus officio, the learned Judge observed : "It is one thing to say that once a Court has become functus officio, it cannot continue the process of recovery of court-fee; it is however, altogether a different proposition whether the Court can make the decree conditional on payment of court-fee."
9. While the proper course upon discovery of deficiency in the court-fee is to follow the procedure prescribed under section 10 of the Court Fees Act, but if, instead, the Court passes a decree in favour of the plaintiff and at the same time directs him to make up the deficiency within a few days spelling out the consequence of non-compliance, it will not render the decree invalid. The earlier authorities on the question do not seem to differ from this proposition. Even in the case of Amir Ali relied upon by the appellant, it had been held that the "learned District Judge fell in error in dismissing the appeal. The proper procedure for him should have been to have called upon the appellant to make the deficiency in the court-fee before hearing of the appeal. He had under section 107 of the C. P. C. All the powers of the trial Court.
10. In view of the above discussion, the discretion exercised by the trial Court which had been affirmed by the lower appellate Court, calls for no interference. This Second Appeal is accordingly dismissed, though I make no order as to costs.
(1) AIR 1938 Lah. 311