SHAMIM HUSAIN KADRI, J.-The plaintiff-respondent filed a suit for dissolution of partnership and rendition of accounts. A preliminary decree was passed on 12th November 1962 in his favour. The appeal against it failed. A Local Commissioner was appointed by the trial Court who after going through the accounts submitted a report. Disposing of the objections raised by the plaintiff, the learned trial Court passed a final decree in his favour in the following terms: -
(1) The defendant shall pay Rs. 7,257.10 to the plaintiff:
(2) On recovery of Rs. 4,164.50 from the Irrigation Department the defendant shall pay to the plaintiff 50 % of the same.
(3) On recovery of anyone of the sums recoverable by the parties from Haji Abdul Wahab and the labourers amounting to Rs. 7,826.02 the receiving party shall forthwith pay to the other 50 % of the same.
This decree was passed on 31st of May 1965. An appeal was filed against the judgment and decree of the Senior Civil Judge .On 14th July 1965 and the learned District Judge dismissed the appeal on 14th December 1965.
2. Instead of filing second appeal a revision was filed in this Court on 27th of February 1967. This was admitted on 6th April 1967 and came up for hearing before a learned Single Judge on 23rd June 1969. On an objection raised to the effect that the revision petition was not competent an application was filed for treating the same as an appeal. The learned Single Judge directed the office to register the application, examine the question of court-fee and limitation and to submit a report for consideration at the time of hearing of the application. This application has been placed before us. We have perused the office report which discloses that ad valorem court-fee has to be paid on a sum of Rs. 13,252.36 if the petition is to be treated as an appeal. In support of the application learned counsel for the petitioner argues that the revision was filed under a bona fide mistake. He tried to persuade us to use our discretionary powers for making up the deficiency in court-fee under section 149 of the Code of Civil Procedure. The request has been vehemently opposed by Mr. Mohammad Ahmad Mirza counsel for the respondent.
3. In support of his submission Mr. Basharatullah learned .Counsel for the applicant cited The Land Acquisition Collector, Rawalpindi v. Lieut.-General Wajid A.I Khan Burki (PLD 1961 Lah.1028), wherein a request for treating the revision as an appeal and making good :the deficiency in court-fee was allowed. We have carefully gone through the judgment. The learned Judge allowed the request because there was a confusion as to whether appeal in the circumstances of the case was at all competent. A large number of revisions were filed. The learned Judge after considering the effect of section 54 of the Land Acquisition Act and section 66 :of the Punjab Town Improvement Act of 1922 came to the conclusion that remedy by way of appeal was available under the law and the revision was filed under a bona fide mistake. The Revision was, therefore, treated as an appeal.
Smt. Guru Dasi v. Sarbananda Mahaldar and others (PLD 1961 Dacca 243) was also cited in support of the contention that the Court can treat the revision as an appeal. There is no dispute with the proposition but the question in the instant case is as to whether the revision was filed under a bona fide mistake of the counsel or was intentionally so filed in order to avoid the payment of court---fee. Learned counsel argued that he had paid the court-fee on the valuation which was tentatively fixed by the plaintiff when the suit was filed, the same amount of court-fee was also paid in the lower appellate Court and he had no intention to deprive the exchequer of the amount due as court-fee. As a matter of fact it was only a typographical mistake. Instead of filing the second appeal he drafted the memo. Of appeal as a revision petition. There is hardly any substance in the submission made by the learned counsel as this was not his case in the application filed for conversion of the revision petition into an appeal. He paid court-fee on the tentative value fixed by the plaintiff when he filed the suit and not on the decretal amount. He filed the appeal in the lower Court on the same valuation. In a suit for rendition of accounts the plaintiff is entitled to fix tentative value of the subject-matter of the suit as the final amount has to be determined by the Court after going into the accounts. The decree made in the suit can, however, be executed when the plaintiff makes up the deficiency in the court-fee under section 11 of the Court Fees Act. If the defendant challenges the decree ad valorem court-fee has to be paid on the decretal amount instead of the court-fee on the tentative value fixed by the plaintiff in the suit. In Kalu Ram v. Hanwant Ram and others (1), the proposition has exhaustively been dealt with by a Full Bench. The majority verdict being against the applicant he tried to persuade us to follow the minority view expressed by Agha Haider, J. We are afraid we cannot follow the contrary view expressed by Agha Haider, J. Consistent view of the Lahore High Court and several other High Courts has been the one which has been followed by the majority in the above case. A Single Bench judgment reported as the Pakistan Boy Scouts Association v. Qazi Muhammad Sharif and another (2) was also cited at the bar but we find that Kalu Ram v. Hanwant Ram and others was not brought to the notice of the learned Single Judge.
4. We are of the opinion that the objection raised by learned counsel for the respondent has to prevail for the applicant cannot be considered to be so much ignorant of the law. In these circumstances a second appeal was competent and no revision lay. The revision was filed intentionally in order to deprive the exchequer of the court-fee and we cannot permit these conversion of this revision petition into an appeal. We are afraid the applicant cannot have out indulgence for the extension of time in making up the deficiency in court-fee either because there was no misconception of legal position in this case. Even a novice would know that a second appeal would be competent in such circumstances. Despite this if a revision is filed then by no stretch of imagination it can be urged with success that it was so done on account of a legal misconception. In this view of the matter there is hardly any case made out for our interference.
The application for treating the revision as an appeal fails. The revision petition being incompetent is dismissed with costs.
S. Q.