The facts giving rise to this civil revision are that on 8th June, 1970, the respondent, Karim Bakhsh, brought a suit for pre-emption against the petitioner, Abdul Rehmau, in respect of certain agricultural land. The suit was dismissed by a Civil Judge on 25th October, 1976, whereupon he filed an appeal before an Additional District Judge on 23rd November, 1977. At the time of the institution of his suit the respondent had fixed the valuation of the suit for the purpose of court-fee, with reference to the land revenue of the disputed land. This was correctly done by him according to law as applicable at that time, namely, clauses (v) and (vi) of section 7 of the Court Fees Act, 1870.
Subsequently, the said law was amended by means of the Punjab Finance Act, 1973, and it was provided that the valuation for the purpose of court-fee shall be fixed on the basis of the not profits of the land. It was after the aforesaid amendment in the law that the respondent had filed his appeal without fixing the valuation of the appeal or paying court-fee therefor in accordance with the amended law. He followed the unamended law in the matter of payment of court-fee for his appeal. The petitioner objected to the valuation of appeal and contended that as proper court-fee had not been paid on the appeal, it was liable to be dismissed. On this, the respondent made an application, dated the 22nd July, 1978, for permission to make good the deficiency in court-fee, which was accorded by the learned Additional District Judge by means of order, dated the 20th April, 1980. Thereafter, the appellant re-fixed the valuation of the appeal and made up deficiency in the court-fee. Feeling aggrieved by the above order of the learned Additional District Judge, the petitioner has come up in revision to this Court.
Learned counsel for the petitioner contended that a valuable right had accrued in favour of the petitioner due to the failure of the respondent to pay the requisite court-fee within the period of limitation prescribed for filing of the appeal and, therefore, the learned Additional District Judge had committed a material irregularity in passing the impugned order which had the effect of depriving the petitioner of the valuable right referred to above. He cited Akbar A.I and 4 others v.
Ehsan Elahi (PLD 1979 SC821), Budhan Shah and others v. Mst. Shamshad Begum and others (PLD 1966BJ 1), Mst. Walayat Khatun(1) PLD 1980 Lab. 145 (2)1980 CLC 1788 v. Khalil Khan and another (1), Maulvi Ahmed Yar v. Mst. Hajran (2), Ghulam Sarwar Khan v. Government N.-W. F. P. And another (PLC 1955 Pesh. 81), Haji Rashiduddin and 2 others v. Dr. Ahmad Sadiq (PLD 1978 Kar. 575), Abdul Sattar Khan and another v. Hafiz Muhammad Bakhsh and another (1979 SCMR 243) and Balwant Singh v. Jagjit Singh (AIR 1947 Lab. 210), to support his arguments.
3. In reply, learned counsel for the respondent submitted that in the Court Fees Act by means of the Punjab Finance Act, 1973, the word `plaint' had been used and, therefore, the amendment was in respect of the suits and not the appeals. On these premises he argued that the appeal was correctly valued by the petitioner at the very outset. It was also contended by him that even if the said amendment was applicable to appeals also it would hold good for such appeals only as would arise out of suits filed after the amendment because if a contrary view was taken it would amount to placing restriction on the right of appeal available to the parties at the time of the institution of suit. For this proposition he relied on R. M. Seshadrf v. The Province of Madras, represented by the Chief Secretary to the Government of Madras (AIR 1954 Mad. 543), Parmeshar Kurmi and another v. Bakhtawar Pande and others (AIR 1933 All. 20) and Chunnilal and others v.
Kishandas Ramdas (AIR 1926 Nag. 71).
4. Dealing with the last mentioned argument of the- learned counsel for the respondent, learned counsel for the petitioner invited my attention to Syed ManzoorHussain Ghazi v. Syed Ejaz Hussain Shah, Settlement Commissioner, LahoreDivision, Lahore and 6 others (PLD 1972 Lab. 743), in which it was held that the payment of court`-fee has nothing to do with the. Right of appeal.
5. The amendment made in the Court Fees Act by the Punjab Finance Act, 1973 is in regard to clause (v) of section 7 of the Court Fees Act. Before the aforementioned amendment, clauses (v) and (vi) of section 7 made the following reading:- "(v)--for possession of lands, houses and gardens.-In suits for the possession of land, houses and gardens-according to the value of the subject-matter; and such value shall be deemed to be- where the subject matter is land, and
(a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Collector's register as separately assessed with such revenue, and such revenue is permanently settled-ten times the revenue so payable:
(b) where the land forms as an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid; and such revenue is settled, but not permanently-five times the revenue so payable
(c) where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment In lieu of such revenue, and nett profits have arisen from the land during the year next before the date of presenting the plaint-fifteen times, such not profits; but where no such nett profits have arisen therefrom-the amount at which the Court shall estimate the land with reference to the value of similar land in the neighbourhood:
(d) where the land forms part of an estate paying revenue to Govern--ment, but is not a definite share of such estate and is not separately assessed as above-mentioned-the market-value of the land: Explanation.-The word "estate" as used in this paragraph means any land subject to the payment of revenue, for which the proprietor or former or raiyat shall have executed a separate engagement to Government, or which, in the absence of such engagement, shall have been separately assessed with revenue:
(e) for houses and gardens-where the subject-matter is a house of garden-according to the market value of the house or garden;
(vi) to enforce a right of pre-emption--In suits to enforce a right of pre--emption-according to the value (computed in accordance with para--graph V of this section) of the land, house or garden in respect of which the right is claimed:" By the Punjab Finance Act, clause (v) was substituted by the following :- "(v) In suits for the possession of land, houses and gardens-- according to the value of the subject-matter; and such value shall be deemed to be-
(a) where the subject-matter is land and where not profits have arisen from such land during the year next before the date of presenting the plaint-- :- fifteen times such not profits;
(b) where the subject-matter is land and where no such profits have arisen therefrom --market value of such land;
(c) where the subject-matter is a house or garden --according to the market value of the house or garden."
No amendment was, however, made in clause (vi) of section 7 of Court Fees Act but as, according to clause (vi), a suit for possession of land, through pre-emption, is to be valued like any other suit for possession of land, the amendment made in clause (v) would govern the pre-emption suits as well.
6. No doubt the word "plaint" has been used in the amendment in question but that was done with a view to indicate the period for which not profits were to be calculated and not for restricting the operatio of the amendment to suits only. That amendment is equally applicable to appeals because generally the law governing the valuation of suits is followed for valuing the appeals. The case reported as Muhammad Anwar Khan v. Additional District Judge, Rawalpindi etc. (1), is an authority in point. The relevant observations made in the said case are as follows :-- "Section 7 indicates the method of computation of fees. Each of the (1) PLD 1978 Lab. 716 paragraphs begins with the word suit, but it should not be considered that because that word is used, the memoranda of appeal are excluded from the operation of section 7. There is indeed no express provi--sion providing for such a course but it is general practice to apply this section to the calculation of fees in appeals."
Learned counsel for the respondent did not cite any law or authority showing that appeals like the one in hand are to be valued according to some formula different from the one laid down for the suits. In Akbar A.I and 4 others v. Ehsan Ellahi, a point similar to the one involved in the instant case was canvassed and it was held that the appeal was to be valued according to the amended law and the valuation of the suit, which was filed before the making of the amendment in question, had to be disregarded. I am, therefore, unable to agree with the learned counsel for the respondent that the amendment in dispute did not apply to appeal and as such the respondent's appeal was correctly valued at the time when it was preferred.
7. As regards the argument of the learned counsel for the respondent that if the said amendment was made applicable to appeals arising out of suits instituted before the making of the amendment it would curtail the right of appeal vesting in the parties at the time of the filing of such suits, the cases of R. M. Se.Shadri, Parmeshar Kurmi and another, and Chunnilal and others, relied upon by him in support of his plea, were all considered by this Court in the case of Syed Manzoor Hussain Ghazi, cited by the learned counsel for the petitioner, and it was held by Mr. Justice Karam Elahi Chauhan (now a Judge of the Supreme Court) that the right of appeal has nothing to do with the payment of court-fee. The relevant observations made in the last mentioned case are to the following effect :- "This will show that the clause with which we are dealing is of a regulatory and procedural kind and it is well known that a suitor has no vested right in any particular procedure. In this way, if at the time of the institution of the Writ Petition court-fee was less a suitor had no vested right that court- fee in appeal to be filed in future should remain the same as it was on appeals when the writ petition was filed. The dictum of the Supreme Court in the above passage (to excuse repetition) that, `the imposition of fees on motions made before a Court is a necessary part of the regulatory process applicable to such motions from time of their commence--ment to their conclusion', indicates clearly that there is ample jurisdiction to provide one court-fee at the commencement of a writ proceeding and a different scale at subsequent stages of appeals etc. On this principle the rule in question was held intra vires of the High Court in the above case and thereafter there is no scope to debate its validity in an indirect form in which it is being asserted before me by arguing that if the new scale is to be applied to appeals which have arisen out of the writ petitions, already filed, then the said scale is in excess of the authority of the High Court. Fifthly, in all the cases which have taken a different view, it had not been kept in view as to what is a right of appeal or its scope and upto what extent it goes. I do not want to enter into any lengthy survey of this subject. In my humble opinion, question of court-fee is quite separate from right of appeal. Right of appeal is confined to getting the decision of the Court below reviewed by a higher Court and it has no reference to the point as to on what payment of court-fee the appeal was or is to be filed."
The same view was reiterated by this Court in this case of Akbar A.I and 4 others. I, therefore, with respect, follow the dictum in the case of Syed Manzoor Hussain Ghazi and hold that by requiring the petitioner to pa court-fee according to a formula different from the one which was followed at the time of the filing of the suit, the amendment in question did not place any restriction on the right of appeal vesting in the petitioner at C the time of the institution of the suit giving rise to this petition. The petitioner continued to enjoy that right even after the making of the amendment and had actually exercised it by taking the appeal to the learned. Additional District Judge in which the impugned order has been passed. There is, thus, no merit in the argument of the learned counsel in so far as it relates to the right of appeal of the respondent.
8. What is now to be seen is whether, in the circumstances of the present case, the learned Additional District Judge was justisfied in allow in the respondent to make good the deficiency in court-fee. It is no 13 disputed that at the time when he had shown that indulgence to the respondent the period of limitation to file the appeal had expired. Thus as held by the Supreme Court in the case of Mst. Walayat Khatun, a valuable right had accrued in favour of the petitioner due to the running out of the period of limitation. That right could not have been taken away without sufficient cause. The amendment in question had come into force about four years before the filing of the appeal by the respondent. It is beyond my comprehension that any lawyer would remain unaware of that amendment during such a long period. It is also too well known that ignorance of law is no excuse. The respondent had furnished no good explanation for his failure to pay the requisite court-fee in time. He had simply said that he had not done the needful through inadvertence. Such a vague plea can hardly justify the taking away of the valuable right which has accrued in favour of the petitioner due to the passage of time. 1, therefore, agree with the learned counsel for the petitioner that the learned Additional District Judge had committed a material irregularity in permitting the respondent to make good the deficiency in court-fee.
9. Resultantly, the petition is accepted, with costs, and the order of the learned Additional District Judge, by which he had allowed the respondent to pay additional court-fee on his appeal, is set aside.