This second appeal under section 100, C. P. C. Is directed against the judgment and decree dated 27th November, 1976 passed by learned District Judge, Sialkot, whereby he dismissed the first appeal filed against the judgment and decree dated 23rd October, 1976 of the learned Civil Judge 1st Class, Narowal.
2. Learned Civil Judge, Narowal had rejected the plaint under Order VII, rule 11, C. P. C. As the appellant-pre-emptor had failed to make up deficiency in the court-fee within prescribed time.
The pre-emptor appellant had pre-empted the sale through suit for possession filed on 20th of February, 1975, i.e. Only two days earlier to the expiry of period of limitation by affixing a Court-fee of Rs. 20 only upon the, plaint. Para. .7 of the plaint reads as under :
3. It may be added that the chart of net profits was not filed alongwith the plaint and the appellant-pre-emptor, therefore, was directed to put in the chart and make up the deficiency of Court-fee in accordance thereto before 31st of March, 1975. The appellant paid court-fee of Rs.
2,050 on 31st of March, 1975. Subsequently, on the pleadings of the parties 6 issues were framed including the issue relating to valuation of the suit. However, after close of the evidence by the parties it was noticed by the learned Civil Judge that the court-fee had not been properly paid and that Court fee of Rs. 4 was also affixed as late as on 6th May, 1975. The appellant then produced chart of net profits on 2nd September, 1976. The land of two villages, namely, Rajian and Mahal was sought to be pre-empted. The chart of net profits produced in respect of village Rajian related to only Rabi 1974, and of the village Mahal pertained to Rabi 1974 and Kharif 1974. Even according to this chart it was noticed that the court-fee was still deficient by Rs. 358. Learned Civil Judge considering the definite averments made in para 7 of the plaint, the affixation of the court-fee of Rs.
20 only allegedly on account of non-availability of court-fee at Narowal and the circumstances in which the deficiency was not made good rejected the plaint under Order 7, rule 11, C. P. C. Observing that the suit had become barred by time. The appeal was then filed by the appellant before the District Judge. Affixing court-fee of Rs. 2,970 but as mentioned above this was also rejected by the learned District Judge, Sialkot who observed that there was no good ground for the grant of any indulgence to the pre-emptor as the valuable right in the circumstances of the case had accrued to the vendee on account of palpable lethargy of the pre-emptor/appellant, as the suit had already become time-barred.
4. That the appellant then filed second appeal in this Court by affixing a court fee of only Rs.
97. The basis for affixing court-fee of Rs. 97 was explained by saying that in order to arrive at the 15 times of the net profits, a suitor has to multiply the land revenue payable by 4 and then to multiply the result thereof with 15. As in this case the land revenue is Rs. 21.39 so by multiplying by 4 it comes to Rs.
85.56 and this figure multiplied by 15 comes to Rs. 1,283.40, and as such the value for the purposes of Court-fee of the suit is Rs. 1,283-40. Accordingly the court-fee of Rs. 971 was only payable on the suit, the first appeal and the second appeal as under Item I of Schedule I to the Court Fees Act, court-fee payable in appeal is the same as is payable for the suit. It was argued that the Court-fee of Rs. 2,050 paid in the trial Court and a court fee of Rs. 2,970 paid in the first appellate Court was much more than the court-fee actually required to be paid by the appellant under the law. It was urged that in this view of the matter the two Courts below acted illegally in rejecting the plaint and dismissing the first appeal.
5. Learned counsel for the respondent raised a preliminary objec--tion to the effect that the instant appeal is not competent and valid in law as a Court-fee of Rs. 97 has only been affixed. He asserted that the instant appeal merits to be dismissed on this score alone. According to him the appellant is bound by his own statement relating to valuation made in para. 7 of the plaint and so long as the appellant is not permitted to amend the said valuation disclosed in the plaint he is bound to pay court-fee in accordance with the said statement. He argued that the appellant has not sought the necessary amendment and as such by not: having affixed proper court-fee the appeal merits to be dismissed in accordance with the view taken in Shahu v. Bakri and another (1).
In the, precedent case the plaint was rejected on account of failure in making up deficiency in the court-fee ' within the prescribed period. The --memorandum of appeal filed in the High Court was deficiently stamped and the deficiency in the appellate Court was made good after the expiry of the period of limitation. It was observed.
"We consider that it was the appellant's duty to pay the fee at least on the valuation which he had himself placed upon his claim and that he has been guilty of negligence in not paying the fee calculated on that basis. We accordingly hold that no valid memorandum of appeal was presented within the period of limitation prescribed for the appeal, and that no adequate ground for an extension of the period has been established. The appeal is, therefore, dismissed with costs."
6. The Court-fee paid in the second appeal is admittedly deficient when the court-fee is calculated with reference to the valuation stated in the plaint. The learned counsel for the appellant when faced with this situation contended that the statement of valuation made in the plaint is incorrect and that this statement is in respect of legal matter and as his client cannot be bound down with any admission made by his counsel on the pint of law, the appellant in second appeal was entitled to fix only that much court-fee which was payable in accordance with the relevant provisions of the Court Fees Act. He asserted that net profits for Kharif 1974 and Rabi 1974 accruing in respect of the land in dispute of the two villages should be the basis for calculating the court-fee pay--able and the net profits are to be arrived at by multiplying land revenue payable in respect of the lands by four. The figure so calculated would be the net profits for the preceding year and fifteen times of these net profits so worked out are to form basis for paying the court-fee. When asked as to what is the, basis for working out the net profits in the manner suggested, learned counsel for the appellant relied upon section 58 of the Land Revenue Act, 1967. The basis suggested and reference to section 58 of the aforesaid Act is misconceived. The net profits are not to be assessed with reference to aforesaid section. It is apparent that the court-fee paid in the trial Court was deficient even according to state--ment of valuation made in the plaint as well as with reference to the chart of net profits produced on 2nd September, 1976.
7. In these circumstances a suitor cannot claim indulgence from the Court. The judgment in Jan Muhammad v. Sukar Din and others (1980 CLC 196) is distinguishable and certain observations made in Bahadur Shah and others v. Sharaf Major and others (PLD 1967 Lah. 154) go against the proposition being canvassed. The plaint was rightly rejected and the learned District Judge was also right in dismissing the appeal. In this view of the matter the appeal filed in this Court was deficiently stamped and, therefore, is not a valid appeal. The appeal is, therefore, dismissed with costs.