' SHAHID WAHEED, J.---The plaintiffs-petitioners brought a suit for declaration of title, injunction and recovery of possession over the suit land against the respondents valuing the claim for purpose of payment of Court-fee at Rs, 10,000/-. The respondent Nos. 1, 12, 13, 38, 50 to 64 and 86 contested the suit by filing separate written statements whereas other respondents were proceeded against ex parte.. The respondents raised numerous pleas on the merits and also pleaded that the plaint was not sufficiently stamped. Learned Trial Court instead of trying a preliminary issue as to the proper Court-fee payable, framed 10 issues, the 7th of which related to sufficiency of Court-fee. The learned Trial Court then proceeded to try the case on all the issues and on 8.1.2011 dismissed the suit on merits. In the judgment he recorded a finding on the 7th issue that the Court-fee of Rs, 15000/- was payable on the market value of the suit land and not Rs, 10,000/- as stated in the plaint. A decree sheet was prepared dismissing the suit wherein it was recorded that the petitioner would affix Court-fee of Rs, 15000/- on the plaint within one month otherwise the same would be recovered as arrears of land revenue. Feeling aggrieved, the petitioners preferred an appeal before the learned Additional District Judge and thereby called in question the findings recorded by the learned Trial Court on each issue including issue No,
7. The learned Additional District Judge, Rahimyar Khan dismissed the appeal vide judgment and decree dated 30.9.2011 for non-payment of Court-fee of Rs, 15000/- as determined by the learned Trial Court. Hence, this petition.
2. Learned counsel for the petitioners in support of instant petition has contended that the learned first Appellate Court, without affirming the findings of the learned Trial Court in respect of issue No, 7, that is, Court-fee and without giving opportunity to make' good the deficiency of Court-fee could not dismiss the appeal for want of Court-fee or non-compliance of judgment passed by the learned Trial Court. He has further contended that the learned Trial Court while dismissing the suit could not direct the petitioners/plaintiffs, to affix Court-fee of Rs, 15000/- and, therefore, order to this effect was void.
3. Notices were issued to the respondents Nos. 1 to 137. But despite service they did not appear before this Court and resultantly they were proceeded against ex-parte vide order dated 18.4.2012.
However, on behalf of respondent No, 138 (Province of Punjab through District Collector) and 139 (Assistant Collector) learned Assistant Advocate General entered appearance and opposed this petition. He contended that the petitioners were required to comply with judgment and decree dated 8.1.2011 passed by the learned Trial Court and affix Court-fee of Rs, 15000/- on the plaint.
Non-compliance of-order passed by the learned Trial Court was contumacious act on the part of the petitioners and, therefore, learned Additional District Judge had rightly dismissed the appeal for want of Court-fee.
4. I have heard the learned counsel for the petitioners as well as learned Assistant Advocate General and also perused the record.
5: The petitioners in paragraph 17 of the plaint assessed value of the suit for purposes of Court-fee and jurisdiction at Rs, 10,000/-. The respondents in their written statement denied the assertions recorded in paragraph 17 of the plaint and also raised preliminary objection that the plaint was liable to be 'rejected for insufficient Court-fee. In view of divergent pleadings of the parties the learned Trial Cowl reduced the controversy into issues and one of the issue was issue No, 7 i.e, "whether the plaintiffs' suit is under-valued for the purpose of. Court-fee and jurisdiction, if so, then what is correct value' for both the purposes? OPD". The learned Trial Court decided this issue against the petitioners/plaintiffs. After recording findings on each issue, learned Trial Court while dismissing the suit vide judgment and decree dated 8.1.2011 directed the petitioners to affix Court- fee of Rs, 15000/- on the plaint within one month otherwise the same would be recovered as arrears of land revenue. Before proceeding further it would be apposite to state here that the order to the extent of affixation of Court-fee, for the reasons recorded in succeeding paragraph, was not proper. The petitioners through an appeal assailed the findings of the Trial Court qua Court-fee recorded in judgment and decree dated 8.1.2011 before the learned first Appellate Court. The first Appellate Court without affirming the findings of the learned Trial Court and giving opportunity to the petitioner for making up the deficiency in Court-fee could not dismiss the appeal for want of Court-fee as it is settled principle of law that the plaint or memo, of appeal, cannot be rejected or dismissed on account of being deficiently stamped unless correct amount of Court-fee payable on them is first determined ,iith exactitude and an opportunity is allowed to the party for paying deficit Court-fee. In this regard reference may be made to the case of "Mst. Pervcen v. Jamsheda Begum and others" (PLD 1983 SC 227) and "Mst. Ghulam Sakina and four others v. Nishat and two others" (1992 CLC 87).
6. I am constrained to observe here that direction to affix Court-fee on the plaint as issued by the learned Trial Court while dismissing suit was not proper. If on examining the plaint, the Court finds that the relief claimed is undervalued, it should require the plaintiff to correct the valtiation within a time to be fixed by it and if he fails to do so, the plaint should be. Rejected under Order VII, rule 11, CPC. If the matter requires investigation, the Court should record the evidence of the parties bearing on the point and if it finds that the Court-fee paid is insufficient it should stay further proceedings in the suit Wand require the plaintiff to make good the deficiency within a specified time, and on his failure , to do so, it should dismiss the suit under section 10 of the Court-Fees Hence, where the Court records findings on all the issues and while dismissing the suit on merits requires that the deficit Court-fee should be paid by plaintiff, the procedure is not justified. In this regard reliance may be placed on the case of Walaiti Ram v. Gopi Ram and others (AIR 1935 Lahore 75). The above-said case was relied upon in the case "Sis Ram v. Sohan Lad and others" (AIR 1938 Lahore 311) wherein it was held that:- "where plaintiff having been mislead by the wrong procedure adopted by the learned Trial Court files appeal with the same Court-fee with which he had stamped his plaint, the Appellate Court should exercise its discretion in his favour and extend time to allow him to make up deficiency".
' The reference of "Secretary of State" (AIR. 1933 Madras 321) and the case of "Kedar Nath Goenka v.
Chandra Mauleshwar Parsad Singh" (AIR 1932 Patna 228) are also to the same effect. In the case of Kedar Nath it was held that:-- "after the judgment has been pronounced and it has been signed and sealed no power is left in the Court to alter it or add to it or substract any thing from it; and the judgment having been pronounced a decree must be prepared in accordance with it. Section 28, Court-Fees Act, does not, empower the Court to call upon the parties to pay the deficit Court-fee after the judgment has been announced".
' The above view was followed in "Sri Sri Mdharbirji v. Saraswati Devi" (AIR 1960 Patna 527) and "Amir Ali v. Gul Muhammad" (PLD 1968 Peshawar 106). The aforesaid judgments were considered in the case of "Muhammad Ramzan and three others v. Lrshad Khanum" (PLD 1982 BJ 238) and it was held that:- "Court has power to determine the correct amount of Court-fee payable in a suit and ' such determination should be resorted to at the initial stage in order to avoid anomalies. Otherwise, also a plaint or any other document without proper Court-fee stamp is not of any validity unless and until it is properly stamped".
' Similarly, a learned Division Bench of this Court in the case of Muhammad Yasin v. Muhammad Amin and 4 others (PLJ 2002 Lahore 889) while making reference to the case of Muhammad Nasrullah v. Muhammad Ayaz Khan and another (PLD 1975 Lah. 886) observed that:-- "a direction issued for payment of Court-fee by a Court while dismissing a suit is without jurisdiction for the simple reason that on passing Of the final judgment in the suit, the Court could not continue the process of adjudication in the procedural matters of the suit thereof".
' The learned Additional District Judge while dismissing the appeal for want of Court-fee did not take into consideration the above-said facts and law and, therefore, exercised jurisdiction vested in him, with material irregularity.
7. In view of above, this petition is accepted and the judgment and decree dated 30.9.2011 passed by the learned Additional District Judge, Rahimyar Khan is set aside. The case is remanded to the learned Additional District. Judge, C I Rahimyar Khan, who shall decide the matter afresh and in accordance with law. The parties are directed to appear before the learned Additional District Judge, Rahimyar Khan on 28.2.2013. Parties shall bear their own cost.
Revision /Case Remanded.