' The facts in brief are that a pre-emption suit brought by the respondent against the petitioners, as per averment made in the plaint, was valued at Rs, 20,C00 but only a court-fee of Rs, 2 was paid thereon. It appears that the respondent laboured under the impression, that his suit was covered by the exemption allowed under Notification No, 5487-78! 1809-ST. I dated 9th July, 1978, issued under section 35 of the Court Fees Act. No plea, as to the deficiency of the court-fee was urged by the petitioners in their written statement. However, on a subsequent objection, in this behalf, raised by them, the learned trial Court by its order dated 1st April, 1980 rejected the plaint under Order VII, rule 11, C. P. C.
2. Against this order, the respondent preferred an appeal, which was accepted by the learned Additional District Judge on 28th October, 1981. He found that the suit was filed on 23rd September, 1978 and till 9th February, 1980, when it was at the evidence stage neither any objection regarding the non-payment of requisite court-fee was taken up by the petitioners nor was the same, at any stage of the proceedings, noticed by the Court. The respondent's explanation that he bona fide believed that the court-fee was exempted under Notification dated 9th July, 1978 was accepted by him. In his estimation, before the rejection of the plaint, the respondent was entitled to an opportunity to make up the deficiency. The case was thus remanded to the learned trial Court with the direction to give reasonable opportunity to the respondent, to pay the, requisite court-fee. The validity of this order has been assailed by the petitioners-vendees under section 115, C. P. C.
3. I have heard learned counsel for the parties and examined the available record. It is argued that only a court-fee of Rs, 2 was paid on the memorandum of appeal and the learned Additional District Judge, despite having found that the plaint was under stamped did not pass any order in respect of the institution of the appeal without payment of proper court-fee. In his submission as the memorandum of appeal was not properly stamped it could not have been entertained. It was also urged that the petitioners moved an application for grant of permission to produce the schedule of net profits of the suit land for calculation of the court-fee, but the learned Additional District Judge, failed to pass any order on it.
4. The notification dated 9th July, 1978 granted exemption only in respect of those suits, the value whereof was below Rs, 25,000 and on which court-fee was payable under Article 1 of First Schedule of the Court Fees Act. Obviously, court-fee on a pre-emption suit, is assessable under clause (v) of section 7 of the Court Fees Act, this exemption, therefore, did not apply to such suits. It is, however, to be seen that before the institution of the appeal; the said notification was modified by Notification No, 353-80248-St.1 dated 4th February, 1980 and court-fee was remitted on all suits having the value of the subject-matter not exceeding Rs, 25,000. The learned Additional District Judge, did not attend to this aspect of the case. If the valuation on the basis of 16 times of the net profits of the land in dispute, fell below Rs, 25,000 no court-fee was payable on the Memorandum of Appeal. As the notification does not have retrospective effect, on the date of the institution of the suit, the plaint remained liable to court-fee, under clause (v) of section 7 of the I Court Fees Act.
5. The learned counsel for the respondent asserts that on the basis aforesaid, the value comes to Rs, 7,598 and that on his own, he has already deposited a court-fee stamp worth Rs, 1,500 in the trial Court, which is far more in excess of the court-fee payable on the suit amount. The application for amendment of the plaint as to the correction of the para. Regarding court-fee is said to be pending before the trial Court and could not be disposed of, due to the stay order issued in this revision. On behalf of the petitioners it has, however, been contended that 15 times of the net profit of the suit land exceeds Rs, 25,000.
6. The net profit cannot be estimated in these proceedings. Even if the valuation on the footing of the net profit is more than Rs, 25,000 and on that account court-fee is payable on the memorandum of appeal, I do not feel inclined to interfere with the impugned judgment. 1 have not been persuaded to differ with the view taken by the learned Additional District Judge, in holding that the respondent was not guilty of contumacious and negligent conduct. The case is also covered by section 28 of the Court Fees Act.
7. There is no merit in this revision. It is accordingly dismissed but with the direction that if in the estimation of the learned trial Court, the value of the suit exceeds Rs, 25,000 the respondent shall be called upon to pay court-fee on the memorandum of appeal as well.
' The parties are left to bear their own costs.