' This order shall also dispose of another similar matter C.R. 1371-80, involving the same question of law.
2. Briefly, the facts of the case are that the petitioner filed a suit for possession, by way of pre- emption, in respect of sale which took place on 2nd January, 1980, a consideration of Rs, 2,06,000. In the suit, filed on 2nd January, 1980, the petitioner stated, inter cilia, that the price fixed and paid was Rs, 1,36,175. A computation of income amounting to Rs, 14,862.37 made by a revenue official was also produced, alongwith the suit. The petitioner evaluated the suit at Rs, 24,000 but did not pay any court fee. It was, however, stated in the plaint that the required amount of court-fee shall be paid up as and when the same was determined, after inquiries from the office Qanungo. An application under section 149, C.P.C. Was also made praying that the ordinary expenses of cultivation under section 4 (16) of the Land Revenue Act be deducted to determine the net profits, so as to work out the evaluation for the purpose of court-fee.
3. On 5th January, 1980, the learned Civil Judge found that the court-fee payable was Rs 15,000 and he directed that deficiency be made up by 12th February, 1980. He further asked the petitioner to desposit the 1/5th amount, by the same date.
4. Feeling aggrieved, the petitioner filed a revision petition, in the Court of the learned District Judge on 9th February, 1980. Alongwith it he prayed for suspension of the order. The learned District Judge suspended, on the next day, operation of the impugned order so far as the payment of the court- fee was concerned but refused to stay the deposit of 1/5th amount. The petitioner deposited a sum of Rs, 41,200, as the 1/5th on 11th February, 1980.
5. On 26th July, 1980 when the civil revision came up before are Additional District Judge, he returned it for the reason that the value of the suit being more than Rs, 50,000 it did not lie before the District Court. The petitioner, therefore, filed the present petition in this Court on 7th August, 1980.
6. It is contended by the learned counsel that the Civil Court exceeded its jurisdiction in directing the petitioner to pay a sum of Rs, 15,000 as court-fee, without conducting an inquiry, as envisaged by section 9 of the Court Fee Act. The learned-counsel further submitted that fact that the petitioner did not pay any court-fee, on the filing of the suit, was justified for the reason that the Tehsildar, who had been approached to issue the statement of net profits, had refused to do so and instead issued a statement of gross profits.
7. The learned counsel for the respondent referred to section 4 (16) of the Land Revenue Act to say that it is not necessary for a suitor to go to the Revenue Court to get a statement of net profits. He can, in case the same is not supplied by the revenue officer, make his own assessment and pay such court-fee as he thinks is due. He also referred to section 9 of the Court Fee Act to say that it comes into play only if the petitioner had made his valuation, paid some amount as court-fee and a dispute with regard to it was raised by the Court or the other side. Section 9 reads as under :- "If the Court-fees reason to think that the annual net profits or the market-value of any such land, house or ground as is mentioned in section 7, paragraphs (v) and (vi), have or has been wrongly estimated, the Court may, for the purpose of computing the fee payable in any suit therein mentioned, issue a commission to any proper person directing him to make such local or other investigation as may be necessary, and to report thereon to the Court.
8. Admittedly, no court-fee had been paid, by the petitioner when he presented the plaint. In this view of the matter, the suit became barred by time after 3rd January, 1980 and was liable to be dismissed under section 3 of the Limitation Act. The question that petitioner was not furnished with the statement of net profits by the Tehsildar is not at all helpful to him. Firstly, the petitioner had in fact been provided with a statement of profits. In case he thought that it did not conform to section 4 (16) of the Land Revenue Act, he should have fixed his own valuation, at his risk. He could do so even if that statement of profits had not been supplied to him. The ground taken for extension of time was, therefore, not valid.
9. The contents of section 4 (16) of the Land Revenue Act can be helpful to anyone who himself tries to compute the net profits. Had the petitioner done the exercise, it would have been for the other side or wit B Court, under section 9 of the Court Fee Act, to get the same inquired its further, if necessary. As the petitioner did not do what he was required to, he could not rely on section 9 reproduced in para 7 above.
10. In the case in hand, the conduct of the petitioner was certainly contumacious or grossly negligent. He undertook not to pay any court-fee at all though he knew that the price of the property, according to the sale-deed, was Rs, 2,06,000 and in his view Rs, 1,36,175. He also had received the statement of the profits according to which, the valuation, for the purpose of court- fee, would be Rs, 2,22,439.55. In any case, the petitioner must have known that this was not a case where the court-fee would be exempted. The conduct of the petitioner, therefore, was not bona fide.
11. Be that as it may, the suit filed by the petitioner was without court-fee and, therefore, there was no plaint presented in the eye of law, within the time provided. The case was, therefore, hit by section 3 of the Limitation Act. It is also covered by the case of Walayat Khatoon. Even they revision petition was filed in the wrong Court though the valuation fixed by the trial Court should have been acted upon, in the circumstances of the case. The time fixed by the trial Court, therefore, lapsed and the suit became barred by time on 13th February, 1980, even if this order was valid.1
12. The record of this case had been sent for under section 115, C.P.C. Which empowers this Court to pass such order as it thinks fit. The trial Court passed the impugned order without hearing the respondent though it was necessary, in view of the law laid down in the case of Wilayat Khatoon.
The order was thus defective on that score. It was also challenged by the petitioner for another reason. It can, therefore, be set aside and the case sent back for fresh consideration. The other alternative open is that the trial Court having acted in violation of section 3 of the Limitation Act and the rule laid down in the case of Wilayat Khatoon, this Court can pass such order as it thinks fit, in accordance with law. It will, however, be waste of time and money adopt the first course. It also will lead to multiplicity of litigation, if this case is sent back.
In view of the above, the suit of the petitioner was barred by time as he paid no court-fee at all either before the prescribed or the extended time. E It is therefore dismissed with costs throughout.
Revision .