M. S. H. QURAISHI, J.--In this case, leave to appeal had been granted t consider the question whether a Civil Court after an appeal from its order A had been filed and withdrawn could, on an application made under Order XLVII rule I, C. P. C. Review its order.
2. The facts are that in a pre-emption suit instituted on 1-9-1960 the plaintiffs (respondents in this appeal) had paid court-fee under section 7(v)(a) of the Court Fees Act, but the trial Court held, to which the plaintiffs' counsel agreed, that the court-fee was payable according to section 7(v)(c), and by its order dated 26-10-1964 allowed time to the plaintiffs up to 15-12-1964 "for calculating present court-fees and payment of the same on or before 15-12-1964." On this latter date, the plaint was rejected under Order VII, rule 11(c), C. P. C. For non-compliance of the order. The plaintiffs filed an appeal before the Additional District Judge but withdrew the same on 8-2-1965 and thereafter moved an application- under Order XLVII, rule 1, C. P. C. Before the trial Court for review of its order of 14-12-1964. In the application they did not disclose the fact that they had earlier filed an appeal and withdrawal the same. The application was rejected on 19-5-1965 for the reason that the review was not entertain able as in view of the limited jurisdiction under Order XLVII, rule 1, C. P. C. No review could lie and as an appeal had already been filed against the order. In revision brought by the plaintiffs, the High Court, however held by its impugned order, dated 12-2-1971, that according to section 12 of the Court Pees Act, every question elating to the valuation for purposes of determining the amount of fee chargeable on the plaint is to be decided by the Court but that the order, dated 26-10-1964 of the trial Court did not indicate the exact amount after calculation which was to be paid for making up the deficiency: The High Court, therefore, set aside the trial Court's order dated 15-12-1964 and direct9d it to calculate the amount of court-fee payable by the plaintiffs and to fix aspecific date to enable them to make up the, deficiency, if any.
Since withdrawal of an appeal amounts to Ad appeal having been preferred a review application filed after the withdrawal would not be incompetent. In Thakur Singh v. Jinajnth Sah (AIR 1937 Pot.X28) where an application for review had been filed after the appeal had been withdrawn, the objection to the maintainability of the application on the ground of the appeal having been filed was repelled. There is some controversy as to the maintainability of a review application filed during the pendency of an appeal which is subsequently withdrawn. The Allahabad High Court in Ram Prasad v. Asa Ram (AIR 1921 All. 197) held that where an appeal had been withdrawn before disposal of the review application, the application must be disposed of on merits. The Bombay High Court, however, held to the contrary but it agreed, per Barles, J in Balling v. Devasthan Fund Gondhale (AIR 1931 Bom. 232) that: "The rule, then is that if a litigant, who has filed an appeal, wishes to apply for a review, he may do so if he first withdraws his appeal Thus, when there is no appeal on record, be is entitled to the benefit of a fiction that none has been preferred."
We are, therefore, of the view that the review application having been filed after the withdrawal of the appeal was competent.
4. Learned counsel for the appellants, however, argues that the review application even if competent had been rightly rejected because the order passed by the trial Court on 26-10-1964 directing that court-fee be paid a under section 7(v)(c) of the Court Fees Act was perfectly clear and left nothing for computation by the Court and that the date 15-12-1964 had been fixed for making up the deficiency. He pointed out that no explanation had been furnished for the non- compliance of this direction nor bad any application been made for extension of time.
5. The order of 15-12-1964, which is a short one reads "Mr. Saleem Ahmad, Advocate present for plaintiff. Mr. Abdul Rashid, Advocate present for defendant. Value of the suit with regards to court-fees not complied with. The plaint stands rejected under section 7, rule 11(c), C. P. C. With no order as to costs."
The order shows that the plaintiffs had totally failed to explain their-non compliance and had not raised any question as to the Court's duty to calculate and quantify the court-fee. The court-fee under section 7(v)(c) was payable at 15 times the annual not profits. There is nothing to show that a statement of annual not profits had been furnished or even applied for before the Revenue authorities. Learned counsel for the respondents (plaintiffs) urges that since the deficiency could have been made up till the end of the Court hours, the trial Court should have allowed such time instead of rejecting the plaint earlier in the day. But no such request has apparently been made before the trial Court nor had any such ground been taken in the memorandum of the appeal. We thus find force in the contentions raised on behalf of the appellants and accordingly allow the appeal and set aside the impugned order of the High Court dated 12.2-1971. There shall, however, be no order as to costs.