' The facts are that the land in dispute originally belonged to one Mehr Din, who sold it away to the appellant. The alienation was evidenced by sale-deed, dated 21st January, 1967. The vendor's brother, namely. Munshi, who died during the pendency of this litigation, and is now represented by the respondents on 23rd September, 1971, brought a declaratory suit challenging the sale, on the ground, that it was violative of custom. In the plaint a prayer for delivery of possession was also made. The learned trial Court decreed the suit. The appellant-vendee challenged this decree through an appeal by paying a court-fee of Rs, 20 only on the memorandum of appeal.
2. It may be added that during the pendency of the suit the Punjab Finance Act, 1973, was promulgated whereunder clause (v) of section 7 of the Court Fees Act dealing with the suits for possession of land etc. Was amended. As a result of this amendment the payment of court-fee on the basis of land-revenue was deleted and the court-fee made payable in accordance with 15 times of the net-profits accruing from the land, during the year next before the date of presenting the plaint. In view of this amendment, the appellant moved an application, dated 5th May, 1982 before the learned first appellate Court, for permission to produce the schedule of net profits, for the purposes of making good the deficiency in the court-fee. The learned Additional District Judge, however, took the view that the application was filed about 7 years after the institution of the appeal ; the appellant was indolent and that, therefore, time for payment of court-fee could not be enlarged. Accordingly, by his judgment and decree, dated 23rd September, 1982, he dismissed the appeal. The defendant-appellant has now come to this Court in second appeal.
3. I have heard the learned counsel for the parties and examined the record. On behalf of the appellant, it has been argued that the suit is primarily for declaration sought by a reversioner, under the Customary Law, in respect of alienation of his ancestral property, and that the relief claimed for possession is merely as an alternate relief. Such a suit is covered by Article 22 of the Second Schedule of the Court Fees Act, as amended by Court Fees (Punjab Amendment) Act, 1922 requiring payment of fixed court-fee of Rs, 20 only. In this behalf the appellant's learned counsel drew my attention to the plaint, to point out that only a court-fee of Rs, 20 was paid thereon which suggested that according to the plaintiff himself the suit fell under Article 22 ibid. He further referred to the decree-sheet prepared by the learned trial Court, shows that the decree was granted for declaration and possession was awarded only in the alternate. In his submission, such grant of relief of possession did not affect the predominant features of the decree, which essentially remained a declaratory decree. This line of reasoning was adopted by him to lay a foundation for the argument that the case is not governed by section 7(v) (a) ibid, but falls within the ambit of Artiste 16 of the Second Schedule, as amended by the Punjab Finance Act, 1973. Article 16 is similar to Article 22 ibid, providing same court-fee of Rs, 20 for a declaratory suit under Custom. It was thus urged that the filing of appeal on payment of Rs, 20 is correct in law, and the learned Additional District Judge fell in error in holding that the appeal was not properly stamped. As regards the appellant's application, dated 5th May, 1982 before the first appellate Court, his argument was, that it was filed under a mistaken advice and would not debar him to place before the Court, the correct position in law, regarding the payment of court-fee.
4. It is correct that in the prayer-clause of the plaint, the deceased plaintiff prayed for a declaratory decree and sought possession as an alternate relief. However, in the body of the plaint it is specifically stated that the alienor had died and the plaintiff was entitled to possession. In the face of this averment, relief by way of possession had to be asked for essentially. The fact that the plaintiff prayed for such a relief as an alternate relief, would not make any difference. A litigant has to state in the pleadings the essential facts and it is always for the Court to gran such a relief as the nature of cause may demand. After going through the plaint I am unable to treat the suit as one for mere declaration falling under Article 22 ibid, as canvassed by the learned counsel.
5. As regards the decree-sheet prepared by the learned trial Court, the grant of possession is very much there. Its characterisation as an alternate relief, does not denude the decree of its attribute as a decree for possession.
6. The law of court-fee is a procedural law and no one can have any vested right in the procedure.
It has not, therefore, rightly been disputed that on an appeal arising out of a suit filed before the amendment of the Court Fees Act, court-fee is payable according to the amended Act. I have already maintained that the respondent's suit is for declaration as well as for possession. So far as the relief for possession I concerned the suit would be covered by the amended section 7 (v) (a) and on appeal the court-fee was payable under this provision, The appellant's application before the learned Additional District Judge leads to an irresistible conclusion that he himself considered the trial Court's decree as that for possession and that on an appeal against such a decree, court fee had to be paid in accordance with the aforesaid provision.There I no merit in the argument now advanced, that the application was moved under a wrong advice. This contention appears to be an afterthought. In fact, the appellants was correctly advised to file the application but the advice was tendered too late. The application was made after considerable' delay which smacked of gross negligence on the part of the appellant. It was, therefore, justifiably rejected and the for nonpayment of requisite court-fee.
7. With regard to the trial Court's decree, it may be observed that under Order XX, rule 6, C. P. C. The decree must tally with the judgment. It is in the trial Court's judgment that the suit was decreed for declaration and as a consequential relief for possession. However, as argued by the appellant's learned counsel, the decree-sheet embodies the grant of relief for possession as an alternate relief and not as a con sequential to the decree-sheet and the judgment is inconsequential from the point AP relief. To this extent it does not march with the judgment. The variation view of payment of court-fee on the memorandum of appeal. As the trial Court's decree stands merged in the decree passed by the first appellate Court, and the latter is in order, the error can well be ignored.
8. Though not argued at the bar, yet it remains to be seen as to whether or not, the plaint was correctly stamped. As already stated, two reliefs have been prayed for therein ; one for declaration and other of possession. Both the reliefs had to be valued separately. The declaration, attracted Article 22 ibid. However, in respect of possession, the plaintiff was required to pay the court-fee on ten times of the land revenue assesse on the land as envisaged by pre-amended section 7 (v)-(a).
In para. 9 of the plaint, however, it is stated that the suit land is assessed to Ian revenue at Rs, 7 only. This averment has not been challenged during arguments. The court-fee payable on ten times thereof comes to Rs, 5.25 only. So to this extent the plaint was deficiently stamped and seemingly, was entertained by the learned trial Court inadvertently. In such like cases, under section 28 of the Court Fees Act, the High Court can give a direction for payment of the requisite court-fee. The respondents shall make good the deficiency in court-fee of Rs, 5.25 within one month.
9. For the foregoing reasons I find no merit in this second appeal. It is dismissed with no order as to costs. In case the respondent fails to pay the requisite court-fee, within the period fixed hereinbefore, their suit shall be deemed to have been dismissed with costs.