' The petitioner challenges the order, dated 23rd November, 1982 by which the appeal, filed by the respondent, was allowed on the ground that the trial Court, having once allowed ex parte extension of time, in payment of court fee, was not entitled to review the said order.
2. Briefly, the facts of this case are that the respondent filed a suit for pre-emption, on 17th October, 1977 with a court-fee of Rs, 22.50 in respect of a sale made on 21st October, 1976. On 18th October, 1977 the Court directed the respondent to make up the deficiency in the court-fee, after getting prepared the statement of net profits. On 20th November, 1977 the respondent applied for furnishing security instead of depositing the 1/5th amount and also for extension of time, to make up the deficient Court-fee. The trial Court adjourned the application to be fixed with the suit on 22nd November, 1977. That day being a holiday, the case came up on 26th November, 1977 when the Court allowed extension to make up the deficiency in court-fee, till 14th January, 1978. The request for furnishing security against the deposit of 1/5th amount was rejected.
3. After being served with the notice of the suit, the petitioner filed his written statement on 6th May, 1978 and took objection to the valuation of the suit. On 16th June, 1979 he applied again under Order VII, rule 11, C. P. C. For the rejection of the plaint on the ground that the plaint was not properly stamped. The trial Court, however, adjourned decision on the application alongwith the suit.
4. The Court then framed issues. Issue No, 6 which is relevant reads as under :- "Whether the suit has been improperly valued for the purposes of court-fee and jurisdiction ?"
' All the other issues were decided in favour of the plaintiff whereas issue No, 6 was decided against him, vide order, dated 26th June, 1982. The trial Court found that the conduct of the plaintiff in supplying deficient court-fee was contumacious and negligent and there was no case made out for extension of time. An appeal was, thereafter, accepted on 23rd September, 1982 as stated above, on the ground that the order of the trial Court amounted to review of its previous order.
5. The learned counsel has referred to the statement of net profits produced by the respondent before the trial Court. The area involved therein is more than the one sold. Both the counsel have worked out the Court-fee according to their own method but none of the figures is less than Rs, 1,009. I will, therefore, take this amount as the correct court-fee. The court-fee paid by the respondent, however, was Rs, 865. The plaint was, therefore, deficient and not properly stamped.
6. The learned counsel then submitted that as the trial Court had allowed the extension in time, the case was covered by Muhammad Siddiq v. Master Muhammad Ibrahim (1). The contention, however, is not correct. Firstly any interim order passed by a Court, in the absence of other party, is A only tentative and the same can be reopened on objection of the other side. Reference is made to Abdul Karim v. Sheikh Muhammad (2). An order, passed in the absence of a party affected, has never been condoned by this Court even on the principle of natural justice. Secondly, such a view goes directly against the rule laid down by the Supreme Court in the case of Walayat Khatoon (3).
In this view of the matter, the order passed by the lower appellate Court is not valid and liable to be set aside.
7. It may further be noted that the plaint filed by the respondent ha a court-fee of only Rs, 22.50 paid on it. This amount certainly was not the result of any calculation or care but purely arbitrary.
Consequently, the Court directed the respondent-plaintiff to make up the deficiency of court fee, after getting prepared a statement of net profits. This was done but unfortunately the amount given therein was not paid. As said above, the right amount could in no case be less than Rs, 1,009 whereas the plaintiff paid Rs, 865. After the calculation of the above amount had been made in Court, the learned counsel for the respondent was given a further opportunity to show if the amount paid, as court-fee, by his client, had been calculated reasonably and bona fide but he is not in a position to do so. I have, therefore, no option but to hold that the respondent was negligent in fixing the court-fee which was much deficient. Even otherwise, the said amount was paid long after the expiry of the period of limitation.
8. It is now well-settled in the case of Walayat Khatoon that the Court is obliged to allow a plaintiff to make up the deficiency in the court-fee under Order VII, rule 11, C. P. C. Before the expiry of the period of limitation. In case it is not done, the case is no longer covered by the provision and the Court can extend the time only under section 149, C. P. C. That, however, can be done only after notice to the defendants and for good and sufficient reasons. In the case in hand, the original order, dated 20th November, 1977 allowing the plaintiff to make up the deficiency in the court-fee was, therefore, not covered by Order VII, rule 11. It also did not comply with the requirements of section 149, C. P. C. As discussed above, there was given no reason what to say of sufficient and good reason, for the extension of time. The trial Court, .Therefore, rightly upset that ex parte order when the matter was finally argued. In this view of the matter, the, lower appellate Court was not justified in setting aside the order of the trial Court.
9. As stated above, even the very reason given by the lower appellate Court for setting aside the order of the trial Court was not valid in law. An order, which does not fall within the scope of Order VII, rule 11, C.P.C. Is to be governed by section 149, C. P. C. And it cannot be made ex parte, so as to bind the other side finally. Such orders, therefore, are always subject to objection of the other side as said in para. 6 above. In the case in hand, the petitioner did object to the ex parte order, dated 26th November, 1977 and also applied for the rejection of the plaint. The trial Court. Therefore, was under an obligation to decide the question in accordance with law and pass a fresh order thereon.
In this view of the matter, the order passed by the trial Court cannot be said to be a review of the previous order.
(1) PLD 1981 B J 23 (2) PLD 1966 B J 14
(3) PLD 1979 SC 821 ' For the reasons stated above, the revision petition is allowed, the order of the lower appellate Court is set aside and the order of the trial Court restored. The parties shall bear their own costs.