' This appeal is directed against the Judgment and decree, dated 24-10-1979 whereby the learned District Judge, Sargodha upheld the decree of the trial Court dated 15.1-1979 and dismissed the appeal.
2. In a suit for pre-emption, Allah Yar pre-emptor-respondent valued his plaint for purpose of court-fee and jurisdiction at Rs, 1,200 and paid court-fee worth Rs, 90.. It appears from the record that the office, at the time of institution of the suit objected to the valuation, whereupon the trial Court on 2-1-1976 directed the plaintiff-respondent to deposit in Court a sum of Rs, 5,400 as 1/5th of the pre-emption money by 21-1-1976 and also make up the deficiency in court-fee. On that date none on behalf of the plaintiff was present and the trial Court was constrained to reject the plaint under Order VII, rule 11, C. P. C. For want of payment of court-fee and 15th of the pre-emption money. The plaintiff, therefore, filed an appeal before the learned District Judge, who by this order, dated 18-4-1977 observed that the 1/5th money was deposited in time. He set aside the order dated 21-1-19.76 rejecting the plaint and remanded the case with the direction that the trial Court would proceed in the light of clause (b) of rule 11 of Order VII, C. P. C.
3. On remand the trial Court, instead of deciding the dispute about the court-fee, framed issues arising out of the pleadings with issue No, 1 relating to the court-fee and jurisdiction in the following manner :- "1. Whether the suit has not been properly valued for the purpose of court-fee and jurisdiction, if so, what is the correct valuation. (0. P. D.)"
4. The parties led evidence and the trial Court found all the issues in favour of the plaintiff- respondent and decreed his suit on payment of Rs, 27,000 by a specified date. In respect of issue No, 1 it found that the issue was not pressed by the learned counsel for the defendants-vendees, and for that reason the valuation as fixed in the plaint was correct. Feeling aggrieved, the defendants-vendees (the appellants) made an appeal before the learned District Judge but with no success. He dismissed the appeal on the simple ground that the appellants, on whom the burden of proof of issue No, 1 lay, had failed to prove that the valuation for the purposes of court- fee as given in the plaint was incorrect.
5. It is a common point between the parties that net profits had arisen from the land during the year next before the date of presenting the plaint, and in that case, as required by section 7 (v) (c) of the Court-fees Act (VII of 1870), the valuation of the suit would be fifteen times, such nett profits.
It is found from the record that the plaintiff-respondent while filing the suit valued his plaint at Rs, 1,200, and paid court-fee accordingly. On presentation of the suit, the trial Court was conscious of the fact that the suit was under-valued and for that purpose the plaintiff-respondent was directed to make-up the deficiency by a specified date, but it also comes on record that the court-fee was not yet made good when the plaint was rejected. On appeal to the learned District Judge the plaintiff-respondent was allowed an opportunity to be dealt with under the provisions of rule 11 (b) of Order VII, C. P. C., in compliance of which the trial Court framed an issue whether the valuation for purposes of court-fee was incorrect.
6. Issue No, 1 in respect of court-fee was decided against the appellants on the sole ground that it was not pressed by the learned counsel for the appellants. I have found no statement on record by which the appellants or their counsel had abandoned the issue. So much so, they disputed this question in appeal and the learned District Judge was of a different opinion that the appellants were estopped from agitating the valuation for the simple reasons that the same could not be proved to be incorrect. But this too was never the position, and the learned Courts below have fallen in error to decide this issue against the appellants. As discussed earlier, the trial Court merely inferred that the issue was not pressed. Had it been the .Position the learned District Judge would not have allowed the appellants to argue on a point which was at one stage said to have been dropped. The judgment of the learned District Judge was based on misreading of evidence. He observed categorically that there was no material against the averments in the plaint. I have gone through the record and found that the respondent on 19-1-1976 applied for the preparation of the nett profits vide Exh. P. 5 and the same was admitted by Allah Yar respondent in his statement as P.
W. 3 to have been signed by him. He stated that he was unable to make-up the deficiency in time because the naqsha Jhar pedawar was by then not prepared. He however did not remember as to when he was provided with the said naqsha. According to this document the nett profits were calculated at Rs, 1,882.12. According to the fifteen times the value of the suit would be Rs, 28,231.80 and not Rs, 1,200 as expressed in the plaint. The application Exh. p, 5 and the naqsha as well as the statement of the respondent as P. W. 3 was a sufficient evidence to show that the valuation was improperly fixed, and in the presence of such an evidence which was placed on record by the respondent himself it was amply established that the plaint was insufficiently stamped and the findings of both the Courts below were based on no evidence.
7. Besides many cases on this point, it has authoritatively been laid down in Mst. Walayat Khatun v.
Khalil Khan and another (1) that a plaint is a "document" within the meaning of section 28 of the Court-Fees Act and if it is insufficiently stamped, then according to the aforesaid section, it shall not be of any validity, but at the same time the Court has under section 149, C. P. C. Power to make- up the deficiency. It provides that where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fee has not been paid, the Court, may, in its discretion, at any stage, allow the person by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee ; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.
8. In the instant case the net profits were determined at the instance of the respondent and he however disowned the correctness of the calculation. He, therefore, could not escape the liability to make-up the deficiency even though the burden of proof of the issue concerned was on the appellants and they had led no direct evidence in that behalf. The learned Courts below, therefore, erred in not taking into consideration the positive material on record. The plaint being evidently not properly valued was not a valid document unless the deficiency was made good, and that was possible only if the Court had allowed the respondent to pay it up. Since there is no application under section 149, C. P. C. For extension of time and the respondent has been thoroughly negligent, contumacious and careless of his duty in affixing a proper court-fee, he would not be entitled to any indulgence for grant of time. It is further laid down in Walayat Khatun's case referred to above, that the Court has to strike balance between the two parties, and whereas at one place it should not have been
(1) PLD 1979 SC 821, harsh on the plaintiffs, equally and at the same time it should not be harsh on defendants to easily take away a valuabe defence of limitation from them. In the instance case a valuable right had accrued to the appellant to defend the suit on the plea of limitation. Section 3 of the Limitation Act (IX of 1908) provides that every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor, shall, subject to the provisions contained in sections 4 to 25 (inclusive), be dismissed although limitation has not been set up as a defence.
' For the foregoing reasons the respondent's suit was not validly instituted within limitation and it could not have been entertained. The appeal is thus accepted, the judgments and decrees of the learned trial Courts are set aside and the suit is hereby dismissed. The parties are, however, left to bear their own costs.