' The facts giving rise to this appeal are that the respondent, Aroora, filed a suit (Civil Suit No, 2746 of 1970) against the appellants, Sher Muhammad and others, for possession of certain land alleged to have been sold to the appellants by one Ghulam Muhammad as general attorney of the respondent. It was averred by the respondent that although he had appointed the said Ghulam Muhammad as his general attorney yet he (respondent) had cancelled the power of attorney given to him before he (Ghulam Muhammad) had allegedly sold the dispute land to the appellants. It was, therefore, maintained by the respondent that the sale made by the said Ghulam Muhammad was void and of no legal effect. The suit was resisted by the appellants whereupon the following issues were framed :-
(1) Whether the suit is wrongly valued for the purposes of the court-fee and jurisdiction.
0. P. P.
(2) Whether Ghulam Muhammad son of Muhammad Anwar, resident of Jandanwala is the necessary party in the suit ? 0. P. P.
(3) Whether the sale-deed, dated 25th September, 1970 was executed in favour of the defendant on behalf of the plaintiff through his general attorney through fraud and deceitful means ? 0. P. P.
(4) Whether the plaintiffs cancelled his general attorney before the execution of the said deed, dated 25th September, 1970, if so its effect ?
(4-A) Whether the plaintiff is estopped by his conduct to bring the present suit on the ground of the doctrine of the part performance ? 0. P. P.
(5) Relief.
' Hafiz Khalil Ahmad, Civil Judge, Bhakkar, who decided the suit, found all the issues, except issue No, 1, in favour of the respondent. On issue No, 1, it was held by him that the court-fee paid by the respondent was deficient as he had wrongly valued the suit for the purpose of court-fee. He fixed the valuation of the suit, for the purpose, at Rs, 12,000. In result, while dealing with issue No, 5, relating to relief, the learned Civil Judge decreed the suit with the direction that the respondent (plaintiff) shall make up the deficiency in court-fee before 5th May, 1973, failing which the plaint shall be deemed to have been rejected. The judgment and decree by which the suit was disposed of by the learned Civil Judge were passed on 4th April, 1973. The respondent did not make good the deficiency in court-fee within the stipulated period and instead filed another suit (Civil Suit No, 118 of 1975) on 6th June, 1973, claiming the same relief as prayed for in the former suit and on the basis of the cause of action which was urged in that suit. The subsequent suit was also contested by the appellants. Thereupon the following issues were drawn up : -
(1) Whether the suit is barred by res judicata?
(2) Whether the plaintiff is the owner of the suit property ?
(3) Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction, if so, its effect ?
(4) Relief.
' Mr. Farrukh Lateef, Civil Judge, Bhakhar, decided issue No, 1 in favour of the appellants and against the respondent. In view of that finding, he did not discuss the other issues and dismissed the suit as barred by res judicata. His judgment and decree, dated 4th February, 1976, were challenged by the respondent by means of an appeal. The District Judge, Mianwali, reversed the finding of the learned Civil Judge on issue No, 1, relating to res judicata, and, while accepting the appeal, set aside the judgment and decree of the learned trial Court and remanded the suit to that Court for deciding the other issues. The order of the learned District Judge has been challenged by means of the appeal in hand.
2. It was contended by learned counsel for the appellant that the former suit of the respondent had, in fact, been dismissed due to his failure to make good the deficiency in court-fee within the stipulated period and, therefore, his subsequent suit was barred by section 11 of the Code of Civil Procedure. He cited Santhanathammal and another v. Isaki Supan Asart and another (1) to support his argument.
3. On the other hand, it was submitted by learned counsel for the respondent that it was due to his (respondent's) illness that the plaintiff could not make up the deficiency in court-fee within the period. Allowed by the learned Civil Judge. According to him, the only penalty with which his default could be visited was the rejection of the plaint under rule 11 of Order VII of the Code of Civil Procedure. Relying on rule 13 of the said Order, it was maintained by learned counsel for the respondent that the respondent could file a fresh suit as done by him. His plea was that neither the learned trial Court had made any order regarding the dismissal of the former suit of the respondent for his failure to make
(1) AIR 1920 Mad. 449 ' good the deficiency in court-fee nor such an order could be made by the said Court because there was no suit before it till the deficiency was made good. It was also urged by learned counsel for the respondent that the findings of the learned Civil Judge (Hafiz Khalil Ahmad) on the merits of the former suit did not bar the subsequent suit of the respondent. In this connection, reliance was placed by him on Mst. Hawabai and 6 others v. Abdus Shakoor and 8 others (1), Mst. Saddiqunnisa v. Khan Sahib Agha Muhammad Sultan Mirza and 8 others (2), Master Ghulam Rasul v. Additional District Judge Lahore and another (3), Shafiq Ahmad v. Mirza Muhammad Anwar Beg (4), Mst. Kaniz Fatima and 3 others v. Member (Revenue), Board of Revenue, Punjab, Lahore and 5 others (5) and K. A. B. Kishor Achharya and another v. Province of East Bengal (6).
4. The judgment and decree passed by the learned Civil Judge in the former suit could be assailed both by the appellants as well as by the respondent-by the respondent if he was not satisfied with order of the learned Civil Judge regarding the deficiency in court-fee and by the appellants if they felt aggrieved by his findings on the merits of the case and/or by the direction by which an opportunity was afforded to the respondent to make up the deficiency in court-fee. None of the parties, however, filed an appeal or any other proceeding against the said judgment and decree. It is, therefore, hardly open to the appellants to take exception to the order in regard to the rejection of plaint.
5. Even if the appellants' plea that the direction in respect of rejection of plaint was actually an order of dismissal of his suit is not shut out due to their failure to file an appeal against the judgment and decree containing that direction it will not be possible to express any opinion regarding the soundness or otherwise of their plea without determining the question whether there was a suit before the learned Civil Judge when he had given the said direction. Although for the purpose of bringing suit before a civil Court a plaint is presented to that Court yet the plaint so presented does not give rise to a suit unless certain legal" requirements are satisfied. One such requirement is that of the payment of proper court-fee. This was highlighted by the Sind High Court in the case of Mst. Hawabai and 6 others in the following words :- "Again, in our view, the words 'plaint' and 'suit' are not synony, mous. Before a plaint could be considered and treated as 'suit', it has to be shown that it is properly stamped, the Court to which it is presented has pecuniary and territorial jurisdiction over the subject-matter, the parties mentioned in the plaint are amenable to the jurisdiction of the Court and the jurisdiction of such Court to try it is otherwise not barred under the law. The absence or presence of any of these ingredients may result in either return of the 'plaint' or rejection of the 'plaint' under Order VII, C. P. C.
In contradiction to the dismissal of the 'suit' as provided under Order IX, C. P. C."
' It was also held in the case of Mst. Saddiqunnisa that plaint or memorandum of appeal cannot be treated as properly presented so long as proper court-fee is not paid. Similar opinion was delivered in the case
(1) PLD 1981 Kar. 277 (2) PLD 1972 Kar. 103
(3) PLD 1982 Lab. 305 (4) PLD 1982 Lab. 367
(5) PLD 1973 Lab. 495 (6) (1954) 6 D L R 1 ' of Master Ghulam Rasool. According to the decision in the case of Shafiq Ahmad, if any plaint suffers from the defects enumerated in clauses (a), (b) or (c) of rule 11 of Order VII of the Code of Civil Procedure "there is no plaint in the eye of law and for that reason there is no suit instituted".
The view expressed in Mst. Kaniz Fatima and 3 others was that "the decision of the Court under the said rule rejecting a plaint is not on merits, because the suit in such a case virtually does not come before the Court for the disposal on merits but falls out for the reason that preliminary steps to present the suit before the Court properly and effectively were not taken by the plaintiff". Following, with respect, the above dicta, I hold that there is no suit instituted before a Court unless the plaint which has been filed to bring the suit is properly stamped. In the instant case, plaint in the former suit of the respondent was not properly stamped despite the direction of the trial Court in this regard. Therefore, legally speaking, there was no suit before the civil Court and as such the question of its dismissal did not arise.
6. The law is well-settled on the point that if there is any lapse on the part of the plaintiff attracting the application of rule 11 of Order VIII of the Code of Civil Procedure, the adverse order which can be appro-C priately passed against him is that of rejection of plaint and not that oil dismissal of the suit. The cases of Mst. Fazilat Khatun v. Haji Rahim Bux Gulmahomed and others (1), Pahloomal Motiram v. Abdul Quddus Behari and 8 others (2) and Messrs Shah Noor Studios v. W. Z. Studios (3) are some of the authorities in point. In a recently decided case of Mst. Parveen v. Mst. Jamsheda Begum and another (4) it has been ruled by the Supreme Court that if a suit is filed within the period of limitation it cannot be dismissed for being time barred due to the plaintiff's failure to pay the requisite court-fee in time and the penalty which can be imposed on him for not making good the deficiency in court-fee is to reject his plaint. It was further held that the plaint cannot be rejected without giving the plaintiff an opportunity to make up the deficiency in the court-fee.
Relevant observations made in this regard read as under :- "It may also be observed that the learned trial Judge could not have rejected the plaint under Order VII, rule 11, C. P. C. On the mere discovery that the plaint was under valued, unless under clause (b) of rule 11, the plaintiffs having been required by the Court to correct valuation within a time specified by the Court, had failed to do so. Similarly regarding insufficiency of court-fee, the plaint could be rejected under clause (c) of rule 11, if the plaintiffs, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, failed to do so. In both these eventualities, the plaint could have been rejected under Order VII, rule 11, C, P. C. And it would not have been proper, without recourse to this provision, to dismiss the suit was time barred."
As indicated above, the former suit of the respondent was decreed subject to the condition that he shall make up the deficiency in court-fee withi the stipulated period. Thus, he was allowed an opportunity to make goo the deficiency in court-fee, though on the conclusion of the proceeding
(1) AIR 1941 Sind 154 (2) PLD 1971 Kar. 250
(3) 1980 CLC 433 (4) PLD 1983 SC 227 ' in the former suit. In Muhammad Nasarullah v. Muhammad Ayaz Khan and another (1) it was held that the deficiency could be determined and ordered to be made good even at the far end of the proceedings. It was further ruled that there was nothing wrong with the passing of conditional decree as done in the present case. It has also been laid down in Kirn Chandra Pramanik v. Purna Chandra Parmanik and others (2) that a plaint can be rejected at any stage of the suit. No valid exception can, therefore, be taken to the order of the learned OA! Judge regarding the payment of additional court-fee and the rejection of the plaint in the event of non-payment thereof within the stipulated period.
7. The decision of the learned Civil Judge on all the issues framed in the former suit, including the issues on merits, is of little help to the appellants. For the purpose of the bar of res judicata, his decision on the merits would have served as decision in the former suit if he had won the decree passed in the suit by satisfying the condition attached thereto, namely, the payment of requisite court-fee within the stipulated period. Since the court-fee was not paid accordingly, there was no suit and the decision given in his favour ceased to be operative. The plaint was rejected due to his failure to pay proper court-fee in time. Thus, findings on the merits of the former suit could not operate as res judicata qua the subsequent suit brought by the respondent. Similar view was expressed in the case of K. B. Kishore Acharayya Choudhury and others relied on by learned counsel for the respondent. In that case it was held that where a point was decided but need not have been decided in view of the finding on the preliminary point that the suit failed on the ground of bad notice which was enough to dispose of the case finally, the other point decided will not operate as res judicata in a subsequent suit.
8. As for the case of Santhanathammal and another, relied upon by learned counsel for the appellants, it is distinguishable on facts. In the cited case, under a razinama P and D had to pay in equal shares maintenance to M annually, P paid the whole of the maintenance for two years and brought a suit to recover from his share. The appellate Court held that as the razinama did not contain any term giving Up the right to sue D for contribution when the latter failed to pay his share, P had no legal right to recover and rejected the plaint as disclosing no cause of action. P then brought another suit on the same cause of action and for the same subject-matter. It was held by Madras High Court that the finding in the previous suit operated as res judicata to bar the subsequent suit. While holding that in the previous suit P had no right to recover the amount to be contributed by D, the Court had, in fact, held that he had no cause of action. It was, however, remarked that the plaint did - not disclose any cause of action and consequently the plaint was rejected. In this connection, my respectful submission is that due to the finding to the effect that P had no legal right to recover the amount in dispute, his suit should have been dismissed on merits.
It was, therefore, rightly held by the High Court that finding in the previous suit operated as res judicata. In the case before me, however, the respondent had won on all the issues on merits and as such his former suit had been conditionally decreed. His suit could, therefore, not be dismissed, just for his failur to pay more court-fee as directed by the learned civil Court. That shortcoming on his part could only entail rejection of the plaint a
(1) PLD 1975 Lah. 886 (2) A I ft 1939 Cal. 764 ' ordered by the learned trial Court. In the circumstances, the case of Santhanathammal and another is of no avail to the appellants.
9. The upshot of the above discussion is that the proceedings before Hafiz Khalil Ahmad, Civil Judge, Bhakkar, which have, more than once, been referred to by me as the former suit for the purpose of distinguishing the said proceedings from the proceedings before Mr. Farrukh Lateef,, Civil Judge, Bhakkar, by alluding to the latter proceedings as the' subsequent suit, never attained the character of a suit because the respondent, who had initiated the former proceedings by means of a plaint, did not properly stamp the plaint within the time allowed by the learned Civil Judge for so doing. Therefore, on the efflux of that time the plaint stood rejected in terms of the direction of the learned Civil Judge. That direction cannot be treated as an order of the dismissal of the suit because, as explained above, there was no suit to be dismissed by the learned Civil Judge.
Section 11 of the Code of Civil Procedure bars the institution of a suit involving questions which have already been decided in an earlier suit. In the instant case there was no earlier suit qua the suit dismissed by Mr. Farrukh Lateef, because in the first round of litigation between the parties Hafiz Khalil Ahmad had rejected th respondent's plaint instead of dismissing his suit. The suit decided by Mr. Farrukh Lateef, by which the second round of litigation had commenced was, therefore, not barred by section 11 of the Code of Civil Procedure. The suit dismissed by Mr. Farrukh Lateef could be filed by the respondent under rule 13 of Order VII of the said Code despite the rejection of his plaint in the former suit under rule 11 of the said Order. In this view of the matter, the order of learned District Judge is unexceptionable.
10. Resultantly, the appeal in hand fails. It is dismissed with no order as to costs.