' On 28-2-1974 respondent No. 1 in this First Appeal from Order instituted a suit for pre-emption in respect of an oral sale of agricultural land evidenced by a mutation attested on 1-3-1973. The plaint bore court-fee stamps worth Rs.30.50. It was not accompanied by a statement of net profits. On 1- 3-1974 the trial Court made an order that respondent No. 1 should file the said statement by 13-3- 1974. On the last mentioned date, instead of the said document, respondent No. 1 filed a statement of estimated produce. Working on the basis of this statement the learned trial Court computed the amount of court-fee at Rs.1,600 and called upon respondent No. 1 to supply the deficiency of Rs.1,569.50 by 25-4-1974. In compliance with this direction respondent No. 1 made up the deficiency on 22-3-1974.
2. The suit was resisted by the appellant who had in the meanwhile purchased the suit land from the original vendee. Apart from alleging that the plaint had not been valued properly for the purpose of court-fee and that the suit was barred by time, he disputed the superior rights of respondent No. 1.
3. After considering the evidence led by the parties, the learned trial Court found that respondent No. 1 possessed a preferential right to obtain the land. On the question of the amount of court-fee payable he held that it should have been computed on the basis that the net profits on the land were Rs.2,851; calculated in this manner the amount payable would have been much in excess of Rs.1,600 the amount actually paid by respondent No.
1. The trial Court further held that no case for extending time for the purpose of making up the deficiency had been made out as respondent No. 1 had been negligent and a wilful defaulter; further as the proper court-fee had not been paid within limitation, the suit was barred by time.
Consequently the learned trial Judge dismissed the suit.
4. From the decision of the learned trial Judge respondent No. 1 went in appeal before the Additional District Judge. On the memorandum of appeal he paid court-fee of Rs.1,570.50 only. He was called upon to make up the deficiency. He complied with this direction so that the total amount paid by him came to Rs.1,600. The deficiency was made up after the period specified for filing the appeal had already expired. The learned Additional District Judge condoned the delay and accepted the appeal on the ground that the trial Court had not given any clear cut finding on the point as to how much court-fee was payable on the plaint and in the absence of any such finding it could not be said that the plaint was sufficiently or insufficiently stamped or the suit had become barred by time. Accordingly, he set aside the judgment and decree of the trial Court and remanded the suit to the trial Court for a fresh decision.
5. From the order of remand made by the learned Additional District Judge the appellant has come in appeal to this Court.
6. In support of this appeal two points have been urged on behalf of the appellant. In the first place it is contended that at the time of its presentation the memorandum of appeal was deficiently stamped even according to the value as initially fixed by the trial Court thus instead of bearing court-fee stamp worth Rs.1,600 it bore stamps worth Rs.1,570.50 only. Consequently the memorandum of appeal should have been rejected outright and no opportunity should have been given to him to make up the deficiency after the period of filing the appeal had expired. In the second place it is submitted in its final judgment the trial Court had assessed the net profits at Rs.2,851. Computed on that basis the court-fee payable on the memorandum of appeal came to Rs.3,207.75. Since even after making up the deficiency the memorandum of apeal bore court-fee stamps worth Rs.1,600 only there was no proper appeal before the learned District Judge and for that reason the order of remand made thereon was without jurisdiction.
7. As regards the first contention I find little substance in it. No. doubt, in the trial Court respondent No. 1 had paid court-fee in the amount of Rs.1,600 and on the memorandum of appeal he had affixed court-fee stamps worth Rs.1,570.50 only. The explanation of respondent No. 1 was that in calculating the amount of court-fee payable on the memorandum of appeal he was misled by the decree-sheet prepared by the trial Court. I have seen the copy of the decree-sheet which was attached to the memorandum of appeal by respondent No.
1. In this sheet the amount of court-fee paid has been recorded as Rs.1,570.50 instead of Rs.1,600.
This being so, I am prepared to accept the explanation of respondent No.
1. It is inconceivable that respondent No. 1 would have purposely withheld a petty sum of Rs.29.50 and thus jeopardise his right of appeal. In the circumstances the learned Additional District Judge was justified in granting an opportunity to respondent No. 1 for paying a further court-fee of Rs.29.50 even when the period of filing the appeal had expired.
8. As regards the second contention that on his memorandum of appeal respondent No. 1 ought to have paid court-fee in accordance with the final judgment of the trial Court in which the amount of the net profits, rightly or wrongly, had been determined at Rs.2,851, there is merit in it. As already mentioned, calculated on the basis of A the net profits of Rs.2,851 the court-fee payable would have come to Rs.3,207.75. The total amount of court-fee actually paid by respondent No. 1 even after making up the deficiency was only Rs.1,600. There is authority for the proposition that the value of the suit as determined by the trial Court is to be adopted as the value for the appeal. See Fateh Ali v. Tassadaq Hussain PLD 1975 Lah.
1094.
9. On his part the learned counsel for respondent No. 1 has argued that the matter in dispute before the District Judge was, confined to the amount of court-fee payable on the plaint, that is, whether it should be Rs.1,600 or Rs.3,207.40 and not his right of pre-emption or the amount at which the sale should be lowed to be pre-empted for these issues had already been decided in his favour. In the circumstances he was liable to pay court-fee only on the difference between the two amounts of court-fee, that is, the one actually paid by him and the one payable on the basis indicated by the trial Court in its judgment. The difference came to Rs.1,607.40. Viewed in this light the memorandum of appeal could not be said to be deficiently stamped. In support of his contention he referred to a Full Bench decision of the Nagpur High Court, reported as Apparao Sheshrao v. Mst. Bhagubai AIR 1949 Nag. 1 which followed the Division Bench dicisions of the Madras High Court in Kalliappa v.
Kandaswa mi AIR 1938 Mad. 498, and of the Patna High Court in Gorakh Sahu v. Sheo Nandan Singh AIR 1939 Patna 571..
10. I do not find any merit in the submission of the learned counsel for respondent No.
1. It was not a case of rejection of a plaint on account of the failure of respondent No. 1 to make up the deficiency in the court-fee. On the other hand the trial Court had dismissed the suit on the ground of limitation after recording findings on all issues raised at the trial. No doubt the finding on the issue of limitation was based on the finding that the plaint was deficiently stamped but nevertheless the suit was dismissed on the ground of limitation. It may be mentioned that under rule 22 of Order XLI of the Code of Civil Procedure it was open to the appellant to support the decree of the trial Court on any ground including one which was decided against him. It is, therefore, not correct to say that only matter in dispute before the learned Additional District Judge was the amount of court-fee payable on the plaint. The authorities cited by the learned counsel are easily distinguishable. They related to cases of rejection of plaints simply on the ground of the failure to make up deficiency in the court-fee when called upon to do so by the Court.
11. For the reasons stated above I am of the view that the memorandum of appeal before the learned Additional District Judge was grossly under stamped. Thus there was no proper appeal before him upon hearing which the lower appellate Court could make the order of remand.
Accordingly, I accept this appeal, set aside the order of the learned Additional District Judge and direct that the appeal of respondent No. 1, before the Additional District Judge be dismissed.
Respondent No. 1, shall bear the costs of the appellant both this Court and before the Additional District Judge.