ZAFFAR HUSSIAN MIRZA, J.--This appeal by special leave arises out of judgment, dated 16-4-1983 by a learned Judge of the Lahore High Court, ,Lahore in revisional jurisdiction whereby he set aside the judgments and decrees of the Courts below and remanded the case to the trial Court for decision of the issue relating to the valuation of the suit for purposes of Court Fees and jurisdiction.
2. The facts forming the background of this appeal are that land measuring 20 Kanals 19 Marlas situated in Mauza Macchrala, Tehsil and 'District Gujranwala was sold by one Nazar Muhammad to respondents Abdur Rehman and Muhammad Yamin on 15-5-1973 by means of mutation No. 189 for Rs. 12,500. The appellant thereupon, claiming superior right of pre-emption as against the respondents (vendees) on the basis of his co-ownership in the holding brought a suit for pre- emption. In the plaint the appellant valued the suit for purposes of court-fees at fifteen times the yearly net profits of Its. 274.12 having arisen from the land during the year next before the date of presenting the plaint. The respondents disputed the valuation of the suit and pleaded in their written statement that the appellant had deliberately undervalued the suit for purposes of court- fees and, therefore, the suit was not entertain able. On the pleadings of the parties the trial Court framed several issues including issue No. 1 which related to the valuation of the suit for purposes of court-fees and jurisdiction. The appellant in support of his case produced his evidence on 17-11- 1975 and seems to have closed his side. However, on 18-9-1977 the appellant moved the trial Court for permission to produce documentary evidence consisting of copy of Mutation No. 189, dated 15- 5-1973, copy of Mutation No. 112, dated 23-12-1976 and "Farde Khalis Munafa". This application was resisted by the respondents, but since they had not yet entered upon their defence and the Court was of the view that the documents were copies of official Revenue record and hence their genuineness being beyond question, the Court allowed the production of the documents by its order, dated 15-3-1978. The statement of net profits was admitted in evidence and marked as Exh.
P.4. On the merits of the claim the trial Court found that the appellant had established his superior right to pre-emption on the basis of co-sharer ship. As to the first issue regarding the valuation for purposes of court-fees, the Court observed that the respondents had not produced any evidence as to what was the proper valuation of the suit for purposes of court-fees and hence even excluding Exh. P.4, the Court held in favour of the appellant on the first issue. In view of these findings the Senior Civil Judge, Gujranwala, decreed the suit of the appellant on 24-4-1980. In appeal the respondents only challenged the finding recorded by the trial Court on issue No.1 on the ground that Exh. P.4 (statement of net profits) was not admissible in evidence as it had not been properly proved according to law. The learned Additional District Judge, Gujranwala, before whom the appeal came up for disposal rejected the contention of the respondents and observed:- "Admittedly no objection was taken by the appellants at the the of production of net profits statement Exh. P.4 in the evidence by the respondent. Even a suggestion was not given in this respect on behalf of the appellants to the respondent when he appeared as P.W.1. The appellants were only to prove that in case the suit was not correctly valued for the purposes of court-fee and jurisdiction then what was the correct valuation for both these purposes. In rebuttal the appellants examined Abdul Vakil D.W.1 and Abdul Waheed D.W.2. Yamin one of the appellants also appeared as his own witness as D.W.3. None of these witnesses said a single word about the fact if the suit was not correctly valued for the purposes of court-fee and jurisdiction or that what should have been the correct valuation. The respondent had already paid court-fee on his plaint according to the net profits statement Exh. P.4, and in these circumstances the learned trial Court has rightly decided issue No.1, in favour of the respondent. If it be assumed that the document Exh. P.4, should not be taken into consideration, even then there is nothing on the file on behalf of the appellants to show as to what is the correct valuation of the suit for the purposes of court-fee and jurisdiction. No other point was urged on behalf of the appellants "
The appeal of the respondents was accordingly dismissed on 25-5-1982.
3. The respondents then went up before the High Court in revision and a learned Judge of the High Court by the impugned judgment accepted the revision of the respondents and set aside the judgments and decrees of the Courts below as stated above, remanding the case to the trial Court for a fresh decision on issue No.1 in accordance with law. The High Court held that the Courts below had acted on the assumption that the onus to prove the issue was on the respondents; however, the High Court was of the view that this assumption was based on a misconception of the true legal position because "the Court is itself obliged to make an enquiry and after judicious application of the mind to decide the question. The appellate Court failed to take a correct view of the matter because it observed that even if Exh: P.4 was to be ignored from consideration, there was no evidence brought on the record by the defendant to enable the Court to record findings otherwise".
4. Leave was granted in order to consider the contention raised on behalf of the appellant "that it was not necessary to proceed to the alternative ground (of there being no evidence on record) because in fact Exh. P.4 (the statement of net profits) was admissible in evidence, even without its having been formally proved by producing its author in evidence".
5. On a careful reading of the impugned judgment we find that the learned Judge in the High Court was persuaded to interfere in the revisional jurisdiction of the High Court to upset the decision of the Courts below on the question of valuation for purposes of Court-Fees on the proposition that it was the duty and the obligation of the Court itself to determine the correct valuation of the suit and hence even if none of the parties brought any evidence on record in this behalf, the Court had itself to make an enquiry and determine the question. In taking this view the learned Judge relied on a judgment of this Court in Allah Yar Muhammad Riaz PLD 1981 SC 489. In this case no doubt this Court observed:- "The mere fact that at the trial the defendant had not pressed the question of deficiency in the court-fee does not relieve the Court of the obligation of looking into the matter, determining the correct amount of court-fee and seeing that the deficiency is made up."
But this observation was made in the context of the peculiar facts of that case. These facts were that the plaintiff had undervalued his suit for pre-emption and the plaint was insufficiently stamped. An objection was taken at the instance of the learned Civil Judge by the office, whereupon an order was passed by the Court directing the plaintiff to make up the deficiency in the court-fee on the basis of fifteen times of the preceding year's net profit within a specified the.
As the plaintiff did not comply by remaining absent his suit was dismissed. On appeal the case was remanded to the trial Court for a fresh decision of the matter in accordance with the Order V II, rule 11(b) of the Code of Civil Procedure. At this stage the plaintiff obtained "Naqsha Jhar Paidewar" from the Revenue authorities, and placed it on record, accord--ing to which the previous year's net profit was calculated as Rs.1, 882. As the defendant did not press this issue, the trial Court decreed the suit and this decree was upheld in appeal by the District Judge.
Eventually the defendant came up before the High Court in revision which was accepted and the decree was set aside. The plaintiff then came up before this Court but his petition was dismissed, mainly on the ground that in the circumstances of the case he was not entitled to extension of the for payment of deficit court-fee under section 149 of the Code of Civil Procedure, as having himself placed on record the document of net profits, according to which he had to pay court-fees on an amount of Rs.28,231.80 and not on Rs.1,200 as paid by him, his conduct was clearly contumacious. It was in this context that the aforementioned observation was made by the Court.
6. We may in this connection refer to section 9 of the Court-Fees Act, 1870 which is in the following terms:- "9. Power to ascertain net profits or market value.-- If the Court sees reason to think that the annual net profits or the market value of any such land, house or garden as is mentioned in section 7, paragraphs (v) and (vi), have or has been wrongly estimated, the Court may, for the purpose of computing the fee payable in any suit therein mentioned, issue a commission to any proper person directing him to make such local or other investigation as may be necessary, and to report thereon to the Court."
It will be seen that section 9 begins with the words, "if the Court sees reason to think that the annual net profits or the market value of any such land, etc., have been wrongly estimated." An enquiry to ascertain the net profits would, therefore, be necessary only in case where the Court has reason to believe that the estimate given in the plaint by -the plaintiff is wrong. For the purpose of these opening words, therefore, there is no illegality in the Court making reference to a chart or to a Gazetteer or to anything else that will assist. This is not a question of judicial decision. The Court merely for its satisfaction whether it will be reasonable to question the valuation made by the plaintiff makes reference to such material and that by itself will hurt nobody. However, if the Court wants this matter to be further enquired into and it is a matter upon which - evidence of external facts becomes plainly necessary, the 'Court must undertake investigation in a judicial manner. The section lays down this manner and directs that commission be issued to a proper person for such investigation. In that case if a Commissioner makes a report, then it will be the judicial duty of the Court to come to a decision on the basis of the Commissioner's report in accordance with the provisions of the Code of Civil Procedure. Taking into consideration these provisions it becomes clear that the investigation contemplated by section 9 should not be embarked upon without due reason, as otherwise even on a frivolous objection the plaintiff will have to suffer the hardship of going through an extra stage of litigation before he can prosecute his suit.
7. Now if the proper scope of section 9 of the Court Fees Act is kept in mind, the observation of this Court in Allahyar's case becomes clear and relevant because in that case the Court had reason to believe, in view of the document of net profits placed on record by the plaintiff himself that the suit was under-valued. -The Court had even otherwise come to the conclusion that the suit was under- valued and called upon the plaintiff to make up the deficiency. As the question as to the amount of court-fees payable is not a question between the parties but a matter between the plaintiff and the State, the fact whether the defendant pressed this issue at the trial or not, was considered immaterial.
8. The facts of the reported case are, therefore, entirely dis--tinguishable from the facts of the present case. There is nothing on the record, which could be construed as a reasonable ground for holding that the appellant had under-valued, the suit. The respondents were admittedly in possession of the land and it would have been easy for them to have brought on record material relating to the net profits of the previous year, which could have furnished reasonable grounds in terms of the opening part of section 9 of the Court-Fees Act, for the Court to order an enquiry suo motu. But this they failed to do, and merely complained before the High Court that the Court had failed in its duty to enquire in this matter on its own. We, therefore, hold that the High Court proceeded on an incorrect assumption that in the circumstances of this case it was obligatory on the trial Court to undertake an enquiry itself.
9. The High Court did not go into the question whether Exh. P.4 was admissible in evidence or whether it was proved on record according to law, although this was the only contention raised before the appellate Court by the respondents. As discussed above for the purposes of the preliminary satisfaction of the Court whether there existed reasonable grounds for an enquiry as contemplated under section 9 of the Court Fees Act, it was open to the Court to refer to any material brought before it. In this perspective the question whether the statement of profits as incorporated in the document Exh. P.4 was properly proves becomes entirely immaterial. The Court could look at the document without its being proved in evidence. Proof of the document would have become necessary only if the Court had embarked upon enquire contemplated by section 9 of the Court-Fees Act. Be that as it may, we feel that the view taken by the learned Additional District Judge that the respondents were not entitled to raise objection as to the proof of this document since they had not raised such objection at the the of document was exhibited on record, is in consonance with law.
10. Section 67 of the Evidence Act lays down, the mode of proof of the execution of a document. As a general proposition it is correct to say that every document given in evidence must be proved in the mode prescribed by this section and if it is not so proved it will be inadmissible in evidence. But this is subject to the exception in cases where proof of a document is dispensed with under some special provision. However, the mode of proof of a document is a question of procedure and is accordingly capable of being waived. Thus, where objection as to the manner of proof of a document is not taken at the the the document is sought to be proved in the lower Court and the document is exhibited and referred to, no such objection can be allowed to be raised in appeal or revision. This Court had occasion to pronounce on this legal aspect in several decisions.
11. In Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140 following the view taken in Gopal Das v. Shri Thakurji AIR 1943 P C 83 this Court referred to the rule laid down in the latter case as under:- "Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal arid then complain for the first the of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial."
On the basis of this rule this Court observed:- "The record in the present case does not also disclose that any objection was taken by the pre- emptor to the proof of this document when it was produced in Court by the counsel for the vendees and marked as an exhibit. The document not having been objected to must be deemed to have been admitted and, as such, the trial Court was clearly wrong in excluding it from consideration on the ground that it had not been formally proved. The document having been marked as an exhibit without objection became admissible in evidence and was rightly taken into consideration by the High Court. There can be no doubt as to the genuineness or admissibility of this document, for, it is not disputed that it forms part of the mutation record, and, indeed, was one of the documents upon which the mutation of sale was actually entered."
Similarly in Malik Din and another v Muhammad Aslam PLD 1969 SC 136 this Court reiterated the view and held that objection as to formality of proof must be taken at an earlier stage, and once the document is admitted in evidence such objection against admission cannot be allowed at appellate stage. This view has been followed in some recent decisions of this Court, namely, Dr. Major Abdul Ahad Khan v. Soofi Muhammad Yasin and Brothers PLD 1984 SC 200 and Ghulam Muhammad and others v. Mehtab Beg 1983 SCMR 849.
12. It has been observed, however, in the leave granting order that the counsel had referred to Khan Muhammad Yusuf Khan Khattak. v. S:M. Ayub and 2 others P.L.D. 1973 SC 160 in which a contrary view was taken in the majority opinion expressed therein. A careful reading of this judgment, however, reveals that the view expressed in the earlier judgments of this Court referred to above was not dissented from. Hamoodur Rehman, C.J., who wrote the minority opinion in this case followed his earlier view in the 1968 and 1969 cases mentioned above. Out of the remaining to learned Judges constituting the majority in this case Anwarul Haq, J. (as he then was) observed as follows:- "While it is true, as observed by the Privy Council in Gopal Das v. Sri Thakurji and by this Court in Abdullah v. Abdul Karim and Malik Din v. Muhammad Aslam, that in objection as to the mode of proof should be taken at the trial before the document is marked as an exhibit and admitted to the record and a party cannot lie by until the case comes before a Court of appeal and then complain for the first the of the mode of proof, it will be seen that in this case an objection as to the admissibility and the proof of this document was taken before the Election Tribunal itself. A cursory glance at the original of this document, which was summoned by this Court, shows that there is an overwriting on the signatures of the appellant. It is recorded by the Election Tribunal that the original, as produced by the Registration Assistant, was seen and returned. I cannot help feeling that the Tribunal clearly failed to perform its duty if it did not see the overwriting on the original of Exh. P.E."
So far as the rule of law with regard to objection as to the formality of proof of a document is concerned, therefore, the majority did not dissent from the earlier view postulated. The reading of this judgment indicates that the decision of the Court turned on the peculiar facts of this case, as the document involved was a private document in which admissions made by a party on a matter in issue were being relied upon, without confronting the party concerned with the document. We have, therefore, come to the conclusion that the consistent view of this Court is as explained in the cases referred to above.
13. Coming now to the facts of this case the document in question was apparently a certified copy of the Revenue Record which was produced in the trial Court on an express permission obtained by the appellant. It is rib doubt true that the respondents objected to the application of the appellant to produce further evidence after having closed his evidence earlier. But the Court allowed the request of the appellant and permitted him to adduce additional evidence consisting of documents including Exh. P.4. There is nothing on the record to indicate as to whether the respondents objected to the mode of proof in respect of this document at this stage. Objecting to a further opportunity being provided to the plaintiff to produce additional evidence is quite different from objecting to the admissibility of the document on the ground of mode of proof. It was argued on behalf of the respondents that there was no order of the Court that the document be exhibited We are, however, unable to verify the correctness of this statement from the present record.
However, there is on record the statement of the Advocate producing these documents and an exhibit number has been assigned to the document in question. In the judgments of the Courts below also the document has been referred to as Exh. P.4 and there is nothing on the record to indicate as to whether the respondents raised this objection that the document was not exhibited by the Court, at any earlier stage. The rule of law laid down by this Court, therefore, was fully attracted in this case and the respondents are debarred from raising the question of the formal proof of this document at subsequent stage.
No other contention was raised on behalf of the respondents.
14. For the foregoing reasons this appeal is allowed with costs and the order of the High Court, dated 16-4-1983 is set aside with the result that the decree passed in favour of the appellant shall stand restored.