Facts giving rise to this regular second appeal are that the appellant, Muhammad Farooq filed a suit against the respondent, Muhammad Abdullah, for possession of certain land through pre- emption. The appellant (plaintiff) fixed the valuation on the suit both for the purposes of court-fee and jurisdiction at Rs.1,200 and paid a court-fee of Rs.90. One of the objections raised by the respondent in defence of the suit was that the suit had not been correctly valued. An issue in this regard was framed by a Civil Judge of Gujranwala, who was seized of the suit, and its onus was placed on the respondent. That issue was ultimately decided in favour of the appellant. The suit was also decreed. The respondent went in appeal against the judgment and decree of the learned trial Court. Before the District Judge, Gujranwala, who heard the appeal, the respondent filed the statement of net profits of the disputed land which revealed that the suit was not properly valued for the purpose of court-fee. It was held by the learned District Judge that in view of the said statement court-fee of Rs.1,312.50 was payable on the memorandum of appeal as well as for the suit. He permitted the respondent to make good the deficiency in court-fee for the appeal but did not allow the appellant to make up deficiency of court-fee regarding his suit. Learned District Judge, therefore, decided the issue of court-fee against the appellant and dismissed the suit for his failure to pay the requisite court-fee within the period of limitation. Feeling aggrieved by the judgment and decree of the learned District Judge, the appellant has come up in second appeal to this Court.
2. It was contended by learned counsel for the appellant that although the case of Mat. Wilayat Khatun v. Khalil Khan and another PLD 1979 SC 821 was not cited by learned District Judge in support of his order yet the view taken by him appeared to be based on the said case. It was maintained by him that the opinion delivered in the said case no longer holds the field. He cited Shahna Khan v. Aulia Khan and others PLD 1984 S C157 and Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 to contend that no party can be non-suited for deficiency in court-fee unless he is allowed an opportunity to make good the deficiency. It was submitted by learned counsel for the appellant that it was the duty of the learned District Judge to allow time to the appellant to make up deficiency in court-fee regarding his suit but since he had failed to do so, his order was not sustainable.
3. As indicated above, onus of the issue relating the valuation of the suit was placed on the respondent and it was decided again4t him. Thus, according to the trial Court proper court-fee had been paid by the appellant for his suit. The court-fee paid by the appellant for his suit was also paid by the respondent for his appeal but subsequently further court-fee was paid by him by filing the statement of net profits.
4. If the respondent had been allowed to make good the deficiency in court-fee after the lapse of the period prescribed for the filing of appeal the appellant should also have been permitted to make good the deficiency in court-fee although he had not done so within the period prescribed for filing the suit. In view of the cases Shahna Khan v. Siddiqui Khan and 2 others, cited by learned counsel for the appellant, the appellant could not be non-suited and the plaint could not be rejected without allowing an opportunity to the appellant to make good the deficiency in court-fee.
No such opportunity was, however, afforded to him. I, therefore, agree with learned counsel for the appellant that the order of the learned District Judge is not in accordance with law.
5. In view of what has gone above, I accept this appeal, set aside the judgment and decree of the learned District Judge, and remand the case to him with the direction that he will allow one month's time to the appellant to make good the deficiency in court-fee by filing the requisite court-fee stamps in his Court. If the deficiency in court-fee is made good by the appellant within the aforesaid time, the learned District Judge shall re-decide the appeal on merits. However, if the appellant fails to comply with this order relating to payment of additional court-fee, the judgment and decree already passed by the learned District Judge shall stand revived. In view of the peculiar circumstances of this case, the parties are left to bear their own costs.