This Revision is preferred from the judgment and decree dated the 81h of March, 1988, passed by the learned Additional District Judge, Gujrat whereby the respondents/pre-emptors' appeal was accepted and their suit was decreed.
2. The question falling for determination before this Court relates only to deficiency of court fee. The area in question was agricultural land and the court Ice payable for the suit filed on 1-4-1975 had to be computed according to not profits accruing therefrom during the year immediately preceding the date of institution. It transpired from the record that a table for such not profits was filed 'gut it was somehow lost from the record. The District Judge ordered its reconstruction whereupon the respondents pre-emptors filed one for Rabi and Kharif 1974. Rs.803.73 were found to be not profits arising out of the two crops. Their fifteen times came to Rs.12,055.95 requiring court fee worth Rs.907.50. The respondents, however, had actually paid court fee worth Rs.145. An objection was taken to the table on the ground that it did not relate to the precise yearpreceding the date of institution of the suit and that valuation computed in accordance therewith was inapplicable.
Noticing this mistake the respondents/pre-emptors submitted an application on 26-3-1986 itself seeking permission to file a fresh statement of not profits pertaining to Kharif 1974 all',! Rabi 1975 grown during the exact year preceding the suit. Since it was quite an old case, the learned Civil Judge permitted the respondents to place it on the file. He did not consider it expedient to further adjourn the case with a view to enable the petitioners-vendees to file a formal reply to the said application. He, however, felt that this table was also not correct inasmuch as it related to Kharif 1984 and Rabi 1975. On reflection he thought that Kharif 1984 was in fact Kharif 1974 and that the figure '1984' was written by a clerical error for 1974. After making this assumption, he further scrutinized the document and noted that it did not bear any official seal, not a certificate by any official, nor its author was examined, nor did it explain as to how the share of (lie produce of the owner was 2/5 especially when all the Khasra numbers excepting one were cultivated by tile owner himself. Lastly he pointed out that the rates of produce as fixed by the Board of Revenue were not appended and for all these reasons proceeded to exclude it from consideration. As a result he dismissed the suit for deficiency in court fee.
3. In appeal, however, it was observed that there was no contumacy on the part of the pre-emptors in providing the statement of not profits, in that they filed one along with the plaint, but the same was lost they produced yet another, and still later appended a new one. The Court emphasized the fact that after the loss of the table from the record, its reconstruction had to be made with the assistance of both the parties and, therefore, the appellants--vendees should have also made efforts to bring on record such a table as might be conformable to the requirements of law. Their failure to adduce any was regarded as an index that they had none better than those produced by the pre-emptors. Thus, producing quite a few tables successively was held sufficient proof of the pre-emptors' vigilance rather than deliberateness. Additionally, the last of the tables marked `B' was corrected as the mention of Kharif 1984 was held to be a clerical mistake. It was remarked that the real crop intended was Kharif 1974. On the basis of this table the not profits were calculated to be worth Rs.1,106,52 and the court-fee payable thereon was determined to be Rs.1,245 as against Rs.145 actually paid. The deficiency was worked out to be Rs.1100.Oo and it was ordered to be made up before a designated date.
4. Mr. Muhammad Latif Khan Khosa, Advocate for the appellants urged that the lower appellate Court corrected the table marked `B' without affording an opportunity to them to produce evidence in rebuttal and further that its authenticity having not been borne out by any official concerned with its preparation, it could not have been relied upon. He referred to Khizrat Muhammad and others v. Ghulam Muhammad and others (PLD 1962 Lahore 492) and stressed that only a certified copy as envisaged by Article 87 of the Qanun-e-Shahadat, 1984 should have been tendered.
5. It must have been seen that the respondents produced no less than till-CC tables of the produce. The last one marked `B' incidentally contained Kharif 1984 and Rabi 1975. Kharif 1984 obviously had nothing to do with tile suit and in its place Kharif 1974 was intended to be noted. The mistake was nothing but clerical and the lower appellate Court rightly corrected it. If the appellants really felt that they were prejudiced, they could have produced any such table during the long pendency of the suit. They could as a matter of right produce one when both the parties were called upon to help reconstruct the missing record. It is true that basically the burden lay on the pre-emptors to show that they had paid proper court fee but when the same is challenged 'to be incorrect, the appellants--defendants were also under an obligation to show after all what the correct valuation was. On such an objection the Court has to compute the valuation and in the process of computation either party could rely upon the produce index. If the appellants failed to produce anything of the sorts, the assumption shall be that they tacitly accepted the one riled on behalf of the respondents. Determination of deficiency and an adjournment as a matter of obligation for its payment were the principles evolved in Siddique Khan etc. v. Abdul Shakur Khan etc. (PLD 1984 SC 289). The trial Court did not determine it whereas the lower appellate Court supplied this omission and. Gave time to the respondents for payment of the deficient amount. It did nothing wrong in complying with the ratio of the said case.
6. It is true that the table marked 'B' was presented handily on the date of arguments, and also of the decision made by the trial Court, but it was not something entirely new. The appellants had knowledge that the two crops to be kept in view would be Kharif 1974 and Rabi 1975. They had already raised, an objection to the Naqsha Jhar Pedawar marked `A' which did not conform to he year preceding the suit. Thererefore, the appellants would have seen to the fact that the new Naqsha would contain the relevant crops. Any clerical mistake appearing therein was of no consequence, nor could it conceivable cause any prejudice to the appellants. The determination of the valuation and payment of court fee thereon were not entirely one-sided matters for the plaintiffs alone. It was indeed a fiscal matter more of the State than the parties and they wife almost equally supposed to have seen that there was no fiscal loss to the State. The appellants have to in a way blame themselves. Absence of any official stamp on the table marked `B' did not mean much. It is not an exact copy of any Revenue entries, and instead contains an assortment of entries from various registers etc. In practice, its author is not formally produced in the Court.
Usually it is prepared by Patwari/Girdawar whose certificate thereon is considered enough. The appellants could themselves obstain it, but they rested content to raise a technical objection, which cannot be allowed to help advance injustice. The omission, if any, in this behalf appeared to be mainfestly unintentional. In like pre-emption cases comparatively more serious omissions even in leaving out a part of the lands sold were ignored being unintentional. Naeem-ur-Rehman and others v. Muhammad Anwar and others (1986 SCM R 1488) and Amir Muhammad and others v.
Sardar and others (1989 SCM R 95) bear out the point. The rule propounded therein could be applied to the present case on analogical reasons and the omission was of no consequence.
Khizrat Muhammad's case is of no assistance to the appellants as it relates to certified copies of such public record where no computation is involved. Here the crop sown, the area under the crop, the market rates of the produce, the expenses of moeens and fertilizers etc. Etc. Had to be ascertained from various documents and then the not profits are to be worked out. These are not the straight entries from one compendious record so as to insist for their exact copies under Article 87 ibid.
7. There is no substance in the appeal and the same is dismissed. Parties to bear their own costs.
M.Y.H./F-134/L