' NAIMUDDIN, J.--This appeal by leave is directed against the order dated 2nd June, 1980, passed by a learned Single Judge of the Lahore High Court, whereby he dismissed the civil revision, being C. R.
800 of 1980, in the following circumstances.
2. The appellant filed a suit in the Court of Civil Judge, Second Class, Mandi Bahauddin, for declaration that he had purchased Dakheel karri rights in land measuring 56 kanals and 6 marlas situated in Chak No, 29, Tehsil Phalia, District Gujrat. Several issues were raised by the respondent one of them being whether the suit was properly valued for the purposes of court-fee and jurisdiction. The suit was decided against the appellant but on the issue of the court-fee and jurisdiction, the learned trial Court held that it was not shown that the court-fee paid was not correct and accordingly it decided this issue in favour of the appellant.
3. Aggrieved by the judgment and decree the appellant filed an appeal, being Criminal Appeal 310 of 1977, before the Additional District Judge, Gujrat, affixing court-fee of Rs, 10 on the memorandum of appeal which was same as fixed on the plaint. The learned District Judge, however, held that the court-fee of Rs,10 was not correct as ad valorem court-fee on the value of the property should have been paid. In this connection reference was made to the amendment of Court-Fees Act by the Punjab Finance Act, 1973. He, therefore, dismissed the appeal on this ground alone.
4. The appellant took the matter to the Lahore High Court as mentioned before but failed.
5. Before us the learned counsel for the appellant submitted that since the issue of court-fee had been decided by the trial Court in favour of the appellant the appellate Court was bound to give to the appellant time to make up the deficiency in the court-fee in view of the provisions of section 149, C.P.C. Read with Order VII, rule 11(c), C.P.C.
6. This question stands concluded by two recent decisions of this Court in the case of Siddique Khan and others v. Abdul Shakur Khan and others (PLD 1984 SC 289) and Ilam Din and another v.
Abdul Majid and others (1986 SCM R 1439). In the first named case leave was granted to consider, inter alia the following contentions: "Secondly, that Order XLI, rule 3 could be and read with Order VII, rule 11(c), and sections 107 and 151, C.P.C. Accordingly the Appellate Court could also, like the trial Court, require the supply of deficiency in court-fee under Order VII, rule 11(c), C.P.C. With consequences accordingly. Thirdly, that First Appeal could not have been rejected as time-barred on account of the so-called deficiency in court-fee it could be dismissed only if, as it was held in Shah Nawaz and others v.
Muhammad Yousaf (1972 SCM R 179) a party was found guilty of `contumacy' or 'positive mala fide' in paying deficient court-fee."
7. Considering the contentions, Muhammad Afzal Zullah, J who wrote the opinion of the Court after reviewing the entire case on the points and resolving the difference of opinion noticed in the judgments of various superior Courts held at page 321 of the report that: "It has been held in the afore-analysed cases that it is obligatory to grant time for supply of deficiency in court-fee before rejecting the plaint under Order VII, rule 11(c). It is discretionary, however, to grant time under section 149, C.P.C. As has already seen when explaining contumacy, it is not lawful to reject a plaint under Order VII, rule 11(c) without first granting time to the plaintiff to supply the deficient court-fee. Order VII, rule 11 is in a way a penal provision and shall be construed strictly so as not to be resorted to unless the conditions for exercise of such drastic power are satisfied. In the clause relevant here namely (c) it is provided that the plaint shall be rejected thereunder only when after the grant of requisite time the plaintiff has failed to supply the required/specified court-fee. Thus, it is mandatory and obligatory for the Court to grant time under clause (c). The question of discretion does not arise. And it is so whether the occasion arises at the very institution of the plaint or at a later stage."
' It was also held at page 313 of the report that Order VII rule 11(b) and (c) applies to plaint as also to the memorandum of appeal. It was further held at page 315 of the report that when considering the opinions for exercise of discretion under sections 148 and 149 C.P.C. And the relevant provisions of Court-Fees Act for grant of time for supply of deficiency in the court-fee considerations relevant to bar of limitation should not be taken into account.
8. In the second case of Ilam Din reiterating the view expressed in Siddique Khan's case this Court held that the question of limitation does not arise with reference to the proceedings on question of court-fee under Order VII, rule 11 and that it is as a matter of right that in cases of deficiency of court-fee the Court is to determine the deficiency and afford at least one opportunity under the said provisions to the plaintiff to make up deficiency.
9. In the case on hand admittedly no opportunity was given by the appellate Court and the question of giving any opportunity to the appellant to make up the deficiency by the trial Court did not arise as according to its finding the suit was properly valued and proper court-fee was paid thereon.
10. Submissions made by the learned counsel for the respondent before us were considered in the aforesaid cited cases except one which now requires to be dealt with. Learned counsel submitted that the appellant had filed earlier similar suit but the plaint was rejected on refusal of the appellant to make up the deficiency in the court-fee and that the question of court-fee had already been decided in a previously instituted suit, by a competent Court having jurisdiction which was between the same parties and in respect of the same land and therefore the question of court-fee became res judicata between the parties.
11. The previous suit was admittedly not decided on merits and only the plaint was rejected under Order VII, rule 11 C.P.C. Without determining the amount of deficient court-fee which the Court was bound to determine. If a plaint is rejected under Order VII, rule 11 C.P.C., plaintiff is not precluded from presenting fresh plaint in respect of the same cause of action in view of the provision of rule 13 of Order VII C.P.C., provided the right of action is not barred by any law. Since a fresh suit can be filed after the rejection of the plaint, the principle of res judicata is not applicable as there is no adjudication in the case where the plaint, is rejected. The decision of the Court under Order VII rule 11 rejecting the plaint is not on merits. In order to apply the principle of res judicata it is necessary to show that there was a decision finally granting or withholding the relief sought. In the case of Sheosagar Singh and others v. Sitaram Singh and others (24 I.A. 50), the Privy Council observed that to support of a plea of res judicata it is not enough that the parties are the same, and that the same matter is in issue. The matter must have been "heard and finally decided".
12. Further, no issue of res judicata was raised in the trial Court and consequently there was no finding by the trial Court that the suit was barred under section 11 of the Code of Civil Procedure.
The submission has, therefore, no force.
13. We, therefore, allow this appeal, set aside the order of the High Court and also the judgment and decree of the Additional District Judge, Gujrat. The appeal before the District Judge shall be deemed to be pending and he will allow the appellant time to make up the deficiency in the court- fee after determining the deficient court-fee, in accordance with the provisions of Order VII, rule 11(c) C.P.C.