JUDGMENTAKHTAR HASSAN, J.- It may be made clear at the outset that the suit out of which the present R.F.A, arose was once placed before one of us (Akhtar Hassan, J.) on 17.4.1983 in his capacity as District Judge,Lahore, when he passed an order for its transfer. Parties did not have any objection to the hearing of the appeal by him.
2. The R.F.A, impugns a decree dated 30.5.1983 passed by the Civil Judge lst Class, Lahore, whereby the plaint was rejected under Order- Vli rule 11, C.P.C, for non-payment of Court fee within the time allowed for the purpose.
3. The appellant/Plaintiff claimed that his own father, defendal No.1 had made an oral gift of the disputed house in his favour initially in 1969 soon after the demise of his real brother Abdul Hamid and later affirmed it in July, 1972, after obtaining its P.T.D. He added that subsequently a suit was brought against him by the donor for ejectment denying the gift and stating that instead he had gifted away the house to defendant No.2 who was the widow of the said Abdul Hamid. He asserted that since the gift in his favour was complete in all respect, it was not open to defendant No.1 to make its subsequent gift to defendant No.2. He prayed for declaration of title as donee and an injunction to restrain the defendants from interfering with his possession paying court-fee worth Rs.15/- on the valuation of Rs.200/- for purposes of court-fee and jurisdiction.
4. The respondents/defendants denied the gift in favour of the appellant, disputed the valuation of the suit for court-fee and jurisdiction, pleaded estoppel against him, and assailed the maintainability of the suit owing to dismissal of an earlier suit on the point brought by him.
5. Appropriate issue including one as to valuation of the suit for court-fee were framed. After various adjournments, the parties agreed to the appointment of a Local Commissioner for detemining the market value of the house. He reported on the 31st of January, 1983, that it was worth Rs.3,50,000/-. Objections to the report were filed by the appellant, while the respondents opposed the same. The trial Court in its order dated the 17th of May, 1983, overruled the objections and directed payment of court-fee in ten days. The appellant preferred a revision petition against the relevant order but the same was dismissed. The appellant failed to pay court-fee till the 30th.
Of May, 1983 when his plaint was rejected under Order VII, rule 11, C.P.C.
6. An objection was taken before us that the Local Commissioner being only a lawyer was not a technical hand having special knowledge as to assess market value of the building and further that no opportunity was given to produce evidence against his report or to call him for cross- examination as envisaged by Order XXVI, rule. 10(2), C.P.C.
7. The argument was repelled contending that the appellant had himself agreed to the appointment to the Local Commissioner, that he did not assail his acumen to assess the value of the house in his written objections, nor did he make a prayer to call him for cross-examination, nor did he disclose his intention therein to produce any further evidence, nor did he tender before him any sale deeds etc. Of similar properties. It was urged that, by his conduct, the appellant had disentitled himself from questioning the veracity of the report.
8. The record, particularly the Objection Petition dated the 12th of February, 1983, shows, that the appellant did not raise many of the objections at the proper time and it'was obviously too late for him to rake them up at -appellate stage. He had agreed to the appointment of the Local Commissioner knowing that he was not an engineer. He did not tender before him any evidence on the market value, nor did he seek permission of the Court to tender any even subsequently. Alter his objections were overruled, he did not make a prayer to call the Local Commissioner for cross- examination. It was thus completely idle on his part to claim now that he was denied opportunity.
9. The suit was based on a gift. Under section 7(iv-A) of the Court-fees Act the valuation for court- fee had to be ad valorem. Consequently the amount of Rs.3,50,000/- was correctly determined to be the valuation for court-fee.
10. Counsel, however, submitted that after rejection of the appellant's objections on the 17th of May, 1983, allowing him only ten days for paying court-fee was not adequate and that he could not avail it for having been pre-occupied by a revision petition filed in the High Court by him against the said order. He added that the order dated the 29th of May, 1983, by which the case was adjourned only next day "for further proceedings"........................... Was not specific calling upon him to pay up thecourt-fee, and, therefore, he was entitled in equity to a further adjournment under section 148, C.P.C., for making good the deficiency in court-fee.
11. The plea for exercising discretion to extend the time under section 148, C.P.C., had some substance. The period of ten days allowed on the 17th of May, 1983, was indeed not utilised as the appellant was engrossed in Revision preferred by him against it. The next date was the 29th of May, 1983 when the case was adjourned for "mazeed karrawai" till the very next day, i.e., the 30th of May, 1983. Apart from the fact that one day's adjounment was by no means adequate or even appropriate, no categorical order was passed adverting attention to make good the deficient pertion of the court-fee. The omission could rightly be said to have misled the appellant. We feel he was entitled to extension of time to enable him to pay the court- fee.
12. We accept the R.F.A, only to the limited extent of allowing the appellant a further time till the 12th of January, 1989, to pay up the necessary court-fee. The impuged order is set aside. The case is remanded to the trial Court for further proceedings. Parties shall appear before it on the said date.