' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of a suit for declaration and cancellation of mutation filed by the petitioner against respondents Nos.3 to 11 in the Court of Senior Civil Judge, Sargodha on 3-10-1984. The suit was valued for purposes of court-fee and jurisdiction at Rs,200. An application under Order VII, rule 11, C.P.C. Was filed by respondents Nos.3 to 11 for rejection of the plaint on the ground that proper court-fee had not been paid. The learned Senior Civil Judge on 13-6-1985 held that the valuation of the suit for purposes of court-fee comes to Rs,22,834.20 on the basis of net profits accruing from the land on which no court-fee was payable.
2. Aggrieved by this order, respondents Nos.3 to 11 went in revision and succeeded before District Judge, Sargodha on 5-10-1985. The learned District Judge held that the trial Court acted illegally in deducting the share of the tenant while determining the net profits as the land was under self- cultivation. In view of the matter, which he took, the, case was remanded to the trial Court for determining the net profits afresh without deducting the share of the tenant.
3. In the post remand proceedings, the learned Senior Civil Judge vide his order dated 7-7-1987 determined the value of the suit for the purposes of court-fee and jurisdiction at Rs,93,416.85 and directed the petitioner to pay court-fee amounting to Rs,7,460 before 5-9-1987. This order was challenged by the petitioner by filing a revision under section 115 of the Code of Civil Procedure, 1908, which was dismissed by Additional District Judge, Sargodha on 25-9-1988 on the ground that the petitioner had not annexed certified copies of the documents mentioned in Section 115 of the Code of Civil Procedure, 1908. This order of the Additional District Judge and the order dated 7-7- 1987 of Senior Civil Judge, Sargodha have been called in question in this Constitutional petition. The learned counsel for the petitioner has contended that the Additional District Judge has acted illegally in dismissing the revision of the petitioner on hypertechnical ground that the certified copies of the documents had not been annexed to the revision petition.
4. There is considerable merit in this contention of the learned counsel for the petitioner. In the circumstances of the case, the revision petition could not have been rejected merely because the copies annexed with the revision were uncertified. Be that as it may, if the learned Additional District Judge was of the A view that it was necessary for the petitioner to have filed the certified copies of the documents, he should have allowed at least one opportunity to the petitioner to rectify this defect by filing the certified copies, specially when the revision petition had been admitted to regular hearing. Unfortunately, the learned Additional District Judge chose to sacrifice justice at the altar of technicalities.
5. As regards the order of the Senior Civil Judge dated 7-7-1987, after hearing the learned counsel for the parties, it has become apparent that the same is not sustainable as it does not conform to, but offends against, the order of remand dated 5-10-1985 of District Judge, Sargodha. It is to be seen that the learned District Judge, while remanding the case had directed the trial Court to calculate the net profits inclusive of tenant's share but exclusive of the cost of cultivation.
Unfortunately, the trial Court, while undertaking calculation of net profits, has committed two serious errors. First that it failed to appreciate that while the statement of net profits related to 69 kanals of land, the suit was with respect to 1/3rd share in the same. In calculating the amount of court-fee, therefore, the trial Court should have proceeded on the basis of 23 kanals being 1/3rd share in the khata which was the disputed land, but erroneously computed court-fee on the net profits accruing from the entire 69 kanals. The other error into which the trial Court fell was that it did not deduct from the profits the cost of cultivation which according to Naqsha Jhar Paidawar itself was Rs,4,110.10 despite a clear direction to this effect in the order of remand dated 5-10-1985.
Faced with this situation, the learned counsel for the contesting respondents had to concede that the calculation made by the trial Court was erroneous and not sustainable.
6. As a result of what has been stated above, the impugned order of the Senior Civil Judge dated 7- 7-1987 is declared to be without lawful authority and of no legal effect and the case is remanded to the trial Court to determine afresh the valuation of the suit for the purposes of court-fee and jurisdiction keeping in view the observation made above and the order of remand dated 5-10-1985 of the District Judge, Sargodha. There shall be no order as to costs.