' SAAD SAOOD JAN, J.---This is an appeal by special leave from the judgment dated 6-3-1983 of the Lahore High Court dismissing the second appeal preferred by the appellant.
2. One Bahali who was a Christian by faith died in 1967. He owned 1/9th share in occupancy rights in respect of 248 Kanals and 16 Marlas of land in village Saraich of Tehsil Lahore. On 23-4-1969 a mutation of inheritance was attested by the local Revenue Officer whereby his widow Mst. Santi, respondent No,1, was shown to have succeeded to his rights till death or remarriage. About 7 months later she sold her rights to Khalil Ahmad, respondent No,2, for a sum of Rs, 13,650,00. The transaction was an oral one and was evidenced by a mutation attested on 23-11-1969. The appellant who was the brother of Bahali filed a civil suit on 3-2-1971 for a declaration that the said sale was illegal, void and liable to be cancelled. By way of consequential relief he sought joint possession of the land. Alongwith respondent No,2 and Mst.Santi he also impleaded the local Patwari as defendant. He fixed the value of the suit for purposes of court-fee at Rs,200 and paid court-fee in the amount of Rs,15.00.
3. The suit was resisted by the respondents who raised a number of legal objections to the maintainability of the suit. On the basis of these objections,. The trial Courf framed the following preliminary issues:--
(1) Whether the suit is not maintainable in the present form?
(2) Whether the suit has not been properly valued for purposes of court-fee and jurisdiction; if so, what is its correct valuation?
(3) Whether the suit is bad for misjoinder of parties?
' During the course of arguments issue No,1 was not pressed by the respondents. As regards issue No,2, the learned trial Court found that the proper value of the suit for purposes of court-fee was Rs,13,650 which was the price paid by respondent No,2 to respondent No,1. As regards issue No,3, it held that the local Patwari was neither a necessary nor a proper party to the suit and that his name should be struck off. Accordingly, by its order dated 11-12-1971 it called upon the appellant to file an amended plaint deleting the name of the local. Patwari from the list of the defendants and make up the deficiency in the court-fees within one month.
4. In compliance with the order of the learned trial Court the appellant filed an amended plaint.
However, he again valued the suit for the purpose of court-fee at Rs,200 and did not pay extra court-fee as required by the trial Court. In the written statement filed by the respondents to the amended plaint, they took up the objection that the appellant had failed to comply with the order of the trial Court with regard to value of the suit and payment of proper court-fee and for that reason the plaint was liable to be rejected. The appellant then moved an application for extension in time to make up the deficiency. The trial Court rejected the application on the ground that it had been made after a delay of one year. It then rejected the plaint.
5. From the order of the learned trial Court the appellant preferred an appeal before the Additional District Judge. In his memorandum of appeal as well as during the hearing of the appeal his contention was that the court-fee paid by him was not deficient. This contention did not fmd favour with the Additional District Judge who rejected it with the following observations:- "I am unable to agree with him for the simple reason that the perusal of the plaint has made out that the appellant instituted a suit for declaration and prayed for the possession of the property in dispute as a consequential relief. This being the position the said order dated 11-12-1971 which was not appealed against within limitation shall play the legal role according to which the appellant was made liable to make up the deficiency of the court-fee on the said amount. The application for extending the time in the relevant matter was made after one year and the learned trial Court was justified in dismissing the same because the penal provisions contained under Order VII, rule 11, C.P.C. Had come into operation after the lapse of a period of one month fixed by the trial Court for making up the deficiency of court-fee."
' As a result he dismissed the appeal.
6. From the judgment of the learned Additional District Judge the appellant preferred a second appeal in the High Court. A learned Single Judge. Dismissed the appeal with the observations:-- "There is no doubt that the plaintiff Sewa was directed to pay proper court-fee within one month vide order dated 11-12-1971. He neither complied with the order, nor, challenged the same ever. It had become final and binding on him. That being so, the plaint was rightly rejected and so also the appeal. He has persistently refused to pay court-fee when directed by the trial Court or by the High Court."
' The appellant has now come in appeal to this Court.
7. The High Court as well as the Additional District Judge did not examine the plea of the appellant that the court-fee already paid by him was not deficient, for, they seemed to be under the impression that the appellant was bound to file an appeal against the order of 11-12-1971 and as he failed to do so the. Said order had become final. It was not disputed by the learned counsel for the respondents that the said order was not an appealable one. Apart from that, it was open to the appellant to postpone his challenge to the order of 11-12-1971 till a final order had been passed against him. This was exactly what he did. Under section 105(1), Code of Civil Procedure, he could while preferring the appeal against the rejection of his plaint call in question the legality of the said order. Thus the finding of the Courts below that it had become fmal was clearly erroneous and they should have considered his contention that he had paid the proper amount of court-fee.
8. As regards the question whether the plaint bore proper amount of court-fee it has to be decided in accordance with the provisions of the. Court Fees Act as they stood on the day when the suit was filed, that is, 3-2-1971. Admittedly, it was a suit for a declaration and consequential relief. Now under section 7(iv)(c), Court Fees Act, it was the appellant who was required to value the relief sought by him. He exercised the discretion allowed to him by law and fixed it at Rs,200. It was not open to the trial Court to interfere with his discretion. It was not the case of the respondents that the amount of court-fee actually paid by the appellant was deficient even if the value of the suit for. Purposes of court-fee was fixed at Rs,200. We are, therefore, unable to support the finding of the trial Court that the plaint did not bear the proper amount of court-fee. For the reasons above we accept this apeal, set aside the judgments of the Courts below and remand the suit to the trial Court with the direction that the suit should be treated as still pending and be disposed of in accordance with law. There will be no order as to costs.