' A pre-emption suit filed by the petitioners was contested on a number of pleas including that of deficiency in payment of court-fee which led to the framing of Issue No,3 as under:-- "3. Whether the suit is properly valued? If not, what is the correct valuation? O.P.Parties."
' Trial Court decreed the suit on 16-5-1977 with the finding recorded under Issue No,3 that counsel for the parties had conceded that the suit is properly valued and there is nothing on the record to show that there may be any deficiency in payment of court-fee.
2. Appeal thereagainst filed by the defendants came up for hearing before an Additional District Judge (Khan Talib Hussain Baloch) and by his judgment dated 16-10-1984, he accepted,the appeal and set aside the decree of the Trial Court for the mere reason of the suit being assumed by him to be deficiently stamped on account of `Goshwara Jhar Pedawar' attached with the appeal by the appellants but his reasoning recorded in para. 8 of his judgment is neither co herent nor can his conclusion be anywise sustained in law inasmuch as he has gone on to say that Goshawara Pedawar was filed on 18-6-1975, at a time when limitation had already expired and a valuable right had accrued to the other party. The plaintiffs have come up in revision thereagainst.
3. There cannot be any conceivable right capable of accruing to a defendant on account of deficiency of court-fee which actually is a levy by the State and the defendants would not stand to gain anything upon any more court-fee being paid by the plaintiff. In Rachappa Subrao Jadhav Desai v. Shidappa Venkatrao Jadhav Desai AIR 1918 PC 188 it was held:- "The Court Fees Act was passed not to arm a litigant with a weapon of technicality against his opponent, but to secure revenue for the benefit of the State. It is not competent to a defendant in a suit to utilise the provisions of the Act at the appellate stage, not to safeguard the interests of the State, but to obstruct the plaintiff i.e., he cannot contend that the Court wrongly decided to the detriment of the revenue...." ~~The appellate Judge did not himself reckon any amount to be able to come to a conclusion that there may be any deficiency in that which had already been paid by the plaintiff and muchless did he specify the assumed deficiency and did not provide any opportunity for payment of any more court-fee which is requirement of law, as has been held in the case of Siddique Khan reported as PLD 1984 SC 289.
' Further, there cannot be any question of limitation being possibly involved in payment of further court-fee made under the orders of Court as is the case herein inasmuch as the appellate Judge has himself remarked in the preceding paragraph No,7, "he made up the deficiency in court-fee in accordance with the, same as is evident from the order, dated 18-6-1975". Hence, view prevailing in the appeal below is clearly against the provisions of section 149 of the C.P.C. which contemplates that payment of court-fee made in accordance with the order of Court shall have the same force and effect as if payment of such fee had been made in the first instance.
' Appellate jurisdiction exercised in this case is not only superficial but is also unlawful for the further reasons that admission made in the trial Court about correctness of valuation stated in the plaint could not be simply ignored and 'Goshwara' provided with the appeal could not be looked into on account of its being an additional evidence, for the reception whereof at the appellate stage, there did not exist any case in terms of Rule 27 of Order XLI, C.P.C. Moreover, express provisions of section 99 of the C.P.C. were disregarded in setting aside the decree of trial Court merely on the assumed deficiency of court-fee whereby neither the decision on merits made by the trial Court was affected nor did any question of jurisdiction of the Court get involved on that count.
4. For the foregoing reasons, judgment and decree dated 16-10-1984 passed in the appeal below are completely against the law and cannot be sustained.
5. In result, this revision-petition succeeds and is allowed by setting aside the appellate judgment dated 16-10-1984. The case is remanded to learned District Judge, Sialkot so that relevant appeal be considered as still pending at its original number for being disposed of afresh in accordance with law. It will be proceeded to be so decided expeditiously. No costs.