' This second appeal is directed against the judgment and decree dated 4-12-1965 whereby the learned Additional District Judge, Multan dismissed the pre-emptor's appeal to reduce the sale price, but allowed him time to deposit the decretal amount.
2. The suit of the respondent-pre-emptor was decreed on payment of Rs, 22,000 whereas his claim in the suit was that only a sum of Rs, 10,000 was paid and fixed in good faith. He appealed to the learned Additional District Judge only in respect of reduction of the sale-price. An objection was taken that the pre-emptor should have paid court-fee ad valorem on the value of the difference he had claimed in appeal and not on the value of the subject-matter he had fixed in his suit.
Having realised that his memorandum of appeal was deficient in court-fee, he applied under section 149, C. P. C. To the learned Appellate Court for permission to make up the deficiency, but his, prayer was rejected. Notwithstanding standing the refusal of the Court to extend time in this behalf, the learned. Additional District Judge decided the appeal on merits and found that the sale-price paid and the market value of the property being the same, the pre-emptor was rightly ordered by the trial Court to pay Rs, 22,000. Since the decree of the trial Court was stayed during the appeal, the learned Appellate Court directed the pre-emptor to deposit the pre-emption money on or before 4-2-1966. The vendees have now come up in second appeal.
3. The pre-emptor valued his suit for purposes of court-fee at Rs, 6,398.45 and paid Rs, 427.12 as court-fee. The suit was decreed in favour of the pre-emptor on payment of Rs, 22,000 instead of Rs, 10,000 as claimed by him. He appealed to the learned Additional District Judge only in respect of the reduction of the price. Since it was a sum of Rs, 12,000 which represented the value of the subject-matter of the appeal, he should have, therefore, paid ad valorem court fee on that amount instead of what he had paid in the suit. An objection has been raised on behalf of the appellants that the memorandum of appeal, being admittedly deficient in court-fee, was a waste paper so long as proper fee was not paid. Placing reliance on Qadir Bakhsh v. Allah Bakhsh and others (I) it is further contended that as the pre-emptor's application under section 149, C. P. C., for extension of time for making up the deficiency, has been rejected by the first appellate Court, he cannot afterwards bank on the provisions of rule 11 of Order VII, C. P. C. And urge that the Court should have, if it was of an opinion that the memorandum of appeal was insufficiently stamped, fixed a date by which the deficiency was to be made good. A further reference is made in this behalf to Balwant Singh v. Jagjit Singh (2) where it is held that if insufficiently stamped memorandum of appeal is presented in an appellate Court, it cannot be held that a proper appeal has been filed at all. The memorandum of appeal is a piece of paper which may develop into a proper memorandum of appeal if the Court extends time for the payment of the deficient court-fee under section 149, C. P.
C. Once the Court has exercised its power under section 149 of the Code, the memorandum of appeal would be validated retrospectively from the date on which it was filed in an appellate Court, as it is laid down in section 149 that upon such payment being made the document in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance. If on the other hand the Court refuses to extend time under the provisions of section 149, the document presented in the appellate Court will never become a proper memorandum of appeal." In view of the rule laid down above it was urged that there being no valid appeal before him, the learned Additional District Judge had no jurisdiction to entertain the appeal and pass a decree allowing further time to the petitioner to deposit the pre-emption money.
4. Article 1, Schedule I of the Court Fees Act (VII of 1870) is a residuary provision applying to the plaint, written statement pleading a set-off or counter-claim or memorandum of appeal not otherwise provided for in this Act. In determining the amount of court-fee payable, the sole consideration is as to what is the subject-matter of the suit or the appeal. It is always the value of such subject-matter on which the court-fee has to be paid as prescribed by the Act. An ad valorem court-fee in money matters is thus payable on the amount for which the party seeks to avoid liability or on the amount by which he seeks to ' enhance the value of the decree. In a pre- emption suit two reliefs are generally claimed by the pre-emptor i. e. One for possession and the other for determination of the price actually paid or fixed in good faith. It may be, that the Court decrees the pre-emptor's suit but also determines the price to be paid by him much more than he claims. In such cases, the value of the subject-matter in appeal filed by the pre-emptor to get the sale-price reduced, and that filed by the vendee to avoid pre-emption would be different. In a Full Bench case of Waryam Singh v. Mehtab Singh and others (3) the plaintiff sued for (1) PLD 1967 Pesh. 1 (2) AIR 1947 Lah. 210 (3) 76 PR. 1913 pre-emption in respect of a sale of land the price of which was stated to be Rs, 56,000. The plaintiff alleged that the price was not fixed in good faith and that market value was only Rs, 11,000 and claimed to pre-empt on payment of Rs, 56,000. Both parties appealed, the plaintiff claiming to pre-empt on payment of Rs, 11,000 only and the defendant-vendee claiming that the plaintiff was not entitled to decree. It was held that the appeal of the plaintiff must bear an ad valorem fee on Rs, 45,000 as provided by Article 1 of Schedule I and the defendant's appeal on the value of the land computed as laid down in clause (vi) of section 7 of the Court Fees Act.
5. The above decision is mainfestly based on the principle that the subject-matter for the plaintiff- pre-emptor and for the defendant-vendee was different in appeal, inasmuch as the one avoided, without questioning the right to pre-empt, the excess amount he was required to pay, whereas the other wanted to get rid of his dispossession of the suit land.
6. It is true that the plaint or memorandum of appeal cannot b treated as properly presented so long as proper court-fee is not paid, and in the instant case, the appeal prima facie May be deemed to have not been instituted until the deficiency was made up, but a question would aris whether there was no valid appeal at all before the learned Additional District Judge where he could decide the issues on merits and pass order directing the pre-emptor to deposit pre-emption money by a date fixed by him. Since the pre-emptor wanted to get the sale-price reduced, he had a discretion to appeal either to the extent of the entire subject-matter or a part of it. In the circumstances, it is not a case where the pre-emptor's appeal before the learned Additional District Judge was altogether unstamped. He wanted the reduction of the sale-price and for that he had made an appeal valuing it at Rs, 6,398.46 and paid court-fee of Rs, 427.12. It mean that although the appeal of the pre-emptor did not represent the entire amount, yet it was not invalid totally. He was, however, entitled to have his appeal heard for the reduction of the pre-emption money by the amount for which court-fee had been paid. It is held in Amir Shah Mohammad v.
Syed Shah Mohammad (1) that where the lower appellate Court refuses indulgence under section 149, C. P. C. In the case of appeal which is insufficiently stamped and dismisses it on the ground that it is time-barred, the appellant is entitled to have his appeal heard with regard to his claim for which court-fee has been paid and in so fams it is within time, irrespective of whether or not such a request is made to the Court by the appellant. In Firm Nihal Chand-Atma Ram v. Sardari Mal and others (2) the plaintiffs-appellants brought on bahi accounts a suit for recovery of Rs, 4,969-0-6 principal and Rs, 1,637-10-0 interest. The trial Court decree the suit for Rs, 3,385-11-6 only. The plaintiff appealed asking for full amount claimed, but paid court-fee covering a demand of Rs, 3,215 only. It was held that the whole appeal would not be dismissed but the appellant would not get a decree in appeal for more than the amount for which fee was paid.
7. The argument has no force that the learned District Judge had no jurisdiction to fix another date for depositing the pre-emption money than already fixed by the trial Court in the original decree. It is the accepted principle that in an appeal before it an appellate Court has the same powers and is capable of performing, as nearly as may be, the same duties as are conferred and imposed by law on Courts of original jurisdiction in respect (1) AIR 1931 Lah. 237 (2) AIR 1926 Lah. 558 of suits instituted therein. I am, therefore, of the firm view that in an appeal before it, an appellate Court has power to fix a date by which pre-emption money may be deposited even if the time allowed by the trial Court has by then expired, and the suit has already stood dismissed for non-compliance of the decree of the trial Court. In Khan Shah Mohammad Khan v. Allah Diwaya and others (1) a question arose whether the appellate Court was empowered to extend time of payment of the balance of the pre-emption money, namely, four annas, and whether such an order should be passed or not.
It was held that it is no doubt true that after the trial Court had passed the decree, it cannot, by modifying the decree extend the period of deposit under section 148, C. P. C. It is also obvious. That if terms of the decree are not complied with and the pre-emption money is not deposited in time, the decree becomes incapable of execution and the decree-holder cannot obtain possession of the property in dispute. The position, however, would be different where the validity of the decree itself is being challenged and an appeal to that effect is filed in time. For extending the period of limitation, the appellate Court need not rely on the provisions of section 148, C. P. C., nor is it necessary for that Court to declare whether the decree had or had not become incapable of execution. If circumstances justify, there would be nothing to prevent the appellate Court from modifying the terms of the decree by extending the time fixed for deposit of the pre-emption money.
8. In the instant case, there was undoubtedly a valid appeal before the learned Additional District Judge, although in respect of a part of the pre-emption money. The pre-emptor was not allowed to enhance the value of his appeal to the result that the learned Additional District Judge went into the merits and found that the pre-emption money fixed by the trial Court was correct. He consequently dismissed the appeal, but in exercise of powers under rule 14(1)(a) of Order XX, read with section 107, C. P. C. He exercised his discretion and allowed time to the pre-emptor to deposit the pre-emption money by a date fixed by him. In this way the decree was deemed to have been varied in relation to time by which deposit of the money was to be made by the pre-emptor. In the circumstances, it cannot be successfully urged that the learned Additional District Judge had no jurisdiction to pass an order directing the pre-emptor to deposit the pre-emption money by a specified day. The decree under appeal, thus, does not suffer from any legal infirmity and I do not find it fit to interfere with it.
9. For the reasons aforementioned there is no force in the appeal and the same is dismissed with costs.
(1) PLD 1961 Lah. 743