' The respondent purchased the suit land vide mutation No,7133 dated 16-8-1972.. On 1-9-1973, the appellant filed a suit for possession of the suit land by pre-emption. In para.7 of the plaint the value of the suit for the purpose of court-tee was fixed at Rs,501.90 being ten times of the land revenue to which the land was assessed. A court-fee of Rs,37.50 was affixed on the plaint. The suit was put up before the learned Civil Judge by his office on 3-9-1973, with, inter alia, the objection that the Jhar Paidawar has not been filed with the plaint. On the said date the learned Civil Judge passed an order that the objection be removed within a week. On 10-9-1973 the learned Civil Judge issued notices to the respondents and directed the appellant to make up the deficiency in the court-fee by 15-10-1973. On this date an application was filed by the appellant, presumably, under section 149, C.P.C., saying that all of them have been arrested in connection with some criminal cases and are not in a position to file the Jhar Paidawar. This application was allowed subject to payment of Rs,20 as costs and 10 days' time was given to the petitioner. The opportunity was given in the presence of the learned counsel for the respondent, who had put in appearance by that time. The case was adjourned to 27-10-1973. There is a note on daily order sheet, dated 22-10-1973 that 27- 10-1973 has been declared to be a holiday and the new date is fixed as 24-11-1973. On 23-11-1973 the appellant filed the Jhar Paidawar and also paid the requisite court-fee making up the total of Rs,229.50 which was the court-fee payable on the basis of 15 times of net profit accruing for the year preceding the suit. The learned Trial Court framed the issues. Issue No,5 which is relevant to the present controversy is as under:-
(5) Whether the plaintiff-did not file the requisite stamp paper to make up the deficiency of court- fee within time given by. The Court and with what effect?
2. Evidence was recorded and suit was decreed by the learned Trial Court vide judgment and decree, dated 9-12-1975. On issue No,5 the observations of the learned Trial Court were that the learned counsel for the defendant has conceded that payment of court-fee is in accordance with law. The respondent filed an appeal. The learned District Judge Mianwali noted in his judgment that the only contest before him was qua issue No,5. He reversed the findings of the learned trial Court and dismissed the suit. Mr. Alamgir, learned counsel for the appellant argued that in view of the concession of learned counsel for the defendant the findings on issue No,5 could not have been re- opened by the learned District Judge. Further argues relying on the case of Malik Allah Dad v. Yasin (1990 SCM R 1638) that it was the duty of the learned Trial Court to have calculated the amount of court-fee payable and, thereafter, to have given one opportunity in terms of Siddique Khan's case (PLD 1984 SC 289) to make up the deficiency. Mr. Rab Nawaz Khan Niazi, learned counsel for the respondent on the other hand tried to support the impugned judgment.
3. 1 have gone through the record of the learned Trial Court with the assistance of learned counsel for the parties. The requisite particulars discernible from record have already been stated above. I do not agree with the learned counsel for the appellant that the concession made by the counsel for the defendant before the Trial Court debarred the learned District Judge from determining issue No,5. Question of non-payment of court-fee and its effect in primarily a question of law and any concession given by a learned counsel on question of law is not binding on his client or for that matter on the Court. However, the learned counsel is on a stronger footing with regard to the second limb of his argument. As stated above, it was pointed out by the office of the learned Civil Judge on 3-9-1973 that court-fee cannot be calculated in the absence of Naqsha Jhar Paidawar.
The learned. Trial Court instead of calling upon the appellant to file the said document in the first instance straightaway directed him to make up the deficiency in the court-fee. It is a matter of record that on the date the said direction was issued. There was no material on record and consequently no finding by the learned Trial Co that the suit is incorrectly valued for the purpose of court-fee and that there is some deficiency in the court-fee which is to be made up. Similar was the position on 15-10-1973 when he proceeded to grant time subject to costs. On 24-11-1973 the learned Civil Judge simply ignored the note of the office that deficiency in the court-fee has been made up. Even on that date and for that matter throughout the suit he did not bother to determine the court-fee payable. I have, however, gone through Jhar Paidawar which is available on record.
The net profit accruing for the two crops preceding the filing of the suit have been calculated as Rs,202.85. 15 times of this amount comes to Rs,3042.75. The total amount of court-fee payable comes to Rs,229.50. After deducting Rs,37.50 already paid a court-fee of Rs,192 was payable which was in fact paid on 23-11-1973. From the endorsement on the back of the court-fee stamp it appears that the stamps were purchased by the appellant on 22-10-1973. Therefore, even going by order passed by the learned Trial Court the court-fee was practically paid within 10 days allowed by the learned Trial Court, on 15-10-1973. Thus, for the said reasons, I answer issue No,5 in favour of the appellant. Resultantly, this R.S.A. Is allowed. The judgment and decree dated 15-10-1976 of learned District Judge Mianwali is set aside and that, dated 9-12-1975 of the learned Trial Court is restored. Parties are left to bear their own costs.