MRS. FAKHAR-UN-NISA KHOKHAR, J. -- This Regular Second Appeal is directed against the judgment and decree dated 14.9.1978 passed by the Addl. District Judge, Gujrat whereby he dismissed the appeal of the appellant .
2. The facts giving rise to the instant appeal are that the suit for possession through pre-emption was decreed in favour of the respondent by the learned Trial Court vide judgment and decree dated 1.7.1974. In the plaint the value for the purpose of Court-fee was given as Rs. 300/- and value for the purpose of jurisdiction was fixed as Rs. 900/-. The. Appellant preferred an appeal on 1.8.1974 by fixing the Court-fee stamps of the value of Rs. 22.50 on the memorandum of appeal and affixed Court-fee of the value of Rs. 1 instead of Rs. 2 as shown on the decree-sheet. The appeal was entertained and admitted to full hearing. On 3.6.1978 the respondent moved an application for the dismissal of the appeal on the ground that the Court-fee affixed on the decree-sheet was insufficient by Re. 1/- and on the memorandum of appeal the Court-fee stands on 15 times of the not profit is not affixed. The reply was filed by the appellant submitting that he had paid the Court- fee and if it is deficient he is prepared to make up the deficiency as the same has been affixed due to inadvertence and he was misled by the value for the purpose of Court-fee as stated in the decree-sheet. The learned Addl. District Judge, Gujrat vide judgment and decree dated 14.9.1978 dismissed the appeal on the ground of deficient Court-fee. Hence, the instant appeal challenges the aforesaid order.
3. The submission of the learned counsel for the appellant is that dismissal of appeal without allowing an opportunity to fulfill the deficiency of Court-fee is arbitrary and illegal. As the increase of Court-fee was affected by the Punjab Finance Act, 1973 and the question, whether the appellant was entitled to affix the same Court-fee as was affixed on the plaint according to law then enforced, was .a difficult question of law and the mistake committed in these circumstances was bona .Fide specially when the decree-sheet indicated that the value for the purposes of Court-fee is Rs. 300/-. Moreover, the conduct of the appellant was neither contumacious nor negligent as he showed his readiness to make up the deficiency of Court-fee according to law. But the learned lower Appellate Court has illegally refused his right to make up the deficiency in Court-fee following the view taken in Balwant Singh Vs. Jagjit Singh (AIR 1947 Lahore 210), subject to the rules laid down by the Supreme Court in Muhammad Nawaz Khan and another Vs. Makhdoom Syed Ghulam Mujtaba (PLD 1970 SC 37), which stands disapproved from the view taken in Siddique Khan and 2 others Vs. Abdul Shakur Khan and another (PLD 1984 Supreme Court 289), therefore, the impugned order is liable to he set aside.
4. The learned counsel for the respondent submits that the appeal was fixed on 1.8.1974 while the Punjab Finance Act came into force on 1.7.1973. According to this Act the appellant was hound to affix the Court-fee stamp paper of 15 times of not profit under Section 7 (v) A of the Punjab Finance Act, 1973. He also did not give any reason for extension of time and did not produce not profit, therefore, the learned Addl. District Judge has rightly dismissed his appeal in view of &Avant Singh Vs. Jagjit Singh (AIR 1947 Lahore 210) and STed Manzoor Hussain Ghazi Vs. Syed Ejaz Hussain Shah, Settlement Commissioner, Lahore Division, Lahore (PLD 1972 Lahore 743).
5, I have heard the learned counsel for the parties and have also perused the record,
6. The contention of the learned counsel for the appellant seems to he correct as the value for the purpose of Court-fee is shown as Rs. 300/-in the decree-sheet. Now whether the appellant's conduct was contumacious and negligent in not affixing the Court-fee to the increase in the Court-fee being effected by the Punjab Finance Act, 1973 or whether the change of law effected by the Punjab Finance Act, 1973 was only regulatory and procedural type and the suitor has no vested right in any particular procedure - and Court-fee leviable on first appeal in such cases to be calculated in accordance with the Punjab Finance Act, 1973 and not law which prevailed at the time of tiling of suit at a time earlier to the said amendment and whether the provisions of Section 107, CPC Operate amongst others, as main link between the provisions or Order VII, Rule 11 (c), CPC and whether the divergent view taken by Indian Courts on the matter of application of clause (c) Order 7 of Rule 11, CPC in respect of appeal was set at naught by the aforesaid judgment.
It was held that despite the conflict of authorities in Muhammad Nawaz and another Vs. Makhdoom Syed Ghulam Mujtaha Shah and another (NLR 1981 S.C.J. 290) the leave to appeal was granted to consider the argument that when a memorandum. Of appeal does not hear proper Court-fee stamps, the appellant should he first called upon to make up the deficiency in Court-fee as would appear from the provisions of Order VII, Rule 11 (c), CPC which though, in terms are not applicable to appeals but the same have been extended on the basis of Section 107, CPC which gives the Appellate Court the same power and performance of nearly the same duties as conferred and imposed by this Code of Civil Procedure on Courts of original jurisdiction in respect of suits instituted therein.
7. So far as the second point is concerned the impugned judgment itself discloses that the appellant showed his readiness to fulfill the stamp and to fulfill the deficiency in Court-fee.
Moreover, it is also not found out from the record that the learned Appellate Court stayed the proceedings and gave an opportunity to the appellant to fulfill the deficiency in Court-fee as the appellant had a vested right of appeal. While reading Order VII, rule 11, CPC and Sections 148 and 149, CPC together the Court has an exercise 4 of jurisdiction on discovery of an omission or error in violation or deficiency in Court-fee, shall allow time to the plaintiff to make correction and supply deficiency of Court-fee on plaint in that case, and Section 107, CPC also confers the same power on Appellate Court. Therefore, without first granting time to the plaintiff to supply deficient Court-fee it is not lawful to reject the plaint or the memorandum of appeal as the case may he. As the appeal is a continuation of trial, the right of appeal is a vested one and the Court-fee leviable at the time of institution of the appeal was correct prior to amendment of the Punjab Finance Act, 1973. Even in judgment Syed Manzoor Hussain Ghazi Vs. Syed- EJaz Hussain Shah, Settlement Commissioner, Lahore Division, Lahore (PLD 1972 Lahore 743) it is held that a suitor has no vested right in any particular procedure whether regulatory or procedural kind. Moreover, the application of Order VII, Rule 11 (b) (c), CPC to appeals in one sense at least is salutary for the progress of the appeal, for hearing. If it is applied then as would he presently shown it might not he possible to reject a memorandum of appeal on grounds of deficiency of Court-fee unless in accordance therewith an opportunity is provided, to supply the required Court-fee and at least one opportunity should he given to supply the deficient Court-fee before rejection of .The memorandum of appeal as Order 7, rule 11 (h) (c) applies to plaint as also to memorandum of appeal.
8. As far as the question of limitation is concerned it. Is also set at naught in Siddique Khan and 2 others Vs. Abdul Shakur Khan and another (PLD 1984 Supreme Court 289) and Muhammad Nawaz Khan and another Vs. Makhdoom Syed Ghulam Mujtaba Shah and another (NLR 1981 S.C.J. 290) as cited above, limitation is saved in cases where law requires the Court to allow the plaintiff to correct valuation of relief claimed in suit which must necessarily entail making up deficiency in stamp paper affixed on the plaint - time to he automatically enlarged in cases in which the Court has jurisdiction to grant time to pay whole or part of Court-fee prescribed.
9. The upshot of the above discussion is that I accept this appeal, set aside the impugned order dated 14.9.1978, remand the case back to the learned first Appellate Court for re-decision on the appeal directing the appellant to pay the Court-fee in accordance with the then amended law within a month from today.
10. No order as to costs.