' SARDAR SAID MUHAMMAD KHAN, C.J.---As the above entitled appeals arise out of the single judgment of the High Court, we propose to dispose of the same by this single judgment.
2. The brief facts giving rise to the above entitled appeals are that a notification for the acquisition of the land measuring 2428 Kanals, situate in village Lehri, Tehsil and District Mirpur was issued on 2-6-1982 and award No,1/87 dated 1-1-1987 was passed by the Collector Land Acquisition, Mirpur, for creating a new Sector in New Mirpur Town. The Azad Jammu and Kashmir Government as well as the landowners, the respondent herein, initiated references before the District Judge against the said award. The District Judge consolidated all the references filed by the Government and the landowners and disposed of the same vide consolidated judgment, dated 30-6-1998.
3. It may be observed here that the Collector Land Acquisition categorised the land in two classes according to the kinds of the land and fixed compensation as Rs,18,456 and Rs,15,956 per Kanal respectively. The references initiated by the Government were dismissed by the District Judge while that of the landowners, the respondents herein, were accepted; he awarded the compensation by dividing the land acquired in six classes according to the nature of the land and fixed the market value at Rs,35,456, Rs,33,683, Rs,31,999, Rs,28,799 and Rs,24,479 per Kanal respectively. Muhammad Saleem and 23 others filed Appeal No,55 of 1998 in the High Court seeking the enhancement of the compensation amount awarded by the District Judge whereas the Azad Jammu and Kashmir Government filed five appeals seeking reduction in the compensation amount awarded by the District. Judge. The learned Judge in the High Court accepted the appeal entitled Muhammad Saleem and 23 others v. Azad Government (Civil Appeal No,55 of 1998) and enhanced the compensation amount to the tune of Rs,90,000 per Kanal Plus 15% "Jabrana' irrespective of the kind of the land observing that the land having been acquired for residential purposes in Mirpur Town, the kind of the land was not a good criteria for fixing the market value of the land and ascertained its market value on the basis of sale-deeds. It is against the aforesaid judgment of the High Court that the above entitled six appeals have been preferred by the Azad Jammu and Kashmir Government to this Court.
4. Mr. Muhami Sharif Tariq, Advocate, the learned counsel for the appellants, has contended that the High Court has committed a grave error in dismissing the appeals, inter alia, on the ground that Ch. Lal Hussain, the Legal Advisor to the Mirpur Development Authority and counsel for the Azad Jammu and Kashmir Government, the appellants, herein, was not legally empowered to file the appeals before the High Court. The learned counsel has drawn our attention to the copy of the Notification dated 25-9-1998 in the appeal entitled Azad Government and another v. Mst. Nighat and another (Civil Appeal No,59 of 1998) whereby Ch. Lal Hussain, Advocate, was empowered to file appeals against the judgment of the District Judge, dated 30-6-1998, he was also appointed as a legal Advisor to the Mirpur Development Authority. The learned counsel has submitted that it appears that the aforesaid Notification escaped the notice of the High Court which, in turn, resulted in the findings of the High Court that the appeals filed by the Government were without proper authorisation in that regard. The learned counsel has also referred to a case reported as Messrs Nabi Bakhsh v. Pakistan (PLD 1969 Karachi 566), wherein it has been held that appointment of a counsel after an oral consultation through a semi-official letter was valid despite the fact that Rules of Business were not strictly followed and that an official act would be deemed to have been performed according to the procedure until and unless contrary is proved.
5. In reply, Ch. Muhammad Azam, Advocate, the learned counsel for the respondents, has submitted that in fact the appeals on behalf of the Government were filed witfr,ut obtaining the permission of the government which is necessary under the relevant law. He has argued that although the said Notification empowered. Ch. Lal Hussain, Advocate, to file the appeals to the High Court but no permission was granted by the Government to file the appeals on behalf of the Government against the judgment of the District Judge dated 30-6-1998. The learned counsel for the respondents tried to persuad us that the appeals were filed on behalf of the Government without obtaining its requisite permission.
6. We have given due consideration to the arguments raised and have no hesitation in holding that in presence of Notification, dated 25-9-1998, the High Court was not justified to hold that the appeals by the Government and one another were filed without proper power of attorney executed in favour of Ch. Lal Hussain, Advocate. The contention of Ch. Muhammad Azam, Advocate, that the appeals were filed without the approval of the Government, is not tenable for the simple reason that no objection was raised in the High Court that the appeals on behalf of the Government were filed without its prior sanction; rather the objection was that Ch. Lal Hussain, Advocate, was not empowered to file the appeals on behalf of the Government, meaning thereby that he was not empowered to file the appeals on behalf of the Government. Obviously, the learned counsel for the respondents tried to wriggle out of the difficulty by varying his case in terms that the appeals on behalf of the Government were filed without obtaining its approval, which cannot be allowed at this stage. Even otherwise, the appeals have been filed not only on behalf of the Government but also on behalf of the Mirpur Development Authority; Ch. Lal Hussain, Advocate, was also appointed as Legal Advisor to the Mirpur Development Authority vide the aforesaid Notification and, thus, it was not necessary for him to obtain permission from the Government for tiling appeals on behalf of said authority. Hence we hold that the appeals tiled by Ch. Lal Hussain, Advocate, in the High Court were properly constituted.
7. Next, it has been contended by Ch. Muhammad Sharif Tariq, the learned counsel for the appellants, that the High Court has also committed an error in holding that the appeals entailed dismissal on the ground that no court-fee was paid on the memorandum of appeals tiled before it.
The learned counsel has argued that when a suit or 'appeal is undervalued or proper court-fee has not been paid on the same, the plaint or the appeal cannot be rejected without giving an opportunity to the concerned litigant for doing the needful. He has further argued that as the appellants did not seek the enhancement of the compensation amount, rather they sought decrease in the amount awarded by the District Judge, the court-fee was not payable on the memorandums of appeals filed in the High Court. In alternative, he has argued that the provisions contained in Rule 11 of Order VII, C.P.C., postulate that in a case covered by clauses (b) end (c) of the said rule, before rejecting a plaint or memorandum of appeal, an opportunity has to be given to the concerned litigant for doing the needful, without which the same cannot be rejected. He has also argued that as the matter of payment of court-fee is a matter between the State and the litigant, the opposite party is not justified to raise such an objection in defence. He has cited following authorities in support of his contentions:-- ' In a case reported as M. Dodla Malliah v. The State of Andhra Pradesh (AIR 1064 Andhra Pradesh 216), it was held that proper court-fee on award falls within the meaning of word 'order' used in section 48 of the Andhra court-fees and Suits Valuation Act and, thus, the court-fee would be payable on the appeal on difference of amount awarded and claimed by the appellant.
' In a case reported as Executive Engineer, Building Division, Mirpur v. Raja Muhammad Nawaz Khan (PLD 1994 SC (AJ&K) 32), it has been observed that the provisions of section 149, C.P.C., and those contained in rule 11(b) and (c) of Order VII, C.P.C., are to be read together. It has been opined that the provisions contained in section 149, C.P.C., are general in nature deal with all categories of the cases while clauses (b) and (c) of Order VII, Rule 11, C.P.C., deal with the situations where the relief claimed is undervalued or where the relief claimed is properly valued but plaint was written upon an insufficient stamp paper. Thus, it was held that in cases falling under clauses (b) and (c) of Rule 11, Order VII, C.P.C., one opportunity is mandatory to be given to the concerned party for making up the deficiency in court-fee but if a case does not fall under the aforesaid provisions, it is discretionary with the Court under section 149, C.P.C., to give an opportunity to make up the deficiency in court-fee or not. It has been further observed that if an opportunity has been given by the Court, the suit or other cause would be deemed to have been instituted on the date when it was first presented to the Court, despite the fact that the deficiency in the court-fee was made up subsequently.
' In a case reported as Manzoor Ahmad Naqashbandi v. M.A. Farooq 2000 YLR 2842, it has been held that it is discretionary with the Court to give further time to make up the deficiency in the court-fee; but once the time is extended for making up the deficiency, the time would be deemed to have been automatically extended by the Court.
' In a case reported as Sh. Muhammad Islam v. Adeeba Khanum (1985 CLC 1619), it was held that the question of payment of court-fee or otherwise is fiscal matter which concerns only between the State and the appellant and, thus, opposite party cannot use it as a weapon so as to deprive the appellant of his legal right of audience on the merits of appeal before the appellate Court.
Consequently, it was held that the lower appellate Court committed an error in dismissing the appeal for making up deficiency in court-fee without first inviting the attention of the concerned appellants to such deficiency.
8. In reply, Ch. Muhammad Azam, Raja Hassan Akhtar and Ch. Muhammad Anwar, Advocates, the learned counsel for the respondents, have controverted the arguments advanced on behalf of the appellants. It has been argued on behalf of the respondents that none of the appeals filed in the High Court was valued for the purpose of court-fee: it was not mentioned in the memorandums of the said appeals as to how `much amount of compensation the appellants wanted to get decreased. They have also submitted that in view of the provisions contained in section 8 of the court-fees Act, the court-fee was payable by the appellants on difference between the compensation amount allowed by the District Judge and the amount which in (heir estimation was the correct. The learned counsel have argued that the counsel for the appellants was not correct in arguing that as the appellants did not want to get the compensation amount 'increased', they were not liable to pay the court-fee. The learned counsel for the respondents have further submitted that whether the appeals are filed for the increase of the compensation or its decrease, the court- fee is payable on the difference as stated above. The learned counsel for the respondents have cited following authorities in support of their contentions:-- ' In a case reported as Secretary of State v. K.S. Bannerjee (AIR 1927 Cal. 45), it has been held that there was no discrimination between the claimant and the Secretary of the State in the matter of paying court-fee in case of an award under the provisions of the Land Acquisition Act.
' In a case reported as Debi Din v. Secretary of State (AIR 1939 Allahabad 127), it has been held that in case of an appeal against the order of the Tribunal appointed under U.P. Town Improvement Act, the court-fee is payable under section 8 and not under Article 17(iv) of Schedule II.
9. We have given due consideration to the matter and have come to the conclusion that so far as the non-valuation of the appeals for the purpose of court-fee by the appellants and their failure to pay the court-fee on the memorandums of appeals in the High Court is concerned, the memorandum of appeals could not be dismissed on that ground in view of the dictum of this Court stated above; the case of the appellants fell within the ambit of clauses (b) and (c) of Rule 11 of Order VII, C.P.C., which postulate that in case of relief claimed is undervalued and the court-fee is not paid the plaintiff must be required by the Court to correct the valuation and pay proper court- fee within the time fixed by the Court. If a plaintiff or appellant falls to do the needful within the time fixed by the Court, the plaint or memorandum of appeals, as the case may be, can be rejected. It appears from the perusal of the record of the High Court that no such opportunity was provided to the appellants for paying court-fee on the memorandums of appeals and, thus, the High Court was not legally justified to hold that the memorandums of appeals could be dismissed for failure to pay the court-fee.
10. The next question which needs resolution is that the memorandums of appeals tiled in this Court entail dismissal for failure to affix proper court-fee on the same. The appellants have paid Rs,400 as court-fee in each of the appeals but in each case the court-fee payable could not be less than Rs,2,000 under the relevant provisions of the Azad Jammu and Kashmir Surpeme Court Rules. The perusal of the record shows that the Assistant Registrar directed the appellants to fix valuation for court-fee in the appeals and pay proper court-fee but the needful was not done.
Instead, the counsel for the appellants tiled an application stating that he had fixed the valuation for the purpose of the court-fee as Rs,60,000 in each of the appeals and paid Rs,400 as court-fee in each of the appeals, it was stated by him in the said application that he must be informed as to what would be the correct valuation for the purpose of court-fee in each of the appeals. The appellants did not state in the memorandums of appeals as to how much amount they sought to be reduced. Thus, it was not possible for the Registry Office to intimate the appellants as to how much more court-fee was payable by them. It was for the appellant to fix definite valuation of the appeals and pay court-fee thereon but they failed to do the needful despite the direction of the Assistant Registrar.
11. It may be observed that Civil Procedure Code does not apply to the proceedings before this Court. Therefore, the opportunity for doing the needful envisaged under Rule 11 of Order VII, C.P.C., cannot be availed of by the appellants. In the Supreme Court, the matter is governed by the Supreme Court Rules read with the relevant provisions contained in the court-fees Act. It may be observed that under rule 10 of Order XIV of the Supreme Court Rules, the appellants were bound to fix definite value for the purpose of the court-fee and pay the same according to part 2nd of 3rd Schedule to the Supreme Court Rules within 30 days after the direction of the Registrar. As has already been stated above that the appellants did not make up the deficiency in the court-fee and instead followed a contumacious attitude despite the direction of the Assistant Registrar. Thus, the appeals filed by the Government entail dismissal on this sole ground under Rule 5 of Order XV of the Supreme Court Rules.
12. As we have also heard the learned counsel for the parties on merits of the appeals, we deem it proper to dispose of the point as to whether the High Court has rightly increased the compensation amount to the tune of Rs,90,000 plus 15% 'jabrana' in the appeals filed by Muhammad Saleem and 23 others. It may be observed that the High Court has relied upon eight sale-deeds in its judgment for ascertaining the market value of the land acquired in the said appeal. According to the said sale-deeds the market value per Kanal comes to Rs,90,000. In the High Court, the contention of the learned counsel for the appellants was that as those sale-deeds related to the smaller pieces of the land, the same did not constitute right criteria for ascertaining the market value of the land.
However, the High Court has relied upon the dictum of this Court in the impugned judgment, and has held that in cases where the sale-deeds of large pieces of land are not available, the market value can be fixed on the basis of sale-deeds which pertain to smaller pieces of land. The learned counsel for the appellants has tried to persuade us that out of the aforesaid eight sale-deeds, six were executed by Muhammad Saleem and his brother Muhammad Hanif, respondents. According to the learned counsel, the purpose of execution of those sale-deeds, was to get excessive compensation by entering fictitious prices in the same. He has argued that the sale-deeds, Exhs.P.A., P.B., P.C., P.D., P.F. And P.G. Which have been executed by Muhammad Saleem and his brother Muhammad Hanif, respondents, should not be considered for ascertaining the market value. He has also submitted that according to the sale-deeds, Exhs. P.E. And P.H., the market value comes to Rs,75,000 per Kanal. We are afraid we cannot subscribe to the contention of the learned counsel for the appellants because out of the sale-deeds executed by Muhammad Saleem and Muhammad Hanif, respondents, four sale-deeds were executed in the year 1980, i.e,, two years prior to the Notification issued under section 4 of the Land Acquisition Act for acquiring the land in dispute. Therefore, it cannot be said that the respondents-vendors entered fictious prices in the said sale-deeds with the motive to get higher compensation. How they could know two years prior to the said notification that their land would be acquitted by the Government. Even otherwise, there can be no presumption of mala fides against the said respondents, rather the presumption is always that of 'bona tides'. Therefore, we are of the opinion that the High Court has rightly relied upon the aforesaid sale-deeds while ascertaining the market value of the land acquired in the appeal filed by Muhammad Saleem and 23 others.
13. It has been also contended on behalf of the appellants that the High Court has committed an error in relying upon the evidence recorded in case entitled Muhammad Hanif and another v. Azad Government and others (Reference No,14 of 1997) in all the above entitled appeals. He has contended that there was no order of consolidation of the references by the District Judge and, as such, the evidence recorded in one file could not be read as evidence in another. The learned counsel has submitted that the order of the District Judge dated 19-10-1994 cannot be regarded as an order of consolidation of the reference before him. He has submitted that the market value having been based on the evidence of the respondents produced in Muhammad Hanif's case was not admissible against the appellants so far as the cases of other landowners were concerned.
14. In reply, it has been contended on behalf of the respondents that the evidence in Hanif's case (Reference No,14) was read in all the files with the consent of the counsel for the parties. The counsel for the appellants in the High Court contended that the sale-deeds produced in the said file did not help the case of the concerned respondents because those pertained to the smaller pieces of land; it was not the case of the appellants in the High Court that the evidence recorded in Hanif's case could not be read in other cases because the consolidation order was defective or the same did not exist. The learned counsel for the respondents has contended that a party cannot take inconsistent stands at different stages of the litigation in view of the principle of 'estoppel by conduct'. He has further submitted that although the said point was taken in the memorandums of the appeal filed in the High Court but the same was not argued before the High Court and was abandoned. He has further submitted that no affidavit has been filed by the learned counsel for the appellants that the said point was pressed before the High Court.
15. We have given due consideration to the matter. The perusal of the impugned judgment of the High Court reveals that the evidence recorded in Hanif's case was read in other cases with consent of the counsel for the parties. Thus, the appellants cannot take a contradictory stand in this Court.
Even otherwise, it appears that as, except one case, in all other appeals, the appellants, herein, were proceeded ex parte, it was in their interest to read the evidence recorded in Hanif's case so that two of the witnesses adduced by them could be considered. Thus, we repel the contention of the learned counsel for the appellants that in view of the procedural defect, if any, the matter necessitates the remand to the trial Court.
16. Next, it has been contended by the learned counsel for the appellants that the judgment of the High Court is ambiguous and does not show which of the landowners are entitled to receive the compensation amount enhanced by the High Court. It may be observed that the enhanced compensation awarded by the High Court is to be paid only to the landowners who were appellants in the appeal entitled Muhammad Saleem and 23 others v. Azad Government and 2 others (Civil Appeal No,55 of 1998). There is no question of enhancement of the compensation amount of those landowners who did not file any appeal against the findings of the District Judge before the High Court.
' In the light of what has been stated above, finding no force in the above entitled appeals, the same are hereby dismissed with no order as to the costs.