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Before Gul Zarin Kiani, J
SIDDIQ-Petitioner
versus
FARZAND ALI AND OTHERS-respondents
Writ Petition No. 284 of 1985, decided on 27th March, 1985.
-- S. 21-Court Fees Act (VII of 1870), S. 28-Suit for pre-emption -Deficiency in court-fees made good-Effect-Plaintiff in obedience- to order of Court providing annual net profits and on basis of that making good deficiency in court-fee on his own accord-Compliance with orders of Court established.
-- S. 115-Provisional Constitution Order (1 of 1981), Art. 9-Court Fees Act (VII of 1870), preamble-Revision, competency of-Constitutional jurisdiction-Exercise of-Scope and object of Court Fees Act 1870-Court Fees Act, 1870 is primarily a fiscal measure enacted for benefit of State-Purpose of Act is to recover revenue from those who come to Court to seek justice Such purpose having been fulfilled where plaintiff in obedience to order of Court for annual net profits paid requisite amount of court-fee-Question of limitation became irrelevant and immaterial as such-Plaintiff, held, could not invoke revisional jurisdiction of District Judge and Constitutional jurisdiction of High Court in circumstances -Order passed by trial Court and affirmed by first appellate Court was not open to any exception.
Sir Rathnavarmaraja v. Smt. Vimla A I R 1961 S C 1292 ref.
Mian M. Zafar Yasin for Petitioner.
The present constitutional petition arises out of a pre-emption . suit brought by Farzand Ali and others to pre-empt the sale of land measuring 160 Kanals 2 Marlas situated in Chak No. 64-4/R, Tehsil and District Sahiwal purchased by Jan Muhammad vide sale Mutation No 377, attested on 27-7-1973. Sale was made for an ostensible sale price of Rs. 86,475, Jan Muhammad, the first vendee is stated to have transferred his rights further to Siddique son of Allah Dad, the present applicant alongwith his other land on 4-5-1974 vide sale Mutation No. 407. Second sale was made against payment of Rs. 1,60,000. Suit for pre-emption was instituted in civil Court at Sahiwal on 17-5-1974. The plaint presented, in the relevant para. pertaining to the valuation of the suit, was assessed at Rs. 10,000 for purposes of court-fee and Rs. 20,000 for the purpose of jurisdiction. So, calculated, a sum of Rs. 750 was paid as court-fee. Defendants/ vendees appeared, filed written statement and while denying the averments in the plaint, objected to the proposed valuation. On the objection raised, the Court framed an issue and treated it as preliminary before proceeding to touch the merits. The Court directed the plaintiff to provide statement of net profits before a particular date. It was done and court-fee stamps worth Rs. 3,653 were placed on file on 28-5-1983. The deficiency discovered in court-fee was thus made good in obedience to the direction issued by the trial Judge. It is admitted that the court-fee leviable on the plaint has already been made good and that it was the correct amount. Preliminary issue No. 2 thus was found in favour of the plaintiff/preemptor on 14-4-1984 by the learned civil Court. Against this decision civil revision was preferred in the Court of District Judge. It was dismissed on 22-1-1985. Order passed in revision has been assailed in constitutional jurisdiction.
Mr. M. Zafar Yasin, learned counsel for the applicant, Siddique, has been heard. He raised following points :
That the plaint in the first instance was grossly under-assessed for purposes of court-fee and was deliberately deficiently stamped. Contention raised is that a plaint unless it bears proper and requisite amount of court-fee payable thereon is not a plaint in the eye of law and the suit becomes legally instituted when the required amount of court-fee is paid. Conduct of the plaintiff was described as negligent and contumacious.
I regret, I do not see any merit in this petition. At no stage of the suit, the Court itself determined the exact amount of court-fee exigible upon the plaint nor after such a determination a direction was issued to the plaintiff to make good the discovered deficiency. The plaintiff in obedience to the order of the Court provided Annual Net Profits and then on his own made good the deficiency. Compliance had been made and the matter should have ended there. It is also doubtful whether revision against such an order was available to the defendant-vendees. Supreme Court of India in Sri Rathnavarmaraja v. Sint. Vimla (A I R 1961 S C 1299) in almost similar circumstances observed :
"The Court Fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging court-fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court-fee on his plaint. Whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under section 115 of the Code of Civil Procedure is strictly conditioned by clauses (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the subordinate Court or assumption of jurisdiction which the Court does not possess or on the ground that the Court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to move the superior Courts by appeal or in revision against the order adjudging payment of court-fee payable on the plaint."
In the aforesaid report, the learned Judges of the Supreme Court of India arrived at the conclusion that in identical circumstances, revisional jurisdiction was not available to the defendant. That apart, our own Supreme Court in its latest pronouncement on the question of court-fee has set at rest the long standing controversy. In view of these pronouncements question of limitation becomes irrelevant and immaterial. In this view of the matter, neither the revision was competent nor is the constitutional jurisdiction available to the applicant. The provisions of the Court Fees Act as its name suggests is primarily a fiscal measure enacted for benefit, of the State to recover Revenue from those who come to the Court to seek justice. That purpose has already been fulfilled when the plaintiff in obedience to the direction of the Court for annual net profits has paid the requisite amount of court-fee. No question of contumacy or negligence was involved. The order passed by the trial Court affirmed in revisional jurisdiction by District Court is not open to any exception. Viewing thus I do not see any force in this petition and proceed to dismiss it in limine.
A. A. Petition dismissed.
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