P L D 1966 (W (PLP)

SAJJAD AHMAD, J.‑This is a plaintiff's first appeal whose plaint in a pre‑emption suit has been rejected by trial Court under Order VII, rule 11 of the C. P. Code, because it was instituted with a deficient court‑fee stamp and which he had made good after repeated extensions of time. A rival pre‑emption suit brought by one Athar Husain, pre‑empting the same sale was similarly rejected, but he has allowed the matter to rest there, not having filed an appeal, although on comparative merits his claim for pre‑emption was held to be superior to that of the present appellant, Maulvi Ahmad Yar. The right of Ahmad Yar appellant to pre‑empt the land as a collateral of the vendors was upheld by the Trial Court, next to Athar Husain. It was further held that a sum of Rs. 34,000 was the pre‑emption amount which was fixed in good faith and paid by the vendees. The other issues pertained to the market value of the land in suit; the‑plea of waiver alleged by the vendees against, the pre emptor which were all found against the vendees.

2. The only practical issue which has survived for decision in the present appeal and which was argued before us by the learned counsel and on which the fate of the appeal hinges is issue No. 1, which is as follows:‑

"Whether the suit filed by Ahmad Yar plaintiff is within time and he has been rightly granted time to make good the deficiency in the court‑fee under section 149, C. P. C. ?" The facts bearing on this issue may be shortly stated: The sale under pre‑emption was made by a registered sale‑deed on the 18th of August 1955. The appellant filed his suit in the Court of the Senior Civil Judge, Bahawalnagar, on the 15th of August 1956, obviously within one year of the sale and thus within the prescribed period of limitation. However, he affixed the court- fee stamp on the plaint of the value of Rs. 20 only and moved an application under section 149, C. P. C., praying that the time be granted to make up the deficiency in the court‑fee as he could not secure the requisite copies of the revenue papers to prepare the chart of the net profits. It is admitted at the Bar that the court‑fee amount had to be levied on an amount equal to fifteen times of the net profits of the produce of the land for the year preceding the sale and this was also stated in paragraph 8 of the plaint. The ground for extension of time urged in the same paragraph was that the plaintiff had learnt five days earlier which meant that he had learnt on the 10th of August 1956, that the sale of the land had taken place. The limitation was about to run out and he had to procure the copies of the `Jhar paidawar' (the chart of the net profits and the schedule of rates) on the basis of which the court‑fee was to be determined. On the plaintiff's application for extension of time the Court granted him a fairly long period till the 2nd of October 1956, to make up the deficiency in the court‑fee. On that date the plaintiff again failed to comply with the orders of the Court and sought another extension. Time was again allowed to him on this occasion of twelve days, with the direction that the court‑fee was to be paid on the 12th of October 1956. The plaintiff again made a default on this date and moved another application requesting for a fresh extension of time on the ground that the chart of the net profits was to be prepared which would entail a few days. His request was again accepted and the trial Court allowed him four days to pay the court‑fee, directing that the case should come up on the 18th of October 1956. It was emphasised that the court‑fee should be paid in full before that date and that no further time would be given. At long last, the plaintiff paid the amount of court‑fee on this day, viz., the 18th of October 1956, of the value of Rs. 1,212‑8‑0.

3. The learned trial Court has considered that under the order of the 12th of October 1956, granting the plaintiff four days only he was allowed time up to the 16th of October 1956, but this seems to be a misconstruction of the order. It may be noted that these orders of extension were made by a different Judge from the one who has decided the case. The misconstruction of the order of the 12th of October 1956, has taken place because, in our view, the trial Court has counted four days allowed to the plaintiff from the 12th of October 1956, bringing the date to the 16th of October 1956, forgetting that in the same order the Court had said that the case was being fixed for the 18th of October 1956, and that the court‑fee should be made good on or before that date. Again, the twelve days were allowed to the plaintiff on his earlier application on the 2nd of October 1956, which gave him time till the 14th of October 1956, and the additional four days granted on the 12th of October 1956, could not have been intended to curtail the previous extension of time, already allowed. Reading the order of the 12th of October as a whole, we feel that the Court had extended the time by four days beginning from the 14th of October 1956, as previously allowed, and the emphasis on the order of the 12th of October that the case is to be fixed for the 18th of October on which date the court‑fee should be completed, leaves no doubt in the matter that the plaintiff was allowed time for making good the deficiency in the court‑fee until that date.

4. The question, however, that arises for consideration is whether the indulgence repeatedly shown to the plaintiff by the learned trial Judge in filing the requisite court‑fee stamp was a judicial exercise of the discretion by him under section 149 of the Code of Civil Procedure. There is no doubt that the extension may be granted to a plaintiff for a good cause shown but it is not to be done as a matter of course to cover negligent conduct and wilful default. In particular in cases brought for the exercise of pre‑emotion rights, which have been judicially recognised as infringing on the freedom of contract and security of title by way of predatory inroad, the provisions of section 149, C. P. C., have to be very strictly construed, In a case reported as Saeed Ahmad v. Karam Singh (P L D 1949 Lah. 380), the extent of discretionary provisions of section 149 for extending 'time in paying the amount of court‑fee in pre‑emotion cases was considered in which the judgment was delivered by Cornelius, J., as he then was, sitting with Sir Abdur Rashid, the then C. J. It was observed as follows:‑-- "The civil law leans always in favour of freedom of contract, and security of title. The statutory law of pre‑emotion constituted a drawback on both these principles, and its provisions must, therefore, be construed and applied strictly agains t the claims of pre‑emptors. The discretionary power given to the trial Court by section 149, Civil Procedure Code, as it fell to be exercised in the circumstances of the present case, was in effect a power to extend limitation. * * * * * * It must be held that, specially where the suit is one for pre‑emotion, the discretion conferred by section 149, Civil Procedure Code, needs to be exercised with the greatest care, where extension of limitation is also involved. * * * * * * *Any acts, mistaken or otherwise, of the litigant, or matters affecting his condition, e. g., poverty or physical inability can hardly be adduced as `sufficient cause', when account is taken, on the other hand, that by lapse of time, the vendee's title in the property has become secure from attack by a pre‑emptor." It may be added that the right of pre‑emotion is an artificial right and it should not be protected from defeat on technical or legal defects, specially where such defect is the result of the c pre‑emptor's own negligence and where there is a lack of diligence on his part to cure it.

5. The present case suffers from very many grave handicaps which disentitle the plaintiff from any indulgence or exercise of discretion in his favour under section 149 of the C. P. Code. As already mentioned above, he had said in his plaint that he had learnt about the sale under pre‑emotion five days before the institution of the suit but in his statement in Court he had said that he had come to know about the sale two months before the sale which period he reduced to one month in the same breath. Assuming that it was two months or one month, there is no reason why he should not have been ready with all the docu ments which he needed to put in a competent suit in the exercise of his right of pre‑emotion including the documents which were necessary for the purpose of determination and affixation of the correct amount of court‑fee on the suit He had filed the copy of the jamabandi with his plaint but had alleged that he still needed the copies of tire Khasra Girdawari for the year 1955‑56, the naqul jhar and the nirkhtiama for the determination of the amount of court‑fee. Why he did not apply for those documents within the period of one month preceding the institu tion of the suit is not explained. He does not appear to have obtained or filed the copies of khasra girdawari during the pendency of the suit in the trial Court. He has annexed them with the memorandum of his appeal filed in this Court with an application under O. XLI, rule 27, C. P. C. for their admission, which we see no reason to do as they were never presented to the Court below and the question of their rejection did not arise. We do not consider that it is necessary for us to admit them for coming to a decision in the matter. On a question in cross-examination during the course of his statement as to when he had filed an application for the copy of the nirkhnama, he said he did not remember. He said in his application Exh. 3 that he had applied to the Patwari for the copies of the revenue papers but the Patwari did not give him the papers because he was busy in his official occupations. The Patwari, however, was not produced to prove this matter. It is not understandable why has the plaintiff been applying for these documents which he needed for the determination of the court‑fee by instalments. In his application Exh. P‑4 for further extension of time, "filed on the 12th of October 1956, he had stated that he obtained the khasra girdawaris from the Patwari on the 10th of October 1956, but that he needed 3/4 days more for working out the net profits. However, this was not done within 3/4 days as stated in the application and the plaintiff applied for further four days on the 14th of October. It is obvious that time was being given to the appellant again and again or rather indulgently by the learned trial Court, without giving any reasons and without ascertaining whether there was a cogent cause for grant of time. This put a premium on his negligence‑an attitude wholly out side the purview of the discretion exercisable under section 149 of the Civil Procedure Code.

6. On a review of the entire circumstances of this case, we do not think that a good case was made out for the grant of extensions of time to make up the deficiency in the amount of court‑fee in this case, and the discretion exercised in favour of the appellant by the learned trial Judge did not conform to the judicial standards laid down for the exercise of he discretion in such matters, requiring a careful examination of the reasons for the default and the basis for the request for grant of time. The successor Court, therefore, which has finally decided the case, has rightly decided the issue that the plaintiff's suit was not competently instituted and, therefore, was time‑barred on the date when proper court‑fee was affixed on it and that the extension of time was not rightly granted to him, much less the repeated extension that he has been having. The result is that we do not see any reason to interfere with the decision under appeal.. The appeal is dismissed, but we refrain to make any order as to costs. A. H. Appeal dismissed.