1979 PLP 470 (CLC)

O. VII, r. 11-Plaint, rejection of--Lower appellate Court finding that court-fee could not be placed on record due to in advertent omission by counsel despite its purchase within extended time-Finding of lower appellate Court that party was not at fault, held, neither without lawful authority or illegal nor even improper, in circumstances-[Court-fee]. Muhantmad Nawaz Khan and another v. Makhdoom Syed Ghulam Alujtaba Shah and another P L D 1970 S C 37 ref. Rana Abdul Majeed for Petitioner, This first appeal against a remand order arises out of a question of court-fee raised from the defendants' side in a suit for pre-emption: The respondent/plaintiff had affixed deficient court-fee. He was allowed time to make up the deficiency. He failed to supply the deficient court fee within the time allowed and took a long time in making another application for further time which was allowed and the period was extended to 31st May, 1977 for supply of the deficient court-fee. The respondent purchased the court-fee on 24th May, 1977, i.e. 7 days prior to the date of expiry of the extension but did not place it on record as found by the learned lower appellate Court, on account of unintentional mistake by his counsel.

2. The learned trial Court rejected the plaint under Order VII rule 11 C. P. C. on the sole ground that the respondent /plaintiff did not comply with the first order regarding supply of the deficiency in court-fee, The second order of extension of time was no". at all noticed. The learned lower appellate Court in a detailed judgment examined both the orders passed by the learned trial Court and gaue a finding of fact that the second order was passed with full consciousness of the facts involved and further that the deposit of court-fee beyond the date fixed in the second order was only on account of an inadvertent mistake of the learned counsel, the party was not at fault.

3. Learned counsel for the appellants has contended that the second order of extension by the learned trial Court was mechanical and that it should not have been given any effect ; that in any case even the second order of extension was not complied with because the court. fee although purchased within time was deposited in Court beyond time ; and that the respondent was otherwise not entitled to any concession because he had applied for the copy of the statement of the annual net profits long after the filing of the suit.

4. Learned counsel is unable to rely on any provision of law requiring a plaintiff in a suit for pre-emption, as an unavoidable necessity, to file a statement of accounts of net profits prepared by the revenue authorities as. It is not possible to visualize that in every suit for pre-emption such a statement of accounts would be an absolute necessity. For example, if a son of the vendor is a pre-emptor and he knows all about the profits accrued from the land during the previous years, he would be a competent person to make an assessment about the net profits. If he asserts that he having cultivated the land and having seen the produce knew as to what were the net profits, in that case it might not be necessary for him to produce the statement of accounts of the net profits to be prepared by the Patwari. However, the Court has the jurisdiction not to accept the assessment made by the plaintiff in this behalf and if that eventuality arises the Court has the further power to proceed under sections 9 and 10 of the Court Fees Act to make an enquiry through appointment of a Commission. An instruc tive guidance in this behalf is contained in Bahadar Shah and others v. Sharaf Major and others (P L D 1967 Lah. 1 54). Thus, I do not agree with the learned! counsel that the filing of the statement of accounts by a plaintiff in a suit of pre-emption is such a necessity that in absence thereof a plaint it can be rejected under Order VII, rule 11, C. P. C.

5. The contention of the learned counsel that the second order passed by the learned trial Court extending the period for supply of the court-fee was mechanical is also without any force. The learned lower appellate Court has given a finding of fact in this behalf that the order was not mechanical. Learned counsel is unable to show it other wise by making reference to the contents of the second order.

6. It is correct that the court-fee was not deposited within the date fixed in the second order but in view of the finding of fact by the learned lower appellate Court (which has not been challenged) regarding the inadvertent omission by the learned counsel to place on record the court-fee despite its purchase within the extended time fixed by theft trial Court, it cannot be said that the appellate order in this behalf is either without lawful authority, illegal or even improper. The guide lines in this behalf laid down in Muhammad Nawaz Khan and another v. Makhdoom Syed Ghulam Mujtaba Shah and another (P L D 1970 S C 37) have not been ignored

7. None of the contentions raised by the learned counsel has any force. This appeal accordingly is dismissed in limine. S. G. D. Appeal dismissed.