P L D 1949 Lahore 380 (PLP)

CORNELIUS, J.‑This is a first appeal by Saeed Ahmad and Latif Ahmad defendants, vendees of certain land from another defendant Mst. Jowala Devi, against wh,3m a decree for possession of the said land by pre emption leas been awarded in favour of the plaintiff Karam Singh. The trial Court has held that the plaintiff's right of pre‑emption is superior to that of the defendants, although both parties own land in the same village, as the defendants became owners by purchase subsequent to the sale of which pre‑emption was sought. On the question of price, it was held that the ostensible price of Rs. 3,000 was not proved to have been paid, and that the market value of the land was Rs. 1,

325. The plea had been raised by vendees‑defendants that the suit was barred by time, on the ground that when the plaint' was instituted on the 6th December 1941, which was the very last day of limitation, it bore a Court‑fee stamp of Re. 1 only, against Rs. 142‑8‑0 which was payable ad valorem. The plaintiff's counsel in a note written at the top of the plaint had stated that copies of extracts from the revenue papers had only been received with difficulty on that very day, and he had been unable to arrange for the Court‑fee stamp, and requested for time to pay the balance of the Court‑fee. The Court made a brief order allowing time up to the 10th December 1940, but on that day also the Court‑fee was not paid and the Court again made an order allowing the Court‑fee to be filed on the following day. Thus, the Court‑fee was paid in fact on the 11th December 1940, five days after the expiry of limitation. On this point, the trial Court, which was not the Court which had granted time as stated above, held that the suit must be regarded as being within limitation, "as the Court had full discretion to allow time and the plaintiff was within his right to ask for it". A decree was made as stated above on payment of Rs. 1,325, from which Saeed Ahmad and Latif Ahmad have appealed. Learned counsel on their behalf has contended with force that the orders of the Court before which the plaint was instituted dated the 6th December and the 10th December allowing time for making good the deficiency of Court‑fee, were not made in proper exercise of the discretion allowed by sections 149 and 148, Civil Procedure Code. The right of pre‑emption albeit allowed by statute is a predator right, which constitutes a drawback on the recognized principle of freedom of contract, and consequently it is necessary that its exercise should be strictly in accordance with the legal requirements, however technical they may appear to be, in order that it should be legally recognized. In this case, the ground put forward in the plaint for failure to pay the full Court‑fee was most flimsy one. The limitation allowed for bringing a pre‑emption it is one year an that period of obtaining copies of the relevant revenue records, and procuring the sum necessary for filing the suit. The note in which the prayer for time was made was signed only by the counsel and not be the plaintiff, and the Court accepted it and allowed four day's time, without calling on either the counsel or the plaintiff to state the particular circumstances which were responsible or the default. Under section 149, Civil Procedure Code, the Court was entitled in its discretion to grant time for making good the deficiency of Court‑fee but it could not be said that in this case that discretion had been exercised judicially, or with proper care and caution. The adjourn ment allowed on the 10th December 1940 was even less excusable. Once again, no statement by the plaintiff or his counsel was recorded, but it was merely stated that the Court‑fee stamp was not obtainable, though the plaintiff's counsel had the money with which to purchase it. The former statement of fact was proved to be incorrect by the evidence. of Diwan Chand. Treasurer at Sheikhupura, (D. W. 10) who said that on the 13th December 1940, sales of Court‑fee stamps had been made to other persons, and that some sales had also been made on the 7th December 1940. Under section 148, Civil Procedure Code the Court undoubtedly had discretion to enlarge time for the doing off any act allowed by the Code, even after expiry of the period originally fixed for the purpose, but it could not be said that where the plaintiff had plainly been so very negligent, and had moreover completely failed to provide any excuse for his default, that discretion had been properly exercised. I am of the opinion that the indulgence shown to the plaintiff on the 6th December 1940 and again on the 10th December 1940 without genuine cause being shown on his part on either occasion, was wholly without justification, and cannot be regarded as having been exercised judicially in view of the grave prejudice which resulted thereby to the vendee. The civil law leans always in favour of freedom of contract, and security of title. The statutory law of pre‑emption constituted a drawback on both these principles, and its provisions must therefore be construed and applied strictly against the clams 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 present case, was in effect a power to extend limitation. The relevant provisions of the Indian Limitation Act, 1908, indicate beyond all manner of doubt that extension of limitation for suit on the mere ground of sufficient cause for delay, is not permissible under that statute, which is parti cularly serve in relation to the pre‑emptive right ; section 8 expressly lays down that limitation for a suit to enforce a right of pre‑emption shall not be liable to extension on the ground of legal disability, such as minority, or insanity which is valid for all other suits. So also, the provision to section 11 of the Indian Soldiers (Litigation) Act, 1925, as originally enacted, expressly excluded "any suit, appeal or application instituted or made with the object of enforcing a right of pre‑emption" from the benefit of the extended limitation, in relation to service under war conditions or special conditions, conferred by the substantive part of that section ; by certain amendments of recent date, the stringency of this provision has been relaxed, but within carefully defined limits. Consequently, it must be held that, specially where the suit is one for pre‑emption, the discretion conferred by section 149, Civil Procedure Code, needs to be exercised with the greatest care, where extension of limitation is also involved. It is not. possible to lay down the limits within which it may be exercised in favour of the litigant ; each case will need to be considered in the light of its own special circumstances. But it is probate that few case will be found to satisfy the condition for such exercise, in which the delay is not due exclusively to circumstances wholly beyond the litigant's control. Thus, 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. In this case, it plainly appears that the inability of the pre‑emptor to furnish the full Court‑fee on either of the dates on which indulgence was shown to him by the Court, was entirely due to his own default, for which no excuse that is even tolerable was put forward, and in the circumstances, the default can only be regarded as contumacious. There can be no manner of doubt that an appellate Court has power to review an order made by an inferior Court in the exercise of discretion under section 149, Civil Procedure Code. If authority be needed, it is furnished by the Full Bench decision of this Court published as Jagat Ram v. Missar Khairati Ram (A I R 1938 Lah. 361.) where an order of a District judge, reversing the order of a Subordinate judge, rejecting a plaint on the ground that it was filed on the last day of limitation, with an inadequate Court‑fee (the deficiency having been made good later) was confirmed, and it was remarked that the discretion conferred by section 149, Civil Procedure Code, is normally expected to be exercised in favour of the litigant, except in cases of contumacy or positive mala fides or reasons of a similar kind." Contumacy, as seen above, can be deduced from the circumstances of the present case. The further exten sion granted by the trial Court on the 10th December was under section 148, Civil Procedure Code, which also confers a discretionary power on the Court but this power too, must be exercised judicially, and reasonably with due regard to all the circumstances of the case, and the effect of such exercise on the rights of the parties, including vested rights as well as those asserted in the suit. It is always open to a superior Court in appeal to correct the exercise of such discretion where it has been wrongful, in that no weight, or insufficient weight, has been given to relevant considerations, although the appellate Court must, of course refrain from interfering merely because it would itself have exercised such discretion differently had it been dealing with the case. Here, it is clear that after the 7th December 1940, on which date the vendee's title became secure against pre‑emption by lapse of time, the Court by its interlocutory order of the 10th December granted the plaintiff, who had shown no satisfactory cause for his default, further time for filling Court‑fee and once again threw the vendee's title in jeopardy. There was complete failure by the Court to appreciate the effect of its order, which was in the circumstances, plainly unjust. The mere fact that the order was an interlocutory one does not render it insusceptible of review in appeal ; this case itself furnishes an example of an interlocutory order being of decisive importance, in relation to the doing of justice between the parties. In review of the matter, it is unnecessary to enter into the merits of the case. I would allow the appeal, and setting aside the decree of the Court below, would make a direction under Order VII, rule 11, Civil Procedure Code, rejecting the plaint. It would also allow the appellant his costs throughout. Sir Abdul Rashid. C. J.‑I agree. R. M. A. Appeal accepted.