P L D 1982 Lahore 226 (PLP)

One Siraj Din son of Rukan‑ud‑Din, sold 103 kanals 18 marlas of land, the subject‑matter of this litigation, in favour of Muhammad Sharif and Qasim, the appellants/vendees, through mutation No 1 which has been attested on 11‑12‑1974 for an ostensible sale price of Rs. 25,000.

2. Khurshid Ahmad, the son of the aforesaid Siraj Din vendor, on 8‑12‑1975 i.e. 3 days prior to the expiry of the prescribed period of limitation filed a suit for possession of the land in dispute through pre‑emption. He contended in his suit that he being the son of the vendor had a preferential right of pre‑emption as against the vendees and that the sale in question had in fact taken place for Rs. 10,000 but the ostensible sale price of Rs. 25,000 was shown in the mutation in order to avoid the would‑be pre‑emptors. It is note worthy that the respondent/pre‑emptor originally fixed .tentatively the value of the suit for the purposes of court‑fee and jurisdiction as Rs. 15 only, although alongwith the plaint he submitted an application under section 149, Cr. P. C., requesting that he might be permitted to make good the deficiency in the court‑fee after he is able to obtain the relevant revenue papers and the statement of net profits on the basis of said papers, is prepared. The suit was originally entrusted to Civil Judge Third Class, Kot Addis. The said learned Civil Judge vide his order dated 10‑12‑1975 directed the registration of the plaint and issuance of summons to the appellants for 3‑2‑197ti. He further ordered that the revenue papers for the assessment of the court‑fee should be filed by the next date of hearing and a sum of Rs. 5,000 as 1/5th of sale price be deposited prior to that date.

3. On 3‑2‑1976, it transpired that the revenue papers and 1/5th of the sale price have already been deposited and that on the basis of the statement of net profits, the value of the suit for purposes of court‑fee and jurisdiction exceeded the pecuniary jurisdiction of the learned Civil Judge Third Class, who was seized of the matter. He, therefore, made a reference in this behalf to the learned District Judge, Muzaffargarh, on 14‑2‑1976.

4. On 14‑2‑1976, the learned District Judge, ordered the withdrawal of the suit from the Court of Civil Judge Third Class and transferred the same to the Court of Civil Judge Fist Class, Kot Addis. The attorney of the plaintiff was directed to appear before the transferee Court on 21‑2‑1976.

5. On 21‑2‑1976, the Civil Judge First Class, directed that on the basis of the statement of net profits deficiency in the court‑fee be made good by 15‑4‑1976. On 15‑4‑1976, the plaintiffs made good the deficiency in the court‑fee amounting to Rs. 3,090 and the learned Civil Judge directed the issuance of summons to the vendees. The appellants‑vendees filed their written statement on 24‑11‑1976 raising pleas with regard to deficiency in the court‑fee and the suit being time barred. They also denied the preferential right of pre‑emption of the respondent as against them.

6. On the pleadings of the parties, the learned Civil Judge framed the following issues :‑ (e) Whether the suit is wrongly valued for the purposes of court‑fee and jurisdiction? If so, its effect? O. P. D. (2) Whether the suit is time barred? O. P. D. (3) Whether the description of the suit property is defective, if so, its effect? O. P. D. (4) Whether the sum of Rs. 25,000 was fixed in good faith or actually paid as the sale price of the suit land? O. P. D. (5) If not what was the market value of the suit land at the time of its sale? O. P. P. (6) Whether the vendees have paid Rs. 5,000 as mortgage money, if so, its effect? O. P. D. (7) Whether the vendees have made improvement over the suit land, if so. to what extent and to what effect? O. P. D. (8) Whether the vendees have paid District Council Fee, if so, are they entitled to recover the same from the plaintiff in case the suit is decreed? O. P. D. (9) Whether the plaintiff has got superior right of pre‑emption? O. P. Po (10) Relief.

7. On behalf of the pre‑emptor/respondent documentary evidence was produced while Muhammad Sharif, one of the appellants/vendees appeared as the witness of the appellants and a few documents about the market value of the land were also produced.

8. The learned Civil Judge vide his judgment dated 6‑1‑1981, found Issues Nos. I and 2 against the pre‑emptor/respondent while Issues Nos. 3, 7, 8 and 9 were found in favour of the pre‑emptor/respondent. As regards issues Nos. 4 and 5 it was held that the sale price of Rs. 25,000 was proved to have been actually paid. Issue Nos. 6 was also decided in favour of the appellant‑vendees.

9. In the light of .findings on issues Nos. I and 2, the suit of the pre emptor/respbndent was dismissed, with costs.

10. The respondent preferred an appeal before the learned District Judge. The appeal was disposed of by the learned Additional District Judge, Muzaffargarh, on 26‑7‑1981. He found that the pre‑emptor made good the deficiency in the court‑fee by the time allowed by the Court and, there fore, this chapter could not be re‑opened and consequently there was hardly any justification to find that since the deficiency in the court‑fee was made good after the expiry of the prescribed period of limitation, therefore, the suit was barred by time. The findings of the learned trial Court on Issue No. 9 regarding preferential right of pre‑emption of the respondent were, however, maintained. Consequently, the judgment and decree passed by the learned Civil Judge were reversed and the. suit of the respondent/pre‑emptor was decreed on payment of Rs. 30,000, viz. Rs. 25,000 on account of sale price and Rs. 5,000 on account of mortgage money. The judgment and decree of the learned Additional District Judge, whereby he accepted the appeal of the respondent/pre‑emptor and decreed his suit is dated 28‑7‑1981. The appellants; vendees have through the present Regular Second Appeal, impugned the aforesaid judgment and decree dated 28‑7‑1981 passed by the learned Additional District Judge, Muzaffargarh.

11. The impugned judgment and decree of the learned lower Appellate Court has been challenged on two grounds. Firstly, that the pre‑emptor has failed to prove on record that he was the son of the vendor and that the school leaving certificate Exh. P. 6 on which reliance has been placed was not formally proved in the eye of law ; and secondly that the pre‑emptor/ respondent in utter disregard of law initially paid rediculous court‑fee of Rs: 15, although he had in his possession revenue papers Exhs. P. 2 and P. 3 which were prepared on 3‑12‑1975. According to the appellants, the pre emptor fraudulently requested in his application filed under section 149, C. P. C. on 8‑12‑1975 for extension in time in the payment of court‑fee on the ground that the revenue papers were not available. The appellants have maintained that the pre‑emptor/respondent acted negligently and with con tumacy in not paying the court‑fee within the period of limitation prescribed for the suit.

12. The learned counsel for the parties have been heard at length and the lower Court's records have also been perused and considered.

13. As observed earlier, in the circumstances of the present case, the respondent/pre‑emptor made good the deficiency in court‑fee by the time allowed to him by the Court under section 149, C. P. C. Section 28 of the Court Fee Act provides that if any document filed in any Court is without being properly stamped, the presiding Judge may, if he thinks fit, order that such document be stamped as he may direct and on such document being stamped accordingly, the stamp and every proceedings relevant thereto shall be as valid as if it had been properly stamped in the first instance. Section 9 of the Court Fee Act lays down the procedure to be followed when the Court is of the opinion that the suit has been undervalued. The Court has the power to ascertain net profits under the provisions of section

9. Section 10 is to the effect that if pursuant to the proceeding under section 9, the Court thinks that the value has been wrongly estimated, the Court shall require the plaintiff to pay so much additional fee as would have been payable, had the market value or net profits been rightly estimated. Provisions of section 12 (ibfd) empower the Court to determine every question relating to valuation for the purposes of determining the amount of fee chargeable on a plaint and such decision shall be final as between the parties to the suit. Section 149 of the Civil Procedure Code provides that where the whole or any part of any fee prescribed for any document by law for the time being in force relating to court‑fee has not been paid, the Court may, in its discretion at any stage, allow the person by whom such fee is payable to pay the whole or part as the case may be of such court‑fee and upon such payment, the document, in respect of which such fee is payable shall have the same force and the effect as if such fee had been paid in the first instance. Section 148, C. P. C. is to the effect that where any period is fixed or granted by the Court for doing of any act prescribed or allowed by this Code the Court may in its discretion, from time to time enlarge such period, even though the period originally fixed or granted may have expired. Order VII, rule 11, clauses (b) and , C P. C. read as follows ;_ (b) where the relief claimed is under valued and the plaintiff on being required by the Court to correct the valuation within the time to be fixed by the Court fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped , and the plaintiff, on being required by the Court, to supply the requisite court fee and the plaintiff fails to do so;" This means that under Order VII, rule 11, C. P. C. rejection of a plaint can only take place if after the Court allows time for supplying the requisite court‑fee and the plaintiff fails to do so by the time so allowed.

14. The combined effect of the aforementioned provisions of the Court Fee Act and the Code of Civil Procedure would be that duty is also cast on the Court to determine the correct value of a suit for the purposes of court‑fee and to direct the plaintiff to make and the deficiency in the court‑fee, if any by a time to be fixed for the purpose.' In case, he makes good the deficiency in the court‑fee by the time so allowed, the plaint shall have the same force and effect as if such fee has been paid in the first instance, i.e. at the time of filing of the plaint. In Yaqoob Khan v. Rasool Khan (1), it has been held by the Supreme Court of Pakistan,. that under section 149, of the Code of Civil Procedure discretion vests in the Court to allow defendant/plaintiff to pay deficiency in the court‑fee at any stage and of on such permission being granted, tile fee h been paid, the fee shall be deemed to have been paid in the first instance. In Muhammad Siddique and 2 others v. Muster Muhammad Ibrahim and 3 others (2), it has been observed by a Division Bench of this Court as under ;_. ". . . . . We note that generally in this part of the country pre‑emption suits are instituted on tentative court‑fees and balance court‑fees are later paid on obtaining statements of mesa a profits from the Revenue Officials generally through Courts, because securing of such state. meats from the Revenue officials directly is not only difficult but highly expensive. If .any authority is required for this view, Karim Bakbsh v. Qadir Bakhsh P L D 1979 Lah. 332 and Malik Jan Muhammad, v. Shukaruddin and 6 others A I R 1926 Mad. 347 may be cited. 1n Karim Bakhsh's case it was observed that plaintiffs in pre‑emption cases normally placed notional valuations in their suits for purposes of court fees, because they did not know what the net profits of the preceding Year were, which could only be determined by the Saddar Qanungos after recording evidence, and therefore, orders by Courts directing the plaintiffs to file statements of net profits by a particular date were appropriate orders in pre‑emption cases. In this case, it was also pointed out that statements of net profits were not readily available documents and Saddar Qanungos had to prepare estimates of the income of the land in dispute, with the result that plaintiffs normally applied to the Courts for issue, of directions to the Saddar Qanungos to prepare such statements. In Malik Jan Muhammad's case, two rival pre‑emptors instituted their suits on tentative court‑fees and paid the balance court‑fees after securing statements of mesne profits from the revenue officials through the Court. Whilst dealing with the objection of the defendants vendees that the direction had not been properly exercised, as the plaints had been filed by the rival pre‑emptors on nominal court‑fees, a Division Bench of this High Court held that as in this part of the country, it was a general practice for pre‑emptors to institute suits on nominal court‑fees and to make good the deficiency after securing copies of the mesne profits from the Revenue Officials generally through the Court, the action of the pre‑emptors was not mala fide and in any case they could not be held guilty of any con tumacious disregard of any order of the Court. In view of this general practice prevailing in the Punjab, as alluded to above, it would have been sufficient for the appellants to have requested for extension of time for payment of the balance court‑fees by stating that they desired to pay the same after securing copies of necessary funds from the Revenue officials through the Court, in which case the trial Court itself would have directed the Revenue officials to deliver the necessary ‑ statements to the appellants and, after the same were obtained and perused, ordered the appellants to make good the deficiency of court‑fees by a stated date. The fact that the appellants undertook this exercise without seeking the Court's direction to the Saddar Qanungo, should not place them at a disadvantage than if they had so applied . . . . . . ." (1) 1981 S C M R 155 (2) P L D 1981 Lah. 97 In this judgment, reference has been made in detail to the case law on the point. In the cited case, it has also been held that section 149, C. P. C. read with section 28 of the Court Fee Act would show that the plaintiff who would be hit by the disabling provisions of the Court Fee Act, which is a fiscal statute, due to minor or major delinquencies or of Order VII, rule 11 of the Civil Procedure Code, 1908, for contumacy, is otherwise saved. There is no element of limitation incorporated in these provisions and no such element can, therefore, be directly imported into these provisions so as to unduly deflect the discretion of the Court into any guided channels when deciding applications for grant of permission to make up deficiency of court‑fee, In Shah Nawaz and 6 others v. Muhammad Yousaf and 3 others (1), the Supreme Court of Pakistan, held that under section 149 read with Order VII, rule 11, Civil Procedure Code (V of 1908), Court could in its discretion allow time to plaintiff to make up deficiency unless plaintiff was guilty of contumacy or positive mala fides.

15. In the facts of the under consideration case, as already observed earlier, there has been no contumacy on the part of the pre‑emptor/respondent. He produced the requisite revenue papers alongwith statement of net profits on the date fixed by the Court for the purposes and then he paid the deficiency in court‑fee worked out on the basis of such revenue papers by the time allowed by the Court.

16. The appellants have cited Mst. Wilayat Khatoon v. Khalil Khan (2). According to the facts of Wilayat Khatoon's case, the pre‑emptor had failed to make up deficiency in the court‑fee by the extended time and the Court dismissed the suit pursuant to an objection raised in this behalf by the defendant. The facts of the present appeal, however, are different inasmuch as in the present case, the plaintiff made up the deficiency in the court‑fee within the time allowed by the Court for the purpose. He has not been allowed further extension even for a single day. In the instant case, there fore, there has been no contumacy on the part of the pre‑emptor. In Muhammad Siddique and 2 others v. Master Muhammad Ibrahim and 3 others, Wilayat Khatoon's case has been considered and distinguished on merits. (1) 1972 S C M R 179 (2) P L D 1979 S C 821

17. In the light of what has gone above, it is concluded that in the circumstances of the under consideration case, the pre‑emptor respondent duly made good the deficiency in the court‑fee by the time allowed by the Court, under section 149, C. P. C. and, therefore, the fact that such deficiency was made good after the expiry of the period of limitation provided for the suit ‑has hardly any relevancy. The plaint shall have the same force and effect as if the requisite court‑fee have been paid in the first instance. The findings recorded by the learned Additional District Judge, in this behalf are, therefore, upheld.

18. Regarding the question of preferential right of pre‑emption of the respondent, it may be observed that it has been averred specifically in the plaint that the respondent is the real son of the vendor. This averment has been duly verified on oath. No evidence has been led to rebut this contention. Muhammad Sharif, one of the appellants, appeared as the sole witness of the appellants before the trial Court, but be has not dared to contradict this contention of the respondent in his testimony. 1n the circumstances, even if we ignore the entries of school leaving certificate Exh. P. G wherein the parentage of the respondent is recorded as being son of the vendor because this certificate has not been formally proved, the contention of the respondent that he is son of the vendor stands unrebutted and the unanimous findings recorded by both the Courts below would not call for any interference at all.

19. No other point has been urged.

20. For the foregoing reasons, the present appeal is devoid, of any merit and is accordingly dismissed. The parties are, however, left to bear their own costs. S. Q, Appeal dismissed.