1986 PLP 760 (MLD)

G. Abbas Zaidi for Respondents. Dates of hearing: 8th and 9th October, 1983. This first appeal against the order of the learned Additional District Judge, dated 4-1-1982 has been filed to assail its validity whereby accepting the appeal of the respondents and setting aside the judgment decree of the trial Court, dated 24-9‑1977, the case was remanded to proceed with the trial in the light of the directions of the Appellate Court.

2. The brief facts leading to the filing of this appeal are that Murad, etc., respondents, had filed a suit on 29‑7‑1976 to pre‑empt the sale witnessed by a sale‑deed registered on 16‑3‑1976. The plaintiffs had themselves worked out the net profits at Rs.300 and at its fifteen times the value for‑the purpose of court‑fee was calculated and affixed on the plaint. There was an objection raised by the defendants‑vendees about correct court‑fee and valuation. The trial Court thereafter ordered the respondents‑plaintiffs to produce the schedule of net profits in view of the objection of the defendants‑appellants that the plaint was deficiently stamped. The schedule of net profits was produced on 4‑9-1977 and on its basis the court‑fee was held to be deficient by Rs.506. On 13‑9‑1977, when the court‑fee was determined by the trial Court, the counsel for the plaintiffs submitted that the party wanted to submit an application for extension of time. The learned Civil Judge on that day passed an order in terms that time is given to the plaintiffs to submit an application for extension of time and the matter was adjourned to 24‑9‑1977. The trial Court did not pass an order requiring the plaintiff to make up the deficiency by a specified time ‑or date. On the said date, 'nobody appeared on behalf of the plaintiffs, hence the learned Civil Judge dismissed the suit as time‑barred.

3. On an appeal being preferred by the respondents, the first appellate Court, however, took the view that on 24‑9‑1977 when the plaintiffs were not present, an order on merits could not have been passed and specially an order dismissing the suit as time‑barred without framing any issue. It was further held that the mere fact that there was a deficiency in court‑fee was not enough because the Court before it could dismiss the suit were to be satisfied that there was contumacy in the sense that an order was passed requiring the plaintiffs to make good the deficiency of requisite court‑fee after giving them an opportunity to do so within the time allowed by the Court itself. It was further held that the adjourned date for 24‑9‑1977 was for submission of an application by the plaintiffs. Thus, this was not a date of hearing and the suit could not have been dismissed for default of appearance of the plaintiffs on that day.

4. According to the plaintiffs' version, what had actually happened was that when the case was adjourned for 24‑9‑1977 it was wrongly noted by the counsel as 29‑9‑1977. However, the intended application under Order VI, rule 17, read with sections 148, 149 and 151, C.P.C. had been moved on 25‑9‑1977 which came up for hearing on 26‑9‑1977. It was then discovered that the suit had already been dismissed on 24‑9‑1977.

5. The learned counsel appearing in support of this appeal has argued that the view of the first appellate Court was unsustainable because the deficiency in court‑fee was never made good within the period of limitation and as such valuable right accrued to the present appellants (defendants in the suit) of which they could not be deprived under the law. The view of the learned Additional District Judge further assailed on the ground that it ought not to have allowed the adjournment of the case to 24‑9‑1977 to enable the plaintiffs‑respondents to show cause why they had not affixed the proper court‑fee and thus providing them an opportunity to move the application for extension of time and amendment of the plaint. The learned counsel supported the view of the trial Court that the plaint having been initially filed with a deficient court‑fee, therefore, under section 28 of the Court Fees Act, the plaint which was deficiently stamped was no plaint in the eye of law. It was argued that the trial Court having dismissed the suit as time‑barred, the same could not have been interfered with by the first appellate Court. The finding of the first appellate Court that there was no contumacy on the part of the plaintiffs‑respondents was also attacked on the ground of being unsound in law. On behalf of the respondents, the learned counsel has argued that since the case was not fixed for hearing on 24‑9‑1977, the Court could not pass an order under Order XVII, rule 2, C.P.C. and moreover there could not be a two‑fold order, one of dismissal for non‑prosecution and the other on merits. In support of his submission, the learned counsel relied on the decision of this Court in Mst. Barkat Bibi and others v. Fateh Ali and others P L D 1949 Lah. 432 wherein it had been laid down where no investigation of any matter germane to the suit fell to be performed by the trial Court, and the only order which it could possibly have made was an order of an administrative nature, an order dismissing the suit was without jurisdiction since there was no hearing of the suit on the date on which default of appearance was made.

6. I have considered the submissions of both sides and gone through the record.

7. A perusal of the order of the learned trial Court, dated 13‑9‑1977 clearly makes out that it had only determined the correct court‑fee but had failed to make an. order as to by what date the plaintiff was required to make good this deficiency. According to the 'first appellate Court there is also a slight error in the determination of the amount but be that as it may, it was the Court itself who called upon the plaintiff to show cause why at the time of the institution of the suit correct court‑fee had not been affixed. At this stage, the learned counsel for the plaintiffs expressed his desire to file an application and the Court adjourned the case for 24‑9‑1977 specifically for the purpose of filing of this application by the plaintiffs. There is to found in the order no direction to the plaintiffs to make good the deficiency in court‑fee by any specified date. It follows from these facts that 24‑9‑1977 was not a date for hearing of the suit as this expression has been construed and interpreted by the superior Courts. Indeed, the judgment of this Court in the case of Mst. Barkat Bibi v. Fateh Ali does support the view that the learned Additional District Judge has taken in this case.

8. Moreover, the order of the trial Court, dated 24‑9‑1977 does not show his consciousness that he was vested with a discretion to pass or not to pass an order in terms of Order XVII, rule 2, C.P.C.' The ratio of the decision of the Supreme Court in the case of Shamroz Khan and another v. Muhammad Amin and another P L D 1918 S C 89 is in point. No valid exception also can be taken to the view of the learned Additional District Judge that when there was a default, of appearance by the plaintiffs, there was no occasion for an order on merits when the suit itself was dismissed for default at the one and the same time.

9. In so far as the other grounds urged in this appeal are concerned, i.e. that the suit having been filed initially on an under‑valued court‑fee and hence being insufficiently stamped it was no plaint in the eye of law and the suit was liable to be dismissed as barred by limitation and further that there was a contumacy on the part of the plaintiffs-pre‑emptors, there is little scope for controversy left in view of the latest pronouncement of the Supreme Court in Mst. Parveen v. Mst. Jamshed Begum and another P L D 1983 S C

227. In the cited precedent, it has been held by the learned Supreme Court as under:‑‑ " .It may also be observed that the learned trial Judge could not have rejected the plaint under Order VII, rule 11, C .P. C . on the mere discovery that the claim was under‑valued, unless under clause (b) of rule 11, the plaintiffs having been required by the Court to correct the valuation within a time specified by the Court, had failed to do so. Similarly regarding insufficiency of court‑fee, the plaint could be rejected under clause (c) of rule 11, if the plaintiffs, on being required by the Court to supply the requisite stamp‑paper within a time to be fixed by the Court, failed to do so. In both these eventualities, the plaint could have been rejected under Order VII, rule 11, C . P. C . and it would not have been proper, without recourse to this provision to dismiss the suit as time‑barred. It could not be said that if the suit was within time on the day the plaint was duly presented, it became time‑barred simply because the plaint could be rejected under clause (b) or (c) or for that matter clause (a) or (d) of rule 11 (after the period of limitation) for the reasons mentioned in the said clauses; the suit could not be dismissed on the ground of limitation merely because the plaint when originally otherwise duly presented in a Court, was not correctly stamped, Section 3 of the Limitation Act, where under a suit can be dismissed, applies only if it is instituted after the period of limitation. It is not the case of the appellant that as visualized by the explanation to section 3 of the Limitation Act, the plaint was presented, not to the proper Officer, or after the expiry of limitation. And if it was presented properly before a proper Officer prior to the expiry of period of limitation then the relevant provision for consideration would be Order VII, rule 11, section 149, and in some cases section 148, C.P.C. as also section 10 (ii) of the Court Fees Act, where under a suit can be dismissed for non‑compliance with the order of the Court for supply of the requisite fee and not on the ground that for the some reasons it hall become time‑barred. The two considera tions would be totally different." The view taken by the first appellate Court that the order of the trial Court on merits on ground of insufficiency of court‑fee dismissing the suit was not justified because there was no contumacy on the part of the pre‑emptors in the sense that in the present case the trial Court had never provided to the plaintiffs an opportunity to make good the deficiency in court‑fee, seems to be in accord with the latest enunciation Abdul Of law by the Supreme Court in re: Siddique Khan and .2 others v. Shakur Khan and another P L D 1984 S C 289 which has finally resolved the controversy on the questions of deficiency in court‑fee, contumacy and limitation and ratio of Mst. Walayat Khatun's case P L D 1979 S C 821 ,explained.

10. There is no scope for interference in the impugned judgment and order of the learned Additional District Judge. The appeal fails and is hereby dismissed. However, there will be no order as to costs. M . Y . H . Appeal dismissed.