1980 PLP 1265 (CLC)

Muhammad Sharif Janjua for Appellant. Mian Qurban Sadiq lkram for Respondent. Date of hearing : 20th November, 1979. This regular second appeal is directed against an order of a Civil Judge whereby he rejected the plaint in a suit brought by the appellant, Akbar, against the respondent, Muzaffar Khan, for possession of a piece of land by pre-emption. The plaint was rejected, under Order VII, rule 11, of the Code of Civil Procedure, for the failure of the appellant to make up deficiency in court-fee within the time allowed by the trial Court.

2. The land in dispute was sold on 15th November 1975 by means of a registered sale deed. The suit was filed by the appellant on 15th November, 1976 by paying a court-fee of Rs. 1.50 only. It was, how ever., prayed by the appellant, in his plaint, that. he may be allowed to make good the deficiency in court-fee after obtaining the statement of net profits from the revenue authorities. His request was acceded to by the trial Court and he was allowed to make good the deficiency by 16th December 1976. This, however, he did not do, and on 15th December 1976 made another application for extension of time. The learned Civil Judge did not grant him any more time and rejected the plaint under Order VII, rule 11 of the Code of Civil Procedure. On this the appel lant went in appeal before an Additional District Judge but without success. Hence this second appeal.

3. Learned counsel for the appellant contended that before filing the suit the appellant had made effort to get the statement of the net giro hts but the Patwai? concerned did not supply him requisite copies of the revenue record to enable him to secure the said statement. Learned counsel he appellant maintained that it was in view of the of the Patwari towards leis requirement that the appellant had made a complaint to the Settlement Officer, against the Patwari, on 10th November 1976, before filing the suit on 15th November 1976. As a result, after the institution of the suit, on 13th December 1976 he was able to get the copies from the Patwari, but as the Clerk who had to prepare the state ment of net profits was not available he could get the statement of net profits only on 15th December 1976 at 3-00 p. m. Thereafter, the time at the disposal of the appellant was so short that he could not deposit the requisite amount of court-fee before the stipulated date, namely, 16th December 1976. According to the learned counsel, the appellant had been doing all what was in his power with a view to paying the requisite court fee in time but as he could not pay it due to circumstances enumerated above, the trial Court was riot justified in rejecting his plaint,

4. In reply, learned counsel for the respondent submitted that there was no evidence to support the explanation offered by the appellant for his failure to males payment of the requisite court-fee. As for the complaint made by the appellant against the Patwari there is a photostat copy of the said complaint on the record. Learned counsel for the respon dent pointed out that although the date given on the complaint by the appellant is 10th November 1976 yet the official who appears to have receiv ed it did not put any date thereon. It was, therefore, contended by the learned counsel for the respondent that the plea relating to the said com plaint was an afterthought and that the complaint has also been fabricated after the filing of the suit with a view to furnishing explanation for the inaction of the appellant during the period of one year preceding the filing of the suit. As regards the averment of the appellant that he could get collies of the revenue record on 13th December 1976 and the statement of net profits on 15th December 1976 learned counsel for the respondent urged that there was no material on the record to support his plea inasmuch as neither the aforesaid copies nor the statement had been placed on the record to show that the appellant was able to secure the same on the dates mentioned by him. It was, therefore, argued by the learned counsel for the respondent that the appellant had been extremely negligent in the matter of the payment of requisite court-fee and, therefore, the order relating to the rejection of his plaint was unexceptionable.

5. The latest authority on the point involved in the present case is the ruling of their Lordships of the Supreme Court in Mst. Walayat Khatun v. Khalil Khan and another (P L D 1979 S C 821). In that case it had been observed by their Lordships that if the requisite Court fee is not paid within the period of limitation prescribed for filing of a suit for pre-emption; the vendee defendant acquires a vested right due to the running out of the period of limitation and. therefore, while allowing extention for making good the deficiency, in exercise of its power' under sections 148 and. 149 of the Code of Civil Procedure, the Court should not grant extention just in routine and mechanically" but keeping in view the circumstance that the grant of such extention would "destroy .the defence of limitation which may have become available to a defendant in the meantime.'" It was also observed by their Lordships that where a plaintiff' does not get paidawar before the filing of the suit, which is got prepared by him privately after the institution of the suit, it shows "that the plaintiff was negligent and not serious right from beginning and did not deserve any indulgence by the Court."

6. Looking at the present case in the light of the above dictum one cannot help taking notice of the fact that the appellant had also failed to obtain the statement of net profits during the period of almost one year intervening the date of the sale in question and the filing of the suit. With a view to demonstrating that he had made efforts to secure the said statement before the institution of the suit but the Patwari had stood in his way, the appellant relied on a complaint alleged to have been made by him against the Patwari on 10th November. 1976, before the filing of the suit, but as the official who appears to have entertained the complaint has not noted any date thereon, it is doubtful that it was actually made on the above date. The appellant did not file the affidavit of any official showing that the complaint was actually made before the institution of the suit. It is also not known as to what was the result of the complaint in question. Even if this complaint is deemed to have been made on 10th November 1976, there is no good explanation for the period of nearly one year preceding the said date. What was stated in the complaint was that the Patwari was putting off the supply of the requisite copies but it has not been indicated of to when the appellant had contacted him for the first time and on how many .other occasions he had gone to him to secure the copies. There is, thus, no plausible explanation for a period of nearly one year intervening, the date of the sale in dispute and the date when the complaint was allegedly made by him. There is also no material on the record except the appellant's own affidavit to show that the copies in question were supplied to the appellant on 13th December 1976, and the statement of net profits was made available to him on 15th December 1976, at 3-00 p.m. Even the said copies and the statement of net profits were not placed on the record. It was, therefore, rightly held by the two Courts below that the appellant had been negligent in the matter of making good the deficiency in court-fee and his plaint was liable top be rejected.

7. As ruled in the case of Mst. Walayat Khatun a vested right had accrued to the respondent due to the failure of the appellant to depose the requisite court-fee in time and he cannot be deprived of the right except for the very cogent reasons, which are not forthcoming in the case in hand. The order under appeal is, therefore, not open to any legitimate exception. The appeal is accordingly, dismissed with costs. K. M. A. Appeal dismissed.