2002 PLP 1571 (YLR)

2. The facts are that the appellant purchased the suit‑land through registered sale‑deed dated 7‑2‑1977 for a sum of Rs.1,46,

552. The respondents Abdul Khaliq and Atta Muhammad instituted a suit for pre emption on 30‑11‑1977 on the ground of being owner of the estate. At the time of institution of the suit, the plaint was deficiently stamped for the purpose of court- fee. However, vide order dated 1‑12‑1977 the permitted the plaintiffs/respondents to make good the deficiency in court‑fee up to 20‑12‑1977.

3. The appellant was admittedly not an owner of the estate on 30‑11‑1977 when the suit was instituted. However, he acquired some land in .the estate through gift on 7‑12‑1977. The plaintiffs/respondents made good the deficiency of the court‑fee on 15‑12‑1977.

4. The appellant/defendant contested the suit on the grounds that since he has improved his status on 7‑12‑1977 before the date when the deficiency in court‑fee was made good by the plaintiffs/respondents, it will be deemed that the appellants had an equal right of pre‑emption with the plaintiff/pre‑emptor upon the date or institution of the suit which the appellant claimed to be on 15‑12‑1977 viz. the date when the court‑fee was paid. To put it differently the case of the appellant is that although the deficiently stamped plaint was filed on 30‑11‑1977, the date of valid institution under section 21‑A of the Punjab Pre‑emption Act, 1913 shall be 15‑12‑1977 when the deficiency in the court‑fee was made by the plaintiffs.

5. The parties went on trial. The learned, trial Court did not agree with the contention of the appellant and found that the suit was in fact instituted on 30‑11‑1977 on which date the plaintiffs had a, superior right of pre‑emption on the, basis of record of right for 1972‑73 Exh. P.1, whereas, the appellants/defendants did not enjoy any such right on this date. It was further found that the gift in favour of the appellant made on 7‑12‑1977 was after the institution of the suit and that on this ground the appellant could not claim lawful improvement in his status under section 21‑A of the Punjab Pre‑emption Act, 1913. The price of 'the suit‑land was, however, decided as Rs.87,206 as contended by the plaintiffs/and the suit was decreed in favour of the plaintiffs/respondents against this sale price alongwith the value n, improvement amounting to Rs.19,300 in favour of the plaintiffs/respondents vide judgment and decree, dated 24‑3‑1982.

6. First appeal was preferred by the present appellants. The learned Appellate Court examined the legal and factual contentions raised by the appellants and came to the conclusion that the plaint was presented on 30‑11‑1977 and notwithstanding that the deficiency in the court‑fee was made later on the date of institution shall remain as 30‑11‑1977 on which date the plaintiffs/respondents had a superior right of pre emption. It also found that the gift even otherwise was not proved to be a valid gift in favour of the appellant. In respect of the sale consideration, however, the First Appellate Court modified the decree of the trial Court and fixed the sale price alongwith improvement at a total consideration of Rs.1,98,

524. The Appellate Court passed its modified decree on 23‑1‑1993.

7. In this regular second appeal, the main ground of contention raised by the appellant is that as the plaintiffs/respondents deposited the court‑fee on 15‑12‑1977 the suit shall be deemed to be instituted on 15‑12‑1977 as before that date, there was no validly constituted plaint on the file of the Court. It is submitted that the appellant had improved his status through a gift on 7‑12‑1977 and as such he had equal right of pre‑emption with the plaintiffs on 15‑12‑1977 and that the suit of the plaintiffs was liable to be dismissed on this ground. The learned counsel for the appellant relied upon a Single Bench of this Court passed in Allah Ditta and others v. Sher Muhammad and others 1983 CLC 3087 to contend that a plaint Which is deficient in court‑fee is not a valid plaint in the eye of law. He also submitted that he had validly proved gift of 2 Kanals in his favour vide Exh.D.6 and that both the lower Courts fell in error in not relying upon the same.

8. Arguments have been heard. Record perused.

9. The plaint was presenter on 30‑11‑1977. It was duly entertains and registered. The date of institution as rightly recorded in the judgment and decree of the trial Court is 30‑11‑1977. The civil Court seized of the matter passed a judicial order thereupon on 1‑12‑1977 whereby the plaintiffs were directed to make up the deficiency in the court‑fee before 20‑12‑1977 on their application filed under section 149, C.P.C. The institution of the suit shall take place as soon as it is entertained and entered in the register of suits and assigned a number. It is immaterial whether the plaint was deficient in court‑fee for the purpose of the date of institution. A number of suits may suffer from some inherent defect of jurisdiction, territorial or inherent or may be deficient in court‑fee or may be filed without authority or suffer from any other such lacuna when first filed and entertained in the Court but this fact alone shall not postpone the date of institution to such later date when the deficiency is removed or corrected. In this view of the matter, the date of institution of the present suit shall be 30‑11‑1977 then the plaint was registered as a civil suit. The submission of the learned counsel for the appellant that when the court‑fee was paid on 15‑12‑1977, the institution of the suit shall date‑back to 30‑11‑1977 is correct but this submission operates to the benefit of the plaintiff. It does not follow from this that the initial institution of a suit is also legally or fictionally postponed to the date when the deficiency in court‑fee is made good. As per the Law Lexicon "Institute" means; to set on foot; To being an action; to accuse "institute" when applied to legal proceedings signifies the commencement of the proceedings. When we talk of instituting an action, we understand bringing an action. According to the Ballentines Law Dictionary, "institution and prosecution" of a legal proceedings in a Court comprehends the filing of a proper plaint, process for bringing the parties into Court and judicial inquiry, according to the usual rules and practice of Courts. The Law Lexicon with Legal Maxims by M.C. Desai contemplates a proceeding to be instituted when "for the first time the adjudication of Court of competent jurisdiction is sought.

10. According to the above amplification of the term instituted, it leaves no manner of doubt that institution relates to the commencement of the legal action which takes place when the competent Court takes cognizance of a lis by entertaining the suit and registering it in its register of plaints.

11. The reliance placed by the learned counsel for the appellant upon the case of Allah Ditta and others (supra) does not advance the case of the appellant. It is correct that a deficiently stamped plaint is not a valid plaint in the eye of law but that does not mean that the plaint was not instituted on the date when it was presented and entered in the register of plaints by the Civil Court. The last submission of the learned counsel for the appellant that he had validly acquired 2 Kanals of land vide Exh.D.6 and that it was incorrectly ignored by the lower Courts is also devoid of force. This is a question of fact which stands concluded by the concurrent findings of fact by both the lower Courts.

12. In view of the above, there is no merit in this regular second appeal which is hereby dismissed. Parties to bear their own costs. H.B.T./A‑525/L R.S.A. dismissed.