1982 PLP 639 (CLC)

Ch. Ghulam Mujtaba for Respondents. Date of hearing: 4th May, 1981. The respondents, Mali and others, who are respondents in the present appeal, filed a suit against the appellant. Muhammad Khan, for possession of certain land through pre‑emption. The valuation of the suit was fixed by them at Rs.130 by stating that the said amount was equal to fifteen times the net profits of the disputed land for the preceding year. Accordingly, a court‑fee of Rs.10 was paid by them. On 30th May, 1974, when the suit was registered the Civil Judge, who was seized of the suit, directed the respondents to obtain the statement of net profits and make good the deficiency in court‑fee in accordance therewith before 21st September, 1974. This was, however, not done by them till 27th May, 1975 when the respon dents' counsel asked for last opportunity to do the needful. Therefore, at his request, he was given last chance of making good the deficiency before 5th July, 1975. By that date too, however, the needful was not done by the respondents. What they actually did was that on 4th July, 1975, they made an application for extension of time in making good the deficiency stating that they had not been able to get copies of the revenue record from the Patwari and, therefore, the statement of net profits could not be got prepared by them. It was vaguely mentioned that the Patwari had remained busy in connection with his official duties. Their prayer was not acceded to by the learned Civil Judge when the case came up before him on 5th July, 1975, and on the same date he rejected the plaint under Order VII, rule 11 of the Code of Civil Procedure, for non‑payment of requisite court‑fee. His order was challenged by the respondents by means of an appeal before the District Judge concerned. The view taken by the learned District Judge was that as the amount of deficiency had not been worked out before directing the respondents to make good the deficiency, the plaint could not be rejected. He, therefore, accepted the appeal, set aside the order of the learned trial Court and remanded the Suit for "further disposal in accordance with law." Feeling aggrieved by the order of the learned District Judge, the appellant who was defendant in the suit, has come up in appeal to this Court.

2. Learned counsel for the appellant contended that no reason had ‑been given by the respondents for not obtaining the statement of net profits before filing the suit nor their failure to have the same and pay proper court‑fee in compliance with the direction of the learned trial Court had been convincingly explained by the respondents and, therefore, the learned trial Court was justified in rejecting their plaint. As for the reasoning of the learned District Judge that the amount of deficiency bad not been determined by the learned trial Court it was submitted by learned counsel for the appellant that since the statement of net profits had not been furnished by the respondents it was not possible for the said Court to work out the deficiency. It was also pointed out by him that it was after the remand of the suit by the learned District Judge that the respondents had, on 13th May, 1975, obtained copy of khasra girdawari from the Patwari and the statement of net profits was received by them on 7th June, 1975 and then the said documents were filed by them before the trial Court. The submission made by the learned counsel for the appellant was that if the respondents had made an attempt to get the said documents earlier they would have faced no difficulty in obtain ing the same. According to him, the respondents had deliberately omitted to' do the needful in time and were, therefore, not entitled to any indulgence. He relied on Jagat Ram v. Misar Kharaiti Ram and another (A I R 1938 Lah. 361), Rahim Bakhsh v. Muhammad Bukhsh and 2 others (P L D 1976 Lah. 686), Mst. Wilayat Khatoon v. Khalil Khan and another (P L D 1979 S C 821) and Abdul Sattar Khan and ,another v. Hafiz Muhammad Bakhsh and another (1979 S C M R 243) to support his arguments.

3. On the other band, it was urged by learned counsel for the respon dents that the Patwari concerned did not provide them with copies of khasra girdawaris before the plaint was rejected by the learned trial Court, the respondents could not be penalised for not furnishing the statement of net profits or for the non‑payment of proper court‑fee. He invited my attention to Muhammad Siddique and 2 others v. Master Muhammad Ibrahim and 3 others (P L D 1981 Lah. 97) and contended that due to the difficulty faced by the respondents in getting copies of the khasra girdawaris they were entitled to the extension of time asked for by them.

4. It was an oral sale which was involved in the present case. It was followed by a mutation attested on 29th May, 1973. The suit was filed on 29th May, 1974 after obtaining a copy of the relevant mutation, No explanation whatsoever is forthcoming as to why the copies of khasra girdawaris and the statement of net profits were not obtained alongwith the copy of mutation. After institution of the suit the respondents were allowed ample time to file the statement of net profits and make good the deficiency in court‑fee but they did not do the needful till 27th May, 1975. On that date they ask for the last opportunity to pay the requisite court‑fee but that too was no properly utilized by them. They at the eleventh hour made the application for further extension of time for payment of proper court‑fee by stating that they had not been able to get copies of khasra girdawaris from the Patwari a he was busy in connection with his official work. It was a vague assertion which was not supported by facts and figures. The date on which the Patwari was approached by the respondents was not indicated in the applica tion nor the precise nature of his engagement was spelt out. No affidavit of the Patwari or any other writing by him was produced by the respondents to substantiate their plea. It has not been explained as to why interference of official superior to the Patwari was not sought if the Patwari was not co‑opera ting with the respondents especially when it was known to the respondent that at their request a last chance had been given to them for making good the deficiency in court‑fee. Their conduct as depicted above speaks volumes of their negligence and contumacy. Therefore, in view of the law laid down in the cases relied upon by learned counsel for the appellant the respondents were not entitled to further extension of time for making good the deficiency in court‑fee.

5. As for the case of Muhammad Siddique and 2 others cited by learned counsel for the respondents, although the plaintiffs in that case had not paid the requisite court‑fee within the period of limitation yet they had done the needful within the period allowed by the trial Court without seeking any further indulgence from the Court. That case, therefore, being distinguish able on fact, is of no help to the respondents.

6. As regards the observations of the learned District Judge that the plaint could not be rejected without intimating the exact amount of deficiency in court‑fee to the respondents, it will be noted that in the case of Rahim Bakhsh also the amount of deficiency was not determined but the plaint was rejected because the plaintiff had failed to furnish the statement of net profits and pay the court‑fee accordingly although several opportunities were afforded to him for the purpose. In the instant case it was not possible for the trial Court to work out the amount of deficiency because the statement of net profits on the basis whereof the said amount could be calculated had not been supplied by the respondents despite repeated orders of the learned Civil Judge. The respondents cannot, therefore, be allowed to take the benefit of their own wrong. In this view. of the matter, the fact that the direction given by learned trial Court relating to payment of proper court‑fee did not specify the amount by which the court‑fee already paid by the respon dent was deficient cannot be pressed into service by them for escaping the legal consequences of their negligence and contumacy.

7. For the reasons given above, the learned trial Court was perfectly justified in making order for the rejection of the plaint and the learned District Judge had fallen in error in reversing the aforesaid order. I, there fore, accept this appeal with costs, set aside the order of the learned District Judge and restore that of the learned trial Court. M. Y. M. Appeal accepted.