P L D 1981 Supreme Court 489 (PLP)

ASLAM RIAZ HUSSAIN, J.-This petition is directed against the judgment of the High Court dated 12-5-1980, dismissing the petitioner's R. S. A. The facts giving rise to the present petition, briefly, are ; that Khuda Dad Khan, etc. sold land measuring 122 kanals in Village Jora Sakasar, .Tehsil and District Sargodha, to the respondents, through, on oral agreement. The mutation was sanctioned by the Assistant Commissioner on 22-12-1974. Allah Yar, petitioner, however, filed a suit to pre-empt the sale. He fixed the value of the suit for the purpose of jurisdiction and court-fee as Rs. 1,200 and affixed court-fee of Rs. 90 thereon. It appears that the learned Civil Judge felt that the court-fee was insufficient, and therefore, directed scrutiny by the ministerial staff, which objected to the valuation.

2. On 2-I-1976, the learned Civil Judge directed the petitioner to deposit `zar-a panjam' and also directed him to make up the deficiency in the court-fee on the basis of 15 times of the preceding year's net profit, before 21-2-1976, i.e. before the next date of hearing. On that date, the petitioner did not appear and the learned Civil Judge dismissed the suit presuming that the petitioner-plaintiff bad neither deposited the zar-a panjam nor had be made up the deficiency in the court fee. The petitioner filed an appeal against the aforementioned order of the learned Civil Judge, before the District Judge, Sargodha, which was accepted by him vide his judgment dated 18-4-1977, as he found that zar-a panjam had already been deposited by the petitioner. He remanded the case to the learned trial Court with the direction for proceeding in accordance with clause (b) of rule 11 of Order VII, C. P. C. However, the learned Civil Judge, on remand, proceeded to try the case and framed seven issues on the basis of the pleadings of the parties. Issue No. 1, was "Whether the suit has not been properly valued for the purpose of court-fee and jurisdiction. If so, what is the correct valuation 7 O. P. D." The petitioner-plaintiff obtained naqsha jhar padawaar from the revenue authorities and placed it on the record before the next date of hearing. According to this document, the profit for the previous year was calculated as Rs. 1,882.12. The defendant-respondent did .not press this issue during the course of arguments and the learned trial Judge decided this issue in favour of the petitioner-plaintiff. He also held that the plaintiff had a superior right of pre-emption and decreed the suit on 15-1-1979. The respondent-defendant filed an appeal against the decree before the District Judge, which was dismissed on 24-10-1979. He then filed the R. S. A. before the High Court which was accepted, vide the impugned judgment, and the decree was set aside. Hence the present petition by the petitioner plaintiff for leave to appeal.

4. It was urged by the petitioner's counsel before us that the first appellate Court (District Judge) should not have dismissed the suit but acting under section 12(ii) of the Court Fees Act, should have determined the correct value of the court-fee and adjourned the hearing to give a further opportunity to the plaintiff to make up the deficiency in the court-fee. He 'contended secondly that the statement of net income (naqsha jhar padawaar) has been wrongly taken into consideration by the learned District Judge as the same had not yet been exhibited.

5. We have considered these contentions and find no force in them. No doubt time for making up the deficiency in the court-fee can be extended by the trial Court as well as by the appellate Court, but as held by this Court in Mst. Walayat Khatoon v. Khalil Khan and another (PLD1979SC821) the discretion has,' to be exercised very carefully and the Court has to strike a balance between prejudice likely to be caused to each party. Whereas it should not be unduly harsh on the plaintiff by giving them an opportunity to make up the deficiency, at the same time it should not be harsh on the defendants by/ easily taking away the valuable right of limitation from them. 1n Abdus-Sattar and another v. Haji Muhammad Bakhsh and another (1979 S C M R 243), this Court again considered the principle regarding extension of time under section 149, C. P. C., for making up the deficiency in the court-fee. In that case also a question came up for hearing for making up the deficiency of court-fee on the memorandum of appeal and it was held that Court should extend the time only in cases of a bona fide mistake, and when good reason is shown as to why proper court-fee had not been paid in the first instance, but not in cases where the party is guilty of contumacy, as in the present case.

6. In the instant case, the petitioner-plaintiff had himself produced the statement of net profits (Naqsha Jhar Padawaar), which he had obtained from the proper revenue official and it showed the income for the previous year as Rs. 1,882.12. Having himself placed the said document, he cannot object to the Court taking notice of it. According to this document, the value of the suit at 15 times the annual net profit would be Rs. 28,231/80, and not Rs. 1,200, as stated in the plaint. The mere fact that at the trial the defendant had not pressed the question of deficiency in the court-fee, does not relieve the Court of the obligation of looking into the matter, c determining the correct amount of the court-fee and seeing that the deficiency is made up. In any case, the petitioner had the knowledge that he ha grossly undervalued his plaint for purpose of court-fee and yet he did no make up the deficiency within time or even upto the date of final decision of the case, nor did he ever apply for extension of time under section 149, C. P. C. As such it is evident that he was not only negligent but also contumacious and his omission to make up the deficiency in the court-fee was deliberate and mala fide. Consequently, the District Judge was justified in not extending the time in his favour.

7. In view of the above discussion, the petition is dismissed as having no force. Petition dismissed.