P L D 1959 (W (PLP)

MUHAMMAD SHAFI, J.‑The admitted facts of the case are that Arbab Haji Shamsuddin Khan was the owner of 18 Kanals of land bearing Khasra Nos. 105, 106, 108, 372, 300, 231 and 233, situated in Akbarpura, Tahsil Nowshera. All these Khasra numbers are situated in three different blocks, Nos. 105, 106 and 108 in one block, Nos. 300 and 372 in the second block, and Nos. 231 and 233 in the third block. All these three blocks are not contiguous to each other and are separated by fields, presumably belonging to other people. Sultan Muhammad, son of Saleh Muhammad, was the tenant of all these three blocks. He had planted fruit trees and constructed four garages and a tower, in these blocks at his own expense. Subsequently, all these three blocks, which had become orchards by reason of the planting of the fruit trees, were given on lease by the aforementioned Arbab Haji Shamsuddin Khan to the same Sultan Muhammad for a period of 10 years. On the 19th of October, 1953, while three years of the lease period still remained, Arbab Haji Shamsuddin, after cancelling the lease, sold away all these three blocks in favour of the same Sultan Muhammad for an ostensible ‑price of Ids. 18,

000. Rs. 2,000 were deducted from the sale price on account of the construction of the garages and the tower and the balance of amount was paid to the vendor in the presence of the Sub‑Registrar on the 20th of October, 1953, on which date the deed was also registered. On the 12th of October, 1954, two suits were instituted pre empting this sale, one by Gul Rehman, Abdul Khaliq and Sher Afzal, and the other by Muhammad Yusuf and Fariduddin. In Gul Rehman's suit the value for the purposes of court‑fee was given as Rs. 10 being five times the land revenue of Khasra Nos. 105, 106, 108, 231 and

233. He obviously did not bring a suit for the possession of the rest of the two Khasra numbers. In Mohammad Yusuf's suit the value for the purposes of court‑fee was given as Rs. 21‑9‑0, also purporting to be five times the land revenue of the entire land sold and Rs. 50 as the value of garages etc. Gul Rehman etc, claimed superior right of pre‑emption on the ground that they had their lands contiguous to the Khasra Nos. claimed by them and also on the ground that they were participators in immunities and appendages, such as a right of way, or a right to discharge water. On the other hand, Muhammad Yusuf and Fariduddin claimed their superior right on the basis of their being co‑sharers in the Khatas as well as on the ground that their land was contiguous to the‑ land in suit, and that they were participators in immunities and appendages such as a right of way or a right to discharge water. Both of them disputed the consideration alleged to have been fixed or paid. Both these suits were consolidated by the order of Sub‑Judge, 1st Class, Nowshera, dated the 24th of November, 1954. The suits were contested by the vendee on several grounds which are fully represented by the following issues framed by the Court:‑ (1) Which of the rival pre‑emptors has got superior right of pre‑emption inter se and as against the vendee ? (2) Is the suit bad for partial pre‑emption ? (3) Whether the suit has been correctly valued for the purposes of court‑fee and jurisdiction ? (4) In case it is found that the suit has been insufficiently valued, then are suits time‑barred (5) Are the suits competent in the present form ? (6) Whether plaintiffs in suit No. 263/1 have waived their right of pre‑emption? (7) Whether the plaintiffs have any cause of action? (8) Whether the sum of Rs. 18,000 was fixed in good faith or paid as sale consideration ? (9) What is the market value ? (10) Has the vendee effected any improvements, if so, to what extent and with what effect ? (11) Whether the vendee was entitled to the rights of cultiva tion of 1/2 share of the garden, till when, and with what effect? (12) Whether the vendee has removed trees worth Rs. 800, if so, with what effect ? On the 10th of December, 1954, the learned trial Court appointed one Ghulam Siddique advocate as a commissioner in the case to go to the spot and assess the market value of the orchard and the different constructions made by the vendee. He was also asked to report if the vendee had cut any trees, and if so, to assess the value thereof. He was also directed to prepare the plan of the three blocks. The commissioner submitted his report on the 4th of January, 1955. He observed that the construction was made only in Khasra No.

372. In the other Khasra numbers as well as in this Khasra No. there were fruit trees standing and none of them seemed to have been cut. In his opinion, the value of the construction and the orchard was Rs. 16,000, On the 25th of April, 1955, the Court ordered both the plaintiffs to pay the court‑fee on the market value found by the commissioner, viz., Rs. 16,000, by or on the 30th of April, 1955, Muhammad Yosaf and Fariduddin paid the requisite court‑fee on the 28th of April, 1955, while Gul Rehman, Abdul Khaliq and Sher Afzal failed to do so and hence their claim was rejected under Order VII, rule II of the Civil Procedure Code, on the 30th of April, 1955. As the whole of the evidence had already been recorded therefore, the learned trial Judge delivered his judgment on the 30th of April, 1955. He found Muhammad Yusaf etc. to have a superior right of pre‑emption so far as Khasra numbers 105, 106, 108, 300 and 372, measuring 15 Kanals 2 Marlas was concerned. He further held that Rs. 16,000 was in fact paid as the sale consideration by the vendee to the vendor and that it was the market price of the land in suit. .He found the plaintiffs not to have the preferential right of pre emption with regard to the remaining Khasra numbers. As a result of his findings on the different issues, he granted the plaintiffs a decree for the aforementioned five Khasra numbers on payment of the proportionate amount of Rs. 13,422‑14‑0, with costs. Rs. 8,666 had already been deposited, and so the plaintiffs were ordered to pay the remaining amount before the 19th of May, 1955, failing which their suit was to stand dismissed. The vendee has come up on first appeal to this Court against the above judgment and decree. In appeal only two points have been argued before us, (1) that the plaintiffs did not have a preferential right of pre‑emption as regards Khasra Nos. 105, 106, and 108, and (2) that the plaintiffs' suit was barred by time because the requisite court‑fee was not paid within the time allowed by law‑ to file the pre‑emption suit. So far as the first point is concerned, the plaintiffs' suit was decreed on the ground that they were co‑sharers in the thorough‑fare bearing Khasra No. 254, which was shamilat‑i‑deh and adjoins the three Khasra Nos, namely, 105, 106, and

108. From the plan, Exh. P. 2, placed upon Gul Rehman's file as well as from the statement of Sher Ali Patwari, it is clear that Khasra Nuy. 105, 106 and 108 are contiguous to each other. Khasra No. 254, however, is only contiguous to Khasra No. 106, but not to the remaining two Khasra Nos. It has been repeatedly held by this Court that for the purpose of pre‑emption, each Khasra number is to be treated as a separate unit and the pre‑emptor must prove his superior right in respect of each one of them If any authority is needed on this point then reference may be made to Qalandar Khan v. Hafiz Qazi Pir Muhammad Khan (P L D 1956 Pesh. 1) and Ghulam Mohayuddin Khan v. Ghulam Qasim and others (P L D 1957 Pesh. 36). The plaintiffs, therefore, had no superior right of pre‑emption with regard to Khasra Nos. 105 and 108, on any of the grounds mentioned in section 12 of the North‑West Frontier Province Pre‑emption Act, 1950. The plaintiffs lost their title with regard to Khasra No. 106 as well, because on the date of the decree, the vendee, having become full owner of Khasra Nos. 105 and 108, which were contiguous to Khasra No. 106, had equal right of pre‑emption with them, both having their property contiguous in this Khasra No. Qalandar Khan v. Hafiz Qazi Pir Muhammad Khan support this proposition of law as well. The plaintiff's suit with regard to Khasra Nos. 105, 106 and 108 must, therefore, be dismissed. The second question is attended with considerable difficulty, because the law as enunciated by the different High Courts at different times had created more confusion than clearity, and I, on the law as it exists, am not going to do any better. Under section 7, subsection (5) of the Court Fees Act in suits for possession of land paying land revenue to the Government, the court‑fee is to be paid on five times the revenue so paid. If, however, the suit is for the possession of a garden, then the Court‑fee is payable according to the market value of such garden. Muhammad Yusaf and Fariduddin had paid the court‑fee as if it was a land paying land revenue to the Government. It is not contested that according to the deed as well as the admissions made by the plaintiffs themselves‑in the plaint, the suit property, though assessed to land revenue, was a garden and garages and the court fee should have been paid on their market value. It is, thus, clear that the relief claimed by the aforementioned plaintiffs was undervalued. It was their duty to fix some market price of the property in suit and pay ad valorem court‑fee upon it. If the market value fixed by the plaintiffs had been disputed by the defendant and the Court had reason to think that the market value of the garden had been wrongly estimated, it could, under section 9 of the Court Fees Act, for the purpose of computing the fee issue a commission to any proper person, directing him to make such local or other investigation as may be necessary and to report thereon to it. Under section 10 of the Court Fees Act then if the Court found that the estimation of the market value was insufficient, it was incumbent upon it to require the plaintiff to pay so much additional fee as would have been payable had the said market value been rightly estimated. The suit in these circumstances had to be stayed until the additional fee was paid, and if the additional fee was not paid within such time as the Court fixed, the suit was liable to be dismissed. Since the plaintiffs in this case had not paid the ad valorem court‑fee on the market value of the whole of the property in dispute on the 12th October, 1954, the date when they presented the plaint, it could not be filed or exhibited or recorded in the Court or received by any public officer under section 6 of the Court Fees Act. The plaint would be considered as having been legally presented on the date when the full court‑fee was paid, that is, on the 28th of April, 1955. As the document on which the suit was based was registered on the 20th of October, 1953, the limitation for suit to enforce the right of pre‑emption expired on the 20th of October, 1954, and therefore, prima facie the suit should have been dismissed or the plaint rejected as barred by time. Apart from sections 9 and 10 of the Court Fees Act, which specifically deal with the court‑fees payable under the law on the net profits of the market value of the land, house, or garden as is mentioned in section 7, paragraphs 5 and 6 of the Act, there is a provision made in Order VII, rule 11 of the Code of Civil Procedure, which deals generally with the plaints, and provides that the plaint shall be rejected where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time fixed by the Court, ‑fails to do so, or where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp‑paper within a time to be fixed by the Court, fails to do so. It has been consistently held that this provision of law makes it compulsory for the Court, before rejecting the plaint, to give some time to the plaintiff to make up the deficiency, and the Court cannot straightaway reject the plaint without giving such time. This view has been taken in Baijnath Prasad Singh and others v. Umeshwar Singh and others (A I R 1937 Pat. 550 (S. B.)), Kolisetti Basatappa and others v. Mittanpalli venkatappayya and another (A I R 1926 Mad. 676), Durairangann Pillai v. Govindarajulu Naidu and another (A I R 1938 Mad. 560) and Jhvan Sas v. Khushabi Ram and others (A I R 1917 Lah 377). We are then confronted with two provisions of law, namely, section 28 of the Court Fees Act, which lays down that no document which ought to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped. A proviso, however, has been added to it that if any such document is through mistake or inadvertence received, filed, or used in any Court or office without being properly stamped, the presiding officer or the Head of the Office, as the case may be, or in the case of a High Court, any Judge of such Court may, if he thinks fit, order that such document should be stamped as he may direct, and on such document being stamped accordingly, the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance. Section 149 of the Civil Procedure Code lays down that where the whole or any part of. any fee prescribed for any document by the law for the time being in force relating to court‑fee has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court‑fee, and upon such payment, the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance. Comparing section 28 of the Court Fees Act with section 149, C. P. C., it is clear that while the first deals with a mistake or inadvertence on the part of the Court officials, the second is a general provision very wide in scope, which gives a discretion to the Court to allow the plaintiff to pay the court‑fee within a certain time, and upon such payment having been made, the plaint has the same force and effect as if the fee has been paid in the first instance. The "discretion" given in both these sections must necessarily be used judiciously, that is to say, only if the Court is satisfied that some grounds exist for the exercise of the "discretion" and a bona fide mistake has been made out in the valuation. In the very nature of the things the discretion exercised in one way or the other by a Court of law is subject to scrutiny by the superior Court. The question which presents difficulty is whether in the cases which are not covered by section 28 of the Court Fees Act or section 149 of the Code of Civil Procedure, but are governed by section 10 of the Court Fees Act and Order VII, rule 11 of the Civil Procedure Code, the tune mentioned in the Limitation Act for the institution of a suit is automatically enlarged or not. Unlike section 28 of the Court Fees Act and section 149 of the Civil Procedure Code, if one ‑looks at section 10 of the Court Fees Act or Order 7, rule 11, C. P. C., it becomes absolutely clear that though the Court is bound under the law to give time to the plaintiff to make good the deficient court‑fee, there is no specific provision that by such granting of time, the limitation mentioned in the Limitation Act for the institution of the suit is automatically enlarged. The question is if it is not, then there is no use in making it incumbent upon the Courts to grant time to the plaintiff to make good the court‑fees. Now, supposing the plaintiff fixes the market value of a garden or a house for the possession of which he brings a suit, but the defendant challenges such value. The Court appoints a commissioner who finds that the market value fixed by the plaintiff is wrong, and the Court, agreeing with the report of the commissioner, finds, after the expiry of the limitation, that the market value in fact was not properly fixed and allows the plaintiff to make good the court fee on the market value so found. It will be rediculous to say that if the court‑fee is paid after the expiry of the limitation, the suit should automatically be dismissed. If it is to be inferred from the wordings of section 10 of the Court Fees Act that the limitation automatically enlarged when the Court grants time to the plaintiff to make good the court‑fees, then there is no reason why should the same inference be not drawnin cases governed by Order VII, rule 11 of the Civil Procedure Code. The. High Courts are practically agreed that if the time is granted under Order VII, rule II to make good the court‑fee, then if the court‑fee is paid within the time allowed by the Court, the suit will be considered as having been instituted on the date when it was in fact instituted although the 11 court‑fee was paid later on. Din Muhammad J, in his order of reference in case Jagat Ram v. Misar Kharaiti Ram and another (A I R 1938 Lah. 361), found it difficult to interpret Order VII, rule 11 of the Civil Procedure Code in the manner stated above. According to him, Order VII, rule 11 was not an enabling provision and had nothing to do with the power of the Court to have the deficiency in court‑fee made up. In his view, it was a disabling provision enjoining the Court to reject a plaint if the deficiency was not made good as ordered by the Court. He observed that the authority to issue the order lay in section 149 of the Civil Procedure Code and the penalty for default in Order VII, rule 11 of the same Code. Interpreting in this manner the learned Judge continued to say that every provision of law becomes intelligible and harmonious. As there was a mass of authority contrary to his view, he referred the case to a larger Bench which was then heard by Dalip Singh, Monroe and Din Muhammad, JJ. The Full Bench, however, did not enter into this question at all and decided the case on another point which is not relevant to be discussed in this case. The authority in favour of the view which I have expressed above is contained in Garapali Venkanna v. Mullapaudi Atchular amanna and others (A I R 1938 Mad. 542), Durairangam Pillai v. Govindarajulu Naidu and another (A I R 1938 Mad. 560) and Awan Dass v. Khushabi Ram and others (A I R 1917 Lah. 377), in which the learned Judges Scot‑Smith and Shadi Lal observed that section 149 of the Code of Civil Procedure contained a general provision relating to all documents and did not control the rule laid down in Order VII, rule 11, C. P. C., which dealt specifically with plaints. They observed that it should be considered in the case where the suit is instituted on a deficient court‑fee that the Court received the plaint and registered it due to its own mistake and inadvertence. Section 28 of the Court Fees Act would, therefore, come into play and the time would be considered to have been enlarged. The other cases on the point are Huri Mohun Chuckerbutti v. Naimuddin Mahomed (20 Cal. 41), Moli Sahu and another v. Chhatri Dass and others (19 Cal. 780), Saeed Ahmad and others v. Karam Singh and others (P L D 1949 Lah. 380), decided by Sir Abdur Rashid C. J. and Cornelius J. has been quoted before us for giving the opposite view, but the perusal of this judgment would show that their Lordships only discussed section 149 of the Civil Procedure Code and did not take into account Order VII, rule 11 of the same Code except at the end where they ordered the plaint to be rejected under this provision of law. They did not consider as to what would be the effect if it is assumed that it is incumbent upon the Court under Order VII, rule 11, C. P. C. to grant time to the plaintiff to make up the deficiency in court‑fee good, and the plaint could only be rejected if the court‑fee was not paid within the time so allowed. Looking at all the authorities we have no hesitation in arriving at the conclusion that the date of the institution of a suit should be reckoned from the date of the presentation of the plaint, and not from that on which the requisite court‑fee is subsequently put in. In this view of the matter, therefore, it cannot be held that the suit in the present case was barred by limitation. The result of the above discussion is, that we dismiss the plaintiffs' suit with regard to Khasra Nos. 105, 106, and

108. They will be entitled to get a decree for Khasra Nos. 300 and 372 only, but the question as to what should be the amount on the payment of which this decree should .be passed has yet to be determined. The case is accordingly remanded to the trial Court under section 151 of the Civil Procedure Code to find out the market value of these two Khasra Nos. and then grant a decree to the plaintiffs on payment thereof. As difficult questions of law were involved in the case, we leave the parties to bear their own costs throughout. K. B. A. Order accordingly.