1989 PLP 489 (SCMR)

NASIM HASAN SHAH, J.‑‑In a pre‑emption suit, the value of the land was ascertained by the Court to be Rs.5 790 and the respondent was directed by its order dated 21‑7‑1977 to affix court‑fee on the plaint in accordance with the aforesaid valuation by the next date of hearing (13‑9‑1977). In terms of this order, the respondent /plaintiff had to pay Rs.434.20 as court‑fee but he deposited Rs.420 only. When the case came up for final arguments on 27‑3‑1982, some 4‑1/2 years later, it was discovered that there was deficit of court‑fee of Rs.14.75 on the plaint. The plaintiff. thereupon, submitted an application under section 149, C.P.C. praying for extension of time to make up the deficiency. The trial Court refused to do so observing that as the plaintiff had not done so from 13‑9‑1977 till 27‑3‑1982 the time could not be extended by the Court. It was of the (.pinion that the plaintiff deliberately failed to make up the deficiency in court‑fee despite the time given by the Court to him for the said purpose. Accordingly, the issue "whether the suit is not properly valued for the purposes of court‑fee and jurisdiction" was decided against him and the suit was dismissed. The respondent/plaintiff went in appeal which was allowed by the learned Additional District Judge with the remarks "the law regarding deficiency in court‑fee has now been made lenient in view of the latest authorities of the Supreme Court". He, therefore, in exercise of the powers vested in the Court under section 149, C.P.C. allowed the plaintiff to make up the deficiency and ultimately accepted the appeal. The petitioner thereupon moved the High Court by a revision petition but the same was dismissed as the High Court was of the opinion "The enlargement of time under section 149, C.P.C. was well within the discretion of the learned Appellate Court. The grant of permission to the respondent, on no principle, can be dubbed as an arbitrary and a capricious exercise of powers. Such discretionary orders cannot be interfered with under section 115, C.P.C." In this petition for leave to appeal Mr. Khawaja Yousuf Saraf, learned counsel for the petitioner, has argued that the law laid down by this Court is that the Court should determine the deficiency in the court‑fee and after doing so afford at least one opportunity to the plaintiff to make up the deficiency under section 149, C.P.C. Such an opportunity was duly allowed in this case to the plaintiff but he failed to avail of it and was asking for a second extension for making up the deficiency. The learned trial Court did not consider that in a case like the present one the plaintiff deserved a second enlargement of time and this finding did not require interference on appeal by the learned Additional District Judge. Hence the last‑mentioned order should have been interfered with by the High Court, in its revisional jurisdiction. The question raised requires consideration. Leave granted. Security shall be furnished in the sum of Rs.5,

000. The execution proceedings shall remain stayed meanwhile. MA.K./M‑646/S Leave granted.