1985 PLP 436 (SCMR)

(3) Is the suit competent in its present form? (4) Is the defendants entitled to a compensation for improvements to the extent of Rs.4,000? (5) Have the plaintiffs superior right of pre‑emption? (6) Whether the sale consideration of Rs.8,000 has been fixed and paid in good faith? (7) What is the actual market‑value of the suit land?

3. Amongst other one of the objections was that the plaint could not be entertained, as proper court‑fee had not been affixed. After hearing the parties, the learned trial Court, per order dated 11‑9‑1976 directed that the plaint be returned for correction, without specifying the time within which this direction had to be complied with. Instead of filing the corrected plaint, the respondents filed a fresh suit on 1‑10‑1976, on proper court‑fee. It was alleged therein that the sale had taken place in September, 1975 and that the earlier suit was dismissed. However, an objection was taken in the written statement that as this was a fresh suit, it was bared by time. The learned trial Court, after examining the, points involved, rejected this plea and held that the earlier plaint should not have been returned to the respondents but should have been retained on the file, and as the suit was filed in February, 1976 it was within time under section 31 of the N.W.F.P. Pre‑emption Act. In other words, the learned trial Court construed the earlier order to mean as one to submit a proper and stamped plaint and hence the earlier date was taken to be the date of the institution of the suit.

4. In appeal, the District Judge held that the earlier order of the A.P.O./Civil Judge dated 11‑9‑1976 could not be construed either as a rejection of the plaint or the dismissal of the suit under Order VII, rule 11, C.P.C. as there was nothing on the record to show that time was given to the respondents to correct the valuation and to affix proper court‑fee stamps. It was in effect an order directing the respondents to file a properly stamped plaint and in compliance of that order the plaint was filed on 1‑10‑1976. Therefore, the institution of the suit was not on this date but on the date when the earlier plaint was filed.

5. Against the aforesaid order R.S.A. No. 9 of 1978 was filed in the Peshawar High Court and per order dated 7‑5‑1980 the learned High Court upheld the conclusion of the Courts below on the ground that as there were no regular Civil Judges functioning in that area and this led to the confusion because instead of returning the plaint, the Civil Judge should have passed an order under Order VII, rule 11, C.P.C. directing the respondents to affix proper court‑fee stamps on the plaint within a specified time, and as there was no such order, the plaint must be deemed to have to have been filed on 11‑2‑1976. There was, therefore, no rejection or dismissal of the plaint.

6. Learned counsel for the appellants contended that the suit land was sold by Sardar Khan to them on the basis of sale‑deed, dated 12‑3‑1973 for Rs.8,000; that the respondents filed a suit for pre‑emption on 11‑2‑1976 alleging that the sale had taken place in September, 1975 for Rs.1,500 and the appellants contested the suit and issues were framed on 31‑7‑1976. One of the objections of the appellants was that the plaint had not been properly stamped and the learned trial Court returned the plaint for affixing proper court‑fee; the respondents did not correct the plaint nor did they file the same in the Court, nor was any permission sought or given for allowing the plaintiffs /respondents to fix the requisite court‑fee or to file a fresh plaint, and, therefore, all the three Courts below have given the benefit of ignorance of law to the pre‑emptor though no such concession is recognized by law; that the respondents were directed to correct the plaint i.e. to valuate the suit and stamp it with the requisite court‑fee. No permission was given to them to file a fresh suit, the respondents not only filed a fresh suit but also changed the area so as to include certain area which was not included in the earlier suit. It was also clearly mentioned in paragraph 10 of the plaint that the earlier suit had been dismissed and, therefore, this was a second suit. Hence, this second suit was barred under the Limitation Act. 7‑ We have examined the contentions raised by the learned counsel and would like to refer to the relevant finding of the order dated 18‑3‑1978 of the learned Senior Civil Judge, Batkhela: "However, the learned A.P.O. have ordered on 26‑2‑1976 for summon to the defendants. The first order sheet in this case is dated 13‑2‑1976. It appears that the learned A . P . O. / C . J . might have directed the plaintiffs to submit a proper and stamped plaint. The plaint should not have been returned to the plaintiffs. It should have placed on file. But things in those days in those Courts were of strange nature. One fact is clear that the plaintiffs have sued the defendants in February, 1976." The learned High Court Judge in the impugned judgment dated 7‑5‑1980, has observed as follows "It has been observed hereinbefore that the parties belong to Malakand District to which the relevant laws were extended less than two years prior to the institution of the suit without in the first instance, appointing competent Civil Judges. Had there been a regular Civil Judge when the suit was instituted for the first time on 11‑2‑1976 the controversy between the parties would not have arisen, because instead of returning the plaint to the plaintiffs, he would have passed an order under Order VII, rule 11 of the C.P.C. directing the plaintiffs to affix the required court‑fee on the plaint within a specified period. The contention that the order passed by the A.P.O.‑cum‑Civil Judge, returning the plaint to the plaintiffs be considered as rejection of plaint under Order VII, rule 11, of the C.P.C. and as such the second plaint filed on 1‑10‑1976 is to be treated an independent plaint definitely beyond the period of limitation and as such the suit should have been dismissed, are not supported‑by law on the subject. A plaint can only be rejected under Order VII, rule 11 C.P.C. in case the plaintiff is ordered by the Court to affix the requisite court‑fee within a period specified and he fails to do so. No such order was passed in these proceedings. The plaintiffs have instituted the suit on 11‑2‑1976, the sale having taken place in September, 1975 it was within the specified period of limitation and the second plaint was filed to meet the objection of the court‑fee. As such the suit will be considered as having been instituted on the date when it was lodged in the first instance." This view also finds support from judgment in Siddique Khan and 2 others v. Abdul Shakur Khan and another P L D 1984 S C 289 wherein it was held: "It is not lawful to reject a plaint under Order VII, rule 11 (c), C.P.C. without first granting time to the plaintiff to supply the deficient court‑fee. Order VII, rule 11 is in a way a penal provision and shall be construed strictly so as not to be resorted to unless the conditions for exercise of such drastic power are satisfied. In the clause relevant here namely (c) it is provided that the plaint shall be rejected thereunder only when after the grant of requisite time, the plaintiff has failed to supply the required /specified court‑fee. Thus, it is mandatory and obligatory for the Court to grant time under clause (o). The question of discretion does not arise. And it is so whether the occasion ` arises at the very institution of the plaint or at a later stage." Thus, this appeal is dismissed with no order as to costs. M.Z.M. Appeal dismissed.