1995 PLP 1721 (MLD)

This second appeal is directed against the judgment and decree, dated 28‑3‑1987 passed by the learned Additional District Judge, Muzaffargarh, whereby he accepted the appeal filed against the judgment and decree, dated 6‑5‑1982 passed by the learned Civil Judge, Muzaffargarh and dismissed the suit of the appellant.

2. The brief facts giving rise to this appeal arc that the respondents purchased land measuring 778 Kanals and 2 Marlas for Rs.55,0W vide Mutation No.744 dated 12‑11‑1974. The appellant filed a suit for possession of the suit land through' pre‑emption pleading the superior right of pre‑emption being an owner in the estate. It was further alleged that the sale price of the land in question was Rs.20,000 and the amount of Rs.55,000 had been shown as its price fictitiously. The suit was resisted by the respondents/vendees inter alia on the ground that the suit was under‑valued as the court‑fee affixed on the plaint was of the value of Rs.4.50 only and that it was also barred by time. It was also asserted that the respondents/defendants had incurred Rs.30,000 on the improvement of the suit land.

3. On the pleadings of the parties, the learned Civil Judge framed necessary issues and after recording evidence of the parties, decreed the suit. On appeal filed by the respondents, the learned Additional District Judge reversed the findings of the learned Civil Judge on Issues Nos.1, 2 and 7 and dismissed the suit of the appellant.

4. Learned counsel for the appellant has at the very outset submitted that the appellant was ready to pay Rs.30,000 to the respondents as cost of improvement. In view of the statement made by learned counsel for the appellant, the relevant issues for the purpose of this appeal are issues Nos.l and 2, which read as under: (1) Whether the suit is wrongly valued for the purposes of court‑fee and jurisdiction and the deficiency in the court‑fee was not made good within time, if so, its effect? OPD. (2) Whether the suit is time‑barred? OPD.

5. The learned Additional District Judge failed to properly' understand the ratio in the two cases, namely, Muhammad Nawaz Khan and another v. Makhdoom Syed Ghulam Mujtaba PLD 1970 SC 37 and Shahnawaz and 6 others v. Yousaf and 3 others 1972 SCMR 179 although these cases were cited at the bar.

6. It will be advantageous to reproduce the following paragraphs from Muhammad Nawaz Khan's case supra:‑‑‑ "We are unable to accept the interpretation placed by the learned counsel on the provisions of section 149, and Order VII, Rule 11, C.P.C. There is not a single precedent case which supports this view while the contrary view is supported by the Full Bench decision of the Lahore High Court reported in Jagat Ram v. Misar Kharaiti Ram and another and a number of other judgments delivered by various High Courts in the sub‑continent including a judgment of the Peshawar Bench of the High Court of West Pakistan. Apart from these weighty judgments it would, indeed, be anamalous if limitation is not saved in cases in which law requires the Court to allow the plaintiff to correct the valuation of the relief claimed in the suit which must necessarily entail making up deficiency in the stamp paper affixed on the plaint, but time should automatically be enlarged in cases in which the Court has the discretion to grant time to pay the whole or part of the court‑fee prescribed. This will offend against the rule of the harmonious construction. The provisions of Order VII, Rule 11 and section 149 are, therefore, to be read together. Consequently where the plaintiff is required to correct the valuation of the relief claimed in the suit, he shall further be required to supply the requisite stamp paper and on complainant it shall have the same force and effect as of such fee had been paid in the first instalment."

7. Although the strict view of the relevant legal provisions expressed by Mr. Justice Karam Elahi Chohan in Mst. Walayat Khatun v. Khalil Khan and another PLD 1979 SC 821 triggered the controversy but it was finally set at rest by the Supreme Court in Siddique Khan v. Abdul Shakoor Khan PLD 1984 SC 289, wherein it was observed:‑‑‑ "Before proceeding further so as to comment upon the case of Mst. Walayat Khatoon it is necessary to clarify another confusion regarding inter‑action of Order VII, Rule 11(c) and section 149, C.P.C. It has been held in the afore‑analysed cases that it is obligatory to grant time for supply of deficiency in court=fee before rejecting the plaint under Order VII, rule 11(c). It is discretionary however to grant time under section 149, C.P.C. As has already seen when explaining contumacy, it is not lawful to reject to plaint under Order VII, rule 11(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 (c). 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. If as afore‑explained time is to be allowed as an obligation under Order V11, Rule 11(c), then the question arises as to how the `discretion' element in section 149, C.P.C. or for that matter section 28, Court Fees Act can be interjected in it. It cannot be. In some cases difficulty was felt regarding the use of the word `discretion' in section 149, C.P.C. But it was not realised that the time granted under this provision in exercise of discretion, or granted as an obligation under the other namely Order VII, rule 11(c), would lead similar consequences. Can it be said that if time is granted as a discretionary measure, the party concerned will get the advantage mentioned in second part of section 149, C.P.C.; but if it is granted by the Court as its obligation, it will lose that advantage. The answer would be in the negative. Therefore, when time is granted as an obligation under Order VII, Rule 11(c) it is granted nevertheless for supply of deficient court‑fee which being the main object of section 149, C.P.C., the advantages thereunder will be available to the beneficiary of the exercise of the obligation also. The further question as to why then the word `discretion' is used in section 149, C.P.C. cannot detain us any longer. There are other occasions for supply of court‑fee stamps under the C.P.C. For example under sections 20 to 27 of the Court Fees Act read with the relevant provisions of C.P.C. require the deposit of requisite stamps for issuance of the processes. Court might have to exercise discretion in those and other matters for allowing time in this behalf and the considerations of obligation as under Order VII, Rule 11(c), would not be attracted thereto."

8. It is thus well‑settled that before taking a punitive action, the Court shall provide at least one opportunity to the plaintiff to make up the deficiency of the court‑fee after determining it. It was for the first time that on 6‑5‑1982 the learned trial Court after determining the amount of deficient court‑fee, had directed the appellant to make up the same.

9. The question as to why the learned trial Court made a direction on 6‑5‑1982 to the appellant regarding the deficiency in court‑fee when the same had already been made up after obtaining schedule of net profits is left undetermined for the reason that the appellant himself elected to comply with that order.

10. Learned counsel for the respondents has submitted that since the respondents had taken the physical possession of the suit land and also had made the payment of the sale price on the date when the matter was reported to the Halqa Patwari, this appeal should also be dismissed for that reason. In this behalf, he places reliance on Allah Yar and another v. Raja and another 1989 SCMR 802.

11. The tenor of the judgments of the two Courts below reveals that this plea was never raised before the two Courts below at the time of arguments. The learned Additional District Judge decided issue No.2 in favour of the respondents for the sole reason that according to him, the deficiency in court ?fee was not made up within the prescribed period meant for the pre‑emption suit. Even otherwise learned counsel for the respondents cannot seek help .from the above cited case on the ground that here in this case only one respondent appeared as D.W.1, who was admittedly the witness of his own cause. In the examination‑in‑chief, he stated that the mutation was attested after 8/10 days of acquiring of the possession of the suit land whereas in the cross‑examination, he deposed that the possession was taken on the day when the mutation was attested. From this statement, it does not transpire as to when the physical possession of the suit land was precisely taken by the respondents. Rather this statement was self‑contradictory. It may be mentioned that the matter was reported to the Patwari on 23‑8‑1974 and the Mutation No.744 was attested on 12‑11‑1974. Under these circumstances, the findings of the learned First Appellate Court on issues Nos.1 and 2 are reversed, this appeal is accepted, the judgment and decree, dated 28‑3‑1987 passed by the learned Additional District Judge, Muzaffargarh, is set aside and the judgment and decree, dated 6‑5‑1982 passed by the learned Civil Judge is restored with no order as to costs. However, the appellant shall deposit Rs.30,000 as cost of improvement till 15‑4‑1995 failing which this appeal shall stand dismissed. A.A./P‑124/L ????????????????????????????????????????????????????????????????????????????????????? Order accordingly.