P L D 1984 Supreme Court 157 (PLP)

MUHAMMAD AFZAL ZULLAH, J. -This appeal through special leave of this Court is directed against judgment dated 2-6-1980 of the Lahore High Court ; whereby a Regular First Appeal of a plaintiff arising out of a pre-emption suit, was dismissed ; on the affirmation of findings by the trial Court that the suit was barred by limitation, on account of late supply of the deficient court-fee. The facts noted for grant of leave to appeal are that the appellant filed pre-emption suit on 8-3-1970 without paying any court-fee, on a statement that the relevant net profits of the land . were less than 25,000 and thus below the exemption limit. He however when filing the suit undertook to . pay the requisite court-fee "if the net profits were found to be more than 25,000". After ascertaining the annual net profits the appellant submitted an application on 4-4-1979 to the trial Court seeking permission to pay the court-fee of Rs. 4,149 and simultaneously produced challans of deposit of court-fee stamps worth Rs. 4,

150. No order of rejection on this application was passed by the learned trial Judge till an objection was raised from the vendee-respondent side in the written statement that the suit was barred by time. On this the learned trial Judge framed an issue ; whether the suit was within time, and, after hearing the parties held that the plaintiff had full one year of limitation to make preparation for filing the suit and by the time he obtained the statement of net profits the suit had already become time-barred. Therefore, the subsequent payment of the court-fee on 4-4-1979 or for that matter the submission of the application for permission to supply the court-fee. are of no avail to the plaintiff. It was also held that the plaint shall be deemed to have been filed only on the.day when the deficiency in the court-fee was supplied i.e. on 4-4-1979. And because it was nearly a month after the expiry of the period of limitation, therefore, the suit was barred by time. Accordingly basing his judgment on two main considerations : one, the failure of the plaintiff to ascertain the correct amount of net profits within the period of limitation and second, the supply of the requisite court-fee (alongwith an application made in that behalf) about a month after the institution of the suit, had rendered the same as time-barred. Reliance in this behalf was placed on Mst. Walayat Khatun v. Khalil Khan and another (PLD1979SC821). It was accordingly dismissed. A learned Single Judge in the High Court on first appeal examined the same circumstanccs in more detail and relying on the case of Mst. Walayat Khatun dismissed the plaintiff's appeal. Leave to appeal was granted to consider the correctness of the approach of the trial Court and of the learned Single Judge in the High Court, Learned counsel for the appellant addressed lengthy arguments on various aspects of the questions of court-fee and limitation. Reference was made to Order VII, rule 11 and section 149, C. P. C. as also to sections 6, 9, 10, 12 and 28 of the Court Fees Act (VII of 1870), together with section 3 and other related provisions of the Limitation Act. It is not necessary to examine all these provisions in any detail as, spread in several decisions by this Court, all the questions seem to have already been resolved. It has been held by this Court in a very recent judgment Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD1983SC344), that the ordinary rule regarding limitation is that a party cannot be non-suited for mere ]aches when the period of limitation is yet to expire. Several judgments were cited wherein it was held that in no case does mere lapse of time deprive) the plaintiff of his right to specific performance, unless it be held that there has been abandonment, acquiescence or waiver, or at least, an alteration in the position of the defendant in that the other party has been put in a situation in which it would not be reasonable to place him, if the remedy) were afterwards to be asserted. It may be remarked that these judgments were rendered in cases of specific performance where the grant of relief in favour of the plaintiff was discretionary. Notwithstanding the same, exercise of discretion in his favour, was not refused merely because he consumed the full period of limitation allowed to him. In cases of pre-emption there is no question of the same being a discretionary relief. If the right is established, the Court cannot refuse the same in exercise of its discretion. Hence the rule stated above will apply with comparatively more stress. The mere fact that in this case the plaintiff waited till the last day of th limitation would not thus disentitle him to any relief discretionary o otherwise simply because be availed of the full period of limitation. It is nowhere required of a plaintiff by any law, at least none has been cited, that before filing a suit for pre-emption he must obtain the statement of net profits and further that if he fails to do so, this necessarily will operate against him when considering the question of entertaining th court-fee, if it is supplied after the institution of the suit, on (or even without) an objection from the defendant or Court. An example here would illustrate the point. Supposing the relevant net profits of the land are wrongly assessed or not assessed at all, or if assessed the statement is not made available to the plaintiff within the period of limitation, or even if he obtains the statement it appears to him to be tainted with overwriting or forgery and he does not want to take any risk and it is not filed. Here the law of limitation or for that matter pre-emption does not in any way provide that if and when the plaintiff files a suit without the statement of net profits it shall be deemed that he was acting illegally or dishonestly. It is not necessary to go into the requirements of sections 9 and 10 of the Court Fees Act. They were examined in another judgment of this Court, namely, Fateh Muhammad v. Abdul Ghani and another (PLD 1981 SC 371), and it was held that if the material is sufficient on record to make it possible for the trial Court to render a confident decision on the question of the amount .of court-fee it might not be necessary, in the circumstances of a particular case, then to launch an independent investigation in this behalf. Amongst others, the statement of account of net profits was considered as a material which could be looked into, but it was not laid down as a law that without obtaining and filing such statement within the period of limitation the suit for pre-emption would become time-barred. As to the question whether for non-payment of required court-fee within the period of limitation a suit could be dismissed as time-barred, it was considered in another recent judgment of this Court in Mst. Perveen v. Mst. Jamsheda Begum and another (P L S 1983 SC 227). The following observations are relevant in this behalf : "The learned trial Judge was fully competent to grant time under section 149, C. P. C. to the plaintiffs for supplying the court-fee. Once having done so and the respondents having complied with the order passed under section 149, C. P. C. the plaint, it is provided in the said section, shall be deemed to have the same force and effect as if such fee had been paid in the first instance. Thus the question of the bar of limitation would not at all arise. The argument of the learned counsel thus has no force. It may also be observed that the learned trial Judge could not have rejected the plaint under Order VII, rule 11, C. P. C. on the mere discovery that the claim was under valued, unless under clause (b) of rule 11, the plaintiffs having been required by the Court to correct the valuation within a time specified by the Court, had failed to do so. Similarly regarding insufficiency of court-fee, the plaint could be rejected under clause (e) of rule 11, if the plaintiffs, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, failed to do so. In both these eventualities, the plaint could have been rejected under Order VII, rule 11, C. P. C. and it would not have been proper, without recourse to this provision, to dismiss the suit as time-barred. It could not be said that if the suit was within time on the day the plaint was duly presented, it became time,barred simply because the plaint could be rejected under clause (b) or (c) or for that matter clause (a) or (d) of rule 11 (after the period of limitation) for the reasons mentioned in the said clauses ; the suit could not be dismissed on the ground of limitation merely because the plaint when originally otherwise duly presented in a Court, was not correctly stamped. Section 3 of the Limitation Act, whereunder a suit can be dismissed, applies only if it is instituted after the period of limitation. It is not the case of the appellant that as visualised by the explanation to section 3 of the Limitation Act, the plaint was presented not to the proper Officer, or after the expiry of limitation. And if it was presented properly before a proper Officer prior to the expiry of period of limitation then the relevant provision for consideration would be Order VII, rule 11, section 149, and in some cases section 148, C. P. C. ; as also, section 10(ii) of the Court Fees Act, whereunder a suit can be dismissed for non-compliance with the order of the Court for supply of the requisite fee and not on the ground that for the same reasons it had become time-barred. The two considerations would be totally different." Learned counsel for the respondents, however, pointed out that the provisions contained in section 6 of the Court Fees Act which required that no document's specified therein shall be filed, exhibited or recorded in any Court of justice unless in respect of such document there be paid the proper court-fee, was not noticed in the case of Mst. Perveen. Learned counsel could not deny that this provision could not be read in isolation or independently of those provisions of Court Fees Ac which relate to the ascertaining of the proper court-fee and that if and when a certain amount of court-fee is adjudged as "proper fee" as is visualized by section 6, the results would follow as provided in section 10(ii), section 12(ii) and section 28 and not as provided in section 38 of the; Limitation Act. The validity, mentioned in those provisions vis-a-vis the fiscal requirement (and consequences) as a measure of prosecution of the: lis and not regarding the physical institution of a document by the act o presentation. It would, however, be a different matter if after determinine the "proper" court-fee the document is returned and time is allowed for fresh presentation of the same (after supplying the deficiency) and the same is not re-filed within the specified period-question of limitation might then arise. But that aspect of limitation is not relevant in the presen context. . It is the case of both the learned counsel that in addition to Shah Nawaz and 6 others v. Muhammad Yousuf and 3 others (1972S CMR 179), the question of exercise of power under Order VII, rule 11 (c) and under section 149, C. P. C., prior to the judgment in the case of Mst. Walayat Khatun, was by and large governed by the rule laid down by this Court in Muhammad Nawaz Khan and another v. Mukhdoom Syed Ghulam Mujtaba Shah and another (PLD1970SC37). The contention involved and rule laid is reproduced below: "According to the learned counsel only those cases fall under clause (c) (of rule 11 of Order VII, C. P. C.) in which the relief claimed is correctly valued in the first instance. In other words if the relief claimed is under-valued and as would necessarily happen in every case the plaint is written on a paper insufficiently stamped then neither clause (a) nor clause (b) would be attracted and the case will fall within the ambit of section 149 under which the. Court has the discretion to refuse an opportunity to supply the requisite stamp paper. We .are unable to accept the interpretation placed by the learned counsel on the provisions of section 149 and Order VII, r. 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 repgrted in Jagat Ram v. Misar Kharaiti Ram and another A I R 1938 Lah. 361 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 anomalous 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 snaking 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. 7 his will offend against the rule of harmonious construction. The provisions of O. 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 compliance it shall have the same force and effect as if such fee had been paid in the first instance." (It was followed in the case of Shah Nawaz). It needs to be mentioned that it was a pre-emption suit out of which the case of Muhammad Nawaz Khan and another had come before the Supreme Court and the ultimate decision regarding payment of court-fee and the question of limitation went in favour of the pre-emptor and against the vendee. Some arguments were addressed with regard to the interpretation of the judgment of this Court in the case of Mst. Walayat Khatun. It cannot be denied that it was a judgment of the learned Judges of this Court and each of them wrote a separate judgment. There are common features in the two, judgments on the basis of which the petition for leave to appeal filed by a plaintiff pre-emptor was dismissed. It is a different matter, however, whether .each observation by one learned Judge was agreed to by the other. Nevertheless the common ratio discoverable, therefrom would have to be read in accordance with the normal rule of practice, as subject to the law laid down by this Court on the same question in an earlier judgment, unless of course it was intended to be departed from. In none of the two judgments in Mst. Walayat Khatun's case there was any conscious departure from what was laid down by this Court and quoted earlier, from the case of Muhammad Nawaz Khan and another. Otherwise .too it is agreed that the dissent from of change of a previous view held by this Court, is not lightly, or as a matter of course, assumed. Keeping in view the foregoing legal position, it goes without saying 'bat each case coming before the Court will have to be decided on its own facts. and circumstances. In the present case we are satisfied that the appellant made an application for the supply of the relevant statement of net profits on the day that he filed the suit with an undertaking therein that as and when the proper court-fee is determined he would pay the same; together with his application on the receipt of the said statement, for submission of the proper court fee worked out on the basis thereof. The challan for purchase of the court-fee stamps submitted with the application was for the proper court-fee and accordingly the amount was deposited. Unless the technical approach of the learned trial Court and with respect of the learned Single Judge in the High Court regarding the question of limitation, which as already observed was not strictly in accordance with the law, is followed, it was an amply fit case for, allowing the request of the plaintiff made (amongst other provisions) under section 149, C. P. C. Failure to exercise discretion in his favour in this case was on account of misunderstanding of the legal question regarding limitation. It was liable to be corrected by the High Court. The same not having been done we allow this appeal, set aside the impugned judgments and decree and allow the plaintiff's application dated 4-4-1979 regarding supply of the court-fees with the necessary consequence that the suit as instituted on 8-3-1979 would in law be deemed to have been filed with 'proper fee ; with the result that the case and records thereof shall now be remitted to the learned trial Court for determination on merits. Before parting with this judgment it needs to be observed that the expert. once so far gained regarding the payment of court-fees in pre-emption suits on determination of the value of the subject-matter in that behalf through the prevalent practice of calculation on the basis of the annual net profits, had led to unfortunate long delays, unnecessary expense as also unnecessary litigation on hypertechnical issues. Sometimes attempts are made to misuse the law and practice in order to obtain undue advantage. It is appropriate that the concerned agency should examine the feasibility of amending the law regarding court-fees in pre-emption cases (at whatever limit of valuation it is decided to levy) on the basis of the sale price asserted by the vendee as paid by him. On account of devaluation and widespread inflation the value of immovable property has increased many times. If a pre-emptor is ready to pay the price paid by the vendees or whatever is determined by the Court, as the price payable by him, he should be ready to pay the court-fee accordingly (if of course, on principle the court-fee is made leviable at the limit of the value concerned). In cases where ultimately the amount of court-fee determined by Court as payable, on a claim to be presented by the plaintiff, is found to be less than what was originally paid by him at the time of the filing of the suit, the excess amount could be refunded in accordance with law. The principle and procedure for refund of income-tax paid in excess of the due amount can, with advantage mutatis mutandis, be adopted in this behalf also. M. Z. M. Appeal allowed.