1986 PLP 1948 (MLD)

‑‑‑Ss.115 & 149 and O.VII, R.11‑‑Punjab Pre‑emption Act (I of 1913), S.15‑‑Deficiency in court‑fee and its effect on limitation, Without first granting time to plaintiff .to supply deficient court‑fee it would, held, not be lawful to reject a plaint‑‑Impugned judgment being unexceptionable, High Court declined interference in revisional jurisdiction. Siddique Khan's case P L D 1984 S C 289 fol. Ch. Mushtaq Ahmad Khan for Petitioners. Ch. Hafeez Ahmad vice Ch. Muhammad Naeem for respondents. Date of hearing: 9th September, 1986. Petitioners purchased 62 Kanals 18 Marlas of agricultural land, situated in village Sarwal, Tehsil Shakargarh, District Sialkot, by means of registered sale‑deed, dated 10‑10‑1970 for an ostensible price of Rs.24,

000. On 8‑10‑1971, Rehmat Ali respondent No.1, and his brother Muhammad Siddique (since died and represented by respondent No.2) filed a suit to pre‑empt the sale on the grounds of their being owners of the estate and co‑sharers in the Khata, Patti and Taraf. Petitioners denied their claim and resisted the suit on the pleas also that the suit is for partial pre‑emption and is even barred by time whereas six issues were settled to determine the respective pleas of the parties. In the first instance, on 30‑1‑1976, trial Court held the suit to be within time and passed a decree in favour of the plaintiffs on payment of Rs.13,

000. In an appeal filed there against by the vendee‑defendants, controversy was, by consent, restricted to the determination of Issues Nos.1, 4 and 6 only which respectively related to the questions about limitation, jurisdiction of the Court and the sale price. Objection about limitation was based on the assertion that unstamped plaint had been presented in the Court on 8‑10‑1971 and requisite court‑fee was paid at a time when limitation for filing of suit had already run out. A learned Additional District Judge who heard the appeal found that after the plaint had been presented before the Civil Judge Shakargarh on 8‑10‑1971, without any court‑fee affixed thereon, and order was passed for the office report being put up on 11‑10‑1971, there appeared court‑fee stamp of the value of Rs.2 which was shown to have been affixed on the plaint on 11‑10‑1971 and an order was passed for payment of deficient court‑fee upto 27‑10‑1971. Then, there appeared court‑fee stamps of the value of Rs.15 bearing the date 14‑10‑1971 which, however, appeared to have been crossed by the Reader concerned on 11‑10‑1971. To crown this all, there appeared on the plaint a certificate of the stamp‑vendor with regard to sale of court‑fee stamps of small denominations for the value of Rs.17 which implied that all the court‑fee stamps had been issued on one and the same date. Learned Additional District Judge was unable to resolve as to how the stamp‑vendor's certificate may have appeared on the plaint subsequent to its presentation in the Court, therefore, by his order, dated 14‑5‑1981, he remanded the suit to the trial Court for issue No.1 being adjudicated afresh in accordance with law after hearing the parties who were allowed to lead fresh evidence in respect of Issue No.1 only and Issues Nos. 4 and 6 were also required to be decided afresh. Thereagainst, plaintiffs filed F.A.O. No.97 of 1981 wherein counsel for the vendee‑defendants conceded that remand of Issues Nos.4 and 6 was not justified and, therefore, on 20‑12‑1981 order of the learned Additional District Judge was modified to take effect with regard only to Issue No.1. In the trial Court Ch. Muhammad lqbal, Advocate of the plaintiffs was examined as P.W.1 and Zafar Ali, Reader of the Court appeared‑as P.W.2 and, against it, Syed Sadiq Hussain, Advocate of defendants was examined as D.W.1 and Ch.Sultan Akhtar, Advocate appeared as D.W.2 and Javaid Siddique, a son of the deceased stamp‑vendor, was examined as D.W.3. The trial Judge came to the conclusion that the plaint, as presented originally, was unstamped but court‑fee stamps on it were affixed subsequently with the collusion of the Reader of the Court. He thought that the suit had become time‑barred on 11‑10‑1971 and hence payment of court‑fee worth Rs.2 on that day could not be of any avail to the plaintiffs and, for the same reason, even the then trial Judge could not have passed an order on that day to permit payment of due court‑fee by 27‑10‑1971. Therein, he not only disregarded the fact that 10th October, 1971, the last day for filing the suit, was a holiday on account of Sunday but also proceeded to disregard the order of his predecessor about grant of time for payment of court‑fee, which was improper in his view. Consequently, on 17‑6‑1982, he answered Issue No.1 against the plaintiffs and despite the other issues already decided in favour of the plaintiffs, dismissed their suit as barred by time.

2. An appeal filed there-against by the plaintiffs has been accepted by a learned Additional District Judge by his judgment, dated 9‑12‑1982 to pass a decree in their favour on payment of Rs.13,

000. He has taken the view that the trial Court's order, dated 11‑10‑1971, allowing the plaintiffs time to pay the deficient court‑fee upto 27‑10‑1971 had been duly complied with by supplying the requisite court‑fee on 14‑10‑1971. For this conclusion he relied on the statement of Ch. Muhammad Iqbal, Advocate (P.W.1) who was the counsel for the plaintiffs in the trial Court and had stated that there was a state of emergency prevailing in the area on account of war with India and that since he had already been paid the money for purchase of court‑fee which was not available on i1‑10‑1971, except for the value of Rs.2 affixed on the plaint on 11‑10‑1971, his oral request for grant of time for payment of court‑fee was entertained in allowing the deficiency to be paid by 27‑10‑1971 and since he was able to purchase the court‑fee of the value of Rs.15 on 14‑10‑1971, therefore, he affixed it on the paint and also took the stamp‑vendor along to the court‑room where he appended his certificate on the plaint. Learned Judge in the appeal below has held that the exercise of discretion by the trial Court under section 149 of the C.P.C., to grant time for payment of deficient court‑fee, was proper and could not be disregarded by the successor Judge so that the court‑fee paid thereunder on 14‑10‑1971 saved the suit for becoming time‑barred because last day for filing the suit had to be considered 11‑10‑1971 for the reason that the previous day, (10‑10‑1971) happened to be a holiday on account of Sunday. Vendee‑defendants have now come up to this Court on revision.

3. Learned counsel has contended that the plaint in this case could be considered to have been properly filed in the Court only on 14‑10‑1971, after the expiry of limitation. This contention is altogether misconceived and is untenable in the presence of the orders passed and signed by the Civil Judge on the 8th and 11th of October, 1971. It has been concurrently found that the plaint was originally put in the Court on 8‑10‑1971. Even if no court‑fee at all may have been paid on it on that date (because a note had been recorded that court‑fee is not available), the plaint cannot be regarded to be only a worthless paper because on the last day (11‑10‑1971) of limitation for filing the suit, court‑fee worth Rs.2 only had been paid on it which was deficient and the trial Judge passed the order on that date in the lawful exercise of his discretionary jurisdiction under section 149 of the C . P. C . to allow the deficient court‑fee being paid upto 27‑10‑1971, therefore, upon the payment of deficient court‑fee accordingly, the plaint stood validated to be within the limitation and, although the part ascribed t the stamp‑vendor and the act of the counsel as also of the Reader of the Court, in the court‑fee stamps being thus affixed on the plaint is neither proper nor correct, yet, nothing can turn upon the question as to how and when, within the time so allowed by the Court, was the required court‑fee of Rs.17 made up because the order passed thereafter, on 27‑10‑1971, has itself noticed that deficient court‑fee has been paid. However, reprehensible the manner of payment of deficient court‑fee may have appeared to be, it was not open to the successor trial Judge to have either disregarded or disapproved the orders of his predecessor in office to hold the suit to be barred by time in complete oblivion of the provision made in section 149 of the C.P.C. Learned Additional District Judge has held that there was no contumacy or negligence established against the plaintiffs with regard to the payment of court‑fee of the value of Rs.17 Only. In the facts of this case, since according to the law laid down in Siddique Khan's case reported as P L D 1984 SC 289, plaintiffs deserved to be provided at least one opportunity for payment of deficient court‑fee, therefore, the view which has prevailed with the learned Judge in the appeal below is not incorrect. His judgment is unexceptionable. Contention of the learned counsel has no substance and is accordingly repelled.

4. No other point has been argued before me.

5. There is not made out any case at all for interference. Hence, dismissed. No order as to costs. A.A. Revision dismissed.