1980 CLC 1621 (PLP)

(1) The application for permission to pay the requisite court-fee was made by the respondent after about five years of the institu tion of the suit inasmuch as the suit was filed on 21st September, 1974, but the application was made on 6th May, 1979. (2) The period of limitation for filing the suit had expired when the application was made. (3) It was the respondent himself who was at fault in not paying the proper court-fee at the very outset and, therefore, he could not take the benefit of the wrong committed by him. (4) If the pre-emptors are permitted to make up deficiency in court fee as done by the learned Civil Judge it will amount to allowing them to circumscribe the law of court-fee, the law relating to the valuation of the suit, and the law of limitation. (5) The respondent did not obtain statement of net profits before filing the suit and even by the time of making the application for paying additional court-fee he had not procured the same. To support his contention, learned counsel for the petitioner relied on the provisions of section 149 of the Code of Civil Procedure and the case reported as Muhammad Ahmad v. Muhammad Sirajud Din (1 L R 23 All. 423), Chatarpal and another v. Jagram and others (1 L R 27 All. 411), Mst. Walayat khatun v. Khalil Khan and another (P L D 1979 S C 821) and Hasan Mirza and another v. Syed Bakari Hasan (206 1 C 241).

4. On the other hand, learned counsel for the respondent submitted that the respondent had paid considerable amount of court-fee and there was no intention on his part to avoid payment of the requisite court-fee. According to him, the trial Court was bound to allow him an opportunity to make good the deficiency and since the impugned order had been made to offer such an opportunity to the respondent, it was unexceptionable. He cited Muhammad Nawaz khan and another v. Makhdoom Syed Ghulam Mujtaba Shah and another (P L D 1970 S G 37) and Shah Nawaz and 6 others v. Muhammad Yousaf and 3 others (1972 S C M R 179).

5. It is not disputed that the respondent did not obtain the statement of net profits before filing the suit. He had almost one year at his disposal to do so inasmuch as the sale in dispute had taken place on 22nd September, 1973 and the suit was filed on 21st September 1974. Even after the institution of the suit he did not care to secure the afore said statement. Admittedly, the requisite statement was not with him even when he made the application for permission to make good the deficiency in court-fee. A persual of the impugned order would reveal that the statement of net profits, which was with the respondent at the time of making the application, was not in order inasmuch as it was for one year next before the sale and not for one year immediately, preceding the institution of the suit. All this speaks for the culpable negligence of the respondent in the matter of obtaining the statement of net profits.

6. It is not denied that by the time the application for permission to make good the deficiency in court-fee was made the period of limitation for bringing the suit for pre-emption in respect of the sale in dispute had expired. Thus, a vested right had accrued to the petitioner due to the running out of the period of limitation. He could not be deprived of that right without sufficient cause. The respondent had failed to furnish any plausible explanation for his failure to obtain the statement of net profits and pay the proper court-fee in time. The only reason given by him in his application under examination was that at the time of the institution of the suit the said statement could not be prepared at short notice. He did not care to state any reason for not taking steps to have the statement prepared during the one year of limitation allowed to him by law nor did he give any reason for not obtaining the said statement during the period of about five years B intervening the filing of the suit and the making of the above application. Thus, there was not good reason for depriving the petitioner of the vested right which had accrued to him due to the expiry of the period of limitation.

7. As for the authorities cited by the learned counsel for the respon dent in the case of Shah Nawaz and 6 others the plaintiff was allowed to make up deficiency in court-fee but it is not known how soon after the deficiency was pointed out to him he bad come out with a request to make good the same, in addition, the statement of net profits was not in volved in the case under report: As regards the case of Muhammad Nawaz Khan and another, there is nothing to show the amount of delay on the part of the plaintiff in making good the deficiency in court-fee. These two cases, therefore, do not enable me to overlook the inaction of the respondent for nearly six years in the matter of paying the requisite court-fee by obtaining the necessary data.

8. On the other hand the cases of Mst. Walayat Khatun, Muhammad Ahmad, Chatarpal and another, and Hasan Mirza and another support the contention raised by the learned counsel for the petitioner that the respondent was not entitled to the latitude shown to him by means of the order assailed herein. The latest authority on the point under consider ation is the case of Mst. Walayat Khatun in which it was ruled by their Lordships of the Supreme Court that when the period of limitation for filing a suit for pre-emption has expired, permission to make good the deficiency in court fee should not be granted lightly. The relevant obser vations read thus :- "The second category is that where 3n the date of grant of time the suit has already become time barred, or where though the time was granted on a date when suit was within limitation but it was granted or extended upto a date by which the suit will become time barred. However, the matter is not confined solely between a subject and the State because in such a situation a third person namely, defendant has also in the meantime due to running out of the period of limitation in his favour acquired a vested right. These cases are distinguishable from the first category and are a class by themselves. These are to be regulated by sections 148 and 149 of the C. P. C. which as is obvious authorise the Court to destroy the defence of limitation which may have become available to a defendant in the meantime. It is this category of cases in which a Court is not bound or obliged to grant time and nor is it to be granted just in routine or mechanically but by keeping in view the considerations above mentioned." As for the failure of the pre-emptor to obtain the statement of net profits within the period of one year of limitation, their Lordships remarked as under : - It is to be remembered that in this case the plaintiff got jhar pedawar prepared privately after the institution of the suit. If so why could he not get it prepared before institution of suit ? This shows that the plaintiff was negligent and non-serious right from the beginning and did not deserve any indulgence by the Court." In view of these observations of their Lordships, the respondent was not entitled to the indulgence shown to him in the matter of making good the deficiency in court-fee.

9. As for the contention of the learned counsel for the respondent that the trial Court was bound to allow an opportunity to the respondent to make good the deficiency in court-fee before rejecting his plaint, this aspect of the matter was also considered by their Lordships of the Supreme Court in the case of Mst. Walayat Khatun and the view expressed by their Lordships was that the Court was not "bound to grant time to a plaintiff to make up the deficiency in the court-fee under Order VII, rule 11 (c), C. P. C. before proceeding to take any further C action on an insufficiently stamped plaint." I am, therefore, unable to agree with the learned counsel for the respondent that the learned trial Court was obliged to allow an opportunity to the respo4dent to make good the deficiency in court-fee. The result, therefore, is that the order impugned herein is not sustainable. Accordingly, I accept the revision petition, with costs, and set aside the aforesaid order. M. A.K. Revision accepted.