1992 PLP 947 (CLC)

Zahid Hussain Khan for Petitioners. Syed Nughman Haider Zaidi for Respondent. Date of hearing: 24th November, 1991. This Civil revision is directed against the judgment and decree, dated 23‑5‑1982, by which a learned Additional District Judge at Jhang had accepted the appeal of Ghulam Rasul Shah plaintiff/respondent and decreed his pre emption suit in respect of a piece of land against the defendant‑petitioner on the payment of Rs.15,000 as pre‑emption money, after setting wade the judgment and decree dated 11‑10‑1981 whereby his plaint had been rejected on account of his alleged contumacy in making up the deficiency of court‑fee which rendered the suit time‑barred.

2. The only moot point in this revision is: whether the suit was deficiently valued for the purposes of court‑fee and the conduct of the plaintiff‑respondent was contumacious in making up the deficiency, thereby entailing the intervention of limitation?

3. The facts relevant for the determination of this question are that the plaintiff‑respondent had filed the pre‑emption suit on 18‑12‑19'.14 with its plaint written on a stamp paper of Rs.40 after it had been valued al: Rs.600 for the purpose of court‑fee. On 21‑12‑1974 the learned trial Judge directed him to get the statement of net profit prepared and make up the deficiency of court‑fee accordingly till 25‑1‑1975. He could not comply with these directions and on 19‑4‑1975 requested the Court through an application that Office Qanungo be directed to prepare the statement of net profit of the suit land for the relevant period and the Court obliged him. The statement of net profit became available on the record on 9‑5‑1975 but the plaintiffs‑respondent made good the deficiency of the court‑fee of Rs.147.50 on 2‑9‑1975.

4. The learned counsel for the defendants‑petitioners during the course of arguments before the learned trial Judge took up an objection regarding the belated making up of the deficiency of court‑fee by the plaintiff‑respondent on account of his contumacious conduct and pleaded that by the time such deficiency was made up, the suit had become time‑barred. Impressed by this submission the learned trial Judge dismissed the suit as time‑barred. On appeal the learned Additional District Judge took a different view and accepting the appeal, reversed the findings of the lower Court on issues Nos.l and

5. So, he decreed the pre‑emption suit. The defendants‑vendees brought this revision.

5. It is argued on their behalf that in the first instance the plaintiff respondent valued his suit carelessly just by approximation and wrote the plaint on an insufficiently stamped paper and when he was asked to get prepared the statement of net profit and make up the deficiency of court‑fee accordingly by a particular date, he ignored this direction and made up the deficiency surely after a number of months. This sort of conduct. according to the learned counsel, inevitably entailed rejection of the plaint and the learned trial Judge rightly proceeded on these lines but the learned Additional District Judge, taking an erroneous view of the matter, condoned his defaulting conduct and accepting his appeal, decreed his suit. He has quoted Nazir Ahmad v. District Judge etc. 1987 CLC 1508 in support of his contention.

6. After a good deal of controversy spreading over a sufficient period of dine, the law on the question of court‑fee has eventually been settled by the Supreme Court. It is now the duty of the concerned Court, first to determine the exact amount of court‑fee payable on a lis, then to afford the suitor an opportunity to make good its deficiency and if he still does not pay the court fee only then the Court can reject the plaint under Order VII, Rule 11, C.P.C. This process some time involves the extension of time and the Court under section 149, C.P.C. has ample authority to extend time. A suitor, however, forfeits his right to the indulgence of the Court where he displays a conduct of positive mala fides, collusion or bad faith to avoid the payment of court‑fee due from him as in the cited case.

7. The case in hand is not the one having an element of mala fides, bad faith or gross negligence. The plaintiff‑respondent wrote his plaint on a stamp paper of the value of Rs.40. It cannot be said that the value of the stamp was ridiculously low, indicative of some bad faith. When he was asked by the Court to get prepared the statement of net profit and make up the deficiency of court‑fee accordingly by a certain date, he could not comply with' this order because the preparation of net profit was the job of an official agency, over which he had no control. He requested the Court to help him and obtained its direction for the Office Qanungo for doing the needful. After its preparation he brought it on the record and awaited the Court's orders for the determination of the court‑fee and when no order was passed for quite some time then himself proceeded to make up the deficiency without any protest from the opposite‑party or any objection from the Court itself. It was only at the time of final argument that the question of court‑fee, its deficiency and limitation was agitated by the opposite party with some seriousness and the trial Court recorded a finding adverse to him, entailing the dismissal of his suit.

8. It has been noticed in such like cases that plaintiffs are asked to bring on the file the statement of net profit, after getting the same prepared from the