1984 PLP 2150 (CLC)

Mian Abdur Rashid for Respondent. Date of hearing : 22nd November, 1983. This judgment will dispose of two appeals (R. S. A. No. 160 and No. 161 of 1979) as the questions of law and facts in both these appeals are one and the same.

2. The respondent filed two suits for possession through pre emption on 1st September, 1973 by affixing a court‑fee of Rs. 75 only on each of the plaints. The land sought to be pre‑empted was obtained by the appellant through a consent decree passed on 9th October, 1971. The mutations giving effect to this decree in the revenue record were sanctioned on 26th August, 1972. On institution of these two suits, the office vide report, dated 4th September, 1973 required the plaintiff‑respon dent to produce 'naqsha khalis munafa' as the court‑fee paid was deficient. The learned trial Court same day directed the issuance of summons to the appellant‑defendant and to deposit the 'zari panjum' before the next date of hearing. The plaintiff‑respondent was directed to file 'fard khalis munafa'. As the 'fard khalis munafa' was not filed, it was ‑again directed on the next date of hearing i.e. 22nd November, 1973 that the `lard khalis munafah' be filed under all circumstances by the next date. The direction to file the 'fard khalis munafah' continued to be made on each date of hearing till 28th December, 1977. In the meanwhile, the written statement was filed by the appellant and on the basis of the pleadings of the parties, issues were framed on 20th May, 1974 including the issue No. 1 which reads as follows :‑‑-- "whether the valuation is incorrect and the plaint is deficient in court‑fee and its effect ? D.P.D. The onus was, however, changed and shifted to the plaintiff on an appli cation made by the appellant vide order, dated 12th January, 1977. This order was assailed before the District Judge by filing a revision petition and the same was accepted vide judgment, dated 14th April, 1977 with the direction that the onus of the issue has to be on defendant‑appellant. The issue, as refrained, reads as under :‑

"Whether the suit is improperly valued and is insufficiently stamped, if so what is its effect ? O.P.D. In view of this shifting of onus, the appellant‑defendant submitted an application seeking permission to produce 'fard khalis munafah'. This permission was accorded. Thereafter, the respondent‑plaintiff' submitted application, dated 10th January, 1978 to file `fard khalis munafah' and for extending the time in making good the deficiency. The reasons given for making the two requests were (i) that the defendant‑appellant had been allowed to produce 'fard khalis munafah' for determining the valuation of the suit, (ii) that the onus of the issue regarding valuation of the suit has been undergoing change, and (iii) that no order has yet been passed directing the applicant‑plaintiff to pay the court‑fee in accordance with the 'fard khalis munafah'. This application was accepted vide order, dated 14th February, 1978 of the learned trial Court. A revision was filed against this order but the same did not succeed as it was dismissed by the learned Additional District Judge, on 10th April, 1978. The reason of change of onus was considered by both the Courts below as a good reason for extending time. These two suits were ultimately decreed by the trial Court vide judgment and decree, dated 18th May, 1978. The appellant‑defendant having failed in the first appellate Court as the appeal was dismissed by judgment, dated 14th February, 1979 has filed these second appeals under section 100, C. P. C.

3. Learned counsel for the appellant in both these appeals has argued that the trial Court as well as the learned Additional District Judge, in revision acted arbitrarily in considering that the respondent plaintiff was entitled to the extension of time in the payment of court -fee. He added that the change of onus regarding issue on valuation does not tantamount to sufficient cause for not paying the correct and proper court‑fee at the time of institution of the suits. According to him, it is the primary duty of a litigant to institute proceedings by paying proper and correct court‑fee and only bona fide mistakes or the default com mitted inadvertently can be excused and delay caused can be condoned. Learned counsel for the respondent, on the other hand, argued that no order was ever passed by the trial Court directing the plaintiff‑respon dent to make up the deficiency in the court‑fee and, as such, the trial Court was simply justified in extending the time and granting the opportunity to pay the proper court‑fee. He relied on Muhammad Nawaz Khan v. Makhdoom Syed Ghulam Mujtaba Shah (P L D 1970 S C 37) and Haji Fateh' Muhammad v. Sheikh Ghulam Sarwar (P L D 1961 B J 62). Learned counsel for the respondent, how ever, does not dispute the proposition that it is the primary duty of a plaintiff to pay proper court‑fee on his plaint and that the discretion to extend the time under section 149, C. P. C. is to be exercised on showing sufficient cause and good reason. The question, thus, arise is that the reason which prevailed with the learned trial Court as well as with the learned Additional District Judge who disposed of the revision, amounts to sufficient cause so that the discretion in extendi6g the time could be exercised in favour of the respondent‑plaintiff. The answer to this question, to my mind, is in the negative. On institution of the suits, the office of the trial Court reported that the court‑fee paid was deficient. In view of this report, the learned trial Court required the respondent-plaintiff to file `fard khalis munafah'. This order was repeated for almost four years i.e. from 4th September, 1973 to 10th December, 1977. The `lard' was not filed. In the plaint, a definite assertion was made by the plaintiff‑respondent that the valuation of the suit for the purposes of court‑fee and jurisdiction is Rs. 990 i. e. 15 times of annual net profit amounting to Rs.

66. The plaintiff thus filed the two suits with definite assertion which was of course challenged in the written statement and on the basis of the challenge so made issue was framed. The fact that onus of the issue was changed one way or the other, has no bearing on the question of non‑payment of the proper court‑fee at the time when the plaints were instituted. The change of onus would not equip the respondent‑plaintiff with the explanation as to why the proper court‑fee was not paid when the plaints were presented. It is pertinent to note that under section 149, C. P. C. the explanation has to be given with reference to that point of time. This aspect of the matter was totally misconceived by the learned trial Court while extend ing the time and the exercise of discretion, as such, was illegal an arbitrary. The judgment of the learned Additional District Judge passed in revision also suffers from the same defect.

4. The question was raised at the time of decision of the suit but issue No. 1 was decided in favour of the respondent by the learned trial Court solely on the basis of the judgment delivered by the learned Additional District Judge in revision on 10th April, 1978. The appel lant suffered from the same disadvantage before the appellate Court as the learned Additional District Judge while hearing appeal was not in a position to set at naught the judgment delivered by another Additional District Judge a Court of concurrent jurisdiction. This appears to be the reason for the learned Additional District Judge for not adverting to this question though the plea of insufficient court‑fee and its legal effect was otherwise raised in the memo. of appeals before him.

5. This is not disputed that this Court despite the order passed in revision can examine the question as the judgment, dated 10th April, 1978 is not final qua this Court. In any case, the plaints as filed were admittedly deficient. This fact stands conceded as the respondent plaintiff himself moved the application, dated 10th January, 1978 for grant of permission to make good the deficiency. The plaints were filed on 1st September, 1973 and till 10th January, 1978 no step was taken to make good the deficiency in the court‑fee. The suit, in these circum stances, admittedly became barred by time, as the mutation giving effect to the consent decree was sanctioned on 26th August, 1972. The mutation having been sanctioned on 26th August, 1972, section 30 0 the Punjab Pre‑emption Act, 1913, was clearly applicable. It is, therefore, apparent that the view of the learned Additional District Judge, that Article 120 applies, is unfounded. He failed to take note of the fact that mutation Exh. P. 3 was sanctioned on 26th August, 1972 and the period of limitation had commenced from the said date.

6. The plea that the respondent‑plaintiff should have been allowed an opportunity to make good the deficiency, as is held in the Supreme Court case (supra) is not available in the circumstances of this case. The issue No. 1 framed with respect to the question of valuation had to be decided in favour of the defendant‑appellant and it was too late in the day for the respondent‑plaintiff to seek permission to make good the deficiency, as the suit by that time had become barred by time. In the circumstances of this case, the other precedent relied upon by the learned counsel for the respondents is also of no assistance to the respondent. Moreover, the time, to make good the deficiency in the court‑fee, was allowed on extraneous consideration and, as such, there is no alternative but to hold that the discretion was exercised illegally and arbitrarily.

7. For all these reasons, these appeals succeed with the result that both the suits filed by the respondent‑plaintiff shall stand dismissed with costs throughout. M. B. A. Appeals succeeded.