P L D 1966 (W (PLP)

(3) Whether transaction in suit is not pre‑emptible? (4) Whether the right of mortgage is more than sixty years old and Hasan Khan who has sold his mortgagee rights to the defendant had acquired ownership by prescription, if so, whether the plaintiff is entitled to pre‑empt this transaction? (5) Whether Rs. 1,500 were paid or fixed in good faith as price of the suit land? (6) Market value. (7) Relief. After recording the evidence adduced by the parties, the trial Judge, while discussing issues 3 and 4 together, came to the conclusion that the sale being of the mortgagee rights, the transaction was not pre‑emptible. He left issues 1, 2, 5 and 6 undetermined, and in view of his findings on issues 3 and 4, he dismissed the plaintiff's suit with costs, by his order, dated 8‑1‑

63. Raza Khan preferred an appeal.

5. An objection was raised by Mst. Niaz Begum before the District Judge regarding the competency of the appeal, on the ground that Raza Khan appellant had died before the institution of the appeal, and so the appeal instituted in his name, was incompetent. After recording the evidence produced by the parties and examining certificate Exh. P. A. issued by the office of the Civil Surgeon, Kohat, the Union Council Register and the register maintained, by the Chaukidar, the District Judge came to the conclusion that Raza Khan had died on 1‑2‑63, and so the appeal filed on 28‑1‑63, was competent. 'He further held that before the plaintiff could succeed, it was necessary to establish that the mortgagor had lost his right, and the mortgagee had become the owner on a time‑barred mortgage. By his order, dated 27‑3‑63, he accepted the appeal, set aside the judgment and decree of the Court below and remanded the case under section 151, C. P. C. to the lower Court for affording the plaintiffs an opportunity to implead the necessary parties and to make consequential amendments in the plaint within a period of two months, Mst. Niaz Begum has come in revision to this Court.

6. Learned counsel for respondents Zarijan, etc., raised a preliminary objection that the revision petition had been deficiently stamped and was therefore, not maintainable. A stamp of Rs. 2 was affixed on the revision petition instead of Rs. 7.50. Counsel for the respondents urged that the Court Fees Act was amended by Ordinance LII of 1962, (Court Fees Amending Ordinance 1962). Section 5 of this Ordinance has added item 13‑A to the First Schedule of the said Act, which lays down as under: "Where the application is for revision of an order and the amount or value of the subject‑matter is less than two thousand, rupees, then court‑fee payable on such revision in seven rupees and fifty paisa." In the instant case, the value of the property in dispute was less than Rs. 2,000 and in view of the above‑mentioned amendment, the Court‑fee payable was Rs. 7.50 but the petition was deficiently stamped, and in the opinion of the learned counsel for the respondents, the revision had become time‑barred. He contended that ignorance on the part of the pleader who had drafted the revision petition, will not extend the time. In support of his contention, he relied upon Nazir Ahmad v. Province of East Bengal (P L D 1955 Dacca 63) where it was held that the ignorance and negligence of a Pleader will not extend the time.

7. Learned counsel also relied upon Saeed Ahmad v. Karam Singh (P L D 1949 Lah. 380) where it was held:‑ "Under section 148, Civil Procedure Code, the Court undoubtedly had discretion to enlarge time for the doing of any act allowed by the Code, even after expiry of the period originally fixed for the purpose, but it could not be said that where the plaintiff had plainly been so very negligent and had moreover completely failed to provide any excuse for his default that discretion had been properly exercised." He urged that Ordinance LII of 1962 (Court‑fees Amending Ordinance was enacted on 7‑6‑62, and the present revision was filed 4‑10‑63.

8. It may be pointed out here that the learned counsel for the respondents raised the preliminary objection that the revision petition was not properly stamped. Section 149, C. P. C. empowers the Court in its discretion at any stage to allow a person to pay the Court‑fee and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.

9. Learned counsel for the petitioner urged that an opportunity to make up deficiency in Court‑fee is normally allowed where deficiency was due to bona fide mistake of the counsel and was not deliberate. He contended that the entire Court‑fee payable was Rs. 7.50 but the petitioner had affixed the Court‑fee stamp of Rs. 2 and the difference of Rs. 5.50 was due to the mistake of the counsel, who had filed the revision, as apparently he was not aware of the amending Act. It cannot be said that the petitioner had withheld Rs. 5.50 with a view to dishonestly deprive the Government of this small amount. There is no proof of dishonesty, and a bona fide mistake in the matter of valuation should be condoned. The authorities relied upon by the petitioner, are applicable, because it was due to the negligence on the part of the petitioner's counsel that the petition was not properly stamped, which was a bona fide mistake, and so I overrule the preliminary objection, raised by the respondents' counsel.

10. On merits, counsel for the petitioner argued that the appeal was filed by Mr. Mirzadin Advocate, Kohat, on behalf of Raza Khan on 28‑1‑

63. An objection was raised before the District Judge by Mst. Niaz Begum that the appeal was not properly constituted, as Raza Khan had died on 31‑12‑

62. According to the respondents, Raza Khan had died on 1‑2‑63, after the appeal had been filed on his behalf. The defendant petitioner, however, contends that Raza Khan died on 31‑12‑

62. The legal representatives of Raza Khan examined Muhammad Ilyas, Head Clerk, Civil Surgeon's Office, Kohat, Nasi Gul and Shelwa Nur, two Imams, who are said to have performed the `Jinaza' prayer of Raza Khan. The petitioner in support of his contention examined Rahmandin, Shahadin and Rumal Shah. Certificate Exh. P. A, issued by the office of the Civil Surgeon, Kohat shows that Raza Khan had died on 1‑2‑

63. On the other hand, according to the record of the Union Council Register (Copy Exh. D. A.) Raza Khan died on 31‑12‑

62. The entry in Exh. D. A. is based on the Chaukidar's Register. The Chaukidar was not examined to show that he had made the entry in his register showing that Raza Khan had died on 31‑12‑

62. There is an application on the District Judge's file, dated 27‑3‑63, at page 25, by Mst. Niaz Begum stating that the appeal had been filed on 28‑1‑63, but Raza Khan had died on 20‑1‑63, i.e., before filing the appeal. In view of this application, now there is no force in the contention of the petitioner that Raza Khan had died on 31‑12‑62, and in these circumstances, even the entry in the Union Council Register showing the date of death of Raza Khan to be 31‑12‑62, is not free from doubt. The entry in the Civil Surgeon's Office Register Exh. P. A. showing that Raza Khan died on 1‑4‑63, is to be preferred, which is relevant and admissible under section 35, Evidence Act as this entry was made in the official register by a public servant in the discharge of his official duties, and so I maintain the finding of the learned District Judge that Raza Khan had died on 1‑2‑63, after the appeal had been preferred.

11. It was lastly urged that the defendant‑petitioner at the very out‑set had taken the plea in the written statement that the owners and mortgagees, who were necessary parties to the suit, had not been impleaded, and an issue was also framed to that effect, but yet the plaintiff-respondents failed to implead them as necessary parties. In these circumstances, in his opinion the learned District Judge was wrong in remanding the case and allow ing the plaintiff‑respondents to implead the owners. The record shows that the plaintiff respondents had brought a suit for possession by pre‑emption on the ground that the mortgage in favour of Hasan Khan had become time‑barred, and thus the transfer of property by him, by mutation No. 5209, was in fact a sale of the proprietary rights and not of the mortgagee rights. The rights of the owners are involved, and in my opinion, it could not be adjudicated upon effectively in the absence of the owners, and in these circumstances, the learned District Judge was perfectly right in affording an opportunity to the plaintiff respondents to implead the owners and mortgagors of the land, who were necessary parties. The learned counsel for the petitioner further urged that the suit against the owners so impleaded, would be time‑barred. At this stage I am not prepared to hold as to whether the suit against the owners would be time‑barred or not, because this issue is not before me for determination. The defendant‑petitioner, if so advised, can raise the plea of limitation before the lower Court. As a result of the above discussion, I maintain the order of the lower appellate Court and dismiss this revision with costs. K. B. A. Petition dismissed.