1992 PLP 2268 (MLD)

Syed Jamshed Ali Shah for Petitioners. Ch. Muhammad Hassan for Respondents. Dates of hearing: 20th January and 2nd February, 1992. MIAN NAZAR AKHTAR, J: ‑‑This revision . petition arises out of a suit for possession through pre‑emption filed by the respondents on 30‑6‑1977 in the Court of Senior Civil Judge, Sheikhupura, in respect of land measuring 41 Kanals 17 Marlas situated in Chak No.6/R.B., Tehsil and District Sheikhupura. The disputed land was sold through a registered sale‑deed made on 26‑7‑1976 (registered on 28‑7‑1976) for a consideration of Rs.28,

000. The right of pre‑emption was claimed on the solitary ground of ownership in the estate. The suit was entrusted to the Civil Judge 2nd Class for disposal who directed the petitioner to deposit 1/5th amount and the court‑fee before 18‑9‑1977 but the court‑fee was tendered in the Court on 10‑11‑1977. The trial Court rejected the plaint but on the respondents' appeal the said order was set aside by the learned Additional District Judge on 3‑6‑1978. The appellate Court held that instead of rejecting the plaint it should have been returned to the plaintiff for presentation before the' competent Court. Accordingly the plaint was returned on 5‑6‑1978 and presented before the learned Senior Civil Judge on the same‑ day. After recording evidence of the parties the trial Court decreed the suit vide the judgment and decree dated 29th of March, 1981. The petitioners' appeal was dismissed by the learned Additional District Judge, Sheikhupura vide his order, dated 25‑6‑1981.

2. The petitioners' learned counsel contends that the respondents' suit was clearly barred by time, as the sale was made on 26‑7‑1976 and the present suit was filed/refiled on 5‑6‑1978. He submits that benefit of section 14 was wrongly allowed to the pre‑emptor/respondent by the Courts below. He also submits that 1/5th of the pre‑emption money was not deposited by the respondent within the time fixed by the trial Court and the plaint merited rejection under section 22 of the Pre‑emption Act. He adds that originally the suit was instituted on 30‑6‑1977 in which the valuation of the subject‑matter of the suit was shown to be Rs.200 on which court‑fee of Rs.15 was paid. The case was entrusted to the Civil Judge 2nd Class, who passed an order on 3‑7‑1977 that the plaintiff/respondent should pay 1/5th of the pre‑emption money before 18‑9‑1977 and also make good the deficiency of court‑fees. The respondent deposited the 1/5th of the pre‑emption money on 18‑9‑1977. The deficient court‑fee was not paid and the case was adjourned for 30th of October, 1977. On that day, the Presiding Officer was on leave and the case was adjourned to 10‑11‑1977. In the meanwhile on 8‑11‑1977, the respondent filed an application for extension of time for making good the deficiency of the court‑fees. Without obtaining the order of the Court, the respondent tendered the court‑fees on 10‑11‑1977. The application for extension ‑ of time was rejected by the trial Court on 12th of March, 1978 and the plaint was rejected. The respondent preferred an appeal before the learned District Judge which was finally decided by the learned Additional District Judge on 3‑6‑1978, with the order that the matter was beyond the pecuniary jurisdiction of the learned Civil Judge 2nd Class who had no jurisdiction to reject the plaint.

3. On the other hand, the learned counsel for the respondents urged that the plaintiffs/respondents had filed a suit in the trial Court within time which was sent to another Court in due course. At one stage, the transferee Court rejected the plaint on the ground that the deficient court‑fee had not been paid by the prescribed date. On appeal the learned District Judge, held that the plaint should have been returned to be instituted in the competent Court. After return of the plaint, it was reeled without loss of time. Under these circumstances, the respondents were rightly allowed the benefit of the provisions of section 14 of the Limitation Act. He submits that the precise language of Order VII, Rule 10 of the C.P.C. be kept in mind. He adds that the plaintiffs/respondents had originally instituted the suit in the competent Court. He further submits that a mere wrong view taken by the Courts below is no ground for interference in the revisional jurisdiction and adds that the said jurisdiction is not meant to enforce technicalities. He places reliance on Kedarnath Lal and another v. Sheonarain Ram and others AIR 1952 Pat. 280, P.B. Rammohanreddy and another v. Chintal Achaiah and others AIR 1974 Andra Pradesh 185 and Ghulam Farid Muhammad Latif v. Central Bank India P L D 1954 Lah.

575. Referring to the judgment of the learned Civil Judge, 2nd Class, the learned counsel submits that the objection regarding late deposit of Zar‑e‑Panjum was not pressed before the said Court and the petitioner cannot be permitted to raise it at this stage. He submits that the respondents had committed a bona fide error in construing the order and deposited the Zar‑e‑Panjum on 18‑9‑1977 instead of 17‑9‑1977. In this connection he places reliance on Sarfraz Khan v. Muhammad Abdur Rauf PLD 1969 Kar. 176.

4. In reply, the petitioners' learned counsel submits that the plaintiff had deliberately under‑valued the suit and for that reason it was sent to the learned Judge 2nd Class who found that the valuation exceeded his pecuniary jurisdiction and rejected the plaint. He submits that the plaintiff himself was to be blamed. He also points out that at least on 24‑9‑1977 the plaintiff had known that the matter was beyond the pecuniary jurisdiction of the Court and should have immediately prayed for the return of the plaint for presentation in competent Court. He urges that the plaintiffs had not acted with due care and caution and were not entitled to the benefit of provision of section 14 of the Limitation Act. In this connection he places reliance on the following judgments:‑‑ (1) Sharam Singh v. Sadhu Singh AIR 1928 Lah. 484; (2) Rakha Ram and .others v. Gandhela and another AIR 1929 Lah. 877 and (3) Madho Ram v. Dharam Singh and another AIR 1930 Lah. 394; (4) Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102.

5. The plaintiffs/respondents had filed the suit on 30‑6‑1977 in the Court of the Senior Civil Judge, Sheikhupura. Keeping in view the valuation of the suit shown in the plaint, it was entrusted to the Civil Judge 2nd Class for trial. Subsequently, when the respondents obtained the chart of net profits and assessed the value of the suit for purposes of court‑fee and jurisdiction then it became clear that the suit was not triable by the learned Civil Judge 2nd Class and the plaint had to be returned for filing the same before the competent Court. The plaint was returned by the Court on 5‑6‑1978 and without wasting time the respondents refiled it in the Court of competent jurisdiction. The suit was filed by the respondents well within the period of limitation and thereafter due to bona fide error committed by them in the matter of valuation of the suit, the matter went before a wrong forum where the respondents had been persuing the matter with due diligence. The respondents obtained the chart of net profits in September, 1977 and paid the enhanced court‑fee according to the valuation worked out on the basis of the chart. The respondents being simple villagers, not knowing the technicalities of the law, might. not have been informed by their counsel that the suit was beyond the pecuniary jurisdiction of the learned Civil Judge 2nd Class but the counsel should have made a prayer to the Court for return of the plaint. However, I am not inclined to penalise the respondents for the negligence of their counsel because a duty was also cast on the Court to return the plaint immediately after having known that the matter was beyond its pecuniary jurisdiction. The Court returned the plaint on 5‑6‑1978 and the respondents promptly refiled it before the competent Court on the same day. Thus, the respondents had been diligently pursuing the matter with bona fide intention in the wrong forum and were fully entitled to the benefit of the provisions of section 14 of the Limitation Act. Since the matter was beYand the Pecuniary jurisdiction of the learned Civil Judge 2nd Class, the orders passed by him for deposit of Zar‑e‑Panjum and making good l the deficiency of the court‑fee could not result in the penal consequence of rejection of the plaint. Hence the Courts below have rightly held that the plaint was not liable to be rejected for non‑compliance of the order which was passed without jurisdiction and was, therefore, nullity in the eye of law.

6. The judgments relied upon by the petitioners' learned counsel proceed on their own distinguishable facts and do not appear to be applicable in the present case. In Sharam Singh's case it was held that the suit was not deemed to be instituted on the day when the same was received by the distributing Judge for disposal. It was further observed that for purposes of limitation and other kindred matters, the relevant day was the one on which the plaint was presented to the distributing officer. Further, the argument that after discovering the factum of lack of pecuniary jurisdiction the Court trying the suit, should have itself sent it to the Court of Senior Sub‑Judge, was repelled. It was held that the trial Court was correct in handing back the plaint to the plaintiff for presentation before the competent Court and the date of institution of the suit must be taken to be 5th of February, 1920 (when the plaint was again presented before the competent Court). It may be mentioned that the plaint was returned on 6‑1‑1920 but represented on 5‑2‑1920. In the present case, the plaint was presented before the Senior Civil Judge within the period of limitation and after return, was refiled without losing a single day. In Surat Singh's case, the snit was mistakenly filed in the Civil Court at Ambala instead of the Court of Subordinate Judge, Lyallpur. The plaint was returned on 14‑4‑1926 and thereafter it was presented to the competent Court at Lyallpur on 28‑4‑1926. By that time, the suit had become barred by time. In Madho Ram's case the plaint was presented in the Court of the Senior Sub- Judge, Gurdaspur who sent it for trial to Munsif of the 1st Class in view the value of the suit for purposes of jurisdiction. The Munsif subsequently discovered that the real value of suit exceeded his pecuniary jurisdiction which was upto Rs.1,

000. He noted that the plaintiff had designedly undervalued the suit. The plaint was returned on 21‑6‑1922 but was refiled with a delay of more than 3 months on 3‑10‑1922.In the present case, there does not appear to be any design to undervalue the suit. As the period of limitation was likely to expire the plaintiffs/respondents filed the suit without obtaining the chart of net profits. The valuation of the suit for purposes of court‑fee and jurisdiction was found to be incorrect after calculations made on the basis of chart of net profits. As soon as the plaint was returned, it was promptly presented before the learned Senior Civil Judge on the same day. Hence, excluding the time spent on prosecuting the case before a wrong forum, the suit was well within time. In Abdul Ghani's case an appeal was filed in a wrong Court and returned for presentation in proper Court. By the time the appeal was filed before the proper Court it had become time‑barred. In the precedent case, the appellant had himself shown the value of the appeal to be far beyond pecuniary jurisdiction of the District Court. Therefore, the Honourable Supreme Court was pleased to observe that it was not possible to understand as to how any advocate could advise filing of the appeal in the District Court. Filing of appeal before the District Court was considered to be an act of gross negligence and the time spent in prosecuting the appeal in wrong forum in the circumstances of the case was not condoned.

7. For the foregoing discussion I rind no merit in this petition which is dismissed, leaving the parties to bear their own costs. A.A./A‑222/1 Revision dismissed.