1979 PLP 539 (CLC)

2. Only a court-fee stamp worth Rs. 1.12 was affixed on the plaint but in the paragraph relating to the payment of court-fee an averment was made that deficiency, if any, in the court-fee would be made good on receipt of the revenue papers. The learned Civil Judge, Muzaffargarh, who was seized of the suit, on 25-7-1970, when the file was put up before him passed an order that the deficiency in the court-fee be made good and the revenue papers filed before the next date of hearing. The case was adjourned to 5-10-1970. In the meanwhile a Court was established at Kot Addu and the file was transferred from the Court of the learned Civil Judge, Muzaffargarh to that of Kot Addu. It appears that on 26-1-1971, when the case came up for hearing before the learned Civil Judge, Kot Addu and the question of deficiency in the court-fee was looked into, the learned counsel for the appellant made a statement that the court-fee stamp and the revenue papers, were handed over by him to the Reader of the Court at Muzaffar garh. The learned Civil Judge in the same order directed the Reader of the Court to trace out the papers and add the same to the file. However, later on, a sentence was added in this order by the learned Civil Judge that the court-fee stamp had been found and be appended to the file.

3. In the first instance both the respondents contested the suit and jointly filed a written statement wherein among other objections a plea as to the non-payment of the proper court-fee was also raised. Subsequently, respondent No. 2 on 15-6-1974, made a statement in the Court that he had entered into a compromise with the appellant, admitted the suit and further deposed that he had received the amount failing to his share and that he had no objection to the decreeing of the suit.

4. Respondent No. 1 having been left alone in the field, at the trial the question of payment of the court-fee was strenuously contested by him. Before the learned trial Court the appellant took the stand that as 4-10-1970, was a holiday, he purchased the necessary court-fee stamp paper of the value of Rs. 223 on 5-10-1970 and deposited the same in the Court on that very day. But somehow or the other. the Reader of the Court failed to place these papers on the file. The stamp papers were, later on, traced out on 26-1-1971 and appended to the file. In this respect he relied on the learned trial Court's order dated 26-1-1971. The learned Civil Judge, Kot Addu who relied on Karim Bakhsh v. Qadir Bakhsh (P L D 1954 Lab. 228), was of the view that while passing the order dated 25-7-1970, deficiency in the court-fee was not determined by the Presiding Officer of the Court. He held that no proper order was passed on 25-7-1970 for making up the deficiency in the court-fee The learned Civil Judge also referred to the order dated 26-1-1971, to the effect that the court-fee stamp was found and appended with the file. In his opinion as the court-fee stamps were placed on the file the making good of the deficiency in the court-fee, within time thus stood accepted by the Presiding Officer. He held that the conduct of the appellant in not making up the deficiency in the court-fee within the stipulated period was bona fide. As the findings on other issues were returned by him in favour of the appellant, by a judgment dated 16-3-1976, the suit was decreed en his favour.

5. Respondent No. 5 filed an appeal which was accepted by the learned Additional District Judge on 26-10-1976. He found that the pre-emptor did not take any steps during the period of limitation to get the "Fard Khalis Munafa" and pay proper court-fee at the time of institution of the suit. According to him the court-fee stamp indicated that it was purchased on 5-10-1970 but was filed in the Court on 17-11-1970. The learned trial Court's order dated 25-7-1970 directing that court-fee stamp should be filed in the Court before 5-1-1970, was thus not complied with. He also held that entertainment of the court-fee stamp on 17-11-1970, did not mean that the delay was condoned. The fact that the plaintiff-appellant did not file any application for extension of time weighed heavily with the learned first appellate Court in giving a verdict against the appellant. The learned Additional District Judge relied on Saeed Ahmad and others v. Karam Singh (PLD1949Lah.360), Maulvi Ahmad Yar v. Mst. Hajiran (PLD1966BJ1) and Rahim Bakhsh v. Muhammad Bakhsh (P L D 1976 Lab. 686), to come to a finding that the appellant acted negligently and the suit was undervalued at the time of institution and had become barred by time when after the expiry of one month and 12 days the deficiency in the court-fee was made good by the appellant. Accordingly, the findings of the learned trial Court on Issues Nos. 1 and 2, relating to the deficiency in the court-fee and limitation were reversed whereas findings on other issues were upheld with the result that the judgment and decree of the learned trial Court were set aside and the plaint rejected.

6. The learned counsel for the appellant argued that there was no negligence or mala fide on the part of the appellant in not paying the full court-fee while filing the suit. He submitted that the learned trial Court rightly exercised its discretion in extending time for payment of the court-fee and the learned first appellate Court wrongly interfered with such exercise of discretion. He cited Shah Nawaz v. Muhammad Yusuf (1972 S C M R 179), in support of his submissions. It was also contended that before the appellant could be asked to pay the additional court-fee under Order VII. rule 11(b) of the C. P. C. the learned trial Court should have determined the amount payable by the appellant. In this respect he placed reliance on Karim Bakhsh v. Qadir Bakhsh , referred to in the judgment of the learned trial Court. Relying on Muhammad Nawaz Khan v. Makhdoom Sayed Ghulam Mujtaba Shah (PLDI970SC37), the learned counsel further assailed the findings of the learned first appellate Court on the question of limitation and submitted that the limitation was saved by payment of the requisite court-fee. It was pointed out that respondent No. 2 had admitted the appellant's claim and that therefore, the decree of the learned trial Court could only be varied to the extent of the share of respondent No. 1 who alone filed the appeal.

7. The learned counsel for the respondents on the other hand adopted the reasoning which found favour with the learned Additional District Judge and supported the impugned judgment. He submitted that the sale in favour of the respondents was indivisible and the price was also paid by both the vendees in lump sum. In his submission a partial decree for pre-emption to the extent of the share of respondent No. 1 could not be passed and cited Abdullah v. Abdad Karim (PLD1968SC140), to fortify his submissions.

8. I have considered the submissions made by the learned counsel for the parties and examined the record in the light of their arguments. The mutation regarding the sale was sanctioned on 23-7-1969. The appellant waited for about one year for filing the suit for pre-emption and instituted it on 21-7-1970, just two days before the expiry of the period of limita tion. There is nothing on the record to prove that the appellant was not earlier aware of the sale transaction. Almost a year was at his disposal to get the Fard Khalis Munafa prepared but he does not appear to have made any effort in this behalf. It was the duty of the pre-emptor to have obtained Fard Kbalis Munafa and pay the requisite court-fee at the time of institution of the suit. No reason has been assigned by him as to why Fard Khalis Munafa was not obtained and the proper court-fee paid before the filing of the suit. Mere making of an averment in the plaint that deficient court-fee, if any, would be paid on receipt of Fard Khalis Munafa, was not sufficient to discharge the obligation cast on the appellant to pay the proper court-fee at the time of institution of the suit. Of course, if there was genuine difficulty in getting the Pard Khalis Munafa prepared within the period of limitation, the matter having been brought to the notice of the Court indulgence could be shown to him and time extended for making good the deficiency in the court-fee. As observed above the appellant neither explained the reasons nor did he bring any evidence on the record to substantiate that inevitable circumstances which prevented him from paying the proper court-fee at the relevant time. In this view of the matter I am inclined to agree with the learned Additional District Judge that the conduct of the appellant was contumacious.

9. In Rahim Bakhsh's case, the mutation for sale was sanctioned on 29-9-1967 but the suit for pre-emption was filed on 28-9-1968, without paying the requisite court-fee or appending Pard Khalis Munafa with the plaint. The plaintiff also failed to explain why full court-fee was not paid within time and Fard Khalis Munafa produced. On these facts certain observations were made in this precedent which aptly applied to the instant case, and are reproduced hereunder :- "The right of pre-emption being predatory it is incumbent upon the pre-emptor to take all necessary steps before the institution of the suit so as to enable him to present his case complete in all respects. Why indulgence by way of extension of time should be shown to a pre-emptor who has not been careful even to get information with regard to determination of court-fee to be paid by him. It is clear that in the absence of full court fee having been paid there is no proper plaint before the Court and when a pre-emptor has been negligent in paying the court-fee stamps, his suit cannot be deemed to be within time."

10. In Saeed Ahmad's case it was laid down that when the conduct of the plaintiff in a suit for pre-emption is contumacious he should not be granted time for payment of court-fee. In that case the plaintiff's conduct was found to be contumacious and the discretion exercised by the learned trial Court in allowing time to the pre-emptor to make good the deficiency in the court-fee was held to be unjustified. The law laid down in Maulvi Ahmad Yar v. Mst. Hajtran is also to the same effect. I entirely agree with the law laid down in these reports and hold that the instant case is hit thereby.

11. Reliance by the learned counsel for the appellant on Karim Bakhsh v. Qadir Bakhsh is of no help to him. In this respect the main counsel for the appellant was that the learned trial Court should have determined the additional court-fee before calling upon the appellant to pay the same. It is to be seen thath a did not place any material before the learned trial Court to enable it to make even a provisional determination of the additional court-fee payable by the appellant. The Fard Khalis Munafa should have normally been filed with the plaint and if this was not possible, as observed above, reasons should have been assigned for non-production thereof. The appellant, however, said nothing about it. Because of his own conduct it was not possible for the learned trial Court to determine the amount of the additional court-fee. Indeed extension of indulgence to the appellant will be permitting him to earn a premium over his own negligence. The rule laid down in Karim Bakhsh's case cannot advance the appellant's cause. Similarly, the appellant's reliance on Shah Nawaz's case, is misplaced. In this ruling it has been laid down that :- "Unless the plaintiff is guilty of contumacy or positive mala fides in putting in deficient court-fees alongwith his plaint, the Court could in its discretion allow time to the plaintiff to put in the deficient court-fee. In the facts and circumstances of the case it could not be said that the plaintiffs had been plainly very negligent, and had moreover, completely failed to provide any excuse for their default." Obviously, these observations are to be read as applicable to the facts proved in that case. So far as the facts and the circumstances of the instant case are concerned, as observed above, the appellant was found to have acted negligently. There are still some other factors which strengthen this inference. The court-fee stamp was, no doubt, purchased by the appellant on 5-10-1970, but Instead of filing it in the Court on the same day he kept it with him till 17-11-1970, when it was presented to the Court. As the impugned judgment is that of variance I have examined the original record. The endorsement made on the stamp paper by the learned counsel for the appellant is dated 16-11-1970. The learned Additional District Judge, thus justifiably concluded that it was put up before the learned trial Court on 17-11-1970. Under the order of the learned trial Court dated 25-7-1970, the appellant was also directed to file the revenue papers in the Court. In this respects, I have perused the list of these documents filed by the appellant. The date of filing of the documents as mentioned therein is 16-11-1970. The list of these documents namely, copy of the Register Haqdaran, copy of Khasra Girdawari, and Fard Khalis Munafa, also bears an entry that these documents were filed in Court on 16-11-1970. The initials of the learned Presiding Officer on these documents are dated 17-11-1970. This list of the documents corroborates with the finding that the stamp paper was also filed in the Court on 17-11-1970 and not on 5-10-1970, as asserted by the learned counsel for the appellant. The appellant kept these papers with him from 5-10-1970, to 17-11-1970, without any cogent reasons. Even he did not file any application for extension of time. I am of the view that in the circum stances of the case, the learned trial Court was wrong in holding that the deficiency was made good within time. The appellant's conduct clearly smacks of negligence. The rule laid down in Shah Nawaz's case has no bearing on the facts and circumstances of the appellant's case.

12. The appellant's learned counsel's reliance on Muhammad Nawaz Khan v. Makhdoom Syed' Ghulam Mujtaba Shah (PLD1970SC39), is also misconcieved. The proposition of law enunciated there is that :- Where the plaintiff is required to correct the valuation of the requisite stamp paper on compliance it shall same force and effect as if such fee had been paid in the first instance." , The appellant could have taken the benefit of these observations 13 had he paid the additional court-fee in accordance with the order of the learned trial Court dated 25-7-1970. On the day when the court-fee stamp was supplied the period of limitation had already expired. tinder these circumstances the learned Additional District Judge rightly came to the conclusion that the appellant's suit could not be considered to be within time. The extract quoted hereinbefore from the judgment in Rahim Bakhsh's case fully strengthens this view. The only other remaining point requiring adjudication is the appellant's objection that in view of the admission of respondent No. 2 the first appeal could be accepted only to the extent of the share of respondent No. 1 in the suit land. This argument is also misconcieved. It is discernible from the mutation (Exh. P. 1), that the sale in favour of the respondents was indivisible and there was no indication that the price paid by them was inproportionate to their respective shares. In Abdullah v. Abdul Karim the document evidencing the sale demonstrated that the vendees purchased the land "ba hissa brabar" They, therefore, contended that price should also be presumed to have been paid by them separately according to their shares, rendering the sale transaction as divisible separately The Supreme Court repelling these arguments observed :- "This argument cannot, however, be accepted in the absence of any proof that payment of the price was made by the various vendees of this group in specified amounts. There can be no presumption as to the divisibility of the transaction merely on the basis of the recital in the deed that the vendees took the property in specified shares if the consideration was mentioned as a lump sum. much weight in the submissions of the learned counsel for There is thus, the respondents that the sale transaction is indivisible. It is noteworthy in the learned trial Court, respondent No. 1 had filed an application that t in case the suit was decreed the price of land failing. to his share be that assessed separately. The appellant opposed this application and it was as turned down by the learned trial Court by its order dated 10-12-1976, on turn round that the khata being joint there was no question of separating the are of respondent for assessment of the market value. The respondent's the share on against this order was dismissed by the learned Additional District revisi Judge on 21-5-1975.

15. The appellant himself solicited the order from the learned two Courts below that the khata being joint the market value of the land falling to the share of respondent No. 1 could not be assessed separately. If a decree for partial pre-emption is Passed in favour of the appellant, there will be a practical difficulty in executing the same. To obviate the possibility of passing unworkable judgment and decree it was not possible to grant partial relief to the appellant. The plaint, had therefore, to rejected as a whole. No fault can t, found impugned judgment this score.

16. For the foregoing reasons I do not find any merit in this Appeal and same is, therefore, dismissed with cots. Appeal dismissed.