1985 PLP 1197 (CLC)

Agricultural land, the subject-matter of this litigation, was purchased by the petitioners through registered sale-deed dated 31-3-1975. The sale was pre-empted by Abdul Majid respondent No.1 (hereinafter referred to as 'the respondent') on 27-3-1976, that is, only five days before the expiry of the period of limitation. The respondent valued the suit for the purpose of court-fee and jurisdiction tantatively and paid a court-fee stamp of Rs.150 only. On 29-11-1976, the trial Court directed the respondent to pay the deficiency in the court-fee amounting to Rs.937.50 by 21-12-1976. On 21-12-1976, however, the Court reviewed its earlier order and found that in fact the deficiency was only of Rs.412 which was directed to be paid by 27-1-1977. This order was duly complied with. Subsequently for want of pecuniary jurisdiction the case was referred to the learned District Judge, who entrusted the same to the Court of the learned Senior Civil Judge, vide his order dated 2-7-1977.

2. On 15-10-1980, the petitioners (vendees) filed a revision against the order dated 29-11-1976, passed by the trial Court, whereby he directed the respondent to make good the deficiency in the court-fee. It was mainly urged that after the expiry of the period of limitation, the pre-emptor could not lawfully be permitted to make good the deficiency in the court-fee. His plaint in the circumstances .should have been rejected. The learned Additional District Judge, vide his judgment dated 16-5-1984, dismissed the revision: He considered the merits of the case and also observed that the trial Court's order directing the pre-emptor to make good the deficiency in the court-fee did not amount to "a case decided" and therefore, no revision against such an order was competent.

3. The aforesaid order passed by the learned Additional District Judge on 16-5-1984, has been assailed herein by invoking the extra ordinary writ jurisdiction of this Court.

4. It has been urged that the learned Additional District Judge failed to exercise revisional jurisdiction vesting in him illegally and that the pre-emptor who wanted to enforce the predatory right was not entitled to exercise of discretion in his favour and could not be permitted to pay the deficient court-fee after the expiry of the period of limitation.

5. It has been mainly argued on behalf of the petitioners that after the expiry of the period of limitation a per-emptor could not lawfully be permitted to make good the deficiency in the court-fee. His plaint in such circumstances should be rejected under Order VII, rule 11, C . P. C . Reliance in this behalf had been placed on Mst. Walayat Khatun v. Khalil Khan and another P L D 1979 S C

821. In this case it was held that a plaintiff in a pre-emption suit who was guilty of contumacy, positive mala fides or lack of bona fides was not entitled to any indulgence and could not be allowed time to make good the deficiency in the court-fee. In this case it was noticed that plaint was filed with a court-fee stamp of Rs.2 only. The Court allowed extension in time to the plaintiff to make up the deficiency by a particular date but the plaintiff failed to comply with the order of the Court within the prescribed time without any valid reason to the satisfaction of the trial Court. It was, therefore, held that the trial Court was justified in rejecting the plaint. The circumstances of the present case are altogether different. The respondent made up the deficiency in the court-fee by the time allowed by the Court. He originally had paid a court-fee of Rs.150. He cannot be held liable for contumacy, culpable negligence or positive mala fides. In Mst. Parveen v. Mst. Jamsheda Begum and another P L D 1983 S C 227, it was observed:- "The learned trial Judge was fully competent to grant time under section 149, C . P.C_ to the plaintiffs for supplying the court-fee. Once having done so and the respondents having complied with the order passed under section 149, C.P.C., the plaint, it is provided in the said section, shall be deemed to have the same force and effect as if such fee had been paid in the first instance. Thus the question of the bar of limitation would not at all arise. The argument of the learned counsel thus has no force. It may also be observed that the learned trial Judge could not have rejected the plaint under Order VII, rule 11, C.P.C., on the mere discovery that the claim was under-valued, unless under clause (d) of rule 11, the plaintiffs having been required by the Court to correct the valuation within a time specified by the Court had failed to do so." Walayat Khatun's case was considered by their Lordships and it was observed that the same was not relevant. Similarly, in Shana Khan v. Aulia Khan and others P L D 1984 S C 157, it has been observed:- "It is nowhere required of a plaintiff by any law, at least none has been cited, that before filing a suit for pre-emption he must obtain the statement of net profits and further that if he fails to do so, this necessarily will operate against him when considering the question of entertaining the court-fee, if it is supplied after the institution of the suit, on (or even without) an objection from the defendant or Court. As example here would illustrate the point. Supposing the relevant net profits of the land are wrongly assessed or not assessed at all, or if assessed the statement is not made available to the plaintiff within the period of limitation, or even if he obtains the statement it appears to him to be tainted with overwriting or forgery and he does not want to take any risk and it is not filed. Here the law of limitation or for that matter pre-emption does not in any way provide that if and when the plaintiff files a suit without the statement of net profits it shall be deemed that he was acting illegally or dishonestly." The circumstances of the present case are identical to that of the precedent cases cited above and, therefore, the question of limitation would not arise in the present case when the respondent is not liable for any contumacy, mala fides or negligence in the matter of payment of court-fee. Thus, on merits no exception can be taken to the impugned judgment.

6. Regarding the respondent's plea that the finding of the learned Additional District Judge to this effect that the order of the trial Court allowing the pre-emptor to make good the deficiency in the court fee did not amount to 'a case decided' within the meaning of section 115 of the Code of Civil Procedure were not legally in order reference may be made to the case of Syed Qasim Shah v . Mst. Bibian and others P L D 1962 (W.P.) Pesh. 156, wherein it was held that the decision given by the Senior Sub-Judge as to the amount of court fee did not Amount to a case decided and was, therefore, not revisable. Similar view was expressed in Fazal Muhammad v. Muhammad Usman PLD 1970 Lah.

560. In H.H. Iqbal Begum, Junior Begum, Khairpur and another v. Abdul Samad P L D 1961 (W.P.) Lah. 298, it was ruled that where a decision on the question of court-fee has been given by the trial Court in favour of the plaintiff, it was not open to the defendant to apply for revision under section 115 of the Civil Procedure Code.

7. The learned counsel for the petitioners has not been able to cite any authority to support his contention that the interim decision of the trial Court on the question of court-fee could be challenged in revision. In the light of the above discussion it is concluded that in the circumstances of the present case, it cannot be said by any stretch of imagination that the learned Additional District Judge failed to exercise jurisdiction. His view that the order passed by the learned trial Court directing the plaintiff to make good the deficiency in the court-fee by a date prescribed by such Court did not amount to 'a case decided' is legally sound. It may also be observed that, as a matter of fact, no constitutional petition is legally competent against an order passed by a trial Court in a pre-emption suit directing a plaintiff to make good the deficiency in the court-fee in exercise of jurisdiction vesting in such Court under sections 149 and 148 of the Code of Civil Procedure. In Muhammad Yasin etc. v. Fajar Ali, etc. 1984 C L C 3428. It was held that concurrent orders of the Courts below holding that the plaint had been correctly assessed and the plaintiff pre-emptor had paid the requisite court-fee were immune from being interfered with by the High Court in exercise of its writ jurisdiction.

8. The upshot of the above discussion is that there is no substance in the present writ petition which is, therefore, dismissed with costs. M.Y.H. Petition dismissed.