1997 PLP 556 (MLD)

Muhammad Siddiq petitioner filed a suit for pre‑emption regarding land admeasuring 66 Kanals 18 Marlas situated in village Saidpur Tehsil and District, Kasur. The impugned sale was through registered deed attested on 6‑7‑1974 and the suit for pre‑emption was filed on 5‑7‑1975 and the plaintiff affixed court‑fee stamp of Rs.45 on the plaint. The plaintiff fixed the valuation of the court‑fee for the purpose of jurisdiction at Rs.24,000 and for the purpose of court‑fee at Rs.600 being 15 time of the not profits which he assessed at Rs.40.

2. On 7‑7‑1975, when the suit came up after report sarishta, the Court ordered that 1/5th of the sale price i.e. Rs.4,800 be deposited in Court before the date fixed and the hearing was adjourned to 11‑10‑1975. The office did not make a report that the valuation regarding court‑fee was not proper or that the schedule of net profits was not annexed with the plaint. The defendant appeared on 29‑1‑1976 and Court ordered for delivering of copy of the plaint to him and the suit was adjourned to 28‑4‑1976 for filing of written statement. The same was not filed on 28‑4‑1976 and again on 10‑6‑1976 last opportunity was granted to the defendants for filing the written statement. On 10‑7‑1976 the Court, of its own, ordered that the schedule of net profits be deposited on the next date of hearing and that value for the purpose of court‑fee be also corrected and the deficiency in court‑fee be made good. The hearing was adjourned to 25‑9‑1976 for production of copies of the revenue record and schedule of net profits. The date fixed was a holiday and on 28‑9‑1976 the Reader of the Court adjourned hearing to 24‑11‑1976 as on that date the Presiding Officer was on casual leave.

3. The trial Court allowed further time to the plaintiff on 26‑11‑1976 and on the adjourned date further allowed time on payment of costs of Rs.10. Last Opportunity was given at a cost of Rs.l5 and 2‑6‑1977 was fixed the date of hearing. On the said date the plaintiff filed an amended plaint and made good the deficiency in court‑fee: and the suit was adjourned to 4‑7‑1977 for written statement. The written statement was filed on 26‑6‑1977 and issues were framed including the issue; "(1) Whether the plaint is under valued? O.P.D.?" The hearing was adjourned to 3‑1‑1978 for recording of evidence of the parties. On 18‑4- 1978 the learned counsel for the plaintiff produced copies of Jamabandi Exhs P.1 and P.2, copy of Khasra Girdawari Exh.P.3, copy of registered sale deed Exh.P.4, and reserved the statement of the plaintiff who was to be produced at the stage of rebuttal. An application was made on the next date of hearing for appointment of Local Commission to determine the improvement effected by the defendant which was not filed till 19‑12‑1978. The objections were called which were filed but were dismissed. The defendant however made an application under order VII, Rule 11, C.P.C. on the ground that the plaintiff had not made good the deficiency in court‑fee within the period prescribed and that the plaint was liable to be dismissed by the trial Court. On 27‑6‑1979 suit was dismissed. According to the trial Court the deficiency in court‑fee was made good after the expiry of the limitation prescribed for filing of suit of pre‑emption. The revision was filed by the present petitioner which was dismissed by Additional District Judge Kasur on 28‑1‑1980 and it was held that on 10‑7‑1976 when the Court ordered for making up the deficiency in court‑fee, the suit had already become barred by time and the trial Court was not bound or obliged to give opportunity. It was noted by the revisional Court that the trial Court gave opportunity and further extended the same in routine and thus it was held that the orders dated 10‑6‑1976, 24‑4‑1976, 24‑2‑1977 and 20‑4‑1977 were illegal and were against the principles of justice. Reliance was placed by the revisional Court on Walayat Khatoon's case PLD 1979 SC

821. The petitioners filed the present writ petition and the same was admitted to regular hearing by placing reliance on Muhammad Siddiq v. Muhammad Ibrahim" PLD 1981 Lahore

97. The following observation was noted: "As regards the question whether the trial Judge, after allowing extension of time on 15‑I1‑1975 to both sets of appellants to make good the deficiency of court‑fees by 5‑1‑1976. could have reviewed his orders by framing issues Nos .3 and 6 and deciding the same against the appellants, we hold that the same could not have been done. Once the power was exercised under section 28 of the Court Fees Act, 1870, or under section 149 of the Civil Procedure Code, 1908, and deficient court‑fees were made good, the plaints became valid and properly stamped documents as if they had been so properly stamped in the first instance. "

4. I have heard the learned counsel for the parties and also perused the law produced. The trial Court had been extending the time in the presence of the defendant‑respondent and his learned counsel. The time was extended twice at the payment of costs, which was received by the learned counsel for the defendant and no objection was ever raised and the power having been exercised by the trial Court under section 149, C.P.C. and/or under section 28 of the Court Fee Act 1870 and the deficiency in court‑fee was made good the plaint became valid and properly stamped document as if it had been properly stamped in the first instance. Once the plaint to the present case acquired the said status, a right had accrued in favour of the petitioner and the same could only be altered through any finding given by the Court on the issues framed in a general way. Reliance is placed on "Dharma Nath Sharma v. Madhoo Chandra Mahata" AIR 1939 Calcutta 722 and "Karim Bakhsh v. Qadir Bakhsh" PLD 1954 Lahore 228 and the reversal of the order of extension in time, at the stage of recording the evidence of the defendant, was too harsh. The question of mala fide in affixing a deficient court‑fee, could only be determined on the basis of evidence recorded.

5. The learned counsel for the respondents opposed the maintainability of the writ petition. The fact that the same had been admitted to regular hearing is important and I shall not go back to square one. The second contention raised by the learned counsel for respondent No.3 was that the suit of the present petitioner was never decreed. The same was instituted under Punjab Pre‑emption Act 1913 and in view of the law laid down in "Government of N.‑W.F.P. v. Said Kamal Shah" PLD 1986 SC 360, "Sardar Ali and others v. Muhammad Ali and others" PLD 1988 SC 287 and "Mst. Aziz Begum v. The Federation of Pakistan" PLD 1990 SC

899. No pre‑emption decree can be passed in favour of the petitioner and the suit had become infructuous and the cause of action with respondents has become extinguished by operation of law. It was further submitted by the learned counsel for the petitioner that in the above circumstances the request of the petitioner if allowed the impugned orders set aside and the suit of the petitioner was allowed to proceed further, that would amount to an exercise in futility.

6. The contentions raised by the learned counsel for the respondent have all the relevance but not in a writ petition. This Court while exercising its extraordinary constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 is to decide whether orders impugned therein were passed with or without jurisdiction. The ‑question whether a suit can be decreed in view of the citations mentioned above could only be decided by the Court of plenary jurisdiction.

7. In view of what has been discussed above the writ petition succeeds. The orders and decrees passed by Senior Civil Judge Kasur on 27‑6‑1979 and the order of Addl. District Judge Kasur passed on 28‑1‑1980 are declared to have been passed without lawful authority and of no legal effect. The suit thus stands restored and shall be decided by the trial Court within a period of three months in accordance with law. Needless however, to add that the above grounds shall not, in any way, be taken as depriving the trial Court or the appellate/revisional Court from exercising their jurisdiction under the Pre emption Act 1913 and/or the law laid down in the citations of the Supreme Court cited above.

8. There shall be no order as to costs. AA/M‑33/L Petition accepted.