1984 PLP 930 (MLD)

4. In reply, it was submitted by learned counsel for the respondents that it was due to bona fide mistake that proper court-fee was not paid by the respondents for the first, appeal. In this connection, it was added by him that no objection, regarding court-fee paid by the respondents for their first appeal, was raised by the appellants during the first round of litigation either before the learned District Judge or before this Court and that in the said round the appellants too paid the same court-fee for their second appeal as wasp paid by the respondents for the first appeal. He offered to now make good the deficiency in the court-fee. As for the suit, his plea was that proper court-fee was paid therefor.

5. What actually happened in this case was that, the respondents filed the suit by paying a court-fee of Rs.90. In view of the statement of net profits subsequently filed before the learned Civil Judge, he directed the respondents to pay an additional court-fee of Rs.337.50 before 30th April, 1975. They, however, paid an additional court-fee of Rs.337. For their first appeal, the respondents paid a court-fee of Rs.337 only and the same court-fee was paid by the appellants while filing their second appeal in the first round of litigation. When the appellants were before this Court in the first round of litigation they also did not object to the court-fee paid by the respondents for their first appeal. For their second appeal, in the second round of litigation, that is, for the appeal in hand, they have, however, paid a court-fee of Rs.427.50 and have also, in the said round, objected to the court-fee paid by the respondents for their first appeal.

6. When the first appeal was heard by the learned District Judge in the first round of litigation no exception was taken to the court-fee paid for the suit. After the remand of the appeal to the learned District Judge, however, the question of court-fee for the suit was agitated and the same was decided by the learned District Judge in favour of the respondents. His reasoning in this behalf finds mention in paragraph 18 of his judgment which reads as follows:-- "The second point relates to fixation of court-fee on the plaint. The suit was filed on 14-3-1975 and a court-fee of Rs.90 was affixed on it. On 31-3-1975, the trial Court ordered that the plaint required a court-fee of Rs.427.50 and as a court-fee of Rs.90 was paid, therefore, the deficiency of Rs.337.50 should be made up before 30-4-1975. It appears that the pre-emptors paid a court-fee of Rs.337 on 16-4-1975. The argument of the learned counsel for the vendees is that there was a deficiency of fifty paisa and so the plaint should be rejected. From the record, I find that the net profits of the previous year have been shown by the Patwari as Rs.377.24 but the calculation has been made on Rs.380. If the calculation is made on 377.24, the court-fee is proper. I, therefore, hold that there was no deficiency in the court-fee. The point is decided against the vendees."

7. Learned counsel for the appellants did not assail the above calculation made by the learned District Judge. It was, however, argued by him that the deficiency in court-fee was not made good within the time allowed by the learned Civil Judge. It was maintained by him that the additional court-fee of Rs.337 was required to be paid before 30th April, 1975 but it was actually paid on 5th May, 1975. I have gone through the record of the learned trial Court and find that the court-fee stamps of Ra.337 were purchased by the respondents on 16th April, 1975, and according to the writing of the respondents' counsel on the said papers they were filed before the learned trial Court on the same date. At the back of the papers on which the stamps were affixed there is an endorsement, by somebody, to the effect that they be placed on the record. This endorsement is, dated the 5th May, 1975, but does not appear to be signed by the Presiding Officer of the trial Court or by any official thereof. The next date of hearing mentioned on the said papers is 30th April, 1975. It seems that the said papers were filed in the trial Court on 16th April, 1975 but the learned Civil Judge or any official of his Court did not record any order thereon on that date. He also failed to make any order on the file of the case in regard to the payment or otherwise of the said court-fee. On 30th April, 1975 he did not hold Court at Sialkot. This is evident from his order, dated the 19th April, 1975, passed in the absence of the parties. His order of 19th April, 1975 was to the effect that as he will be on tour to Narowal from 21st to 30th April, 1975, the file shall be put up before him on 21st May, 1975. On 21st May, 1975, he made order regarding the service of the defendants, without adverting to his order, dated the 31st March 1975, regarding payment of additional court-fee and without saying a word in respect of the payment or otherwise of the said court-fee. If the respondents had not made up the deficiency of court-fee in time, the appellants would have pointed out their short coming on 21st May, 1975 to have the plaint rejected but they just kept quiet not only on 21st May, 1975 but also thereafter till the first appeal was re-decided by the District Judge in the second round of litigation. The silence of the appellants was probably due to the reason that there was no delay in the payment of additional court-fee. I am, therefore, of the view that the papers bearing additional court-fee stamps of Rs.337 were filed by the respondents with the learned trial Court before 30th April, 1975. Even if they had not done so, this would make little difference because the respondents had secured substantial compliance with the order of the learned trial Court by purchasing the necessary stamps on 16th April, 1975, that is, before 30th April, 1975, as is apparent from the writing of the Stamp Vendor. 'latter relating to court-fee is primarily between the subject and the state. Since the amount by which the court-fee was deficient had gone "'to the State Exchequer before the stipulated date the filing of the papers bearing the stamps, after the date, to my mind, is immaterial. I, therefore, hold that the deficiency in court-fee was made good in time.

8. This brings me to the payment of court-fee for the first appeal, preferred by the respondents. It is not disputed that the court-fee paid on the said appeal was of Rs.337. Since the amount of deficiency in court-fee as deposited with the learned trial Court was Rs.337 it appears that while filing the first appeal they took the said amount as the amount of court-fee payable on the appeal. The plea of learned counsel for the respondents that it was a bona fide mistake on the part of the respondents is supported by the fact that even for second appeal preferred by the appellants in the first round of litigation they had paid court-fee of Rs.337. Also, no objection was raised by the appellants regarding the payment of court-fee for the first appeal before the first appellate Court. It was also not raised before me in the first round of litigation. I am, therefore, not inclined to non-suit the respondents for the deficiency in the court-fee paid by them for the first appeal especially when their shortcoming appears to be due to bona fide mistake and was not taken exception to by the appellants on more than one occasions which had become available to them for so doing. I would, however, like to direct the appellants to make up the deficiency in court-fee for their first appeal. Necessary direction in this behalf will be given towards the end of this judgment.

9. Another point raised by learned counsel for the appellants was that the learned District Judge had wrongly decided the question of tenancy against the appellants. His contention was that the correction made in the Khasra Girdawari so as to show Mst. Aimna Bibi appellant also as a tenant of the disputed land was quite in order and that in any case it could hardly be disputed that Muhammad Iqbal appellant was a tenant of the said land because his name had figured as such in the Khasra Girdawari before the correction in question was made therein. It was maintained by him that since it was established that Muhammad Iqbal was a tenant of the land, the suit of the respondents was for partial pre-emption.

10. The respondents' suit is for whole of the land purchased by the appellants. To put it differently, the respondents have not left out any part of the land involved in the sale pre-empted by them. According to them, their right of pre-emption extends to the whole of the disputed land. It is, therefore, not possible to hold that their suit suffered from the defect of partial pre-emption. On the other hand, if it is held that Muhammad Iqbal appellant was tenant but not the other appellant, namely, Mst. Amina Bibi, the former would also sink down to the position of the latter and the respondents, who are, admittedly, collaterals of the vendor would have superior right of pre-emption. The appellants did not claim to possess any of the qualifications enumerated in section 15 of the Punjab Pre-emption Act, 1913. Thus, if they are not tenants of the disputed land, their position is no better than that of strangers. In view of all this, there is no force in the plea of partial pre-emption raised by learned counsel for the appellants. It is, accordingly, not accepted.

11. Learned District Judge thoroughly discussed the parties' evidence on the question of tenancy before recording a finding that none of the appellants was cultivating the disputed land as a tenant at the time of its sale in their favour. I generally agree with his reasoning as spelt out in paragraphs 8 to 16 of his judgment under appeal. These para graphs are not reproduced for fear of prolixity. given If it is held, on the basis of unamended Khasra Girdawari (copy Exh.P.6) that Muhammad Iqbal appellant was the tenant of the disputed land at the time of its sale it will be of no use to him or the other appellant. The other appellant is not claiming any of the qualifications given In section 15 of the Punjab Pre-emption Act and will, therefore, be treated as a stranger. The case of Muhammad Iqbal appellant would, therefore, be hit by doctrine of sinker and his position would also be reduced to that of a stranger. The respondents are, undoubtedly, collaterals of the vendor. They would, therefore, be having right of pre-emption against both the appellants. In this view of the matter, no exception can be taken to the finding of the learned District Judge on the issue of right of pre-emption.

12. One more submission made by learned counsel for the appellants was that after the remand of the appeal by this Court, learned District Judge had framed two additional issues although there was no direction by this Court in this behalf. In this connection, he invited my attention to paragraph 7 of the judgment under challenge which is to the following effect:-- "

7. After remand, the evidence was recorded. During the course of arguments, the following two points were raised: (i) Whether the vendees were tenants of the suit land at the time of sale and as such they have first right of pre- emption? (ii) Whether proper court-fees was not paid by the pre emptors?" As is evident from the said paragraph, the two points mentioned therein were raised before him during the course of arguments and these are not the additional issues framed by him. The said two points were covered by the following issues drawn up by the learned District Judge:-- "

1. Whether the plaintiffs have superior pre-emption right?

4. What is the correct valuation of the suit? It was in view of the plea of tenancy raised by the appellants; in their written statement, that issue in respect of the right of pre-emption was struck by learned Civil Judge. It is, therefore, abundantly clear that the plea of learned counsel for the appellants regarding the framing of additional issues by the learned District Judge is misconceived. It is, accordingly, repelled.

13. What emerges from the above discussion is that the judgment and decree of the learned District Judge are unexceptionable. The second appeal is, therefore, dismissed subject to the condition that the appellants shall make good the deficiency in court-fee for their first appeal by 22nd December, 1984. In other words, they shall pay an additional court-fee of Rs.90 by the above date. If they fail to do so, this appeal shall stand accepted, the judgment and decree of the learned District Judge, under challenge, shall stand set aside and the judgment and decree passed by the learned trial Court shall stand restored. In either event, the parties shall bear their own costs. M. A. K. Appeal dismissed.