P L D 1954 Lahore 228 (PLP)

KAIKAUS, J,‑This is an appeal against an order of remand arising out of a suit for pre‑emption. Mst. Ghulam Fatima sold 35 kanals 8 marlas of land in village Paonta, District Multan, to Karim Bakhsh appellant on the 8th of September 1950 by a registered deed. Qadir Bakhsh respondent filed the present suit on the 31st August 1951. There were a number of issues framed one of which related to limitation The plea of limitation was based not on the ground that the plaint had been filed beyond time but on the ground that the plaint as originally filed was not properly stamped and that the court‑fee bad been made up only on a date when limitation had expired. The trial Court found all issues in favour of the plaintiff but, on the issue of limitation, held that the suit was time barred. On appeal, the learned District judge differed with the learned Senior Civil judge who had decided the suit on the question of limitation. The respondent did not urge any other point before him and as a result he accepted the appeal and remanded the suit with the direction that the market value of that portion of the property for which the plaintiff had a superior right to pre‑emption be determined and the suit decided afresh. This appeal has been preferred by the vendee defendant. Before me too learned counsel for the defendant has pressed only the point on which the trial Court has decided in his favour. The facts relating to that objection are as follows. The plaint was presented on the 31st of August 1951. After partal it was put up before the learned Judge on the 1st of October 1951, and on that date the plaintiff was ordered to put in fard khalis munafa which document it was remarked was not with the file. It may be explained here that the land in dispute is subject to a fluctuating assessment and, therefore, Court‑fee was to be paid on 15 times the net profits of the preceding year. On the 18th of October, nobody was present but that day had been declared a holiday and there is a note on the file that the case should come up on the 22nd of October 1951. The order of the 22nd October stated that the plaintiff had not brought lard khalis munafa and that he was directed to do so on the 27th October. On the 27th October there is again a note that the plaintiff should get a fard prepared and should also pay Court‑fee by the 16th November 1951. On the last‑mentioned date the Sadar Qanungo, who was to prepare the fard, reported that he had been unable to prepare it and asked for further time. The learned Judge was also absent on that date and the reader made a note that the case should come up on the 13th December 1951. On the 13th December the fard was filed and the plaintiff was directed to pay Court‑fee by the 5th January 1952. On the 5th January the presiding officer of the Court was on leave and the reader fixed the case for the 19th January 1952. The order on the last‑mentioned date stated that the Court‑fee had been made up. It may be added here that on the 5th January 1952, the plaintiff had in fact deposited the money required for purchase of Court‑fee stamps in the treasury, but had actually received the Court‑fee stamps on the 8th of January and be filed the stamps in Court on the 19th of January 1952. The trial Court came to the conclusion that the order to the plaintiff was to make up the deficiency by the 5th January 1952. He neither complied with this order nor put in any application for extension of time and. instead waited for the next date of hearing in order to put in Court‑fee. There was, in the opinion of the learned judge, no sufficient reason for his not making up the deficiency up to the date fixed. The presiding officer was on leave but the Court was open and the plaintiff could very well have put in the Court‑fee. A valuable right had accrued to the defendant on the 5th of January 1952 by non‑payment of Court‑fee and the right of pre‑emption being one which is rather to be discouraged, there should be no extension of time and the suit should be held as time barred. The learned Judge relied, in support of his finding, on Saeed Ahmad v. Karam Singh (P L D 1949 Lah. 380.). On appeal, the learned District judge relied on the fact that the plaintiff had deposited the money on the 5th of January 1952. He referred to the evidence of a clerk from the treasury who bad said that the stamps had been sold to the plaintiff on the 8th of January, and, from that statement, inferred that the treasury had failed to sell the Court‑fee to the plaintiff on the 5th of January. The plaintiff had, according to him, put in Court‑fee on the next date thinking that he had a right to put in the Court‑fee on that date. The learned judge held that there had been no negligence on the part of the plaintiff and that the discretion which vested in the Court to extend time should have been exercised in his favour. It has been strenuously argued before me that the case is one which should be covered by the principle laid down in Saeed Ahmad v. Karam Singh. I do not think, however, that on the rule laid down in that case the plaintiff should not have been granted an extension of time. In that case the plaint, which on the valuation for the purposes of Court‑fee entered in it required a Court‑fee of Rs. 142‑8‑0, bore a Court‑fee stamp of Re. 1 only. The suit had been filed on the last day of limitation. At the top of the plaint it had been stated that copies of extracts from the revenue papers had been received with difficulty on that very day, that the plaintiff bad been unable to arrange for the payment of the Court‑fee, and that he prayed for time to pay the balance of the Court‑fee. The suit had been filed on the 6th December 194.0 and the plaintiff was granted time up to the 10th of December for payment of Court‑fee. This time was extended to 11th December although no particular reason had been shown for an extension. The learned judges who decided that case, did point out that a suit for pre‑emption is one which is not regarded with favour, and that in such a case section 149 should be used with care, but the rule which they laid down was that the plaintiff should not be granted any time for payment of Court‑fee in cases where his conduct was contumacious. They found that the conduct of the plaintiff in that case was contumacious. They regarded the ground put forward by the plaintiff for non‑payment of Court‑fee along with the plaint a flimsy one. It would be observed that in the case before me the Court fee was not insufficient on the valuation as given in the plaint. It was the valuation that was incorrect. But the plaintiff has in such a case to put some notional valuation for the purposes of Court‑fee. He does not know what the net profits of the preceding year are. That has to be determined after recording evidence which will include a fard khalis munafa prepared by the Sadar Qanungo. In the first place, the order passed in this case on the 1st October, that as there was no fard khalis munafa along with the plaint the plaintiff should file the same till the 18th October, does not seem appropriate. The plaintiff could not himself file the lard khalis munafa, there being no such document already existing with the revenue authorities of which he may apply for a copy. He could only apply to the Court for giving a direction to the Sadar Qanungo to prepare an estimate of the income of the land in dispute. This the Sadar Qanungo does after examining the Khasra Girdawaris for the previous year which Girdawaris he will require the plaintiff to produce. On the 18th October, nobody was present and the record does not show why the fard khalis munafa was not filed. That day had been declared a holiday and the plaintiff cannot be blamed for not being present. On the 22nd and the 27th of October, the fard khalis munafa had not been prepared but it is doubtful if there was sufficient time after the 18th for getting it prepared. It is difficult to say on the present record whether the plaintiff was negligent on these dates because in respect of them he has neither made a statement himself nor has been cross‑examined. On these dates the defendant was not present and it may not have been regarded as necessary to record the reason for the fard not having been produced. Although some sufficient reason existed. Neither in the written statement filed by the defendant nor during the evidence has any objection been taken by the defendant to the conduct of he plaintiff with respect to dates before the 5th January 1952. The contest between the parties seems to have been confined to the question whether the plaintiff' had in fact put in Court‑fee in accordance with the order of the 5th January 1952. The judgment of the trial Court does not consider the question with reference to dates before the 5th of January 1952 and the learned District judge also confined himself to the question whether the plaintiff had been negligent in complying with the order of the 5th of January 1952. Coming now to that date it will have to be observed that the order of the 13th of December ran as follows :‑ "Fard munafa aa gaya hae. Ab Court‑fee barai 5th Januray 1952 dakhil howay." I have verified from the record that the word used is not tak, as asserted by the learned Counsel for the appellant, but barai. This would mean that the Court‑fee was to be put in on the 5th of January 1952. On that date it is proved that the money required for purchase of Court‑fee was put in. It is not clear from the record as to whether it was due to the plaintiff's default that Court‑fee was not actually delivered to him on the date or whether the treasury failed to sell it to him. He actually received stamps on the 8th of January 1952, although they were filed in Court on the 19th of January which was the date fixed in the case. Learned counsel for the appellant suggests that on the 5th of January 1952. after depositing the money, the plaintiff failed to receive the stamps though they were available on that day because be thought that the case had been adjourned to the 19th and it would be unnecessary to put in the Court‑fee on that date. He says the plaintiff ought to have received the stamps the same day and should have filed them in Court, for the absence of the presiding officer could not prevent him from filing the stamps. In the first instance, I am not quite prepared to accept the suggestion of learned counsel, for it would be very improbable that the plaintiff deliberately went away on the 5th and returned on the 8th to receive the stamps. But assuming that he acted on the wrong assumption that filing of Court‑fee on the 19th of January 1952 was proper, I do not think we can regard this conduct as contumacious. Contumacy involves obstinate resistance to authority. It is to be remembered that according to the wording of the order of the Court, the Court‑fee was to be put in on the 5th January 1952 and not by the 5th, of January 1952, and there was some ground for his belief that court‑fee was to be put in on another date fixed by Court, although I do not regard this circumstance as material. As was pointed out in Jagat Ram v. Misar Kharaiti Ram (A I R 1938 Lah. 361 (F B).), ordinarily the discretion under section 149 C. P. C. should be used in favour of the plaintiff who acts in good faith and in order to disentitle a party to an exten sion of time there should exist mala fides or cause of a similar, nature. The phrase 'good faith' is here used not in the sense in which it is used in the Limitation Act but in the sense in which it is used in the General Clauses Act. In that sense an act may be done in good faith though it is done negligently. I would hold) that in the present case the acts of the plaintiff were quite bona fide and the discretion of the learned District judge in extending time was properly exercised. While dealing with Saeed Ahmad v. Karam Singh, I said that this was a different kind of case. I would point out here that in the present case the valuation being incorrect and not the Court‑fee stamps put on the plaint, in order that the plaintiff may be ordered to pay further Court‑fee there is first to be a determina tion by the Court that the valuation is incorrect. I do not say that a provisional determination could not be made ex Parte. The plaintiff could have been ordered to produce the ford khalis munafa but before he was ordered to pay additional Court‑fee it was essential that on some basis the Court passed an order fixing the valuation of the suit for the purposes of Court‑fee. It was not a proper order to the plaintiff that be should file lard khalis munafa and, at the same time, pay a Court‑fee according to that fard. The plaintiff may have to contest the correctness of that fard ; that ford might for instance, have recorded half the produce of the land as the proper share of produce and the plaintiff might have said that it was a wrong assumption. It was necessary before ordering the plaintiff to correct the valuation to give a finding about it. This was a case which falls under Order 7, rule 11 (b) and not (c) and it is only after the plaintiff A has been ordered to correct the valuation and he has failed to do so that the plaint can be rejected. Such an order involves determination by the Court provisional or otherwise about the valuation of the suit. There is one other matter to which I have to refer so far as the judgment of the trial Court is concerned. On the 19th January 1952, the order passed was:‑ "Court‑fees Aura ho gaya hae. Daewa dari register ho kar summon banam mudda alaihim barai 12th February, 1952 jari hon. Mubligh 400 care panjam tarikh Peshi se qabl dakhil howay. By this order the Court accepted the Court‑fee put in and this order does amount to an extension of the period for filing the Court‑fee under section 149 C. P. C. No doubt this extension may not have been binding on the defendants who were no party to it and they may have asked that the order be reconsidered but unless the order was set aside the trial Court could not have come to a conclusion that the suit was time‑barred. Once a Court exercises a discretion under section 149 C. P. C. and accepts Court‑fee after the time at which it should have been filed, it cannot itself say that the document in question has not been properly filed. No question of limitation, therefore, could have arisen before the trial Court unless the Court had, on the application of the defendants reviewed its order of the 19th of January 1952. Of course, the appellate Court may have interfered with the discretion exercised by the trial Court. There is one other matter which I have to dispose of relating to the Court‑fee on the present appeal. Although this is an appeal against an order of remand the appellant filed what purports to be a regular second appeal on full Court‑fee, regarding the order of remand as a decree. The office objected that this was really an appeal against an order of remand and should be stamped as such. The order of remand purported to be passed under section 151 C. P. C. No appeal lies against an order which is passed under that section and learned counsel for the appellant considered that he would have no right of appeal unless the order amounted to a decree. He relied upon an authority of another Court for the position he took up. There can be no doubt that so far as this High Court is concerned, the order of remand which is appealed against can be a decree. This Court has added Rule 23A in Order 41, under which fall all remands for fresh trials that are not covered by Rule

23. There is a corresponding provision in Order 43, Rule 1 by which an appeal is provided against an order of remand under Order 41, Rule 23A. Although the present order of remand purports to be under section 151, it is really covered by Order 41, rule 23A. A right of appeal cannot be taken away by referring to an inappropriate provision an appeal lies, therefore, against this order of remand as an appeal against an order. Section 2 of the C. P. C. provides that a decree does not include an order against which an appeal lies as from an order. It is obvious, therefore, that the order of remand cannot be a decree. This appeal is, therefore, to be regarded as a first appeal against order and to be stamped as such. The appellant has put in stamp of Rs. 127/8 and deducting Rs. 4 from it the balance shall be refunded. Learned counsel for the appellant says that the direction given by the learned District judge to the trial Court to determine the proportionate price of the land on which pre‑emption has been decreed is unnecessary because that price has already been determined by the trial Court. I find that this is correct. There was no need, therefore, for the learned District judge to send back the case and he should have disposed of the suit himself. This appeal is, therefore, accepted and this case will go back to the learned District judge who will now proceed to pass further orders in the case on the basis that the proportionate price already stands determined. There will he no order as to costs so far as this appeal is concerned. Other costs will be costs in the cause. A.H. Order accordingly.