1980 PLP 1196 (CLC)

Ch. Bashir Hussain Khalid for Petitioners. Nemo for Respondents Nos. 1 and

2. Ch. Ghulam Rasool Waraich for Respondent No.

3. The petitioners are vendees of a piece of land measuring 131 kauals purchased by them on 21st January 1975 from one Ashraf. On 10th January 1976, the respondent No. 3 filed a suit before the Civil Courts at Sargodha for pre-empting the sale of the land. The plaint was stamped with court-fee of the value of Rs. 1,385 only, and accordingly by order dated 15th January 1976, the trial Court allowed the plaintiff upto 3rd February 1976 to make up the deficiency in court-fee. It may be noted that the exact amount of additional court-fee payable was not mentioned in the order and further that the extension of time was allowed within the period of limitation, though the last date for making up the deficiency i.e. 3rd February 1976 was beyond the period of limitation. It appear that on 22nd January 1976 the plaintiff affixed additional court-fee of the value of Rs.

750. In this manner total court-fee came to Rs. 2,

195. It was in these circumstances that the trial Court by it order of 3rd February 1976 noted that the deficiency in the court-fee ha: been made good and directed that notices be issued to the defendants 1n the meantime, on account of alteration in the law, the jurisdiction to try pre-emption suits instituted at the behest of tenants was transferred to the Revenue Courts and accordingly this suit which had been filed b3 Respondent No. 3 who claimed to be a tenant was transferred to the Court of Collector, Sargodha, respondent No. 9.

2. On 1st June 1976, an application was submitted by the petitioners; defendants in the Court of Collector under Order VII, rule II praying for the rejection of the plaint on the ground that it had not been properly valued and the proper court-fee had not been affixed. Notice was directed to issue to the plaintiff/respondent No.3 and by its order of 26th August 1978 the Court after hearing arguments determined the value of the suit for the purposes of` Court fee arid jurisdiction and came to the conclusion that an amount of Rs. 8,250 was payable as court-fee. It was noted in the order that the plaintiff' had or, two earlier occasions affixed a total amount of Rs. 2,135 as court-fee and directed that the deficiency of Rs. 6,115 be made good before 13th September 1978, failing which the suit would be dismissed. The deficiency was made good as directed by the trial Court and within the time allowed by it. 3- Feeling aggrieved by the order dated 26th August 1978 the petitioners filed a revision petition before the Board of Revenue, Punjab, Respondent No. 1 which was heard arid rejected by order dated 28th November 1978. According to Respondent No. 1 there was no justification to interfere with impugned order. Both those orders are impugned in this petition.

4. Learned counsel for the petitioners has assailed the impugned orders on the ground that they are not speaking orders and that though the jurisdiction to allow time for making good the deficiency in court-fee is discretionary in nature, yet it has to be exercised with the greatest care and caution particularly in pre-eruption cases, as allowance of time defeats the defence of limitation which accrues to the vendees in the event of court fee not having been affixed within the period of limitation allowed by law, and has for this purpose relied on Wilayat Khatoon v. Khalil Khan (P L D 1979 S C 821) Bashir Ahmad v. Mukhtar Hussain (1980CLC 11), Muhammad Nawaz Khan v. Muhammad Zaman Khan (P L D 1980 Lah. 155), Rahim Bakhsh v. Bakhsh (P L D 1976 Lah. 686) in support of his contention that extension of time ought not to have been granted to plaintiff. In reply learned counsel for Respondent No. 3 has urged that this Court in the exercise of its extraordinary constitutional jurisdiction is not to determine the issues as if it were hearing the matter in the exercise of its appellate jurisdiction and that on the record the orders are sustainable.

5. The leading case on the issue is that of Wilayat Khatun in which the plaint filed two days before the expiry of limitation was affixed with of Rs. 2 only. The plaintiff was allowed time by the trial Court to make up the deficiency but he did not do so within the time allowed. It appears that much after the expiry of the time allowed, the deficiency was made up without obtaining the order of the Court under section 149 of the Code of Civil Procedure. In these circumstances the suit was dismissed and the plaintiff's first and second appeals were rejected. The Supreme Court similarly dismissed the plaintiff's petition for special leave to appeal. A reading of the two judgments of Mr. Justice Muhammad Akram and Mr. Justice Karam Elahi Chauhan, shows that on the factual plane the Court came to the conclusion that the plaintiff deliberately affixed inadequate court-fee of Rs. 2 only on the plaint at the time of instituting of the suit, that be did not make good the deficiency in court-fee within the extended time allowed by the Court under Larder VII, rule 11, that he deposited the deficiency much after the time allowed by the Court, that he did not show any reason for the delay in doing so but in fact surreptitiously made good the deficiency without getting any further extension from the trial Court and without making any application under section 149 of the ('ode of Civil Procedure.

6. As is apparent from the report, Mr. Justice Muhammad Akram dismissed the petition on facts, declaring that the trial Court was in the circumstances, justified in rejecting the plaint. Mr. Justice Karam Elahi Chauhan in addition, to noting the facts afore-referred, examined the relevant provisions of law and cautioned that the Court should strike a balance between discretion vesting in it to extend time under section 149 of the Code of Civil Procedure and the taking away of the valuable defence of limitation vesting in the vendee in the event of deficiency in court-fee not being made good within the period of limitation allowed by law. It was accordingly declared that when the plaintiff is thoroughly negligent, contumacious or careless he should not be allowed indulgence and that where the full court-fee prescribed is not affixed within the period of limitation allowed by law, the Court should not allow extension in routine or mechanically as it was the right of the defendant to take exception.

6. The issue had earlier also beers exhaustively examined in the cases of Muhammad Naeem Khan and Rahim Bakhsh afore-referred, wherein it had been hell that in pre-emption suits a negligent, contumacious or obstinate pre-emptor be shown no indulgence under section 149 of the Code, and that for the purposes of allowing time the Court should con sciously apply its mind.

7. An examination of the judgments cited shows that whilst the Courts are required to be cognizant of the right accruing to a vendee on account of the failure of the pre-emptor to affix the prescribed court-fee in time, vet the discretionary jurisdiction of the Court under sections 148' and 149 of the C. P. C. read with Order VII, rule 11 thereof, to allow time to a plaintiff to make good the deficiency remains unaffected and must be exercised as discretion ought to be exercised, i.e. after properly appreciating the facts and in accordance with the principles of law regulating the exercise of such discretion-See S. S. Miranda Ltd. v. Chief Commissioner, Karachi (P L D 1959 S C (Pals,) 134). Wilaynt Khatun's case does not make it incum bent upon a Court to reject a plaint or to dismiss the suit in the event of the plaint being deficiently stamped. This is to be done only after the Court is satisfied that the plaintiff has exhibited an which may be described as contumacious, obstinate, negligent, mala fide, not bona fide or careless, and for this purpose the Court must not only examine 'the factual aspects but should also give reasons for tyre exercise of its discretion either way. An order a plaint or dismissing a suit for failure to make up deficiency in court-fee or allowing time to make up the court-fee ought not to be summarily made, for such art order regardless of whether indulgence is drown or not necessarily effects valuable property rights.

8. Applying the above principles to the facts of the present case, which is a writ petition, it will be rioted drat on 15th January 1976 the trial Court load allowed time to the plaintiff to make up deficiency in court, fee up to 3rd February 1976, which was done on 22nd January 1976, After additional court-fee had been affixed on the plaint the trial Court on 3rd February 1979 made an order to the effect that the deficiency in the court-fee had been made good. This order was made ex pane and before notice was issued to the petitioners/ vendees. It was only after exception was taken tea the court-fee affixed on the plaint in the manner laid down in Wllayat Khatun s case, that the trial Court determined the value of the suit for purposes of jurisdiction and court-fee and allowed the plaintiff upto 13th September 1978 to make good the deficiency which was done within the time allowed. It is true that the order dated 26th August 1978 of the trial Court allowing time to the plaintiff to make good the deficiency does not contain any reasons for allowing time under section 149 of the Code of Civil Procedure to the plaintiff. It is not a speaking order. Reference Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (PLD1964SC829), M. Ejahar Ali v. Government of East Pakistan (PLD1970SC173.). Abdul Qadir v. Presiding Officer (P L D 1975 Lah. 44) and Dr. Muhammad Ismail v. Deputy Commissioner (P L D 1976 Lah. 758), Orders either allowing or disallowing extension of time must be speaking orders as they affect valuable rights of the parties. However, ire the exercise of its extraordinary constitutional jurisdiction under Article 199 of the Constitution of Pakistan this Court does not exercise appellate powers. In exercise of its writ jurisdiction; High Court confines itself to determining whether the. Tribunal concerned way possessed of the jurisdiction to go into the issues before it and whether, in doing so it transgressed the limits of its lawful authority. It is also well-established that in the exercise of its constitutional jurisdiction High Court will not interfere with the decision of subordinate forum merely because in its opinion the A decision is wrong, for where there is jurisdiction to decide a particular matter, then the mere fact that the decision may be wrong does not render the decision without jurisdiction. Where a subordinate foe um is possessed of jurisdiction and there is material on the record sufficient to sustain the impugned order High Court will not interfere. A reference in this context can be made to the cases of Nayab Syed Raunaq Ali v. Chief Settlement Commissioner (P L D 1973 S C 236). Muhammad Hussain Munir v. Sikandar (P L D 1974 S C 139). Badarul Haq Khan v. Election Tribunal. Dacca (P L D 1963 S C 704). Muhammad Asghar v. Safia Begum (P L D 1976 S C 435), Begum Wazir Ahmad v. Niaz Begum (P L D 1976 S C 214) and to the judgment in the case of Sadiq Hussain Qureshi v. Federation of Pakistan (P L D 1979 Lah. 1).

9. Examining this case in the above light, it will be noted that on 3rd February 1976 there is an order of the Court to the effect that the deficiency in court-fee has been made good. But for this order, I would have had little hesitation in agreeing with the contentions of learned counsel for the petitioner. However, a party cannot be penalized for mistaken order of a Court. "Actus curiae nemonim gravabit" Ref ; Abdul Ghani v. Ghulam Sarwar (P L D 1977 S C 102), Jai Berham v. Kedarnath Marwari (AIR 1922 P C 269), Iqbal Ahmad Malik v. Surraya Anwar Sheikh (P L D 1977 Lah. 409), Shadi Khan v. Khan Saeedud Din Khan (P L D 1972 Lah. 262), Sh. Mehraj Din v. Ghulam Muhammad (P L D 1965 Lah. 374), Central Exchange Bank v. Dilawar Ali Khan (P L D 1965 Lah. 628), Painda Khan v. Tiwana (P L D 1962 Lah. 92). There is a specific order of the trial Court to the effect that the deficiency has been made good. Later on, exception being taken by the petitioners that the deficiency had not been made good, the Court proceeded to calculate the value of the suit for the purposes of the court-fee and jurisdiction and allowed time. In the circumstances of the case, the indulgence shown by the Court could be sustained on account of the earlier order of Court dated 3rd February 1976 afore-referred. But for this order, in the circumstances of this case, there would have been no justifica tion for the extension of time for making good the deficiency.

10. The impugned order of 26th August 1978 being sustainable on the record, this petition is dismissed. However, in the circumstances of the case, the parties are left to bear their own costs. Petition dismissed.