P L D 1977 Lahore 1422 (PLP)

2. On 27th of March, 1964, per registered sale‑deed one Musa sold the suit land (measuring 58 kanals 19 marlas situated in village Tapiala Dost Muhammad, Tehsil Ferozewala, District Sheikhupnra (described in the plaint) in favour of the appellants for a sum of Re. 16,500, out of which Re. 800 were reserved to be paid to the mortgagee (third party), and Re. 8,500 were paid by the vendees to the vendor before the Sub‑Registrar.

3. This sale was challenged by the respondents‑pre‑emptors by filing a suit on 16th of February, 1965, for possession through pre‑emption on the ground that the plaintiff‑respondents were nearer in degree and were co‑sharers in the Khewat and, as such, bad superior right of pre‑emption. Both the Courts below have considered the superior right of the plaintiff- respondents. There is no dispute on this point.

4. On the pleadings of the parties, the trial Court framed 15 substantive issues, of which Issues Nos. 1, 2, 3 and 4 were decided in favour of the appellants. As such, the suit of the respondents‑plaintiffs was dismissed on 21st of May, 1966. The aforesaid four issues are as follows :‑ (1) Whether the valuation of the suit for purposes of court‑fees and jurisdiction is incorrect, if so, what should be the valuation ? (2) Whether the plaint was male fide, insufficiently stamped and what Is its effect ? (3) Whether the deficiency in court‑fees has been made after the time allowed by the Court and what is its effect ? (4) Whether the suit bas become time‑barred for making up of deficiency in court‑fees at a later stage ?

5. At the time of the filing of the suit viz., on 16th February, 1965, the plaintiffs had paid only a notional court‑fee on the value of the suit which was fixed at Rs.

300. On the 17th of February, 1965, the Court ordered the plaintiffs to file the statement of net profits and to make good the deficiency in court‑fees before the 12th of May, 1965. Before the above mentioned date 1 viz., on 6th of April, 1965, the plaintiffs fled a statement of net profits which is Exh. P. 8, and a court‑fee was paid on valuation of Rs. 1,272.90. The Court found that the statement of net profits was not sufficient I the court‑fees was not with respect to the entire land, therefore, the Court ordered that correct statement regarding net profits may be filed before 16th of June, 1965, and required that the court‑fees be affixed before the above date. The plaintiffs deposited the required amount for the purposes of court‑fees on 14th of June, 1965, and they obtained the court- fees paper on the 15th of June, 1965, but the stamp papers were affixed on the plaint on 19th of June, 1965, viz., four days after the time given by the Court for the purposes of mating good the deficiency of the court‑fees. On the basis of the above facts, the trial Court hold that the plaintiffs had deliberately and male fide did not originally file the complete court‑fees ; and their subsequent conduct was such that they did not bother to apply for condonation of delay and though all other substantive issues were decided in favour of the plaintiffs 1 however, as a result of the decision of the trial Court on Issues 1 to 4, the suit of the plaintiffs was dismissed with costs.

6. The plaintiffs filed an appeal before the learned District Judge which was beard and accepted by the learned Additional District Judge, Sheikhupura, on lot of October, 1966. The first appellate Court arrived at the conclusion that the plaintiffs had got the statement of net profits prepared each time within time allowed by the trial Court, but on the second occasion, he had purchased deficient court‑fee stamp paper in time, but failed to attach the same within the period allowed by the Court ; but this had not boon noticed until the entire evidence of both the parties had been recorded and the case finally decided, and under the circumstances it could not be said that the plaintiffs were negligent in their conduct in paying the court‑fees after the time allowed by the Court. In the opinion of the learned Additional District Judge it appeared to be a slip and not an intentional disregard of the order of the trial Court. Further, the first appellate Court found that the order of the trial Court directing the respondents to make good the deficiency in court‑fees before the 16th of June; 1965, did not actually fix the value of the suit at which the appellant had to pay court -fees. Reliance was placed on section 9 of the Court Fees Act to show that under these circumstances, a Commission may be appointed to investigate the necessary court‑fees and to report thereof. The significance of section 10 of the said Act was also considered, and in the general censure it was opined by the Court that it is only after the fixation of the deficient court‑fees that question of non‑compliance could arise. The Court Fees Act required the Court to fix a provisional value on which the plaintiff has to pay deficient court‑fees and if the Court does not do so, the plaintiff cannot be said to have failed to comply with the order. P L D 1954 Lab. 228 was referred. Further, the Court held that the reliance on P L D 1966 B J I was in error, since in that case the plaintiff had not paid the court‑fees despite the repeated adjournment and did not take any steps towards the same. The facts of this case are quite different from those of the above ruling. The learned Additional District Judge further held that the plaintiffs bad got the statement of net profits prepared within time given by the Court and also paid the court‑fees for the first time within the time, and for the second time, also purchased the stamp papers within time allowed by the Court. Therefore. the conduct of the plaintiffs showed that they were not negligent and the actual payment of the court‑fees four days after was just a slip and not negligence. Just because in the beginning the plaintiffs had given court‑fees only on the notional value of the suit, does not mean that they did so male fide. On the contrary it was a normal practice in pre‑emption cases. Nor the plaintiffs were held responsible for the incorrect valuation of the suit in the first instance. Even if it was incorrect it could not be assumed that the plaintiffs had done so male fide. Since it was the duty of the Court to get the correct valuation worked out under section 9 of the Court Fees Act, the plaintiffs could not be held responsible for the incorrect evaluation given in the statement of net profits. On the above consideration, the finding of the Trial Judge that the plaintiffs had male fide insufficiently stamped the plaint, was set aside. On the other hand, it appeared to the learned Additional District Judge to be an honest mistake of calculation and not purposely done to avoid payment of proper court‑fees. Regarding the non‑payment of court‑fees on kotha and haveli, the first appellate Court held that this was brought about only in the cross‑examination of the plaintiffs and that definition of `land' under section 3(1) of the Pre‑emption Act means `land' as defined in the Punjab Alienation of Lands Act, and the definition of 'land' would include such kothas or haveli since they were used for purposes subservient to agriculture, and no separate valuation thereof was required and the land had only to be valued under section 7(v) (c) of the Court Fees Act, and the kothas and haven are not to be assessed as building. The suit of the plaintiffs was decreed.

7. Learned counsel for the appellants has contended that power of Courts to extend time is given in section 149, C. P. C. and in Order VII, rule 11 regarding making of deficiency and contends that since the deficiency was not made good in time allowed by the trial Court, there could be no such condonation, especially, in the case of suit based on pre‑emption. He has placed reliance on Rahim Bakhsh v. Muhammad Bakhsh P L D 1976 Lah. 686 wherein it is held that if a party has negligently and contumaciously not made up the court‑fees in disregard of the order of the Court, it cannot be allowed, after several months, to make, up the deficiency in the court‑fees. He also relied on Maulvi Ahmad Yar v. Mst. Hajran P L D 1966 B J 1 in which twelve adjournments had been given to the plaintiff to make up the deficiency in court‑fee but she did not comply with the order. The learned counsel also placed reliance on section 25(2) of the Pre‑emption Act. None of the above rulings are applicable in the present case. Nor the language of section 25(2) of the Pro‑emption Act is attracted to the facts of the present case. Unmistakably under section 149, C. P. C., the Court has the power (within its discretion at any stage) to allow a person to make up the deficiency of the court‑fees and if the appellate Court has exercised discretion and nothing has been shown to this Court that the discretion has been exercised in flagrant disregard of law. this Court will not interfere in the exercise of that discretion. On consideration of facts, the learned Judge arrived at the conclusion that the plaintiffs had neither negligently nor male fide not complied with the orders of the Court. These findings are given after considering all the factual circumstances of the case. The language of Order VII, role 11(c), C. P. C. shows that the plaint be rejected in the circumstances when the insufficiency of the court‑fees has not been made up by the plaintiff within the time allowed by the Court. Therefore, this rule may not have application to the case of the plaintiffs. Since this is not a case of rejection of plaint, but dismissal of the suit after considering it totally on all its merits and finally. This is applicable only at interlocutory stage which was not done in the present case. Therefore, there is a presumption that any lapse on the part of the plaintiffs in the fulfilment of the order of the Court regarding the making up of the deficiency in court‑fee was condoned. In P L D 1976 Lab. 686, referred to above, the deficiency in the court‑fees was made good several months afterwards. In the present case it is only four days afterwards and since in the present case no final order had been passed by the Court actually fixing the amount of court‑fee was discussed by the learned Additional District Judge) it could not be definitely said that the appellants were negligent and contumacious. In Karim Bakhsh v. Qadir Bakhsh P L D 1954 Lah. 228 it was held that unless the plaintiff had acted male fide and it had been proved as such, discretion in extending the time is exercised properly. In such cases, no question of limitation arises, As mentioned earlier, neither the learned Additional District Judge nor I find any male fide intent on the part of the plaintiffs‑respondents. In Gul Khan v. Saeed Hasan Shah P L D 1968 Pesh. 148 it was held that even at the stage of second appeal, the deficiency in the court‑fees can be allowed to be made good. In Shah Nawaz and others v. Muhammad Yusaf and others 1972 S C M R 179, it was held that the Court in its discretion may allow the plaintiff to make up deficiency in court‑fees unless the plaintiff is guilty of contumacy and positive male fide and it was held that in a pre‑emption suit which was not accompanied by proper court‑fees, the allowance of the Court to comply with the deficiency in court‑fee was unexceptionable. In National Bank of Pakistan v. Malka Pukhraj P L D 1975 Lah. 1237 it was held that in the absence of deliberate and contumacious non‑compliance with the order, the delay In the deposit of the court‑fees should be condoned. Sis Ram v. Sohan Lal and others A I R 1938 Lah. 311 holds that in a pre‑emption suit the Court must call upon the plaintiff to pay proper court‑fees before the trial and it was improper for the Court to decide question of court‑fees at the end of the suit, and that the appellate Court in such circumstances should always exercise their discretion in favour of extending time‑which in fact was done in this case.

8. For the reasons discussed above, I find no error in the judgment of the first appellate Court. This appeal is dismissed with costs. S. A. H. Appeal dismissed.