I have heard the learned counsel at length. The appellant filed a suit for pre-emption on 19-9-1974 to pre-empt a sale dated 20-9-1973. While issuing summonses to the defendant-respondents for 5-11-1974 the learned Court directed the plaintiff to get prepared naqsha jhar pedawar' and file the same in the Court on the next date. The same was duly prepared and filed in the Court after which the Court directed the plaintiff to make up the deficiency in the court-fee by , 8-12-1974. The appellant however failed to do the needful. On 24-11-1975 the learned trial Court rejected his plaint under Order VII, rule 11, C. P. C.
2. The appellant filed an appeal which was dismissed by the learned Additional District Judge, Gujrat on 23-10-1978. It was contended before the learned Additional District Judge that the Presiding Officer was not present in the Court on 5-11-1974 and the order of the said date was written by the Reader and got signed by another Civil Judge who was looking after the Court work of the Senior Civil Judge and as such the order to make up the deficiency could not be considered to be a proper order. This argument did not find favour with the learned Additional District Judge.
3. It is contended now that the order of the learned trial Court dated 5-11-1974 was an incomplete order in so far as the Court did not determine the value for purpose of court-fee. In support of this proposition reliance has been placed upon Muhammad and others v. Mubarik All and another (PLD 1977 Lah. 1422) in which reliance was placed upon an observation made in Karim Bakhsh v. Qadir Bakhsh (PLD 1954 Lah. 228) for the proposition that before the Court orders the deficiency to be made up it is incumbent upon the Court to determine the actual deficiency. The learned counsel also referred to Shah Nawaz and 6 others v. Muhammad Yousaf and 3 others (1972 SCMR .179).
4. In the case of Karim Bakhsh the plaintiff was directed to put in `Fard Khalis Munafa'. On 22-10-1951 adjournment was given to the plaintiff to file `Fard Khalis Munafa' by the 27th October, 1951. On the last mentioned date it was directed that the plaintiff should not only get the `Fard' prepared but also should pay the court-fee by the 16-11-1951. On that date the Sadr Qanungo reported his inability to prepare the document. The `Fard' was filed on the 13th December and the plaintiff was directed to pay the court-fee by the 5th January, 1952, on which date the Presiding Officer was on leave and the Reader fixed the case for the 19th January, 1952. The plaintiff had deposited the money required for purchase of court-fee stamps on the 5th January 1952 in the treasury and had actually received the same on the 8th January, 1952 but he filed them in Court on the 19th January 1952. On these facts the trial Court acted under Order VII, rule 11. On appeal the learned District Judge however held that the plaintiff was not negligent and the discretion to extend time should have been exercised in his favour. In a further appeal before the High Court this order was held to be justified on the ground that the case was made out for the exercise of discretion under section 149.
5. In the above case the learned Civil Judge had relied upon Saeed Ahmad v. Karam Singh (PLD 1949 Lah. 380). In that case the Court had enlarged time under section 149, C. P. C. But a Division Bench of the High Court held that where the plaintiff had plainly been negligent and had completely failed to provide any excuse for his default the discretion had not been properly eexercised. After holding in the case of Karim Bakhsh that the discretion under section 149 was rightly exercised the learned Judge dealt with the case of Saeed Ahmad and came to the conclusion that it was a different kind of case. In that connection he observed that it was not a proper order to the plaintiff that he should file the `Fard' and at the same time pay the court-fee according to `Fard'. It was necessary before ordering the plaintiff to correct the valuation to give a finding about it.
6. Relying upon these observations the learned Single Judge in case of Mohammad and 2 others v.
Mubarik All and another made the same observations.
6-A. The Supreme Court case is however of no help. In that case the suit was valued at a sum of Rs.
287.80 for purpose of court-fee. Subsequently the respondent filed an application for amendment of the plaint and for paying the deficiency in court-fee. The trial Court allowed that petition and held that the plaintiff-respondents had failed to pay the proper court-fee on account of a bona fide mistake. Their Lordships of the Supreme Court upheld this view and observed that "under Order VII, rule 11 of the Code of Civil Procedure the plaint can only be rejected in a case where the relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so." The question whether it is necessary for the Court to ascertain the value for court-fee did not arise in this case.
7. In Maulvi Ahmad Yar v. Mst. Hairan (1 PLD 1966 BJ 1) a suit for pre-emption was filed three days before the expiry of the period of limitation on a court-fee of Rs. 20 only. The plaintiff moved an application under section 149, C. P. C. Seeking the extension of time to make up the deficiency in the court-fee as he could not secure the requisite copies of the revenue papers to prepare the chart of the net profits. Since the court-fee amount had to be levied on an amount equal to fifteen times of the net profits of the produce of the land for the year preceding the sale, the Court granted time to the plaintiff to make up the deficiency in the court-fee. The plaintiff however failed to comply with the order. Again time was granted to him. He defaulted again and moved another application. This application was also accepted and he was given four days time. The case was directed to come up for hearing on the 18th October 1956, on which date the court-fee was paid.
On these facts a Division Bench of the High Court of West Pakistan held that extension of time under section 149, Civil Procedure Code for making up deficiency in court-fee may be granted to a plaintiff for a good cause shown but it is not to be done as a matter of course to cover negligent conduct and wilful default. In particular in cases brought for the exercise of preemption rights which have been judicailly recognised as infringing on the freedom of contract and security of title by way of a predatory inroad, the provisions of section 149, Civil Procedure Code have to be very strictly construed.
8. In the above case in which also there was no `Fard Jhar Pedawar' before the Court and the payment of the court-fee was made dependant on the procurement of such a document the Court had directed the plaintiff to make good the deficiency in the court-fee. Obviously no ascertainment was made by the Court. The Division Ben-.h of the High Court justified this order and apparently did not consider it necessary that the trial Court should first have ascertained the amount of court-fee payable. It was held that the provisions of section 149, C. P. C. Were the only provisions under which an order allowing extension for deposit of deficit court-fee could be passed.
9. In the case of Karim Bakhsh it appears that B. Z. Kaikaus, J. Had justified the order of the learned District Judge. In these circumstances the further observation made by him in regard to the principle of Order VII, rule 11 that it was necessary for the Court to make a determination of the court-fee payable was a mere obiter dictum. With respect to the learned Judge who decided the case in 1977 Muhammad v. Mubarik Alt it may be said that this point was not at all considered. In view of the Division Bench authority no reliance can be placed upon this Single Bench case.
10. Moreover in my view Order VII, rule 11 cannot be construed in the manner in which it has been construed in the authorities relied upon by the learned counsel for the appellant. Clause (b) of rule 11 says that the plaint shall be rejected where the relief claimed is undervalued and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so. It does not make a reference to the question of ascertainment or determination of the court- fee. In the circumstances it cannot be laid down as a general proposition of law that the Court must determine the amount of valuation for the purpose of court-fee and also the amount of court-fee payable. It depends upon the facts of each case whether such a prior determination would be necessary or not ? It is possible that where the court-fee is payable on the market value of the property and that value may not .Be ascertainable from any document on record, the Court may be bound to first determine the jurisdictional value on the basis of the evidence to be recorded by it and to ascertain the correct amount of the court-fee payable. In such a case if the matter is left to the discretion of the plaintiff, the defendant can certainly raise an objection that the valuation fixed by the plaintiff is arbitrary and should not be acted upon. In such a case determination may become necessary. But in a case where a person has to multiply by 15 the amount of net profits determined on a 'Fard Khalis Munafa', determination is altogether futile. It is duty of the plaintiff to deposit correct court-fee on that basis unless a question be whether the court-fee is at all determinable on 15 times the amount of net profits. But once it is conceded that it is so determinable and the only question is of the procurement of the 'Fard Khalis Munafa', the insistence of the plaintiff that the Court should first determine the amount of court-fee by the exercise of multiplication would be absurd. In such a case where it is the duty of the plaintiff to determine the court-fee valuation on the basis of a Tard Khalrs Munafa' and he fails to do so, the Court's order for filing that document and also for paying the proper court-fee on its basis would be unexceptionable. I, therefore, do not subscribe to the view held in the two other authorities relied upon by the learned counsel since in the present case it is a matter where the amount shown in the 'Fard Khalis Munafa' had merely to be multiplied by 15 and the court-fee to be paid on that amount.
10. On facts also it appears that this point has been taken at this stage only to justify the contumacy of the plaintiff in failing to make good the deficit court-fee for a pretty long time although the 'Naqsha Jhar Pedawar' had already been filed by him on 5-11-1974. He did not make up the deficiency for full one year without any justification. The order of the learned trial Court passed on 5-11-1974 directing him to make up the deficiency in the court-fee on the basis of this document by the 18th December 1974, was clearly an order under Order VII, rule 11 and the failure of the plaintiff to comply with it was sufficient to penalise him.
11. There is no merit in this appeal and is dismissed in limine.