JAVID IQBAL, J.-The appellant-vendee Bashir Ahmad son of Wall Mohammad purchased Land measuring 1685 kanals, 9 marlas situated in village Shauq-i-Rabbi, Tehsil and District Bahawalpur, for a sum of Rs, 84,252.50 vide mutation No, 125 sanctioned on 27-12-1960 from Sahibzada Wasiq Billa son of Sahibzada Muhammad Haji Khan Sahib respondent-defendant. The appellant-vendee further sold some portions of the suit land to the rest of respondents-defendants vide different mutations subsequently. The respondent-plaintiff Mukhtar Hussain Shah along with others filed a suit for pre-emption to the effect that sale made in favour of the appellant-vendee Bashir Ahmad had been in fact made for a consideration of Rs, 25000 only and that they being co-sharers as well as owners in the estate out of which the suit land was sold had a superior right of preemption whereas the appellant-vendee Bashir Ahmad was a stranger. The suit was resisted by the defendants who denied that the respondents-plaintiffs had a superior right of pre-emption.
Regarding the value of the suit land it was pleaded that the price had been fixed in good faith and actually paid. It was also pleaded that the possession of the suit land was delivered on 8-9-1960 and that, therefore, the suit was barred by time. It was further pleaded that the court-fee was not paid within time and that, therefore, the suit was liable to be dismissed. The appellant-vendee Bashir Ahmad further pleaded that he had spent an amount of Rs, 25,000 on the breaking of the suit land and an amount of Rs, 32,000 for the purchase of a tractor as well as for the installation of a tube-well. After the pleadings of the parties the following issue; were framed:-
(1) Whether the plaintiff have superior right of pre-emption to defendant No, 1?
(2) Whether the price of Rs, 252.50 was fixed in good faith of actually paid?
(3) If not, what is the marks value of suit land?
(4) Whether the suit is barred by time?
(5) Whether the plaintiffs obtained permission of the Court for paying the court-fee on incorrect facts, if so, what is its effect?
(6) Whether the defendant No, 1 has made any improvement on the suit land, if so whether he is entitled to get compensation and how much?
' The learned Senior Civil Judge, Bahawalpur, vide his judgment dated 23-12-1963 decided the aforesaid issues either in favour of the plaintiffs or against the defendants and consequently passed a decree in favour of the plaintiffs against the defendants for possession through preemption on the condition that the plaintiffs (wrongly written as defendants in the impugned judgment) should pay an amount of Rs, 56,625.00 on or before 21-3-1964 failing which the suit would be deemed to have been dismissed with costs. The parties were made to bear their own cost of the suit. Hence the present appeal.
2. During the pendency of this appeal Allah Wassaya respondent No, 2 has died and his legal representatives were not brought on the record in time. Consequently, vide order of this Court dated 29-4-1971 it was -held that he being a vendee from the appellant, the appeal in respect of him had abated and the effect of the same was to be considered at the time of final hearing of the main appeal. Vide the order of this Court bearing the same date it was decided that the name of Ramzan son of Allah Bachaya be brought on the record as a respondent. Furthermore vide order of this Court bearing the same date, after the death of Allah Bakhsh respondent No, 8, his legal representatives were ordered to be brought on the record and similarly on the death of Abdul Qadir respondent No, 25 his legal representatives were ordered to be brought on the record. Legal representatives of Allah Rakha respondent No, 11 were brought on the record after his death and further since one of this legal representatives, namely, Sikandar had died, the legal representatives of the aforementioned Sikandar were brought on the record.
3. Before us learned counsel for the appellant vendee Bashir Ahmad only contested the findings of the trial Court pertaining to Issues Nos. 4 and 5 that these had been wrongly decided. He did not argue as against the findings in the other issues which he conceded. It was submitted that issue No, 5 was wrongly decided by the trial Court and his arguments in respect of the same be considered before the discussion of Issue No,
4. It was contended that the sale of the suit land was made in favour of the appellant-vendee and the mutation in respect of the same was sanctioned on 27-12-1960. However, the suit was instituted on 23-12-1961 with insufficient court-fee amounting to Rs, 84.37 and no other document was attached therewith except the relevant mutation. On the same date respondents-plaintiffs had presented an application under section 149, C. P. C. To the effect that since they could not procure copies of Jamabandi. Khasra Girdawari, Schedule of produce and the rate of food grains, they were not in a position assess the court-fee and, therefore, for the proper assessm ent of the same, the time be extended. On this application without assigning any cogent reason the trial Court extended the time up to 4-1-1962. On 4-1-1962 the respondents- plaintiffs moved another application under section 149, C.P.C. To the effect that since they had been unable to purchase the relevant stamp paper pertaining to the proper assessment of court- fee from the Treasury, they should be given further time. On this application also the trial Court extended the time for a day, namely, 5-1-1962 and thus the deficiency in court-fee was eventually paid on 5-1-1962 by them. It was argued that these proceedings had been taken ex parte as the other side had not come into picture yet. Since in his written-statement the appellant-vendee Bashir Ahmad had taken objection to it, an issue was eventually framed to the effect that whether the plaintiffs obtained permission of the Court without paying the court-fee on incorrect facts, if so, what is its effect. It was contended by learned counsel that it appeared from the wording of the issue that the burden of the same had been put on the defendants to prove the same and not on the plaintiffs as it should have been done. Learned counsel conceded before us that in respect of this issue both the contesting parties did not lead any evidence. However, his main emphasis is that for giving the extension of time, it was the duty of the Court to satisfy itself that by extending the time it was exercising its discretion in a judicial manner. It was pointed out by learned counsel that sale had been effected in the instant case on 27-12.1960, the last date of limitation was 27-12- 1961. The respondents-plaintiffs had instituted the suit on 23-12-1962, i,e, four days before the expiry of limitation) within sufficient court-fee, although they had almost the whole year to procure the relevant copies of Jamabandi, Khasre Girdawari, Schedule of Produce and the rate of food grains in order to assess the proper court-fee, but it was pointed out by learned counsel that an application for obtaining a copy of Khasra Girdawari as made by them on 1-12-1961 and according to record it was received by them on 1-1-1962. However, an application for obtaining a copy of the Schedule of Produce was made by them three days after the institution of the suit, i,e, on 26-12-1961 and it was received by them on 30-12-1961. Further, copy of the Schedule of rate of food grains was prepared by the Revenue Department on 3-1.1962 and it was obtained by them on the same day. Even then, after having obtained these documents, the respondents-plaintiff could not assess the proper court-fee and procure the stamp-paper from the Treasury by 4-1-1962 and they got further extension for the same uptil 5-1-1962 when they completed the deficiency of court-fee. It was thus argued that .The facts contained in both the applications argued that the facts in both the applications of respondents-plaintiffs were incorrect.. It was next contended that the suit was instituted on 23-12-1961 which was Saturday. From 24-12-1961 vacations has started and the Courts were to remain closed uptil 1-1-1962. In the meantime the period of limitation for filing the said suit had expired on 27-12-1961. Consequently, if the Court was to allow extension to them within the period of limitation, it should have not been beyond 2-1-1962, which was the first working day after the vacations so far as the Court was concerned. Nevertheless, the learned Senior Civil Judge in his aforesaid order granting extension did not give any reason as to why he allowed extension uptil 4- 1-1962 which was a date extending to two days beyond the period of limitation. It was, therefore, submitted that the order of the Court before which the plaint was instituted on 23-12-1961, allowing time for making good the deficiency of court-fee, was not made in proper exercise of the discretion allowed by sections 148 and 149 of the Code of Civil Procedure. It was further submitted that the right of pre-emption albeit allowed by the Statute was a predatory right which constituted a drawback on the recognized principle of freedom of contract and consequently it was necessary that its exercise should by strictly in accordance with the legal requirements, however, technical they might appear to be, in order that it should be legally recognized. It was further argued that in the instant case the ground taken in the application for extension for failure to pay the full court- fee was a weak one. The limitation allowed for bringing a pre-emption suit was one year which also included the period for obtaining the copies of the relevant record as well as assessing the court- fee which was necessary for filing the suit. In this connection learned counsel placed reliance on Saeed Ahmad v. Karam Singh (1). It was argued that if a party, particularly, plaintiff in pre-emption suit had acted negligently and the payment of deficient court-fee was not .Due to any bona fide mistake, then no indulgence could be shown in his favour in extending time under section 149, C. P.
C. It was submitted that it was incumbent upon the pre-emptor to take all necessary steps before the institution of a suit so as to be enabled to present his case complete in all respects and, therefore, indulgence by way of extension of time could not be shown to him when he had not been careful even to get information with regard to the determination of court-fee payable by him within time. It was also pointed out that if a pre-emptor had knowledge of the sale of land from the very beginning and he took no step for almost one year to get the copies of the relevant documents prepared in order to be able to pay full court-fee at the time of the institution of the suit, the trial Court had to refuse. To extend time to him for making good deficiency. In court-fee. It was next pointed out that the court-fee stamp filed by the pre-emptor, in the instant case, was entertained by the trial Court without applying its mind as to whether its entertainment, at that time, would amount to making up of the deficiency in the payment of court-fee stamp and that in such a situation the Court was not expected to pass a mechanical order. Since the question of limitation was involved on account of filing the court-fee stamp after the period of limitation had expired, the mere finding of the Court that the discretion exercised by it was in a judicial manner without assigning cogent reasons therefor in the judgment would:
(1) PLD 1949 Lah. 380 ' not automatically extend the time unless such finding has been arrived at by the Court after being fully conscious that the court-fee stamp was filed after due date. It was further submitted that so far as the plea of limitation was concerned, whether it was raised or not at the trial stage, the Court was under a duty to notice the point of limitation: Reliance was placed on Rahim Bakhsh v.
Mohammad Baksh (1). Further, placing reliance on Mst. Waiayat Khatum v. Khalil Khan (2), it was submitted that in the instant case the Court while allowing extension beyond the period of limitation has exercised its discretion recklessly and thus destroyed the plea of limitation which was available to the defendants. It was held in the aforesaid authority that if proper court-fee was paid after the expiry of the period of limitation but within the time extended by the Court, such defect may be cured with retrospective effect. However, such provisions of law, though helping the suitors, their indiscriminate and reckless exercise could destroy the plea of limitation available to defendants. The Court, therefore, is to strike a balance between the two and apply its independent mind carefully in order to attend to the detailed facts and circumstances of each case judicially and fairly. If the plaintiff is negligent and careless of his duty in affixing proper court-fee, then he is not entitled to any indulgence for the grant 'of time having effect of causing prejudice to the defendant whose title may have become perfect by expiry of period of limitation.
3. In respect of issue No, 4 learned counsel for the appellant-vendee submitted that admittedly the suit land was sold on 27-12-1960 and the period of limitation, therefore, was to expire on 27-12-1951.
Nevertheless, since it expired during the days when the Court was closed due to winter vacations, the period of limitation must be deemed to expire until the first working day of the Court after the vacations which fell on 2-1-1962 in the instant case. The contention of learned counsel is that since the respondents-plaintiffs had been granted extension up to 4-1-1962 for removing the deficiency of court fee with a reckless exercise of the discretion in their favour, it could not be deemed to be legitimate extension in law. Consequently, it was argued that the title of the appellant-vendee became perfect by expiry of the period of limitation on 2-1-1962 and hence the suit should have been not decreed thereafter. It was also argued by learned counsel that in order to prove that in their application for further extension of time filed on 4-1-1962 the respondents-plaintiffs had given incorrect facts, the appellant-vendee had moved before this Court an application for permission to lead additional evidence along with some documents on which this Court has so far passed no order. It was submitted that for proper adjudication of this case that application be allowed those at it could be demonstrated before this Court that there was no justification for allowing further extension to the respondents-plaintiff upto 5-1-1962 by the trial Court.
4. We have heard learned counsel for parties. The arguments advance by learned counsel for the appellant-vendee have force. Admittedly, the sale in the instant case of suit land took place on 27- 12-1961 when the Court was closed due to winter vacations up to 1-1-1962, 2-1-1962 being the first working day which was the date of expiry of the period of limitation. The respondents-plaintiffs had information of the sale since the very beginning and, therefore, an almost a whole year to obtain copies of the relevant documents in order to assess the amount of court-fee before the institution
(1) PLD 1976 Lab. 686 (2) PLD 1979 SC 821 ' of the suit. Nevertheless, they took no steps to procure copies of these relevant documents during this period. They appear to have applied for a copy of Khasra Girdawari on 1-12-1961, i,e, about 22 days before the institution of the suit on 23-12-1961. However, for obtaining a copy of the schedule of produce, they applied three days after the institution of the suit, i,e, on 26-12-1962. It cannot be determined as to when they applied for obtaining a copy of the schedule of rate of food grains, etc. In any case, it was prepared on 3-1-1962 and was received by them on the same date. They received the copy of Khasra Girdawari on 1-1-1962 and that of schedule to produce on 30-12-1961.
Thus, it is evident that the respondents-plaintiffs in fact moved for obtaining the copies of the relevant documents roughly after eleven months from the time when they had knowledge of the sale of the suit land near about the time when and decided to institute the suit. This indicated negligence on their part for not having obtained the copies of the relevant documents in order to assess the correct amount of court-fee required for the institution of the suit within the period of limitation. They instituted the suit on 23-12-1961 which was Saturday and a date four days within the period of limitation. From 24-12-1961 the winter vacations started and the Court was to remain closed up to 1-1-1962. It was re-open on 2-1-1962 which was the first working day after the winter vacations and, therefore, should be considered as the date on which the period of limitation was to expire in the instant case. On 23-12-1961, at the time of the institution of the suit, they moved an application under section 149, C. P. C. Praying for the extension of time which was mechanically granted by the Court uptil 4-1-1962, i,e, two days beyond the due date. The trial Court has given no explanation in its order as to why the extension was allowed up to 4-1-1962 when the last date of limitation was 2-1-1962 and a working day of the Court. On 4-1-1962 the respondents-plaintiffs moved another application under section 149, C. P. C. And thus were granted the extension for one more day. Eventually, on 5-1-1962 they completed the deficiency of court-fee. It was argued by learned counsel for the respondents-plaintiffs that in the written-statement filed on behalf of the appellant-vendee objection was taken to the grant of extension of time and consequently issue No, 5 was got framed in which onus was placed on the appellant-vendee to prove that the extension of time had been obtained by the respondents-plaintiffs wrongly. But the defendants did not lead any evidence in this connection. A a result the trial Court was correct to arrive at the conclusion that the discretion exercised by it while granting extension of time had been exercised in judicial manner and that the respondents-plaintiffs were entitled to get extension because the schedule of produce was not prepared at the time of the filing of the suit. Thus, this issue was decided against the defendants. It was argued by learned counsel that since it was the responsibility of the defendants prove that the plaintiffs had obtained permission of the Court for the extension of time for payment of court-fee on incorrect facts and they did not do so, they cannot raise this point at the appellate stage. It was further submitted that since they did not contest this matter before the trial Court, they could likewise not seek permission of this Court for leading additional evidence on this point. In our view, this was a pre-emption matter and, therefore, duty was cast on the Court to satisfy itself before allowing extension of time as to whether or not cogent reasons had existed for showing indulgence in favour of the pre-emptor. It was, therefore, necessary on the part of the trial Court to strike a balance between the parties and to apply its independent mind carefully after properly assessing the detailed facts and circumstances of the case judicially as well as fairly particularly when the extension of time was being granted after the due date which was not done by the Court in they instant case. The Court itself should have gone into the matter as whether the respondents plaintiffs were negligent or careless of their duty in assessing and affixing the proper court-fee within the period of limitation or cast whether they were entitled to any indulgence for the grant of time for two days after the due date which had the effect of causing prejudice to the appellant-vendee whose title became perfect by expiry of the period of limitation on 2-1-1962. In our opinion, the Court, in the instant case, had not exercised its discretion properly and in a legal manner as required under the law and that, therefore, we have no hesitation in arriving at the conclusion that this issue had been wrongly decided by the trial Court.
' In respect of the argument of learned counsel to the effect that issue No, 4 had also been wrongly decided, there is no need to discuss it in detail in the light of what we have held regarding issue No,
5. It is admitted by the trial Court that the period of limitation ran from the date when the mutation was attested. The mutation was attested on 27-12-1960. Consequently, as have held above, the period of limitation expired on 27-12-1961, but since there were vacations, it would be deemed to have expired on 2-1-1962, i,e, the date on which the Court reopened. However, we have already held that the deficiency of the court-fee should have been completed by the respondents-plaintiffs by 2-1-1962 and that the trial Court was not justified in granting extension of time to them until 4-1- 1962 so as to prejudice the case of the appellant-vendee whose title became or effect by expiry if the period of limitation on 2-1-1962. Therefore, there is no need to give any specific finding on this point. Since we have already held that issue No, 5 was wrongly decided by the trial Court as it was not justified in granting extension of time to the respondents-plaintiffs upto 4-1-1962, no purpose would be served in allowing the appellant-vendee to lead additional evidence in order to prove before us that the trial Court had wrongly extended the period in favour of the respondents- plaintiffs on 4-1-1962 to 5-1-1962. Consequently, no order is called for on the application for the recording of additional evidence filed by the appellant-vendee.
' In the light of the our findings in respect of issue No, 5, the judgment and decree passed by the Senior Civil Judge, Bahawalpur, dated 23-12-1963, are hereby set aside, the suit filed by the respondents-plaintiffs is dismissed and this appeal is allowed. The parties to bear their own costs.