' This is application for revision under section 115, C. P. C.
2. The facts bearing on the point of law falling for decision in this application are : Muhammad Khan son of Abbas Khan sold his land measuring 21 kanals and 7 marlas in village Zalla Shumali Tehsil and District Mianwali in favour of Muhammad Nawaz Khan petitioner herein by means of mutation No, 4020 attested on 30-12-1974 ostensibly in consideration of Rs, 25,000. Limitation of one year for the suit to enforce right of pre-emption expired on 31-12-1975. Muhammad Zaman Khan, Mumtaz Khan and Ghulam Qasim Khan (respondents 1 to 3) filed suit on 2-1-1976 for pre. Empting the sale when the civil Courts re-opened after annual winter vacation. The grounds put forth in justification of pre-emptive rights of the respondents need not be stated here. The plaint was valued notionally at Rs, 20 for the purposes of court-fee and jurisdiction. It was also stated in the relevant para. Of the plaint that deficiency in the court-fee shall be made good after statement of annual net profits accruing from the land during the year preceding the suit was made available.
The suit was registered formally on 3-1-1976 and summonses were ordered to be issued to the defendant-vendee (petitioner) for 17-2-1976. Respondents (1 to 3) were also directed to deposit 1/5th of the sale price of the land and supply the requisite deficiency in the court-fee before the said date Nawab. Khan (respondent 4) father of the petitioner. Had also filed a similar suit. Both suits were consolidated for trial as essential in law. The order for making good deficiency in the Court-fee was not complied by the respondents (1 to 3) within the time fixed by Court, viz. Before 17-2-1976 nor any application was made for grant of extension of time. It appears from the record that statement of net profits was obtained by the respondents (I to 3) on 17-2-1976, the requisite stamps were purchased on 19-2-1976 but filed in Court on B 6-3-1976. Nawab Khan respondent (4) had also defaulted in compliance of a similar order. He had made good deficiency in the court-fee much later, viz. On 10-6-1976.
' The petitioner. (defendant-vendee) joined issues and also contended that the plaints were not valued properly for the purposes of court-fee. Necessary issues arising from the pleadings were settled by learned Civil Judge, Mianwali seized of the case, Having based himself on the judgment of this Court in Rahim Bakhsh v. Muhammad . Bakhsh (I), learned trial Judge answered the issue concerning payment of court-fee in favour of the petitioner and rejected the plaints in both suits under Order VII, rule 11, C. P. C. For obvious reasons Nawab Khan rival pre-emptor (respondent No, 4) felt contented with the judgment which had allowed his son to retain the land. However, respondents Nos, 1 to 3 filed appeal to challenge judgment of learned Civil Judge. The appeal was heard and accepted by learned Additional District Judge who reversed the finding of learned trial Judge on the issue of court-fee principally for the reason that the order dated 3-1-1976 requiring respondents Nos, 1 to 3 to make good deficiency in the Court-fee did not specify the amount on which court-fee was required to be paid. Learned Additional District Judge was further of the view that delay in compliance of the, order for supplying deficiency in the court-fee shall be deemed to have been condoned as no action was taken in this behalf until ease had reached the stage of final decision. Reliance in this behalf was placed on a subsequent judgment of this Court in Muhammad v. Mubarik All (2).
3. In Rahim' Bakhsh's case it was held that no indulgence can be shown to the plaintiff particularly in a suit for pre-emption who acts negligently and contumaciously. The fact that the Court had placed on record requisite court-fee stamps filed by the plaintiff after expiry of time fixed by the Court without applying its mind was not tantamount to condoning the delay in making up deficiency. On facts this judgment was distinguished in the case of Muhammad (3). In that case deficiency in court-fee was made good after four days of the terminal date fixed in the order of learned trial Judge. It was also found by learned District Judge as well as by learned Single Judge of this Court that the plaintiffs (appellants) were not negligent and contumacious nor any =la fide intent could be attributed to them.
4. A recent judgment of Supreme Court in Mst. Walayat Khatun v. Khalil Khan (4) obviates altogether the necessity of a critical analysis if the judgment in the case of &him Bakhsh was rightly applied by learned trial Judge or the rule laid down in Muhammad's case relied upon by learned Additional District Judge applied appositely to the instant case. It was held by their Lordships (para. 3 of the judgment) that in cases filed on the last day of limitation Court is not bound or obliged to grant time for making good deficiency in court-fee and nor it is to be granted just in routine or mechanically both by keeping in view the consideration if extension of time will destroy defence of limitation which may have become available to the defendant in the meantime. Such orders could not be passed without notice to the defendant or if passed behind his back he has the right to take exception to the same.
' Perusal of the file reveals that learned Civil Judge had on 3-1-1976 allowed respondents (1 to 3) time for payment of deficiency merely in routine and obliviously of the fact that the order will have the affect of extending limitation. It was also not thought fit to ask respondents (1 to 3) why they could not make timely arrangement for obtaining statement of net profits from the land during the period of one year at their disposal. The respondents had also not applied formally for further extension of time. Court-fee stamps were accepted by learned trial Judge without having applied its mind
(1) PLD 1976 Lah. 686 (2) PLD 1977 Lah. 1422
(3) PLD 1977 Lah. 1422 (4) PLD 1979 SC 821 to the consequences of non-compliance of his earlier order. It could not, therefore, be said that by having accepted court-fee stamps learned trial Judge had conscrously condoned the delay in compliance of the order. It is also not clear why the respondents had not filed court-fee stamps on 19-2-1976. It was also not realized that the respondents who had come to enforce an artificial right of pre-emption could not claim any equity in thei favour and law should be applied strictly in such cases. Orders under section 149, C. P. C. Should be passed with greatest care when these orders have the effect of extending limitation and depriving the defendant-vendee of a valuable right of security of title accrued to him by lapse of time through negligence or indifference of the pre- emptor.
5. In view of dictum of their Lordships of Supreme Court in Mst. Walayat Khatun's case and the above discussion, revision petition is accepted, judgment of learned Additional District Judge is set aside and that of learned trial Judge rejecting the plaints is restored. The parties are left to bear their own costs throughout.