' This R.S.A. Arises out of a suit filed by the respondents on 11th February 1971 to pre-empt the sale of land, measuring 102 kanals, 11 marlas, situate in village Rampur, Tehsil Alipur, District Muzaffargarh, made in the appellant's favour by one Hamid. The sale was evidenced by Mutation No, 1001 dated 11 the February 1970. According to the averments made in the plaint, the value of the suit for the purposes of the court-fee was fixed at 15 times of the net profit of the land for the previous year.
However, only a court-fee stamp of Rs, 1.12 was affixed on the plaint.
2. The appellant resisted the suit and the learned trial Court framed a number of issues arising out of the pleadings of the parties. However, only Issues Nos. 1 and 4 (B) reproduced below are relevant for the purposes of this appeal :- "1. Has the suit been not properly valued for the purposes of Court-fee, if so, what is the correct valuation and effect ? 0. P. D.
4-B. Whether by not valuing the plaint for the purposes of Court Fee, the suit has become time barred ? 0. P. D."
3. It transpires from the record that on 12th February 1971 when the file was put up before the learned Civil Judge he adjourned the case to 26th April 1971 and directed that the deficiency in the court-fee be made good before that date. Instead of complying with this order, the respondents on 24th April 1971 moved an application before the learned trial Court requesting for extension of time for making good the deficiency in the court-fee on the ground that the revenue papers had been lost by their counsel it was not possible to procure these documents and pay the court-fee during such a short span of time. This application was accepted without service of notice on the opposite party and time extended upto 22nd May 1971 for payment of the proper court-fee. A day before this date of hearing the respondents moved another application to the effect that the land was assessed to land revenue of Rs, 1.42 ; 5 times whereof came to Rs, 7.10 and only a court fee of Re.
00.75 was payable thereon. Through this application it was sought to be urged that by stamping the plaint with court-fee of Rs, 1.12 the suit was properly valued and correct court-fee paid at the time of institution of the suit. It appears that on 13th May 1972, which was the date of hearing, the learned trial Court suo motu noticed that proper court-fee was not paid and directed that deficiency he made good by 1st June 1972. This order also went unheeded. However, when the case came up for hearing before the learned trial Court on 1st June 1972 the respondents' learned counsel made a statement that court-fee of Rs, 1.12 on five times of the land revenue had been paid. This stand was obviously, taken to contend that correct court-fee had already been paid. The case was adjourned to nod June 1972 for further orders. On this date, the learned Civil Judge passed another order directing the respondents to file the schedule of produce and pay the court- fee before 15th July 1972. This extension was given subject to the objection of the opposite party.
The respondents complied with this order paid additional court-fee of Rs, 88 on 10th July 1972 and placed the Schedule of produce on the file.
4. The learned Civil Judge was of the view that the respondents did not purposely pay the requisite court-fee at the time of institution of the suit. He maintained that due to non-compliance with the orders of the Court, the plaint was liable to be rejected on 22nd May 1971 under Order VII, rule 11, C. P.
C. In his opinion, the respondents showed gross negligence in complying with the orders of the Court regarding payment of the court-fee. Accordingly, by his judgment dated 30th April 1975 he answered both the issues aforesaid against the respondents and, dismissed the suit.
5. Before the learned First Appellate Court, it was urged on behalf of the respondents that the order dated 22nd June 1972 was fully complied with and deficiency in the court-fee made good by the respondents before 15th July 1972. The submission was that the payment of the court-fee in pursuance of this order had the effect, as if proper-court fee was paid in the first instance. The learned District Judge was influenced by this argument and by his judgment dated 6th December 1975 he reversed the findings of the learned trial Court on Issues Nos. 1 and 4 (B), and accepted the respondents' appeal.
6. The validity of the judgment and decree dated 6th December 1975, passed by the learned First Appellate Court, has been called in question through this R. S. A.
7. The appellant's learned counsel adopted the reasoning which found favour with the learned trial Court. He argued that the respondents were bound to pay the proper court-fee at the time of institution of the suit ; time was allowed to them, but they did not avail themselves of it ; it was only under the last extension which was granted subject to the appellant's objection that they paid the proper court-fee. He relied on Mst. Walayat Khatun v. Khalil Khan and another (1) for the proposition that after the expiry of limitation the extension could not have been granted to the respondents to make up the deficiency in the court-fee.
8. In reply to these arguments, the first submission of the respondents' learned counsel was that the land in dispute is assessed to land revenue which is permanently settled and that, therefore, under clause (v), (a) of section 7 of the Court Fees Act, 1876 they were liable to pay court-fee, on 10 times of the land revenue. It was urged that the land was assessed to the land revenue of Re.
00.75 only and that, therefore, the payment of court-fee of Rs, 1.12 could not in any manner be treated as deficient.
' The appellant's learned counsel controverted these submissions and contended that the revenue is not permanently settled in the estate I which the suit land is included. In his submission the case was covered by late (v) (c), of section 7 and, therefore, the court fee was payable o 15 times of the net profit for the previous years. In this respect he also drew my attention to para. 7 of the plaint.
The stand take by the respondents' learned counsel is untenable. The plea that the land in dispute is permanently assessed to land revenue was not urged by the respondents before any of the courts below. This point has been taken up for the first time in second appeal. Whether or not the land was subjected to permanent assessment of the land revenue is controversial question of fact which cannot be determined without evidence. It is, therefore, not open to the respondents to take up this plea for the first time in second appeal. Furthermore, in the plaint the respondents themselves fixed the value of the suit for the purposes of court-fee at 15 times of the net profit of the land for the previous years. Thus, according to their own showing the case fell under clause (v),
(c) of section 7 of the Act. At no stage they attempted to get the plaint amended to fix the value of the suit on the basis of 10 times of the land revenue. No doubt they filed a miscellaneous application on 21st May 1971, but that can hardly be treated as a part of the pleadings. In any case, by their conduct the respondents themselves did not stick to their application. They made up deficiency in the court fee in accordance with the schedule of produce at a very late stage. The contention of the respondents' learned counsel that in the first instance, court-fee was properly paid by them is overruled.
10. In order to meet the arguments of the appellant's learned counsel that the respondents were not entitled to any extension of time and that the payment of court-fee by them at late stage, did not cure the initial illegality, their learned counsel contended that the learned trial court should have first determined the court-fee and then required the respondents to make good the deficiency. In his submission, without such determination the respondents could not be dubbed as defaulters. In this connection he relied on Karim Bakhsh v. Qadir Bakhsh and another (1). He further argued that the statement in the plaint regarding the payment of court-fee, should have been accepted unless it was proved to the contrary. For these arguments he sought support from Bahadar Shah and others v. Sharaf Major and others (2). Reliance was also placed by him on Muhammad Nawaz Khan and another v. Makhdoom Syed Ghulam Mujtaba Shah and another (3) for the proposition that the court-fee having been paid in pursuance of the learned trial court's order dated 22nd June 1972, under section 149, C.P.c., such payment would have the effect as if fee had been paid in the first instance.
11. It is difficult to agree with the respondents' learned counsel. The suit was filed on the last day of limitation without payment of proper court-fee. A period of full one year was at their disposal to procure the requisite land revenue record. They do not appear to have made any effort in this direction. Three opportunities were given to them by the learned trial court to make up the deficiency in the court-fee, but they did not avail themselves of the time granted to them by the learned trial court,13 and sought extension of time by one excuse or another. The schedule of produce filed by them in the learned trial court as per date of issue record (1) PLD 1954 Lab. 228 (2)
PLD 1967 Lah. 154 (3) PLD 100 SC 37 did thereon, indicates that it was made available to them on 22nd April 1971. It was thus not difficult for the respondents to make good the deficiency, at the initial stage in case, they really intended to do so. It is interesting to note that on 24th April 1971 an application was made by them that the documents were misplaced by their learned counsel, but after having obtained extension of time, the same schedule of produce which was issued to them on 22nd April 1971 was filed in the court on 11th July 1972. Respondent No, 1 while appearing as his own witness did not say a word about the circumstances which prevented the respondents from paying the proper court fee at the time of institution of the suit. Even no explanation was given for production offered pedawar in the court on 11th July 1972, which was already with them on 22nd April 1971. It is to be noticed that instead of paying the proper court-fee; within time allowed to them by the trial court, the respondents persisted that by a stamping the plaint with the court fee stamp of Rs, 1.12 they had already c paid the proper court-fee. In the circumstances of the case, the learned tial court justifiably came to the conclusion that the respondents acted contumaciously and were guilty of gross negligence in paying the proper court-fee.
12. It is significant to point out that on llth July 1972, when proper court-fee was paid by the respondents, their suit had already become barred by time. According to the law, as laid down by the Supreme Court in Mst. Walayat Khatun's case, after the limitation had run a vested right accrued to the appellant and the time could not be extended in routine for payment of proper court-fee. A reference to this ruling will further provide :- "...The court must therefore in all cases apply its independent mind carefully and attend to their detailed facts and circumstances judicially and fairly. If in a case the plaintiff has been thoroughly negligent, contumacious and careless of his duty in affixing a proper court-fee he would not be entitled to any indulgence for grant of time, which has the effect of causing prejudice to a defendant or to his rights and title to a property which may have become perfect by expiry of the relevant period of limitation in the meantime."
' It is quite clear to me that because of their negligence and contumacious conduct the respondents disentitled themselves to the grant of time for payment of the court-fee, particularly when the period of limitation had already expired.
13. I have gone through the precedents cited by the respondent's learned counsel, and T do not think that these rulings are of any help to them. As against the court-fee of Rs, 88.00, they paid a nominal court-fee of Rs, 1.12 only. The difference between the court-fee initially paid and the.- amount of court-fee which they were required to pay, in accordance with the schedule of produce, is so wide that one is prone to infer that the respondents did not act bona fide. There does not appear to be any rational basis to assess the court-fee at Rs, 1.12 on the strength of previous years' net profit of the suit land which measured 102 kanals, 11 marlas. In Karim Bakhsh's case, the plaintiff paid the court-fee in accordance with valuation, as given in the plaint. The valuation fixed by him was however, found incorrect by the Court. In the instant case, the value of the suit as given in the plaint is correct, but as compared with this valuation, the court-fee paid by him was ridiculously low. I do not think that in this case, the learned trial Court by directing the respondent to make good the deficiency in the court-fee according to the schedule of produce acted against the provisions of law. If the contention of the learned counsel is accepted that the learned trial Court was bound to inform him of the specific amount of the additional court-fee, it would become a convenient mode of evading payment of course at the time of institution of the suit. The respondents cannot avoid their responsibility under the cover of the argument that without having been informed of a definite amount of court fee, by the trial court, they could not be proceeded against for non-payment of proper court fee. The averment made in para 7 of the plaint as to the payment of court-fee of Rs, 1.12 has subsequently been found to be wrong. The respondents were permitted to make good the deficiency before 15th July 1972 subject to the objection of the appellant. In these circumstances, they cannot claim that the court-fee stamp provided by them on 11th July 1972 would have the effect as if the court fee was paid by them in the first instance. The dictum of the Supreme Court laid down in Muhammad Nawaz Khan's case is thus of no help to them. Their case on the other hand is hit by the ratio of the judgment in Mst. Walayat Khatun's case.
It may be added that during his arguments the respondents' learned counsel also referred to Muhammad and 2 others v. Mubarik All and another (1) but in that case the deficiency in the court- fee was made only after four days, whereas in the instant case the respondent's lapse extends over a period of about 17 months.
' The learned District Judge took the view that since the respondents complied with the learned trial Court's order dated 22nd June 1972, the finding on issues Nos. 1 and 4-B were not correct. He did not advert to the record and failed to note that sufficient latitude had already been given to the respondents, but even then they did not pay the proper court-fee. He also did not advert to the reasons given by the learned trial Court in answering issues Nos. 1 and 4-B against them. The judgment under appeal therefore, has got to be set aside.
14. As a result of this discussion, this appeal is accepted, the judgment and decree under appeal are set aside ; with the result that the judgment and decree of the learned trial Court, dismissing the suit, stand restored. The, parties are left to bear their own costs.