MUNAWWAR ELAHEE RANA, J.-This appeal is directed against the judgment and the decree dated 20-11-1980, whereby the learned Senior Civil Judge, Gujranwala decreed the suit for pre-emption on payment of Rs.2,27,000.
2. The respondents filed the suit for pre-emption and valued it for purposes of court-fee and jurisdiction at Rs.13,320, Hs. 12,320 being fifteen times the net profits of the preceding year for the cultivated land and Rs.9,000 for the land not assessed to land revenue, and paid court-fee accordingly. The suit was filed on 5-6-1976, a day before the last date of limitation, whereupon the trial Court passed a detailed order requiring the plaintiffs-respondents to furnish security instead of depositing 1/5th probable pre-emption money. They were also directed to get the net profits prepared and make up the deficiency in court-fee, if any, by the next date of hearing i.e. 2-9-1,976.
The plaintiffs were said to have paid court-fee of Rs.14,000 on 1-9-1976 without production of naqsha khalis munafa, but the same was also produced on 2-9-1976 showing Rs.15,080 as net profits, the fifteen times of which when calculated was Rs.2,26,200. ,
3. The defendants-vendees inter alla objected to the valuation of the suit and disputed the correctness of the net profits as well as the payment of court-fee. The pleadings of the parties gave rise to the following issues :-
(1) Whether the suit has been correctly valued for the purposes of court-fee and jurisdiction ? 1f not what is the correct valuation, for both the said purposes ?
(2) Whether the suit is collusive ?
(3) Whether the plaintiffs are estopped by their words and conduct to institute their suit
(4) Whether the plaintiffs have got superior right of pre-emption than the defendants-vendees ?
(5) Whether the sum of Rs.2,27,000 was fixed in good faith or actually paid as the sale price of the land in suit 7
(6) If Issue No. 5 is not proved, then what was the market value of the property in suit at the time of its sale ?
(7) Whether the defendants have effected improvements upon the suit property ? If so, to what extent and with what effect ?
(8) . Relief.
4. The suit was in progress and defendants' evidence was being recorded when on 27-9-1980 two of the witnesses properly served and present in Court were given up. The Court adjourned the case and directed the defendants to produce their witnesses at their own responsibility. On the next date their counsel was not present, and one of the defendants who was then present was asked by the Court to enter the witness-box for his statement, but he' showed reluctance in doing so, whereupon the Court refused to adjourn the hearing and proceeded under rule 3 of Order XVI1, C. P. C. With the suit forthwith. As there was no evidence on record on behalf of the defendants, the suit was ordered to be decreed. It was observed that there was no material on record to show that valuation for purposes of court-fee as fixed in the suit was incorrect. Issues Nos. 1 to 3, 6 and 7 were held not proved. The value of the land actually paid or fixed in good faith was Rs.2,27,000. The pre- emptors were found to possess a preferential right, and thus their suit was decreed on payment of Rs.2,27,000.
5. A preliminary objection was raised that the appeal having Rs.13,320 as its value for purposes of jurisdiction as shown in the plaint was not competent before this Court. The argument must fail on the simple ground that by virtue of rule 1(c) of the Rules framed by the Provincial Government under section 3 of the Suits Valuation Act (VII of 1887) the value of the suit for jurisdiction is Rs.2,26,200 being the fifteen times of the net profits as determined by the plaintiffs. The argument that the same was for purposes of court-fee alone appears to have no substance. There is no dispute that the land pays no fixed land revenue and net profits had arisen during the year next before the date of presenting the plaint. The valuation in such a case would be calculated on the basis of the net profits which exceeds the jurisdictional value of the learned District Judge. The appeal is thus rightly filed in this Court.
6. As stated above, the learned trial Court on 8-11-1980 closed the defendants' evidence and proceeded under rule 3 of Order XVII, C. P. C. With the suit forthwith. The history of the case shows that although the suit was instituted on 5-6-1976, but evidence of either side was not recorded till 21-11-1978. On that day only documents were tendered in evidence and the plaintiffs closed their affirmative evidence. An application was moved on behalf of the defendants for dismissal of the suit stating that the same was filed on wrong valuation and insufficient court-fee, and the time the defect was removed the suit had become barred by time. The application was consequently dismissed on the ground that the objection was already put to an issue and some evidence already led. The learned Court found it fit to decide the issue after allowing the parties to lead evidence and not earlier. The evidence of the defendants could not for some time be recorded for one reason or the other, when on 27-9-1980 the two witnesses who were then present before the Court for making their statements were given up. Feeling that the defendants had no more evidence to be summoned, the Court directed them to produce the remaining witnesses at their own responsibility, and adjourned the suit to 8-11-1980. On that. Day the defendants' counsel could not appear because he had gone out of the city, and one of the defendants who was then present in Court expressed his reluctance to make a statement, with the result that the Court closed the evidence and proceeded with the suit forthwith and fixed the case for arguments to be heard on 15-11-1980. It appears that on that date the defendants filed an application to contend that the defendants' evidence was available on 8-11-1980 but the same was closed. It was explained that their counsel had gone to Karachi and evidence could not be produced in his absence. However, a chance to lead evidence was solicited, but the application was consigned because the counsel who had put in the application was said to have no vakalatnama in his name and to have thus no authority to move the applica--tion. Ex parte arguments were heard on that date and the suit was then decreed on 20-11-1980. It was contended that the counsel was present on 15-11-1980 and the Court should have at least given him an opportunity to address his arguments but the same was not done.
7. It comes on record that the defendant had moved the list of witnesses well within the statutory period as provided by rule 1 of Order XVI, C. P. C. And according to the fard talbana dated 1-6-1980 the defendants gave a list of four witnesses for being summoned for 27-9-1980. On payment of the process-fee and the diet money, the Court issued summons to all the four, out of whom two appeared but they were given up. The other two, namely Mirza Abdul Rauf and Master Muhammad Yunas were served on 30-6-1980 but there is no indication on record that they were present in Court on that day. However, if the witnesses had failed to make an appearance, the answer was not to make the defendants liable, but the Court should have felt its own duty to cause their attendance under rule 10(2) and rule 12 of Order XVI, A C. P. C. It could however under no circumstances .Throw its own responsibility on the defendants and later close evidence under rule 3 of Order XVII, C. P. C. The said direction of the Court in that behalf was nothing but its unexplained refusal to exercise jurisdiction vested in it. The order dated 27-9-1980 and that of 8-I1-1980 were thus illegal and could not bind the parties.
8. It requires to be seen under Issue No. 1 whether the suit was rightly valued for purposes of court- fee and jurisdiction, Valuation of the suit as initially fixed in the plaint was Rs.13,320 and the same was disputed in the written statement. The vendees contended that tie plaint was invalid because its valuation was wrongly put, the calculation of court-fee was improper and the court-fee paid was deficient. It appears from the record that on presentation of the plaint, the learned trial Court on 5-6-1976 registered the suit, issued summons to the defendants and directed the plaintiff respondents to furnish security under section 22(1) of the Punjab Pre-emption Act (1 of 1913), also to get the statement of net profits prepared, and make good before 2-9-1976 the deficiency of court- fee, if there was any. However, the deficiency to the tune of Rs.14,000 was.. Made up on 1-9-1976 on the basis of the jhar pedawar according to the calculation of which the net profits amounted to Rs.15,080 and valuation of the suit rose to Rs.2,26,200. Learned counsel for the respondent relied on Ihsan Rahi v. Ataullah and others (AIR 1937 Lah. 688) to show that where appeal was filed on an insufficiently stamped paper on the basis of the valuation as given in the judgment and decree of the lower Court, but subsequently the valuation was found much more than that which was stated in the decree, and' the appellant paid the deficiency within the time allowed by the Court, the delay could be condoned in such cases under section 149, C. P. C. And the appeal did not become time- barred even if deficiency was made good after expiration of the period of limitation for appeal. This decision is of no practical help to the respondents, because it was not a case where a prayer was made by one party under section 149, C. P. C. For extension of time in making up the deficiency in court-fee. It was however argued on the basis of the provisions of section 28 of the Court Fees Act (VII of 1870) and rule 11 of Order VII, C. P. C. That the Court had allowed time to produce the statement of net profits and pay the deficiency of court-fee by a specified date and the same was completed within time; and that the payment would be deemed to be one made at the first instance. In support of the contention reference was made to Shah Nawaz and others v.
Muhammad Yusuf and others (1972 SCMR 179) and Muhammad Nawaz Khan and another v.
Makhdoom Syed Ghulam Mujtaba Shah and another (PLD:1970 SC 37) wherein it was laid down that where the plaintiff was required to correct the valuation of the relief claimed in the suit, he shall further be required to supply the requisite stamp paper and on compliance it shall have the same force and effect as if such fee had been paid in the first instance.
8-A. There is no doubt about the principle, but each case has its own facts and circumstances. It cannot, therefore, be ignored that if a party, particularly the plaintiff in a pre-emption suit, acted negligently, and the payment of deficient court-fee is not due to any bona fide mistake, then no indulgence can be shown in his favour in extending time under section 149, C. P. C. The plaintiffs purposely paid court-fee at a substantially low rate, but at the same time they did not consider it fit to ask for an extension of time under section 149, C. P. C. Far making up the deficiency, probably because they did not have with them a reasonable excuse in that behalf. It appears that the prayer was verbal and the Court by a mechanical order required the production of the statement of net profits and payment of the deficit court-fee by a specified date. Such an order having the effect of destroying the valuable right accrued to the vendees by lapse of time, could not be passed without notice to them, and the same was thus not binding on them. It was held in Saeed Ahmad and others v. Karam Singh and another (PLD 1949 Lah. 380) that the Court undoubtedly had discretion to enlarge time for doing of any act allowed by Code, even after the expiry of the period originally fixed for the purpose, but it could not be said that where the plaintiff had plainly been so very negligent, and had moreover completely failed to provide any excuse for his default, that discretion had been properly exercised. In the instant case if the jhar pedawar with calculation of net profits was ready with the plaintiffs on 1-6-1976, then they had on 5-6-1975 no valid excuse with them to value their suit at a ridiculously low rate and stamp the plaint with an inadequate amount of court- fee. The plaintiffs had thus by their negligence in making good the deficiency after expiry of limitation, themselves rendered their suit barred by time.
9. The trial Court had framed Issue No. 1 in respect of the valuation of the suit for purposes of court- fee and jurisdiction, and the same was determined against the appellants-vendees on the ground that the parties led no evidence in that respect which raised a presumption that the plaint was correctly valued at Rs.12,320 for purposes of court-fee and jurisdiction. The finding is absolutely fallacious. Although the vendees were not allowed T to prove their case and their evidence was closed under rule 1(3) of _ Order XVII, C. P. C. Yet adequate evidence was found on record showing that the valuation as fixed by the plaintiffs was wrong and their plaint was deficiently stamped even at a time the period of limitation had expired. The plaintiffs bad themselves produced on record the statement of net profits signed by Manzoor Ahmad, Special Patwari Sadar, and the document having been prepared from the revenue record and relied on by the plaintiffs did serve as a piece of evidence and was sufficient to conclude that the valuation of the suit as set forth in the plaint and the court-fee paid thereon was undoubtedly deficient. The learned Court below was, therefore, wrong in deciding the issue otherwise. The finding in that respect is thus set aside. Since the deficiency in court-fee was made up after the expiry of the period of limitation, the plaint written on an insufficient stamp paper was, therefore, not a valid document and did not possess the character of a plaint. The instant suit in which the deficiency was made up at a time when limitation had expired was undoubtedly time-barred.
10. It was also rightly urged that amendment of the decree was ordered by the trial Court without notice to the appellants. But because the appeal is being disposed of on the point of limitation for late payment of court-fee, objection becomes insignificant.
For the foregoing reasons the appeal is accepted, the judgment and the decree of the trial Court are set aside and the suit of the plaintiffs-respondents is dismissed with costs.