2. The record of the trial Court had been burnt and was ordered to be re-constructed. In the first written statement the appellant had simply denied the averments contained in paragraph 8 of the plaint referred to above. The respondent had applied for the amendment of the plaint as regards her relation with the vendor which was allowed and amended plaint was filed. In reply to this amended plaint in paragraph 8 of the second written statement an objection was taken that the suit had not been properly valued for the purposes of court-fee and jurisdiction. The trial Court took exception to this addition and ordered deletion of the objection vide its order dated 19-6-1975. The appellant who was arrayed as defendant No. 1 resisted the suit by raising a number of preliminary objections and also denied the superior right of pre-emption of the respondent. On the pleadings of the parties the following issues were framed
(1) Whether the land in dispute is not pre-emptible? O. P. D.
(2) Whether the Court lacks jurisdiction to try the suit? O. P. D.
(3) Is the suit for partial pre-emption? O. P. D.
(4) Has the plaintiff locus standt to sue? O. P. P.
(5) Whether the plaintiff is estopped by his act and conduct to bring this suit? O. P. D.
(6) Whether the ostensible price Rs.8,000 was fixed in good faith or paid as sale consideration of the suit land? O. P. D.
(7) If Issue No. 6 is not proved what was the market value of the suit land at the time of its sale? O.
P. Ps.
(7-A) Whether the plaintiff has the superior right of pre-emption ? O. P. P.
(8) Relief.
3. The learned trial Court vide its judgment dated 8-7-1976 decreed the suit in favour of the respondent subject to the payment of Rs.8,000 as the sale price. The appellant filed an appeal against the said judgment and decree which was upheld by the learned Additional District Judge, Multan and the appeal was dismissed on 10-1-1979. Hence this second appeal.
4. The learned counsel for the appellant has not challenged the findings of the trial Court on the issues already framed. It is only contended on behalf of the appellant that the suit was not properly valued for the purposes of court-fee and that there was no proper plaint before the Court and as such the judgments and decrees of the Court below cannot be legally sustained. It is further contended that conduct of the respondent/plaintiff was contu--macious in not making up the deficiency in court-fee and, therefore the plaint was liable to be rejected. On the contrary the learned counsel for the respondent vehemently argued that the appellant did not raise the objection regarding the court-fee in the first instance nor the objection was raised before the lower appellate Court and in the circumstances it cannot be taken up for the first time in second appeal.
It is however, admitted that the respondent-plaintiff had never obtained Fard Khalis Munafa for the purpose of ascertaining whether the court-fee paid on the plaint was proper or not.
5. The contention raised by the appellant would involve the determina--tion of the following questions
(i) Whether the respondent bad paid proper court-fee on the plaint presented ;
(ii) Whether the appellant can be permitted to raise the objection regard--ing the deficiency of the court-fee in the second appeal ; (i.e) Whether this Court should decide the question of deficiency of the court-fee and the conduct of the respondent in this appeal or the matter may be remanded on this question.
6. Paragraph 8 of the plaint has already been quoted above and a perusal of the same would clearly show that the respondent did not produce the statement of net profits and the possibility of the court-fee being deficit cannot be ruled out. Section 7 (v) of the Court Fees Act was amended by`' the Punjab Finance Act in 1973, and as such the court-fee was liable to be paid under the unamended provisions. From paragraph 8 of the plaint it appears that the case was covered under clause (c) of unamended sub-clause (3) of section 7. In the first written statement the averments contained in paragraph 8 of the plaint were denied and subsequently in the amended written statement the objection regarding the deficiency in court-fee was taken. In any case it was the duty of the Court to see that the plaint has been properly valued for the purposes of court-fee.
Section 12 of the Court-- Fees Act provides that every question relating to valuation for the purpose of determining the amount of any fee chargeable on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed.
Subsection (ii) provides that whenever any such suit comes before a Court of appeal, reference or revision, if such Court considers that the said question has been wrongly decided, to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided. Section 28 of the Court Fees Act, 1870, gives were! Discretion to a Court to allow opportunity to make up the deficiency in the court-fee if a document is found to be insufficiently stamped. But the question of the making up the deficiency in court-fee is closely related with limitation.' If the plaintiff does not show due diligence and care in making up the deficiency in the court-fee a valuable right accrues to the defendant to show that the plaintiff due to lack of diligence and care was not entitled to the extension of time for making up the deficiency under section 149, C. P. C. Reliance in this behalf may be placed on Hasan Bakhsh v. Syed Afzal Shah (1974 SCMR 364). Reference may also be made to a recent judgment of this Court Malik Jan Muhammad v. Shukaruddin (1980 CLC 186). In this case also in the plaint it was stated that deficiency in court-fee shall be made good after the preparation of the statement of net profits. In this case direction was given by the Court to get the statement of net profits prepared and pay up the court-fee. The plaintiff applied through the Court for the statement of net profits for the preceding year which was supplied showing the net profits and the deficiency was made up by the due date. The trial Court rejected the plaint under Order VII, rule 11, C. P. C. Which was challenged in R. F. A. In this Court. The question of contumacious conduct of the plaintiff in the circumstances was examined and it was held that no positive mala fide could be established and it was not a case of willful negligence and the plaint could not be rejected under the circumstances of the case.
7. In a case Mst. Walayat Khatun v. Khalil Khan, etc. (PLD 1979 SC 821), their Lordships of the Supreme Court were pleased to divide suits or plaints into two categories. One category relates to the plaint which is filed well in time and there is still some period of limitation left in favour of the plaintiff. In respect of this category of suits the Courts are obliged and bound to grant time under Order VII, rule 11, C. P. C. 7t was further observed that the time granted itself should also be within the remaining period of limitation and that this was the stage when the matter was solely between a subject and the State. The second category of suits contemplated was where on the date of grant of time the suit has already become time-barred or where though the time was granted on a date when the suit was within limitation but it was granted or extended up to a date by which the suit will become time-barred. It was held in respect of such cases that they are distinguishable from the first category and are a class by themselves and are regulated by section 148 and section 149 of the C. P. C. It is this category of cases in which a Court is not bound or obliged to grant time nor is it to be just in routine or mechanically but by keeping in view the considerations laid down in this judgment. A perusal of the judgment makes it abundantly clear that it is not at any time that the deficiency in the court-fee can be made up. But the Court had to pass an order for the making up the deficiency keeping in view the considerations duly recognized for the extension of time. One of the considerations is the conduct of the plaintiff which has been duly taken note of in this judgment and in Malik Jan Muhammad's ease referred to above. As already observed above it is the duty of the Court to see that the plaint 8s affixed with proper court-fee. It cannot be said that the appellant had not raised the objection before the trial Court in the first written statement that he had denied the averments contained in the paragraph and in the second written statement a specific objection was taken on which an issue ought to have been framed. The question whether the plaint was properly affixed with court-fee cannot be decided by this Court as according properly 8 of the plaint reproduced above even the plaintiff was not sure as to whether he was affixing the correct court-fee. It will be required to be ascertained in view of the Supreme Court judgment referred to above as to whether the plaintiff was entitled extension of time under Order VII, rule 11, C. P.C. The question of deficiency of court-fee being a question of law could be raised in the second appeal.
The trial Court has failed to determine a material question involved in the case and therefore, it would be appropriate in the circumstances of the case to proceed under Order XLI, rule 25, C. P. C.
The following issues are framed :-
(1) Whether the suit has been properly valued for the purpose of jurisdic--tion and court-fee.
(2) If Issue No. I is found in the negative, whether the plaintiff is entitled to extension of time for making up the deficiency.
8. The trial Court shall proceed to try the above issues and shall return the evidence to this Court together with its finding thereon and the reasons therefore within 6 months.
9. The parties shall appear before the trial Court on 3-3-1981. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.