' This Regular Second Appeal has been filed to assail the judgment and decree of a learned Additional District Judge at Sheikhupura in first appeal whereby reversing the judgment of the trial Court he has decreed the suit of the plaintiffs pre-emptors.
2. Brief facts giving rise to this appeal are that agricultural land measuring 19 Kanals and 14 Marlas was sold by Sadiq Ali alias Muhammad said and purchased by Bashir Ahmad vide sale-deed registered on 12-7-1973 for a consideration of Rs, 14,000. Thereafter, respondents Hassan Din and Jamal Din on 12-7-1974 filed a suit for possession through pre-emption. They affixed a court-fee of Rs, i00 on the plaint. The trial Court on 12-7-1974 passed an order in terms that the deficiency in court-fee and the Zar-e-punjum after preparation of Nagsha Jhar Pedawar should be filed.
Thereafter the respondents on 25-9-1974 made good the deficiency of court-fee to the extent of Rs,
50. Zar-e-punjum amounting to Rs, 2,800 was deposited on 12-9-1974 and then the suit proceeded on merits. The trial Court dismissed the suit on 22-3-1977 on the view that the plaintiffs and the vendee-appellant were at par with each other and they have waived their right of pre-emption.
3. There was an appeal. The learned Additional District Judge reversed the finding of the trial Court on both these issues and held that the plaintiffs-pre-emptors were nearer in degree and thus had a superior right of pre-emption. On the question of waiver, after evaluation of evidence, it was held not to be worthy of credence. It may be mentioned for the purpose of reference that in so far as issues Nos. 1 and 4 are concerned they were neither pressed before the trial Court nor raised during the hearing of the appeal. But all the same Mr. Ahmad Hassan Khan learned counsel for the appellant wanted to argue these points and he was permitted to do so.
4. Learned counsel appearing in support of this appeal firstly argued that the suit was beyond limitation for the reason that the sale-deed was registered on 12-7-1973 but the suit was filed on 12- 7-1974. Learned counsel for the respondents Ch. Muhammad Hassan, Advocate has furnished a tabulated Chart which shows that only 164 days had lapsed and thus the limitation being one year, the suit was on the factual aspect within limitation. The objection of Mr. Ahmad Hassan, Advocate, therefore, fails on this score.
5. The next point rather seriously urged by learned counsel for the appellant was that the deficiency in court-fee having been made up on 25th September, 1974 under the order of trial Court was invalid because the limitation for institution of the suit stood expired prior thereto.
Reliance in this respect has been placed on the case of Walayat Khatoon v. Khalil Khan (1).
6. I have respectfully gone through the above precedent. I am, however, of the view that the learned counsel in raising this argument is overlooking the dictum of Supreme Court In re : Hafiz Hassan Muhammad and 2 others v. Abdul Hameed and 2 others (2). In the latter case, their Lordships of the Supreme Court have examined Walayat Khatoon's case and some other important cases and thereafter it has been held that section 149 of the C. P. C. Gave discretion to the Court to allow a party to pay the deficiency in court-fee at any stage and on such permission being granted and the fee being paid it would be deemed as if fee had been paid in the first instance.
Para. 4 of the judgment may be reproduced with advantage.
"4. Aggrieved, the appellants moved this Court for grant of leave to appeal.. Learned counsel for Hafiz Hassan Muhammad had, during the hearing of his petition for grant of leave questioned the legality of the trial Court's order granting extension of time for making up the deficiency in court- fee, for which he relied on Walayat Khatoon v. Khalil Khan PLD 1979 SC 821, Hassan Muhammad v.
Zeenat Begum 1981 SCMR 1059, Allah Yar v. Muhammad Riaz, PLD 1981 SC 489 and Hidayatullah v.
Muhammad Ibrahim, 1981 SCMR 381. In the first three cases the plaintiff had failed to make up the deficiency within the extended period allowed by the Court and in consequence either the plaint had been rejected under Order VIII, rule 11, C. P. C. Or the suit had been dismissed with which decisions this Court had declined to interfere. While dealing with the principle involved, this Court had in Walayat Khatun's case, no doubt observed (per K. E. Chauhan, J.) that in the category of cases in which on the date of {{FOOT NOTE}}
(1) PLD 1979 SC 821 (2) PL D 1982 SC 159 {{FOOT NOTE}} ' grant of time the suit has already become time-barred the Court is not bound or obliged to grant time nor is it to be granted just in routine or mechanically but keeping in view the considerations mentioned earlier in the judgment. In Hidayatullah's case, the plaint had been filed by affixing court-fee of Rs, 10 only but the court-fee due was Rs, 5,485. This was considered to be contumacious. But neither of the cases cited is of any help because here it is not the case that the plaintiff had failed to make up the deficiency within the time allowed by the Court, nor had any of the Courts below held the plaintiff to be guilty of contumacy in this regard. In Yagoob Khan v.
Rasool Khan 1981 SCMR 155, this Court had refused to interfere in the matter of extension of time granted by the appellate Court to make up deficiency in the court-fee on the momorandum of appeal upon the view that section 149, C. P. C. Gives discretion to the Court to allow and an appellant to pay the deficiency in court-fee at any stage and on such permission being granted and the fee being paid, it will be deemed as if the fee had been paid in the first instance. No contumacy having been found on the part of the pre-emptor in the case of Hassan Muhammad, the contention was rejected."
7. Now coming to the facts of this case, it is to be seen that a court-fee of Rs, 100 had been originally affixed on the plaint. So unlike the precedent case of Walayat Khatun relied upon by the learned counsel, it cannot be said that miserably disproportionate low court-fee had been affixed.
Ther was a shortfall of Rs, 50 which was allowed to be made good and complied 4 with by the pre- emptors. None of the Courts below has given a finding o contumacy. Therefore, the order for making good the deficiency in court-fee having been made and the same having been complied with, no ground is made out for interference in second appeal with the discretionary order of the trial Court. The argument, therefore, fails and is hereby repelled.
8. The issue which really clinches the matter in this case is that of superiority of right of pre- emption. Learned counsel firstly sought to urge that the Court below has misread the pedigree- table. I have gone through the pedigree-table and the documents on record with the able assistance of two learned counsel. On close scrutiny and examination, it has been found that the objection was based on some misgivings. It has been noticed that in so far as the plaintiffs-pre- emptors and Mst. Barkatey mother of Bashir Ahmed are concerned, they come on the same level in the degree of succession. The vendee Bashir Ahmed being son of Barkatey cannot compete with the pre-emptors on equal level being a degree distant. The finding that Pre-emptors have superior right of pre-emption thus calls for no interference. The argument, therefore, fails on the factual plane. There was an insinuation on the part of Mr. Ahmad Hassan Khan, Advocate to effect that the Court below erred in giving preference on the basis of succession. A bare reading of section 15 of Pre-emption Act is sufficient to show that the Court has to be guided by the order of succession, therefore, the learned Additional District Judge has committed no error in following the same. This argument of the learned counsel for the appellant thus also fails.
8. Lastly, the learned counsel for the appellant sought to touch upon the question of waiver on the reasoning that it has not been adverted to by the appellate Court. I find that the appellate Court has consciously applied its mind to this aspect of the matter and after considering the evidence rejected it on the ground that evidence of such nature could be easily procured. In other words, the first appellate Court did not deem it fit to reply on the evidence produced by the appellant in this behalf. This was within the powers of first appellate Court to do. In the absence of any compelling reasons justifying interference or unless the appellant was able to show that there was a misdirection on the part of the first appellate Court such a finding would not be liable to correction by the High Court under section 100 of the C. P. C.
' The net result of above discussion . Is that this appeal in any view of the matter has no merit and the same is hereby dismissed. There shall be lo no order as to costs in the circumstances of the case.