1. ' GHAZANFAR ALL GONDAL, J.-This is a regular first appeal from the order dated 6th February, 1978, of the Civil Judge, Shorkot, rejecting the plaint of the pre-emption suit of the appellant-plaintiff under Order VII rule 11. C. P. C.
2. The facts of the case are that in respect of sale dated 23rd January, 1973, by a registered sale deed of 1,075 kanals and 16 marlas of land situated in village Mauj Din Kathia, Tehsil Shorkot, District Jhang in favour of vendee-respondent Haji Ghulam Nabi for the alleged sum of Rs, 3,20,000 appellants Muhammad Inayat and Ghazanfar Abbas instituted a suit on 24th October, 1973 for possession through pre-emption. In para. 7 of the plaint, the appellants assessed the net profits for the entire land for the previous year at Rs, 80 and on that basis fixed the value of the suit for the purpose of court fee and jurisdiction at Rs, 1,200 being 15 times the said net profits and affixed a court fee stamp of Rs, 90 on the suit. The suit came up before the Civil Judge on 25th October, 1973, who made an order in routine on that day that after getting prepared the statement of net profits, deficiency in the court-fee should be made good by the next date of hearing viz. 24th January, 1974. At the time this order was passed, not only the appellants' counsel but Muhammad Inayat appellant too was also present. On 24th January, 1974, although the report had been made by the Ahimad that no statement of net profits had been filed, no order appears to have been made by the Civil Judge regarding court fees. On that day lie was intimated that another suit of pre-emption against the said sale was also pending in his Court. He, therefore, directed that appellants should implead the rival pre-emptor and file amended suit (incorporating the name of rival pre-emptor) on 27th May, 1974.
2. ' On 26th April, 1974, respondent filed an application under Order VII, rule 11, C. P. C.. For rejection of the plaint on the ground that plaintiffs had neither paid full court fee originally on the plaint nor had &de so even after the order had been passed by the Court to make up the deficiency in court fee.
3. On the said application, learned Civil Judge directed on 27th April, 1974, that notice of this application be given to the plaintiff-appellants for 27th May, 1974, the next date of hearing. Notice relating to the said application was served on 9th May, 1974, which was not the date of hearing of the case in question, the plaintiff-appellants filed an application dated 6th May, 1974, for grant of a direction for preparation of Naqsha Dal (statement of net profits) in accordance with the interrogatories attached to the application. The documents attached to the said application were Girdawari for Rabi 1973 and Kharif 1973 and the interrogatories also required the Moharrir Qanungo to prepare the statement of net profits, on the basis of these two crops and submit the same in the Court before 27th May, 1974. The required statement of net profits was prepared on 20th June, 1974.
4. It calculated the net profits of the said two crops at Rs, 3,555.73, according to' which valuation of the suit for purpose of court-fee and 'suit valuation at fifteen times the said sum came to Rs, 53,335.95. On the said date an amended plaint was filed incorporating not only the name of rival pre-emptor but also an amended valuation of the suit for the purpose of Court fee and jurisdiction at Rs, 53,335/95, without seeking and getting permission of the Court. The court-fee payable on this sum was Rs, 4,000.18, but the appellants after deducting the sum of Rs, 90 paid already as Court fee on the original suit, affixed court fee stamps valuing Rs, 3,873.00 only on the amended plaint.
5. The respondents had also filed a statement of the net profits got prepared by them on the basis of Rabi 1973 and Kharif 1972 which according to them constituted the previous year before institution of suit on 24th October, 1973. This statement showed a sum of Rs, 4,750.94 as the net profits according to which the value of the suit for purpose of court fee at 15 times the net profits came to Rs, 71,264, on which total court-fee of Its. 5,344 Was leviable. On 12th September, 1974, a reply was filed to the application for rejection of the plaint under Order VII, rule 11 claiming therein that the application for preparation of statement of net profits had been filed in accordance with the order of the Court and after getting it prepared, court fee had already been made good, and, therefore, the application of the respondent for rejection of the plaint was liable to be dismissed. On 6th December, 1974, written statement was filed by the vendee-respondent Haji Ghulam Nabi raising preliminary objections that the suit had not been properly stamped and that he had already filed an application under Order VII, rule 11, C. P.C. Which was pending and, secondly that the suit was barred by time. In his reply on merits, he raised the plea that the value of the suit for the purpose of court-fee and jurisdiction was absolutely incorrect and was ridiculously low and, therefore, the plaint of the appellants was liable to be rejected under Order VII, rule 11, C.P.C. And that he having filed an application already for the said purpose it was just and proper that this plaint be rejected.
6. The leareed. Civil Judge by his order dated 6th December, 1974, framed the issues both preliminary as well as on merits including the two issues relevant for the purposes of this appeal, which in terms of the suit, out of which this appeal has arisen, would be read as below :-
(1) Whether the suit has been correctly valued for the purpose of Court fee and jurisdiction ? If not what is the correct value ? 0. P. D.
(2) Whether the suit is time barred ? 0. P. D.
7. ' The learned Civil Judge originally wanted the parties to lead evidence on all the issues including issues on the merits of the case, but on the revision filed by the respondent, it was directed by this Court on 18th February, 1976, that the said two issues should be treated as preliminary issues and should be decided first. Accordingly, the learned Civil Judge proceeded to record the evidence of parties on these two issues. Counsel for appellant-plaintiffs produced only the statement of net profits got prepared by plaintiffs as Exh. P. I and closed their evidence. The learned Civil Judge, however, examined the Office Qanungo as a Court witness on 14th March, 1977. In examination-in- chief the said Court witness deposed that the said statement was prepared by him and was correct according to record. However, in cross-examination he inter alia stated that Khasra Girdawari for Rabi 1973 and Kharif 1973 was attached to the interrogatories submitted by plaintiff- appellant. He admitted that the crops of Kharif include crop of sugarcane which carries on till December and January of the next year. For cotton crop as well which is included in the Kharif crop he admitted that it keeps on being lifted till the months of November and that question of share of produce of the landlord arises only when the crop is lifted. He further stated that the statements of net profits Exh. D-1 to D-4 got prepared by defendant-respondent Ghulam Nabi from him were prepared on the basis of crops of Kharif 1972 and Rabi 1973 and according to those crops, the net profits come to Rs, 4,750/94. In rebuttal the counsel for defendant-respondent Ghulam Nabi produced certified copy of Jamabandi of 197Q-71 as Exh. D-5, rates of 1973 of Market Committee as Ex. D-6, photostat copy of a instructional letter of Director of Land Records, Punjab, Lahore, as Exh.
8. D-7 and copy of registered sale deed as Exh. D-8.
9. ' After hearing arguments of counsel for the parties, the learned Civil Judge by his order dated 6th February, 1978, decided the two issues in favour the respondent and rejected the plaint of the suit of the plaintiff-appellants. The findings on which the learned Civil Judge decided issue No, 1 are enumerated as below :-
(a) That valuation of suit by plaintiff-appellants was made without any reference to the extent of land sold and huge sale price said to have been paid for it and was based merely (in the words of Civil Judge) on presumption which in view of the sale price and measurement of land can safely be regarded as fictitious.
(b) That the order of Civil Judge dated 25th October, 1973, directing the plaintiff-appellants to file statement of net profits and make good deficiency in court fee before 25th January, 1974, was not complied with.
(c) That the plaintiffs filed court-fee stamps valuing Rs, 3,873 on 19th July, 1974 of their own accord and corrected the valuation of the suit in amended plaint filed on 19th July, 1974 without seeking and getting permission of the Court.
(d) Court fee leviable on the sum of Rs, 53,335/95, the amended valuation of the suit on the basis of net profits being Rs, 3,555.73 as calculated by Moharrir Qanungo in respect of crops Kharif 73 and Rabi 1973 were Rs, 4,000.18, but total court fee paid was Rs, 3,963. Therefore, court-fee was still deficient by Rs, 37.18, even on the basis of amended. Valuation of the suit.
(e) Since the plaintiff-appellant filed suit on 24th October, 1973, they should have got determined net profits for Kharif 1972 and Rabi 1973 as the year preceding 24th October, 1973, date of institution of suit included the said crops only. The net profits calculated on the basis of these crops according to D-1 and D-2 came to Rs, 4,750/94 and their 15 times came to Rs, 7,1264.10 on which court-fee payable was a sum of Rs, 5,344 but what was actually paid was a sum of Rs, 3,963. That means a "court fee of as large an amount as Rs, 1,381 is deficient up to this time on the plaint.
10. ' On the basis of these findings the learned Civil Judge decided under issue No, 1 that valuation of suit for purpose of court-fee and suit valuation was incorrect and relief claimed was also undervalued and plaint was insufficiently stamped.
11. ' On issue No, 2, the learned Civil Judge gave the following findings :-
(I) No effort was made by plaintiff-appellants to get net profits prepared before institution of the suit, although sale was within their knowledge right from the beginning.
(ii) the plaintiff-appellants did not bother to comply with order. Dated 25th October, 1973 of the Court to get prepared statement of net profits and make up the deficiency in court fee before 24th January 1974. They did not even apply for extension of any time by advancing the plea of any bona fide mistake in not making up the deficiency within time and case happened to be adjourned from date to date and ultimately on 19th July, 1974, court-fee which was still deficient was filed by the plaintiff-appellants.
(iii) Plaintiff appellants are guilty of contumacy as they failed to exercise a predatory right by putting in a plaint complete in all respects.
(iv) There is no justification for extending time and allowing plaintiff-appellants to make up the deficiency in court fee.
(v) The plaint without full court fee was no plaint in the eye of law and when a plaintiff has been negligent in paying the court-fee stamps his suit cannot be deemed to be within time.
12. ' Learned counsel appearing on behalf of the appellants in support of this R. F. A. Has raised the following questions ;-
(a) That no contumacy stood established on record, because there was only one order passed by the Civil Judge for making up the deficiency in court-fee and no second order was passed by him, due to non-compliance of which the court could come to a finding of obstinate and stubborn disobedience of its order.
(b) That non-payment of full court-fee even on the amended valuation of the plaint for the purpose of court fee was the result of miscalculation on the part of the appellants and the miscalculation was no disobedience of the order of the Court.
(c) That it was obligatory on the trial court to determine the valuation of the suit and the court fee payable thereon and since no specific sum of court fee had been determined by the trial Court, the plaint of the plaintiff-appellants could not have been rejected for non-compliance of any order directing the plaintiff-appellants to get statement of net, profits prepared and to make up the deficiency in court-fee on its basis, as there was no wilful default on the part of the appellants and Order VII. Rule 11, C. P. C. Was not attracted when no order had been made by the Court for making up the deficiency of a specific sum in the court-fee.
(d) That plaint of plaintiff-appellants could not have been rejected without giving opportunity to plaintiff-appellants to make up their deficiency in court fee and therefore the order of Court below was illegal.
13. It is is no doubt true that the trial Court had made only one order directing plaintiff-appellants to make up the deficiency in Court fee and therefore the conduct of the appellants in not complying With it may not contumacious as contumacy visualizes obstinacy and stubbornness. Similarly, the failure of plaintiff-appellants to pay full court-fee on the amended valuation of the suit viz. Rs, 53,33595 may be the result of Miscalculation on his part of the actual sum of court-fees payable On this stmt. This is also a fact that no specific sum of court fee had been determined b the trial Court for payment by plaintiff-appellants in the Court over and above the court-fee stamps affixed by them on the plaint, but from that, by no means, follows that Order VII, rule 11, C. P. C. Is not attracted to cases in which orders for payment of Court after getting statement of net profits prepared are passed and are not complied with. Basically it is the duty of the litigant approaching the Court with a suit for pro-emption to affix correct and proper court-fee stamp on his plaint. For that purpose, the duty of ascertainment of net profits of the land which he seeks to pre-empt, through th agency provided by the State or otherwise is also his. If he has to ascertain the net profits himself, it is not difficult for him to find out correct figure of net profits or at any rate a figure which gives reasonably correct amount o A net profits. He has the knowledge or has the means to know the nature of the land, the produce it gives and value of the share of the landlord. The Court has, however, no such wherewithal available with it and initially when the suit is filed without any statement of net profits, it can at best make an order that statement of net profits be got prepared and deficiency in court fee be made good. It is precisely this which the trial Court in this case did in the absence of any statement of net profits having been filed by plaintiff-appellants. There was nothing before the Court at that time to conclusively determine the net profits. As against this plaintiff-appellants had facilities available with them to have the same ascertained. Therefore, the mere fact that the Court had not given a specific sum as the deficiency in court-fee (when such deficiency in court-fee was not determinable on account of absence on record of statement of net profits) is no ground for plaintiff-appellants to escape the liability for their failure to have paid the proper court fee. It cannot therefore, be held that provision of Order VII, rule 11. C. P. C. Did not stand attracted to the case merely because the Court had not determined the deficiency in court-fee by way of a specific sum and had not directed the plaintiff-appellants to pay the same. There may he and in this case, there were other circumstances warranting the application of Order VII, rule 11, C. P.
14. C. First of these circumstances is that assessment of net profits of so extensive an area as 1,075 kanals and 16 marlas of land with ostensible sale price of Rs, 3.50,00.000 at only a paltry sum of Rs, 80 for the whole of the previous year was on the face of it extremely unreasonable on which B therefore a ridiculous court fee of Rs, 90 had been paid and therefore the case of plaintiff- appellants suffered from original lack of bona fides in which application of Order VII, rule 11, C. P. C.
15. Was eminently called for.
16. ' The next circumstance is that an order for getting a statement of net profits prepared and for making up the deficiency in the court-fee by the next date viz. 24th January, 1974 was passed by the Civil Judge on 25th October, 1973 in the very presence of the appellant Muhammad Inayat.
17. However during the intervening period of about 3 months, no step was taken by the plaintiff- appellants to get the statement of net profits prepared to make up the deficiency 'in the court-fee although plaintiff-appellants knew that they had given a fictitious sum of money as the net profits in the plaint and had undervalued the suit to an unreasonable extent and had paid ridiculously low court-fee on the same. Again on 24th January, 1974, the case was adjourned to 22nd April, 1974 so that rival pre-emptor be impleaded as a co-defendant in the pre-emption suit, but no advantage of this adjournment was availed by the appellants -and nothing was done to get prepared the statement of net profits. It was only after 26th April, 1974, when the respondent filed an application for rejection of the plaint under Order VII, rule 11, C. P. C. And notice of the same' had been served on the plaintiff-appellants that, for the first time, the plaintiff-appellants got spurred into action and filed on 9th May, 1974 (after the service of the notice of the said application on them) an application dated 6th May, 1974, to secure an order from the Civil Judge to direct Moharrir Qanungo to prepare statement of net profits. This was first application filed by the plaintiffs for the determination of the proper court-fee. Then on 19th July, 1974, on the basis of net profits being Rs, 3,555.73 for the whole of the preceding year and the value of the suit for the purpose of court fee being Rs, 53,335 they made up the deficiency in the court-fee on 19th July, 1974. By that time the suit had already become barred by time. The original sale by a registered sale deed had taken place on 23rd January, 1973 and the suit could have been filed till 23rd January, 1974. Therefore, obviously, on 19th July, 1974, when the deficiency in the court fee was allegedly made up, the limitation for the suit in question had already expired. The order dated 25th October, 1973 of learned Civil Judge was an ex parte order passed in routine and mechanically behind the back of respondent-defendant and did not affect rights of respondent-defendant and was at any rate subject to exceptions which respondent-defendant may later take and which the respondent- defendant had already taken in their application under Order VII, rule 11, C. P. C. At any rate the said order dated 25th October, 1973 had not been complied with as it was much later than 24th January, 1974 that deficiency in court-fee was made up. And before doing so, the plaintiffs had filed no application under section 149, C. P. C. For securing from the Civil Judge an order of making up the deficiency in the court-fee so as to validate the plaint with retrospective effect on the payment of deficiency in the said court-fee.
18. Here the learned counsel for the appellants has contended that the' deficiency in the court-fee had been made good by filing the amended plaint and the same had been accepted and placed on the record and, therefore, the act of the Court in accepting the said court-fee amounted to an implied extension of time. We are afraid it is not possible to hold so as there was no clear order by the Court that it had accepted the said deficient court-fee. The only order recorded on the said amended plaint be the court is This is a mechanical order passed in routine without any application of mind. An order under section 149, C. P. C. Should state the valid cause for per-C miffing the making up of deficiency in court-fee but no such reason was forthcoming in said order.
19. Such an order cannot by considered an implied extension of time. No reasonable cause for extension of limitation under, section 149, C. P. C. Is even otherwise available on record. As a matter of fact the leisurely conduct of plaintiff-appellants smacked of positive mala fides on their part. An order under Order VII, rule 11, C. P. C. Was fully justified in such circumstances. The Civil Judge had, therefore, correctly held the suit to be barred by time and had rightly rejected the plaint on that account.
20. ' This, however, does not end here. The plaintiffs did not get net profits of the correct previous year prepared. The appellants themselves attached to their application for preparation of the statement of net profits Girdawari of Kharif 73 and Rabi 73 and interrogatories calling upon Office Qanungo to prepare net profits on the basis of these crops only. Kharif 1973, however, did not end by the time the suit was instituted on 23rd October, 1973, as Kharif is reaped beyond October of a year. We know it as a matter of common knowledge but it was so shown even in the statement in cross-examination of Office Qanungo as a Court witness. Kharif 1973 obviously, therefore, did not fall in the year preceding the date of institution of the suit. The conduct of appellants was grossly negligent and clearly suffered from lack of bona fides on their part. The year preceding the date of institution consisted of crops Rabi 1973 and Kharif 1972 and taking these crops into consideration, the net profits as shown in Exh. D-1 and D-2 got prepared by the respondent was Rs, 7,750/94 and the value of the suit for the purpose of court-fee at 15 times the said sum came to Rs, 71,285 on which court-fee of Rs, 5,344 was leviable. ' Considered in this light, the court-fee affixed on the plaint was deficient by Rs, 1,381 which did not stand paid even till the date of decision by Civil Judge. The Civil Judge had, therefore, rightly held the plaint to be deficiently stamped even up to the date of his decision and had D correctly held it was no plaint in the eye of law and had rightly rejected the plaint as barred by law of limitation. The said deficiency is not made good even up to this date nor any prayer has been made in this appeal for permis-1 sion to make up the said deficiency.
21. As for the plea of the plaintiffs that the plaint could not have been rejected without giving an opportunity to the plaintiffs to make up the deficiency in the court fee, no doubt, some earlier decisions support this view, but in case of Abdul Sat tar Khan and another v. Hafiz Muhammad Bakhsh and another, the Supreme Court has held that the principle of giving opportunity for making good the deficiency within the period of limitation is applicable to a case of bon fide mistake or other good reason and when pro per court-fee is not paid the opportunity cannot be extended to a person' guilty of contumacy and positive mala fides. The conduct of plaintiffs appellants having been held to be suffering from positive mala fide, no such E time could have been granted to them by the Court and order of Court rejecting the plaint without giving any further time to plaintiff-appellants Court rejecting up the deficiency was a legally valid order and suffered from no legal flaw.
22. ' In view of the above, there is no force in this appeal, which is hereby dismissed with costs. 1979 SCMR 2431 1