1. ' MUHAMMAD AFZAL ZULLAH, J.-This direct appeal to this Court is directed against judgment dated 18-4.1982, of the Peshawar High Court; whereby, a regular first appeal filed by respondents' side, arising out of a pre-emption suit, was allowed and a pre-emption decree was passed against the appellant/vendee.
2. ' Mst. Parveen appellant purchased the suit house situated in Kohat City, for Rs, 91,000 by means of a registered sale-deed dated 18-9-1978. Mst. Jamsheda Begum and Mst. Fuqran Begum respondents filed a suit for preemption on the basis of contiguity. Copy of the plaint has not been placed on record but the learned counsel for the appellant states that the suit was valued at Rs, 25,000. Accordingly no court-fee was paid. The appellant while resisting the suit on various pleas including that of exemption from pre-emption also raised the objection regarding valuation of the subject matter and the court-fee. Issue No, 2, regarding the plea of exemption was; "whether the suit property is exempted from pre-emption under section 5(d) of the N.-W. F. P. Pre-emption Act as amended up to date."
3. ' Learned trial Judge held that the valuation of the subject matter was Rs, 91,000 plus cost of registration. The court-fee was accordingly paid by the plaintiffs. It is noted in the final judgment dated 6-12-1980 that the order passed in this behalf on 4.10-1980 was not challenged and it became final. On merits although the plaintiffs/respondents were held to have superior right of pre-emption, they were denied the decree on the finding that Mst. Parveen appellant having purchased less than 10 matlas of urban property in a city of which she was a resident, therefore, the sale was exempted under section 5(d) of the N.-W. F. P. Pre-emption Act. Accordingly the respondent's suit was dismissed. A direct appeal by the respondents/ plaintiffs in the High Court, however, succeeded on the question of fact whether Mst. Praveen was resident of Kohat City. It was found that she would be presumed to be resident of Mukhad which was the permanent place of residence of her husband. It was also found that she had no intention of permanently residing at Kohat and in so far as "her present residence" is concerned, "she was living with her husband at 'Tall' since long". It was further noted that in accordance with accepted norms of the social section to which Mst. Parveen belonged, she automatically acquired the residence and domicile of her husband at the time of marriage giving up the residence at the place where her parents resided prior to the marriage. And because the husband's domicile and residence were Mukhad, therefore, she would not be treated as resident of Kohat, notwithstanding the fact that her parents resided there before marriage. The finding of the trial C urt having thus been reversed on the main issue, respondents' appeal was accepted and the suit was decreed against the appellant. She then filed this direct appeal. Apart from the question regarding residence of the appellant, her learned counsel also raised the questions regarding court-fee and limitation. He relied on Mst. Walayat Khatun v. Khalil Khan and another , to contend that the valuation, notwithstanding the entries in the registered sale-deed was contumaciously fixed at Rs, 25,000 so as to avoid the court-fee. That being so, the learned trial Judge should not have allowed the respondents to pay the court-fee, subsequently after the period of limitation had expired. Therefore, firstly, it was a case of rejection of plaint and secondly, it was a fit case for dismissal of suit as time-barred on account of failure of the respondents to pay the court-fee at proper time.
4. ' As noted earlier the question of valuation and court-fee were decided by an independent order which was not brought under challenge by the appellant. Not only thus, it is not denied that there is no finding against the respondents that their act in fixing the value at Rs, 25,000 was contumacious. The mere fact that the value was enhanced by the learned trial Judge after due inquiry will not render the act contumacious; and the fact that the entries in the registered deed of the sale price, were one of the considerations for enhancing the value, will not make any difference in this behalf. The learned trial Judge was fully competent to grant time under section 149, C. P. C.
5. To the plaintiffs for supplying the court-fee. Once having done s and the respondents having complied with the order passed under section 149, C. P. C. The plaint, it is provided in the said section, shall be deemed t have the same force and effect as if such fee had been paid in the first instance."' Thus the question of the bar of limitation would not at all arise. The argument of the learned counsel thus has no force. It may also be observe that the learned trial Judge could not have rejected the plaint under Order VII, rule 11, C. P. C. On the mere discovery that the claim was under valued, unless under clause (b) of rule 11, the plaintiffs having been required by the Court to correct the valuation within a time specified by the Court, had failed to do so. Similarly regarding insufficiency of court-fee, the plaint could be rejected under clause (c) of rule 11, if the plaintiffs, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, failed to do so. In both these eventualities, the plaint could have been rejected under Order VII, rule 11, C. P. C. And it would not have been proper, without recourse to this provision, to dismiss the suit as time-barred. It could not be said that if the suit was within time on the day the plaint was duly presented, it became time-barred simply because the plaint could be rejected under clause (b) or (c) or for that matter clause (a) or (d) of rule 11 (after the period of limitation) for the reasons mentioned in the said clauses; the suit could not be dismissed on the ground of limitation merely because the plaint when originally otherwise duly presented in a court, was not correctly stamped. Section 3 of the Limitation Act, where under a suit can be dismissed, applies only if it is instituted after the period of limitation. It is not the case of the appellant that as visualized by the explanation to section 3 of the Limitation Act, the plaint was presented, not to the proper Officer, or after the expiry of limitation. And if it was presented properly before a proper Officer prior to the1 expiry of period of limitation then the relevant provision for consideration would be Order VII, rule 11, section 149, and in some cases section 148, C. P. C. As also section 10(11) of the Court Fees Act, whereunder a suit can be dismissed for noncompliance with the order of the Court for supply of the requisite fee and not on the ground that for the same reasons it had become time-barred. The two considerations would be totally different. It needs to be noted that the learned counsel for the respondents relying on Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others , had contended that although it was the duty of the trial Court to examine suo motu whether the suit was within limitation, the appellate Court, without the question being raised by the parties concerned was not bound to consider it (it was bound, however, to consider suo motu whether the proceedings before itself were instituted within limitation or not). He in this connection, further contended that plea of limitation regarding suit was not raised before the High Court. The tenor of the judgment of the High Court in this case is such that it would not be possible to hold that the plea of limitation regarding suit ' was not raised on behalf of the present appellant. We have, therefore, examined and rejected the plea on its own merit.
6. ' Before examining the next question, it is necessary to reproduce the relevant provision of law, namely, section 5(d) of the N.-W. F. P. Preemption Act:- "section 5 .
(f) ..
(c) ..
(d) agricultural land or urban immovable property, consisting of an area measuring not more than ten marlas purchased by a resident of the town in which such land or property is situated, where he neither owns a house nor a vacant site measuring more than five marlas, for constructing a house for his own occupation."
7. Several dictionaries and decided cases have been cited from both th sides on the connotation of the words residence or similar other words and B phrases. They are: Chambers Twentieth Century Dictionary; Oxford Diction ary; Black's Law Dictionary; Wharton's Law Lexicon and Stroud's Judicial Dictionary. The cases are: Fatima Beg um v. Sakina Begum and another , Imdad All Malik v. The Settlement Commissioner (Policy), Lahore and another , Syed Haider Shah v. Mukhtar Hussain Shah and others , Mehboob Elahi v. C. S. C. , Sikandar Shah and another v. Mst. Bibi Fatima , Muhammad Siddique Siddiqui v. Mst. Aziz Bibi and others , Noor Hassan v. Safdar All Khan , Mahbub Ahmad v. First Additional District Judge and another , Mst. Noor Nisa v. Abdus Salam and another , Elis Bibi v. George Masih , Muhammad Noor v. The District Magistrate, Peshawar and Miss Arntul Naseer Sami v. Secretary Health, Government of Baluchistan and others .
8. ' Some deductions which can be safely made from the material about the meaning of the relevant words and phrases are:-
(a) That no general rule can be laid down either on legal or jurisprudential basis which may be applicable in each and every case of such a controversy;
(b) The context in which the relevant word or phrase is used is highly important. If it is in regard to procedural aspect, the meaning might have a shade different from its meaning in a provision dealing with a substantive right;
(c) The words themselves as also the phraseology selected by the Legislature has been given considerable importance but the underlying intention was also given, if not more, at least equal importance;
(d) It may normally be not possible to apply the meaning of residence given in a particular case to another case under a different statute;
(e) In each case of this type it would be necessary for the Court to determine the correct connotation subject to the a fore noted aspects and then to give a finding of fact whether2 3 4 5 6 7 8 9 10 11 12 13 14 residence so interpreted an individual has been established on the material available in the case: The nearest analogy for purpose of resolving the controversy as to what I meant by the phrase "a resident of the town" used in section 5(d) of the N.-W. F. P. Pre-emption Act, is found in the case of Miss Amtul Naseer' Sami, which has already been noted. The phrase which fell for interpretation in that case, used in connection with the admission of a student on the basis of residence, was bona fide residence. It was held that in the context of the said case the rule laid down in Ramsay v.
9. Liverpool Royal Infirmary , to the effect that the residence in such a situation must answer a qualitative as well as a quantitative test, and that the Courts have regarded naturalization, purchase of house or burial ground, exercise of political rights, financial expectations, establishment of children in business, the place where a man's wife and family reside, an indicia of his intentions in regard to residence. In other words the question of intention of individual regarding his residence temporary, permanent actual or constructive would not be totally foreign to the consideration of the question, depending upon the law and facts in each case. On a question asked from the learned counsel for the respondents whether in case it had been established that a short time before the institution of the suit, the appellant and her husband had sold their entire property at Makhud and had shifted their household effects to a place in the town of Kohat with clear and established intention of moving to and residing in the house in dispute at Kohat, could it be not said that their residence for the purpose of section 5(d) was Kohat. He was unable to render an answer in the negative mainly because the question of intention based on intending circumstances would have then gained considerable importance.
10. In some cases it might also be possible to hold that an individual is resident of more than one place and that it may not be necessarily a case of temporary D or permanent residence. In other words a person can be ordinary resident of more than one place, may be in different context or for different purpose.
11. ' In the present case the findings in the impugned judgment of the High Court based, as it is, on the original, so-called permanent, ordinary and intended residence of Mst Parveen vis-a-vis situation of her own property, her husband's property, place of his birth and residence and the place where they earn their livelihood, do not contravene any principle of appreciation of evidence in determining the meaning of word "resident". The High Court has not ignored the element of intention nor even the constructive aspect of residence, which was emphasized much by the learned counsel for the appellant. Therefore, on facts, it is not a fit case where this Court should interfere with the finding of the High Court. This appeal fails and accordingly is dismissed. PLD 1979 SC 821 PLD 1983 SC 68 I L R 1 All. 51 PLD 1962 Lah. 502 PLD 1963 Lah. 548 PLD 1963 Lah. 214 PLD 1964 Pesh. 140 PLD 1970 Lah. 596 PLD 1974 Pesh. 63 PLD 1976 Kar. 978 11 PLD 1982 Pesh. 42 PLD 1978 Lah. 1072 PLD 1970 SC 273 1975 SCMR 265 1930 A C 58815 1 2 3 4 5 6 7 8 9 10 12 13 14 15