' This Regular second appeal has been brought from a judgment dated 23-10-1979 of the learned Additional District Judge, Jhang, holding that the suit deserved rejection, on first appeal from a judgment and decree of the learned Civil Judge, Chiniot dated 22-11-1973 who had in his own turn decreed the suit for possession through pre-emption instituted by the appellant.
2. Briefly the facts of the case are that Abdur Rehman appellant instituted a suit for possession through pre-emption on 8-2-1975 against the respondent in the Civil Court at Chiniot, in respect of the land measuring 4 Marlas situated at Chah Lala Wala Mohallah Usman Abadi Dakhli Chiniot No.2. The land was sold by one Allah Ditta to the respondent in consideration of Rs.4,500 through a registered sale deed, dated 8-2-1974. The appellant asserted his superior right over the respondent as an owner of the contiguous land alleging that the defendant-respondent was neither an owner in the estate nor a Khewatdar also stating that if the land was to be treated as a residential one even then the land of the appellant and his Haven was contiguous to the suit land towards south. he further maintained that in fact a sum of Rs.2,000 was paid as the sale price of the land and the same was the market value and a fictitious price of Rs.4,500 was entered just to defeat the right of pre-emption of the appellant.
3. The suit was resisted by the respondent who denied the right of pre-emption of the appellant, pleaded estoppel and denied any custom as to the pre-emption prevailing within the locality. He maintained that Rs.4,500 were paid as the actual sale price of the land. He also calimed improvements to the extent of Rs.15,000.
4. The learned Civil Judge according to the variance of the parties, framed the following issues:-
(1) Whether the Plaintiff has superior right of pre-emption? O.P.P.
(2) Whether the plaintiff is estopped by his conduct from filing the suit? O.P.D.
(3) Whether the plaintiff has waived his right of pre-emption? O.P.D.
(4) Whether the suit property has not been correctly described? If so, what is its correct description and with what effect? O.P.D.
(5) Whether Rs.4,500 was the price of suit property fixed in good faith or was actually paid? O.P.D.
(6) If issue No.5 is not proved, what was the market value of the suit property at the time of its sale?
O.P.Parties
(7) Whether the defendant has improved the suit property? If so at what cost and with what effect?
O.P.P.
(8) Whether the custom of pre-emption prevails in the locality where the suit property is situated?
O.P.P.
(9) Relief.
' The learned trial Court decided the issues conducive to the right of pre-emption in favour of the appellant except the issue as to the sale price which was resolved in favour of the respondent, allowing him Rs.2,500 as improvements. The suit was decreed.
5. The respondent being aggrieved of the judgment and decree of the learned Civil Judge filed an appeal therefrom which came to be decided by the learned Additional District Judge, Jhang.
Before the learned Additional District Judge the respondent raised a point that the suit as instituted had become barred by the time when the court-fee which was required to be paid for the valid institution was made good. Reliance was placed on Walayat Khatun v. Khalil Khan PLD 1979 SC 821 against which it was maintained by the appellant that the valuation was corrected and the deficiency was made good within the time allowed by the learned Civil Judge on which score no exception could be taken. The learned Additional District Judge observed that the appellant had valued the suit for the purposes of court-fee and jurisdiction at Rs.80 being fifteen times of the net profits of the preceding year upon which a court-fee. of Rs.6 was paid. The facts as set out in the plaint showed that the appellant had not treated the land as an agricultural one since it had been averred in the plaint that the right of pre-emption had been prevailing in Chiniot City prior to 1913.
While describing the boundaries of the suit land it was stated that on the northern side there was a factory, on the western side there was a street and on the southern side there was the land and Flaveli of the appellant and on the eastern side there were houses occupied by Changars. If the appellant had treated the suit property as a residential site he should have paid the court-fee on the value as mentioned in the registered sale deed according to which the court-fee should have been paid at Rs.4,500 and if on the other hand the appellant was of the opinion that that was an agricultural land then he could have taken some steps to get the statement of annual net profit prepared if not earlier at least at the time of the presentation of the suit. There was nothing on the record where from that could be inferred conveniently that under a bona fide mistaken belief about the nature of the property the appellant had taken steps to ascertain the annual net profit of the preceding year. The appellant was grossly negligent in that regard. A proper court-fee had not been paid according to the value of the suit property as entered in the registered sale-deed or according to the annual net profits of the preceding year. He rejected the submission of the appellant that he was in doubt about the nature of the property in the beginning so as to value that precisely for the purposes of court-fee and expressed that for the first time on 23-5-1975 an application to amend the valuation was presented which was allowed by the court on 24-5-1975 and the deficiency in the court-fee amounting to Rs.331.50 was made good on 26-5-1975. The learned Additional District Judge held that the appellant was guilty of contumacy and there was no application as well for the extension of time on behalf of the appellant and it was not shown that what prevented the appellant in making good the deficiency in the court-fee at the earliest opportunity. The trial Court had accepted the deficiency in the court fee on 26-5-1976 when the respondent had not put in appearance, the acceptance of the court-fee was ex parte and behind the back of the respondent. The mere acceptance of the court-fee did not amount to extension in time. That aspect of the case unfortunately escaped the notice of the trial Court, then the learned Additional District Judge by applying the principle as embodied in Walayat Khatun's case concluded that when the court-fee was made good the suit had already become barred by time.
He accepted the appeal on the sole ground and set aside the judgment and decree of the learned trial Court. As to the other issues he observed that there was no necessity to give findings on those as those were not convassed before him.
6. The learned counsel for the appellant has submitted that in the plaint as filed the suit was valued for the purposes of court-fee and jurisdiction at Rs.80 being fifteen times of the annual net profits of the preceding year. On 9-5-1975 the summons were ordered to be issued to the defendant/respondent for 21-6-1975 and the deposit of Rs.900 as zar-e-panjam and making up of the deficiency in the court-fee according to the Naqsha Dal before the aforesaid date was also ordered by the trial Court. On 23-5-1975 the appellant made an application for the amendment of the plaint stating that according to the entries in the revenue papers no net profits had arisen out of the land which fact. had come to his knowledge when he applied for the same. The appellant had inadvertently valued the plaint for the purpose of court-fee on the annual net profits of the preceding year. The appellant wanted after that to correct the valuation of the suit for the purpose of court-fee. The learned trial Court on 24-5-1970 allowed the application for amendment observing that the defendant/respondent had not by that time been served therefore, there was no necessity of issuing any notice to them and ordered the appellant to file the amended plaint within three days which was filed on 26-5-1975 wherein the suit for the purposes of court-fee and jurisdiction was valued at Rs.4,500 being the ostensible sale price. The appellant submitted the court-fee according to the amended plaint on 14-6-1975 which was received by the learned trial Court subject to an exception by the other party i.e. the respondent. The defendant/respondent entered appearance on 21-6-1976 and submitted a written statement on 26-7-1975. The defendant/ respondent regarding the amended plaint did not admit the valuation of the suit for the purposes of court-fee and jurisdiction as correct and instead submitted that the correct valuation of the suit was Rs.4,500 being the sale price plus improvements to the extent of Rs.15,000, the sum total coming to Rs.19,500.
' The learned counsel for the appellant has further submitted that the initial valuation of the suit in the plaint was based upon a misconception as to the nature of the property but within due time that was corrected and the court-fee was paid before the time fixed by the trial Court for the same by which time the defendant/respondent had not entered his appearance. An opportunity to make up the deficiency was given by the trial Court, the appellant's conduct was not contumacious nor there was any positive mala fide on his part nor he was negligent. The principle as laid down in Walayat Khatun's case was not attracted, therefore, the learned Additional District Judge wrongly relied upon the same to non-suit the appellant. He has relied upon Hafiz Hassan Muhammad and two others v. Abdul Hamid and two others PLD 1982 SC 159, in this case the learned Supreme Court refused to interfere on the question of making up the deficiency within the court-fee by holding that that was not the case where the plaintiff had failed to make up the deficiency within time allowed by the Court; Mst. Parveen v. Mst. Jamsheeda Begum and another PLD 1983 SC 227, in this decision the learned Supreme Court within the circumstances of the case observed that the "learned trial Judge was fully competent to grant time under section 149, C.P.C. to the plaintiffs for supplying the court-fee. Once having done so 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 to 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 observed 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 duty 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, whereunder a suit can be dismissed, applies only if it is instituted after the period of limitation; Siddiq Khan and two others v. Abdul Shakoor Khan and another PLD 1984 SC 289, in this decision it has been held that it is not lawful to reject a plaint under Order VII, rule 11, C.P.C. without first granting time to the plaintiff to supply the deficient court-fee . Order VII, rule 11 is in a way a penal provision and shall be construed strictly so as not to be resorted to unless conditions of C.P.C. require the deposit of requisite stamps for issuance of the processes.
The Court might have to exercise discretion in those and other matters for allowing time in this behalf and the considerations of obligation as under Order VII, rule 11 (c) would not be attracted thereto It is true that 'documents' mentioned in various sections including sections 4 and 6 of the Court Fees Act cannot be filed/received unless "proper fee" is paid, therefore, section 28 is a general consequential and remedial but residuary provision in that behalf; but "proper" stamp is the subject thereof The law laid down by this Court in cases of Muhammad Nawaz Khan and Shah Nawaz would continue to hold the field and contain the law declared, notwithstanding the judgment in the case of Mst. Walayat Khatun.
7. The learned counsel for the respondent while opposing the appeal has submitted that the appellant was negligent and his conduct was contumacious and charged with mala fides. The appellant was granted an opportunity to make up the deficiency in the court-fee but that was waived when the plaint was amended and a different mode of valuation was adopted according to which he was to file an amended plaint properly stamped. The learned trial Court granted an extension in time to make up the deficiency in the court-fee for which there was no application made by the appellant. There was no explanation as to why the suit was not properly valued and stamped in the first instance. The learned Additional District Judge rightly non-suited the appellant.
The reliance by the learned Additional District Judge on PLD 1979 SC 821, is well placed.
8. In view of the facts as narrated in this case it is clear that an opportunity had been given by the trial Court itself to make up the deficiency in the court-fee before a particular date. The value for the purpose of court-fee was corrected and the deficiency was made good before that. Even in view of the principle as laid down in Walayat Khatun's case the appellant could not be non-suited.
After having himself quoted from the same decision the learned Additional District Judge failed to appreciate that. It is given in the said decision that if by the order of the Court, a plaint which was originally insufficiently stamped is allowed to be properly stamped, then the law confers a retrospective validity on the said plaint. If by the time the proper court-fee on a plaint is paid, that had already become time barred, that defect would stand cured if the deficiency was being made good under the order of a Court under the provisions of the law relevant on the subject.
' As to the observation by the learned Additional District Judge that no application for the extension of time was submitted to the Court the learned Judge overlooked the law applicable to such a case. Under Order VII, rule 11, C.P.C., a plaint is liable to be rejected when the Court requires the plaintiff where the relief claimed is under valued to correct the valuation or where the relief is properly valued but the plaint is written upon a paper insufficiently stamped within a time fixed by the Court and he fails to do so. In this case the learned trial Court required the appellant to make up the deficiency in the court-fee. The providing of time in this behalf as is obvious is co-extensive with the giving of an opportunity for which the Court has the requisite power also under section 149, C.P.C. The question of making an application for the extension in time would have arisen, had the appellant failed to make up the deficiency within the time fixed by the Court.
9. Now whether the appellant was negligent or his conduct was contumacious or charged with male fide in valuing the suit for the purpose of court-fee in the first instance. An explanation had been given as to that, that the appellant was in the first instance not sure of the nature of the property so he valued the suit differently but the moment he came to know that the land was not within the category where it could be regarded as yielding the annual net profits then he applied to the Court for the amendment which was duly granted. It is true that when the appellant filed the amended plaint he as a matter of course ought to have stamped it according to the valuation which was corrected by him but this act of the appellant cannot be visited with any penalty for the reason that if the amended plaint is taken in continuation of the first one then the time had already been given to the appellant within which he was to make up the deficiency and if it is to be taken as otherwise even then it can only be regarded as a case of an unstamped plaint attracting the principle as expressed in Order VII, rule 11, C.P.C. Tills can also be taken to explain that why the stamps were not placed 'when the amended plaint was filed, the probability is as is obvious that the appellant was under an impression that for making up the deficiency in the court-fee a date had already been fixed by the trial Court and what he was to do was to be done before that date.
The conduct of the appellant could have been regarded as contumacious had he failed to comply with the order of the trial Court to make up the deficiency in the court-fee as ordered because contumacy is synonymous with disregard of a positive direction. As to the male fide the learned counsel for the respondent has not been able to show any fact which could suggest that.
10. As to the observation of the learned Additional District Judge that when the court-fee was made good the suit had already become time barred, the above-quoted latter two decisions of the Supreme Court have amply clarified that in such circumstances the point of limitation will not have an impact. In the present case the correction of the value and the proper payment of the court-fee has all been done within the time given by the Court in the first instance, therefore, there exists no justification for non-suiting the appellant who is otherwise successful.
11. For the foregoing reasons this appeal is accepted, the impugned judgment of the learned Additional District Judge dated 23-10-1979 is set aside and the decree of the learned trial Court is restored. Since the question in issue verges on the legal aspect, therefore, there is no order as to costs.