' Facts so far as relevant for decision of the present appeal briefly stated are that land measuring 100 Kanals situate in Chak No, 146/E. B. Tehsil Vehari District Multan along with some other rights vide sale-deed registered on 7-1-1975 was purchased by Muhammad Yousaf Zaki from its previous owners Mst. Sakina Bibi and others, Against the sale, Muhammad Ishaque and others brought a suit for possession by pre-emption on the ground of being owners of the estate. Another suit by one Abdul Mannan for the similar relief was also filed against the vendee. The two suits in terms of the section 28 of the Punjab Pre-emption Act, 1913, were consolidated and heard concurrently by the learned trial Judge. In view of the pleadings of the parties, in consolidated suits, learned trial Judge, framed the following issues: -
(1) Whether the plaintiff has superior right of pre-emption qua the vendee?
(2) Whether the sale price was bona fide fixed and actually paid? 0. P. D.-V.
(3) Whether the plaintiff is estopped by his conduct to file the present suit? 0. P. D.
(4) Whether the suit land is exempt from the pre-emption?
(5) Whether the suit has improperly been valued for purposes of court-fee. If so, what is the real value? 0. P. D.
(6) What is the market value of the suit land? 0. P. D.
(7) Whether the suit is bad for non-joinder of necessary parties? 0. P. D.
(8) Who out of the pre-emptors has superior right of pre-emption, 0. P. Parties-Pre-emptors,
(9) Whether the suit is incompetent (based on preliminary objection No, 3 of written statement filed by defendant Yousaf Zaki in Case No, 7 of 6-1-1976).
(10) Whether the suit filed by Abdul Mannan plaintiff is collusive 0, P. D.
(11) Whether the suit is incompetent (based on preliminary objection No, 4 of the written statement filed in suit Abdul Mannan v. Muhammad l'ausaf.)
(12) Relief.
' Learned Civil Judge 1st Class Vehari vide judgment and decree dated 22-3-1977, dismissed the suit brought by Abdul Mannan and decree the one instituted by Muhammad Ishaque and others subject to payment of Rs, 12,500, as the price of the suit land to be deposited in Court on or before 6-5-1977. Appeals were filed against the afore noted judgment and decree of the trial Court in the Court of District Judge Vehari. Learned District Judge dismissed the appeal filed by Abdul Mannan and maintained the judgment of the trial Court qua his rights to pre-empt. Appeal filed by Muhammad Yousaf Zaki against the decree-holder Muhammad Ishaque and others was accepted vide judgment and decree dated 21-12-1978. In the result of the decision dated 21-12-1978 allowing the appeal of Muhammad Yousaf Zaki against Muhammad Ishaque and others, suit for pre- emption brought by the latter was dismissed. This appeal, is at the instance of Muhammad Ishaque and others whose suit had been dismissed by the Court of appeal. Abdul Mannan, has not filed any appeal against the judgment dismissing his appeal in which order of the trial Court dismissing his claim was maintained.
2. Before noticing the contentions of the parties, it seems appropriate to state the findings recorded on several issues by the trial Court and the Court of Appeal. Under Issue No, 1, trial Court found that Abdul Mannan pre-emptor had not proved his superior right that of pre-emption. Sale price of the suit land is Rs, 12,500 was not challenged. Issues Nos. 2 and 3 were decided accordingly. Under Issue No, 4 the Court found that the property subject-matter of the suit was not exempt from the provisions of the Punjab Pre-emption Act, 1913. As regards assessment of court-fee, Court under Issue No, 5 observed:- "No evidence has been produced by the vendee, as against the assessment in para. 7 of the plaint.
The copy of Khasra Girdawari Exh. P. 2 has been produced in favour of the assessment. The onus of proof of this issue was on the defendant-vendee and he has practically produced no evidence to show that the suit has wrongly been valued for purposes of court-fee. The issue is decided against defendant-vendee."
' Market value of the suit land under Issue No, 6 was found to be Rs, 12,500. Issue No, 7 was answered against the vendee. Under Issue No, 8 which pertained to the superior right of pre-emption of plaintiffs, Muhammad Ishaque and others, the Court found in their favour and held that they had superior right. Vendee was not found to be a tenant in occupation of the land and thus could not defeat the plaintiff's suit. Issues Nos. 9 to 11 were also answered against the defendants. In consequence of the findings on Issue No, 5, Suit No, 7 of 6-1-1976 brought by Muhammad Ishaque and others was decreed in their favour. Learned District Judge while upholding the findings of the trial Court in regard to issues found in favour of Muhammad Ishaque and others reversed the decision solely on the ground that the plaintiffs had not made good the deficiency in court-fee within the period of limitation fixed for a suit of pre-emption. Appeals filed by Abdul Mannan were dismissed. This civil appeal was admitted on 28-10-1979 to examine the correctness of the view taken by the Court of appeal in regard to the question of court-fee vis-a-vis the limitation period.
Learned counsel appearing for the parties have been heard. It was contended for the appellants Muhammad Ishaque and others that the suit instituted on 6-1-1976, for purposes of court-fee was assessed at Rs, 675 on fifteen times of annual net profits arising from the suit land in the year preceding, the presentation of the plaint. It was further stated in para. 8 of the plaint that in case, deficiency was discovered, the same will be made good as directed by the Court. On 6-1-1976 first date fixed for hearing. The Court recorded the following order in Urdu. It reads {{URDU TEXT }} ' Court-fee stamps worth Rs, 895. Making good the deficiency on Rs,' 12,500 were filed in Court on 12-3-1976. Deficiency in court-fee was made up, and the suit proceeded to trial on merits.
Defendant-vendee in his written statement, objected to the valuation and the deficiency made good beyond period of limitation. An issue was raised on this objection which was found in favour of the plaintiffs by the trial Court and was reversed by the Court of appeal and the plaintiff's suit dismissed. Learned counsel submitted that the learned District Judge, committed a serious error of law in holding against the plaintiffs on question of court-fee. It was submitted that the suit when filed was within limitation and the fact that the deficiency discovered was made up subsequently after expiry of the limitation period, would not avail the vendee defendant for non-suiting the plaintiff/pre-emptor. Learned counsel referred to Mst. Parveen v. Mst. Jamsheda Begum and another (1), Shahna Khan v. Aulia Khan and others (2), Siddique Khan and 2 others v. Abdul Shakur Khan and another (3), to contend that the plaintiff's suit could not have been dismissed
(1) PLD 1983 SC 227 (2) P D 1984 SC 157
(3) PLD 1984 SC 289 when the discovered deficiency was made up in obedience to a direction issued by the Court well within time. Even otherwise it was contended that the plaintiff's conduct in paying court-fee was neither negligent nor stubbornly contumacious.
3. Learned counsel for the respondent-vendee submitted that in the plaint, a wrong basis of assessm ent was adopted. The suit land was not under cultivation during the relevant period and obviously being Banjar land, the plaintiff was bound to assess the valuation for purposes of court- fee according to the market value which in this case was Rs, 12,500. The plaint was grossly under- assessed and was deficiently stamped. It was no plaint in the eye of law. The suit, accordingly became legally instituted when the deficiency in court-fee was made good. It was obviously after limitation for the suit had expired. Counsel also contended that pre-emption being an artificial right, could not be protected from defeat by indulgence from the Court. He referred to several decisions to support the plea that the plaintiff-pre-emptor was not entitled to indulgence from the Court in granting extension in the matter of court-fee. The decisions referred were all prior to the pronouncements of the Supreme Court relied upon by the counsel for the appellants.
4. The plaint when presented to the Court was within time. Deficiency in court-fee discovered was made good as ordered by the trial A Court. Under section 149, of the C. P. C., when the deficiency is made good, the plaint gets revalidated from the time it was originally presented. Point falling for decision in the civil appeal is whether Court was competent to grant extension to make good the deficiency after the period of limitation filing for suit had expired. Secondly whether the conduct of the plaintiff was in any manner negligent or contumacious. Both these questions have already been considered by their Lordships of the Supreme Court in cases of Mst. Parveen v. Mst. Jamsheda Begum and another, Shuhna Khan v. Aulia Khan and others and Siddique Khan and 2 others v.
Abdul Shakur Khan and another. Settled view, in view of these latest pronouncements is that the Court, is bound to grant at least one opportunity to the plaintiff to make good the deficiency in court-fee. Unless this is done, B the plaint cannot be rejected under Order VII, rule I I, clauses (b), (c) of the Code of Civil Procedure. In this case, the Court directed the plaintiffs to make up the deficiency in court-fee which they did, well within time' fixed by the Court. Deficiency having been made good, in the trial Court, the Court of appeal was not legally justified to reopen the matter and hold that the suit was barred by time at the stage when court-fee stamps had already been placed on record. Reliance is placed on Sir Rathnavarmaraja v. Smt. Vimla (1), wherein Supreme Court of India observed:- "The Court Fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging court-fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years, We fail to appreciate what grievance the defendant can make by seeking to invoke the
(1) AIR 1961 SC 1299 revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court-fee on his plaint.
' Whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again the jurisdiction in revision exercised by the High Court under section 115 of the Code of Civil Procedure is strictly conditioned by clauses (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the subordinate Court or assumption of jurisdiction which the Court does not possess or on the ground that the Court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to move the superior Courts by appeal or in revision against the order adjudging payment of court-fee payable on the plaint. But counsel for the defendant says that by Act 14 of 1955 enacted by the Madras Legislature which applied to the suit in question, the defendant has been invested with a right not only to contest in the trial Court the issue whether adequate court-fee has been paid by the plaintiff, but also to move the High Court in revision if an order contrary to his submission is passed by the Court. Reliance in subsection (2) of section 12.
That subsection, in so far as it is material, provides.
"Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the Court. Decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and the deficit fee shall be paid . . .
' But this section only enables the defendant to raise a contention as to the proper court-fee payable on a plaint and to assist the Court in arriving at a just decision on that question. Our attention has not been invited to any provision of the Madras Court Fees Act or any other statute which enables the defendant to move the High Court in revision against the decision at the Court of first instance on the matter of court-fee payable on a plaint. The Act, it is true by section 10 provides that for the purpose of deciding whether the subject-matter of the suit or other proceeding has been properly valued or whether the fee paid is sufficient, the Court may hold such enquiry as it considers proper and issue a commission to any other person directing him to make such local or other investigation as may be necessary and report thereon. The anxiety of the Legislature to collect court-fee due from the litigant is manifest from the detailed provisions made in Chapter III of the Act, but those provisions do not arm the defendant with a weapon of technicality to obstruct- the progress of the suit by approaching the High Court in revision against an order determining the court-fee payable. In our view, the High Court grievously erred in entertaining revision applications on questions of court-fee at the instance of the defendant, when no question of jurisdiction was involved."
Court Fees Act is a fiscal enactment and is intended only to secure revenue for the State. Strictly it is a matter between the plaintiff and the State. The State has been paid its due share. Defendant, therefore, does not figure anywhere. Bowing in respect to the views of their Lordships of the Supreme Court, I am of the opinion that the view taken by learned District Judge on question of court-fee was clearly erroneous. His finding on the aforesaid issue is reversed. This was the only live issue agitated before this Court. Right of pre-emption has not been disputed. It is otherwise well proved on record. Sale price has also been admitted. Exercise of discretion in extending time for payment of court-fee wask neither arbitrary nor capricious and should not have been lightly!
Interfered.
5. In the result of what has been stated above, appeal is allowed, judgment and decree dated 21- 12-1978 of learned District Judge Vehari, is set aside and that of learned Civil Judge decreeing the suit in favour of Muhammad Ishaque and others is restored. Learned counsel for the appellants has stated that the pre-emption money as directed by the trial Court in its judgment dated 22-3-1977 has already been deposited in Court. However, if the amount has not already been deposited the plaintiffs/ appellants are directed to deposit sum of Rs, 12,500 in Court by or before 30-4-1985 minus 1/5th of the pre-emption money already deposited otherwise their suit shall stand dismissed. Costs to be borne as incurred.