' Petitioner has called in question vires of the order of the learned District Judge, Sargodha, dated 8-10-1984, upholding the order of the learned trial Court passed on 13-6-1984, directing the pre- emptors/ respondents Nos. 3 to 5 in this petition to make up the deficiency in court-fee.
2. Brief facts of the case are that petitioner purchased a piece of land measuring 64 Kanals in Chak No. 121/South, Tehsil and District Sargodha from one Azeem Bakhsh son of Sadha, through Mutation No. 561, sanctioned on 9-5-1979. Respondents 3 to 5 filed two separate suits for possession of the land in question through pre-emption. One suit was instituted by respondents 3 and 4 as owners in the village as well as heirs, by virtue of a plaint (Annexure 'A') dated 8-5-1980, whereas the second suit was instituted by respondent No.5, as co-owner in the village (Annexure 'A/1') on 10-5-1980, in the Court of learned Senior Civil Judge, Sargodha. The first suit for the purposes of valuation and court-fee was valued at Rs.20,674.80 while the second suit was valued at Rs.23,434.35. Thus, the value in the two suits having been shown as less than Rs.25,000 were thus treated to be exempted from court-fee, therefore, no court-fee was levied. The learned Senior Civil Judge, vide order, dated 18-11-1981 consolidated the two suits. Written statements were filed by petitioner and objection, inter alia, was taken that the suits have not been properly valued, consequently proper court-fee has not been affixed, thus the suits merit to be dismissed. Eight issues were framed. However, for the purposes of the disposal of present petition only issue No.1 is relevant which is reproduced below: "Whether both the consolidated suits are improperly valued for the purposes of court-fee and jurisdiction. If so, what is the correct valuation of the court-fee, if so, its effect? O.P.D.
3. Issue No.1 was treated as preliminary on which the parties adduced evidence. The petitioner produced various documents marked as Exhs. D/1 to D/27, proving that valuation of the suit was assessed at the instance and collusion of respondents 3 to 5 with the revenue staff. The learned Senior Civil Judge decided this preliminary issue vide his order dated 13-6-1984 (Annexure G) holding that respondents 3 to 5 in collusion with the revenue staff managed to show in the Khasra Girdawari for Kharif 1979, the land in question as vacant with a view to taking advantage in the matter of court-fee. However, having held this, the learned Senior Civil Judge assessed proper court-fee on the basis of net profits prepared by petitioner and revised entries of Khasra Girdawari, and directed respondents Nos. 3 to 5 to make up the deficient court-fee. The suit valuation was assessed at Rs.53,600.80 viz. 15 times of the net profits. The petitioner as well as respondents 3 to 5 aggrieved by the order, filed three separate revision petitions before the learned District Judge, Sargodha. Respondents 3 and 4 filed revision petitions on 26-7-1984, respondent No.5 filed revision on 22-7-1984, while petitioner filed revision on 20-6-1984. It may be mentioned that revisions filed by respondents 3 to 5 were directed against the assessment of the court-fee, whereas the revision of the petitioner was to the effect that since respondents 3 to 5 had with the collusion of revenue stall with mala fide intention deliberately declared the land as vacant and consequently had it assessed at a lesser amount and reaped advantage of the court-fee in pre-emption suit, therefore, the learned trial Court should have rejected the plaints under Order VII, Rule 11, Code of Civil Procedure instead of extending the time, in exercise of the powers under section 28 of the Court Fees Act 1870 read with section 149 Code of Civil Procedure. All the three revision petitions were dismissed by the learned District Judge vide order dated 8-10-1984, the impugned order.
Hence the present petition.
4. The contentions raised by the learned counsel for petitioner are bi-fold. Firstly, that the learned Senior Civil Judge having held that in Khasra Girdawri for Kharif 1979, the land was got shown at the instance of the pre-emptors with collusion of the revenue staff as vacant, being a positive finding, then he should have dismissed the suits and the indulgence shown in view of section 28 of the Court Fees Act 1870 was not called for and thus has acted without lawful authority. It is contended that section 28 of the Court Fees Act, 1870,. Deals with cases of bona fide mistakes or inadvertence and not cases of fraud, of the present type. For this, he places reliance on, the cases of Mst.
Walayat Khatun v. Khalil Khan and another PLD 1979 SC 821; Siddique Khan and 2 others v. Abdul Shakoor Khan and another PLD 1984 SC 289 and Abdul Sattar Khan and another v. Hafiz Muhammad Bakhsh and another 1979 SCM R 243. Secondly, it was contended that learned District Judge has misread the evidence and has erroneously held that there was no collusion between the respondents 3 to 5/plaintiffs and the revenue staff.
5. On the other hand, learned counsel for respondents 3 to 5 has argued that assuming for the sake of arguments, the entries in Khasra Girdawri for Kharif 1979 were collusive at the instance of respondents 3 to 5, even then the learned trial Court was obliged and has rightly allowed time to the respondents/plaintiffs to make up the deficiency. For this he had placed reliance on the cases of Khurshid Ahmad and others v. Fajar Ali 1982 SCM R 575; Shahna Khan v. Aulia Khan PLD 1984 SC 157; Siddique Khan and 2 others v. Abdul Shakoor Khan and another PLD 1984 SC 289 and Sultan Ahmad and others v. Khuda Bux and others 1986 SCM R 1005.
6. I have examined the documents attached with the petition in particular the order passed by the Collector Sargodha dated 1-3-1982, and the appellate order passed by the learned Commissioner, Sargodha Division dated 4-7-1982. It transpires that the petitioner made an application to the Revenue authorities, agitating collusion of respondents 3 to 5 with revenue staff to the effect that false Khasra Girdawri for Kharif 1979 was fraudulently prepared with a view to taking advantage of the false documents in the nature of under valuation of the suit and saving themselves from having to pay the amount of appropriate court-fee. Prolonged investigations at various stages took placed and finally the finding was recorded by the learned Deputy Commissioner/ Collector in his order dated 1-3-1982, holding that the revenue functionaries had deliberately and falsely in collusion with respondents 3 to 5, with mala fide intention got these documents prepared for the purposes of taking advantage under the Court Fees Act, in the pre-emption suit in question. This finding has been upheld by the learned Commissioner Sargodha Division in his order dated 4-7- 1982. The learned Senior Civil Judge has held the same view. However, he preferred to grant extension of time in exercise of powers under section 28 of the Court Fees Act, 1870.
7. I have gone through the judgments relied upon by the learned counsel and I re9pectfully agree with the principle of law enunciated in those judgments that is to say that in generality of cases discretion should be exercised under section 28 of the Court Fees Act, 1870, read with section 149 of Code of Civil Procedure, so as to allow the parties to make up the deficiency in the court-fees, so that the matters may be adjudicated upon on merits. However, this case has very peculiar feature i.e. a proved case of mala fide and fraud on statute. I am of the view that such a conduct does not entitle any equitable discretionary relief because that would amount to providing judicial process to be used as mean to prepetuate fraud. For that I rely on the observations of the Honourable Supreme Court made in PLD 1979 SC 821 at page 825 and PLD 1984 SC 289 at page 320, that is to say that where mala fide or collusion, malice and bad faith is established, the discretion for extension of time is not called for.
8. In the instant case, the documents placed on the record have established beyond any doubt that respondents 3 to 5 fraudulently conceived scheme, implemented it with the collusion and blessings of the revenue functionaries deliberately got manifaced false documents placed reliance on the same and thus got undue advantage in terms of court fee. Such a conduct disentitles any judicial discretion to be exercised in their favour. Although section 149, Code of Civil Procedure is wider in its scope and nature and does not have any qualifying strings attached to it, whereas section 28 of the Court Fees Act, 1870 has such a rider i.e. In cases of mistake or inadvertence, but even the all embraces situations conceived by section 149, C.P.C., does cover cases of proven mala fide and fraudulently manoeuvring of documents, because such a notion cannot be attributed to the Legislature.
9. In view of the above I hold that the learned District Judge has misread the evidence on the record and has formulated an erroneous opinion in contradiction of the evidence on the record, (that it was not a case of collusion), therefore, the same is set aside. Likewise, the learned Senior Civil Judge though held rightly and having duly appreciated the evidence on the record held that there was an element of positive collusion but had erred in exercising his discretion in favour of such a party. Exercise of judicial discretion in such like cases is not called for. Respondents 3 to 5, proved to have perpetrated fraud, thus cease to have right or claim for seeking exercise of judicial discretion in their favour. Petitioner was a bona fide purchaser for valuable consideration.
Respondents were invoking piratical device of pre-emption by fraudulently manufacturing official record and used the same in collusion with the revenue functionaries that do not merit any indulgence; therefore, the order passed by the learned Senior Civil Judge granting extension of time is not in accordance with law and the same is set aside. The writ petition is allowed. The parties shall bear their own costs.