This appeal is directed against the judgment and decree, dated 25-11-1984, by which the learned Additional District Judge, Vehari, accepting the appeal of plaintiff pre-emptor (respondents herein) decreed their pre-emption suit on the payment of Rs.9,000 against the defendant-vendee (appellant herein) after reversing the judgment and decree, dated 22-11-1980, of Civil Judge Mailsi, whereby he had dismissed their pre-emption suit in respect of a piece of land measuring 60 kanals situated in the area of Mouza Kharala, Tehsil Mailsi, District Vehari. The pleadings of the parties had given rise to a number of issues but the actual contest between them remained confined to issues Nos.5 and 7 which are re-produced hereunder:- 5.Whether the valuation for the purposes of court-fee is incorrect if so. What is the correct valuation?
7.Whether the suit is within time?
2. The trial Court had dismissed the suit of the respondents as a result of its findings on issues Nos.
5 and 7. On appeal the learned Additional District Judge reversed the findings of the trial Court on these issues and decreed the suit. Aggrieved by his findings the appellant came up in appeal to this Court. The learned counsel for the appellants now calls in question the findings of the Courts below on issues Nos. 2, 5 and 7. For the facility of reference issue No.2 is also re-produced hereunder:- 2.Whether the suit is collusive and frivolous by the vendee?
3. With regard to issue No.2 it is argued on behalf of the appellant that the suit land had been sold by Ghulam Murtaza Shah, the father of the respondents, and it was a collusive suit. According to the learned counsel, in judgment and decree of the trial Court an attribution was made to the learned counsel for the appellant (defendant) that he had not pressed this issue but the situation to that effect is not borne out from the record of the trial Court. Before the lower appellate Court the counsel representing the appellant must have agitated this point, more so when this Court in its judgment did not say that no other point was agitated, learned counsel adds.
4. In reply to the above contention the learned counsel for the respondents submits that the learned trial Judge in his judgment has specifically mentioned that the counsel representing the defendant (appellant) had conceded issues Nos. 1 to 4 and 6 and for that reasons he did not record any findings on these issues. According to the learned . Counsel, when the respondents went up in appeal before the District Court the defendant (appellant) did not file any cross- objection nor his counsel agitated the question of waiver before that Court and it is for the first time that learned counsel for the appellant has tried to agitate this question before this Court. He submits that in the absence of the affidavit of the counsel representing the appellant before the trial Court and lower appellate Court that he argued issue No.2 and wrong attribution was made by the trial Court against him and the appellate Court otherwise omitted to incorporate his arguments, the learned counsel now representing the appellant cannot agitate this question for the first time at this stage. In this connection he refers PLD 1982 SC 53. It is further argued that due to the closure of evidence of the appellant by the trial Court there was no evidence of the appellant whatsoever on this point and nothing beneficial would emerge by arguing this point.
5. The learned trial Judge had specifically mentioned in his judgment that issue No.2, besides certain issues, were conceded by the learned counsel representing the appellant (defendant). By concession he meant the disinclination of the learned counsel to press issue No.2. It is for that reason that this issue, besides certain other issues, was decided against the appellant. If the learned counsel had pressed this issue and the learned trial Judge had made a wrong attribution, the appellant's counsel could agitate the point before the Additional District Judge and had he done so it is not expected that the lower appellate Court would have purposely suppressed his argument. I am inclined to agree with the contentions of the learned counsel for the respondents that it is for ,the first time that and attempt has been made by the appellant's counsel to agitate issue No.2 before this Court. In these circumstances, it was necessary for him to have brought on the record the affidavit of the learned counsel representing the appellant before the trial Court and the lower appellate Court that the attribution made to him by the trial Court was incorrect and the lower appellate Court had purposely omitted to mention his argument on this issue in the impugned judgment. There is no affidavit to that effect.
6. Even if the learned counsel for the appellant is allowed to agitate this issue at this stage, it is not going to cut much ice in the absence of any evidence led by his client on this issue. To me, it appears to be a wild goose chase. Therefore, issue No.2 is decided against the appellant.
7. As regards issues Nos. 5 and 7 the learned counsel for the appellant contends that the sale took place on 13-5-1975 and the respondents brought this suit on 6-5-1976 having full knowledge of the sale, as the vendor was their real brother, but still they tentatively valued the suit at Rs.300 and actually paid stamps of Rs.22.50 and later without the permission of the Court they brought on the record the stamp papers worth Rs.1920 on 7-6-1920 when the limitation had already intervened. In these circumstances, according to the learned counsel, the suit was obviously time-barred and the conduct of the respondents was mala fide as they wanted to defraud the State exchequer. He submits that the respondents did not bother even to make an application for seeking extension of time nor to make up the deficiency of court-fee. In his opinion, the trial Court had rightly decided issues Nos. 5 and 7 in favour of the appellant and the learned lower appellate Court erroneously reversed the findings on these issues. He quotes PLD 1984 SC 289. On the contrary, it is argued on behalf of the respondents that in the first interim order, dated 7-5-1976, the learned trial Judge had omitted to direct the respondents for the preparation of statement of annual net profit and make up the deficiency of court-fee, if any, and despite this omission the respondents brought on the record the court-fee stamps of Rs.1,920 on the next date of hearing. According to the learned counsel, the trial Court in reaching the conclusion had placed reliance on PLD 1979 SC 821, while the learned lower appellate Court had relied on PLD 1984 SC 289 in support of its findings. In his opinion, the necessity of making application for the extension of time under section 149, C.P.C. Did not arise in this case.
The trial Court, while receiving the plaint and directing the registration of the suit, ordinarily directs the plaintiff to file the statement of annual net profit and make up the deficiency of court-fee, if any, by the next date of hearing but in this case the learned trial Judge in the first interim order, dated 22-11-1980, omitted to give any such direction to the respondents. On the next date of hearing they of their own accord brought on the record the court-fee stamps of Rs.1,920 along with the statement of annual net profit, with a view to make up the deficiency of court-fee in accordance with their undertaking given in the plaint. This fact was within the notice of the learned trial Judge and he could not say that the respondents did so stealthily. In the absence of determination of the court-fee and specification of the date for making such payment, the respondents were under no legal obligation to seek extension of time from the trial Court for making up the deficiency of court-fee. There has, been a good deal of controversy on this question and eventually the matter was set at rest for good by the Honourable Supreme Court in its famous judgment in Siddique Khan's case reported as PLD 19841 SC 289. Both the learned counsel representing the parties have placed reliance on this judgment, the learned counsel for the appellant in support of his contention of contumacious conduct of the respondents, and the respondents' counsel in support of his argument or the application of Order 7, Rule 11, C.P.C. Which required the Court to afford the plaintiff or the appellant, as the case may be, an opportunity of making up the deficiency of court-fee before rejecting the plaint or dismissing the appeal.
8. To my mind, there was no mala fides on the part of the respondents in making up the deficiency of court-fee on the second date of hearing. They did so of their own accord, without any direction from the Court and that was the proof of their bona fides and vigilance. Therefore, the learned lower appellate Court acted rightly in reversing the findings of the learned trial Court on issues Nos.
5 and 7 and its findings are affirmed.
9. In view of the above, there is no substance in the appeal and the same is dismissed, with no order as to costs.
A . A. /-T-58/LAppeal dismissed