AMJAD KHAN, J.- 191 Kanals l2 Marlas of agricultural land sold in favour of (Mst). Akhtar Begum respondent No.1, through mutation No.105 sanctioned on 14.9.1973, was sued out on 14.9.1974 by the petitioners to be pre-empted on the ground of their being collaterals of the vendors and also as proprietors of the estate. Vendee contested the suit and plea, among others, was raised that valuation of the suit is incorrect. Trial Court passed to orders for the deficient Court-fee being paid within the given period in accordance with the schedule of nett-profits of the land to be got prepared in the meanwhile. Plaintiffs, however, complied with the second order dated 3.3.1975 by paying more court-fee on 16.6.1975, against the requirement of its having to be paid before that date and there also was a specific order passed on that date by the trial Court in respect of acceptance of court-fee. Finally, trial Court only briefly dealt with the question by deciding issue No.2 in favour of the plaintiffs for the reason that the deficiency had been made good and finding the right of the plaintiffs to be superior, it decreed their suit, after determining the other issues in their favour, by the judgment dated 26.5.1977 with the requirement that the admitted sale price of Rs.58,000/- be paid by or before 28.7.1977.
2. Appeal thereagainst filed by the vendee-defendant was taken up for hearing by learned District Judge who came to the view not only that the plaint had been originally valued at a ridiculously low amount and court-fee of the value of Rs.12/- only had been paid thereat instead of its having to be worth Rs.912/- but he also observed that court-fee was paid on the specified date (16.6.1975), and not before it, as was the requirement, and proceeded to decide issue No.2 against the plaintiffs on the authority of (Mst). Walayat Khatoon's case reported as P.L.D. 1979 S.C.821. In result, upon accepting the appeal by the judgment dated 22.7.1979, he ordered the suit of the plaintiffs to be dismissed.
3. This second appeal by the plaintiffs was admitted to regular hearing by the order dated 13.11.1979 to, inter alia, examine whether rule of acquiescence applied to the vendee-defendant in her not taking any exception to the opportunity of payment of deficient court-fee provided to the plaintiffs by the order dated 3.3.1975, passed in the presence of her counsel.
4. At one stage of the hearing of this appeal, by the order dated 7.3.1983, matter was remitted to the trial Court for consideration of a further issue No.5-B which was framed as under:- "5-B. Whether the conduct of the plaintiff/appellants is not contumacious as to the making up of the deficiency in the Court-fee.OPP"
Trial Court was directed to record evidence on this issue and remit the record to this Court with its own opinion thereabout. Compliance was made in the desired evidence being recorded and trial Court returned its finding thereon by its order dated 12.6.1989 to the effect that conduct of the plaintiffs in making up the. Deficiency in the Court-fee was not contumacious for the reason that there was never any definite amount determined or apprised to the plaintiffs as the value of deficiency of court- fee.
Learned trial Judge kept in his view correct connotation of the expression 'contumacious conduct' and has rightly proceeded upon the consideration that "the plaintiffs were never directed to make up court-fee deficiency of any specified amount."
5. Not only that view in the case of (Mst). Walayat Khatoon (ibid) has since been departed from in the case of Siddique Khan reported as P.L.D. 1984 S.C.289 but also the provisions of Rule 11 of Order VII C.P.C, envisage a definite requirement and also an opportunity for compliance being provided to the plaintiff before proceeding to visit the shortage of court-fee with penal consequences. View to this effect has since been taken in a large number of cases and it will suffice to make reference only to Noor Muhammad v. Hassan Muhammad (1986 S.C.M.R. 1345) wherein it has been held:- "Apart from duty of plaintiff to supply correct Court-fee it is also duty of Court to specify and determine required court-fee under O.VII, R.II, Civil Procedure Code-Unless that was done and case was adjourned as a matter of right for plaintiff to pay Court-fee by a certain date, no punitive action could be taken under O.VII,R.II, Civil Procedure Code."
6. In the above case Court's omission to determine and specify the required Court-fee for making up of deficiency was held to have rendered the failure of compliance incapable of being termed as contumacious conduct. To such an effect is also the case of Ilam Din (1986 S.C.M.R.1489) and it was held in Sher Muhammad v. Muhammad Nawaz (1988 C.L.C.1311) that mere non-payment of Court- fee by plaintiff within the period of limitation or making up of deficiency in court-fee after the expiry of limitation would not render the suit otherwise instituted within the, to be regarded as the-barred without the plaintiff being first asked by Court to pay deficient amount of court-fee by a specified date and his defaulting to comply with that order, On all fours to the facts of the case in 'hand is the judgment reported as Mubarik Ali v. Gulzar Ahmad (P.L.D. 1987 Lahore 272) wherein it was held:- "Exact amount of deficiency not worked out by Trial Court at any stage of proceedings but Trial Court gave direction, in general terms, in regard to the payment of proper Court-fee by specified date-Plaintiff did file statement of nett-profits and also made good deficiency in Court-fee before his suit was dismissed-Held, plaint could not be rejected on the ground that plaintiff had not complied with direction given by Trial Court in general terms, in regard to the payment of proper Court-fee by specified date, after filing statement of net profits-Plaintiff was entitled to at least one opportunity for making good the deficiency in court-fee after same had been determined with exactitude, but since it was not so determined nor opportunity was afforded to plaintiff after determination thereof, plaintiff could not be non-suited for non-payment of proper Court-fee at the the of filing suit or before the date by which the plaintiff was directed to make up the deficiency in Court-fee after obtaining the statement of net profits-When a suit is brought within the, it cannot be dismissed on the ground of limitation for the reason that proper Court-fee was not paid within period of limitation prescribed for filing suit."
7. In the instant case, trial Court's order of acceptance of deficient Court- fee is ascribable to the power vested in it by virtue of the provisions of Section 149 C.P.C, and in the above state of the law and the facts of this case, view reached by the appellate Judge in his judgment dated 22.7.1979, in respect of deficiency of Court-fee as also about the consequence to flow therefrom is not sustainable. The same is, hence, reversed.
8. Since the remaining issues have been concurrently decided by the to Courts below in favour of the plaintiffs and no argument has been raised before me to challenge those findings, therefore, by accepting this appeal, judgment and decree dated 22.7.1979 passed by learned District Judge, Jhang is set-aside and that of the Senior Civil Judge, Jhang dated 26.5.1977 is restored. In view of change in interpretation of law during the pendency of this appeal, parties are left to bear their own costs all along.