The facts giving rise to this revision petition, briefly stated, are that one Eisa, predecessor-in- interest of the present petitioners, purchased certain land from Mst. Nishan and Mst. Naseem Akhtar, daughters of Yousaf Khan for a sum of Rs.10,000 on 31-3-1971. Ahmad Din, predecessor-in-- interest of the respondents, brought a suit for possession by pre-emption of this land claiming superior right of pre-emption and also that the land had in fact been sold for a sum of Rs.5,000 which was fixed in good faith and actually paid.
2. 'The vendee controverted the assertions of the prospective pre-emptor and maintained in his written statement that the !Arid had in fact been purchased by him for a sum of Rs.10,000 which was fixed in good faith and actually paid; that he had made improvements on the suit land spending a sum of Rs.2,000 thereon; that the plaintiff/pre-emptor had waived his right of pre- emption, if any; and that the suit was barred by time.
3. A comparison of the pleadings of the parties gave rise to the following issues: (1)Whether the amount of Rs.10,000 was fixed in good faith or actually paid at the time of sale?
(2)If issue No. l is not proved what was the market value of the suit land`K (3)Whether the plaintiff has superior right to sue?
(4)Whether the plaintiff has waived his right?
(5)Whether the defendant has made improvements on the suit land, if so to what extent and with what effect?
(5-A) Whether the suit is barred by time?
(6)Relief,
4. After recording the evidence of the parties and hearing the arguments addressed at the Bar the learned Civil Judge, then seized of the matter, decided issues Nos. l and 5-A in favour of the vendee. Issue No.3 was found in favour of the pre-emptor while issues Nos.4 and 5 were found against the vendee. He did not feel the necessity of giving finding on Issue No.2 which had in fact become redundant. On the basis of these findings and particularly on issue No.5-A, he dismissed the pre-emptor's suit holding that it was barred by time; by means of his judgment dated 22-6- 1977.
5. The pre-emptor preferred an appeal and to his good luck, the learned Appellate Court after taking into consideration the relevant provisions of law and placing reliance on Muhammad Nawaz Khan v. Syed Ghulam Mujtaba (PLD 1970 SC 37), set aside the findings of learned lower Court on Issue No.5-A holding that the suit was well within time and as a result thereof, he accepted the appeal, set aside the judgment and decree of the lower Court by means of his judgment dated 13- 9-1981 and granted the pre-emptor a decree, for possession of the suit land by pre-emption against the vendee-defendant on the payment of a sum of Rs.10,000 as the sale price but left the parties to bear their own costs.
6. Dis-satisfied with this judgment of the Appellate Court, Khushi Muhammad and others sons of Eisa have filed this revision petition claiming inter alia that the learned Appellate Court failed to take note of a subsequent judgment in case of Mst. Walayat Khatoon (PLD 1979 SC 821) in which it was held as under:- "The next point to be seen is whether in all cases a Court is first bound to grant time to a plaintiff to make up the deficit .Icy in the court-fee under Order VII, rule 11 (c), C.P.C. Before proceeding to take any further, action on an insufficiently stamped plaint. My answer is in the negative. And for this purpose I will divide suits or plaints into two categories. One category is where the plaint -is filed well in time and there is still some period of limitation left in favour of the plaintiff. In such a suit the Court is obliged and bound to grant time under Order VII, rule 11(c), C.P.C. And the time granted itself should also be within the meaning period of limitation. This is a stage when the matter is solely between a subject and the State. However, if despite grant of such an opportunity the needful is not done the Court shall reject the plaint. The second category is that where on the date of grant of time the suit has already become time-barred, or where though the time was granted on a date when suit was within limitation but it was granted or extended up to a date by which the suit will become time-barred. However, the matter is not confined solely between a subject and the State because in such a situation a third person namely defendant has also in the meantime due to running out of the period of limitation in his favour acquired a vested right. These cases are distinguishable from the first category and are a class by themselves. These are to be regulated by sections 148 and 149 of the C.P.C. Which as is obvious authorize the Court to destroy the defence of limitation which may have become available to a defendant in the meantime. It is this category of cases in which a Court is not bound or obliged to grant time and nor is it to be granted just in routine or mechanically but by keeping in view the consideration abovementioned. "
Placing reliance on this judgment, it has been asserted by the petitioners that the learned Appellate Court was not competent to extend time after the limitation was over especially when there was no application for the same. It was on the basis of the principle laid down in Mst. Walayat Khatoon's case PLD 1979 SC 821 that this civil revision was admitted to regular hearing on 28-9-1981.
7. I have given a patient hearing to both the parties at considerable length and have also carefully gone through the relevant provisions of law. In fact, the entire controversy in this behalf has been set at rest by what has been laid in a very eminent and exhaustive judgment on the point by a Full Bench of the Hon'ble Supreme Court of Pakistan i.e. Siddique Khan and 2 others v. Abdul Shakuf Khan and another (PLD 1984 SC 289). All the relevant case law was considered and it was held as under:- "The failure to supply proper court-fee in the context of the Court Fees Act and section 149 and Order VII, rule 11(c), C.P.C. Can at best be equated with non-prosecution and not with non- institution or presentation of the matter/document nor with the bar of limitation.
Accordingly, considerations in that behalf for exercise of discretion under sections 148, 149 and the relevant provisions of Court Fees Act ,should be different from those under section 5 of the Limitation Act, which in any case does not apply to the suits. To apply the latter to the former cannot be justified on any rule of interpretation."
Again at page 320 it was observed as under:- "The combined effect of the rule laid down by this Court in the cases of Muhammad Nawaz Khan and Shah Nawaz would thus be that in cases of deficient court-fee which would include in the context of now amended law, certain exemptions in this behalf, the Court on discovery of an omission/error in valuation of deficiency in court-fee, shall acting under Order VII, rule 11 (b) and (c) allow time to the plaintiff to make .Correction and supply the deficiency. If he does so then the plaint shall be deemed to have been validly filed on the date of the original presentation notwithstanding the fact that the court-fee was supplied after the expiry of the period of limitation.
If, however, the plaintiff is guilty of contumacy which terms would be separately explained hereinafter and/or he commits positive act of mala fides the plaintiff could be held disetttitled to further exercise of discretion under section 149 read with section 148 of C.P.C.
Contumacy in the context is used in the general dictionary sense and not as a word of art. It means contempt of lawful authority, obstinacy or A stubbornness. It is not difficult to discover the connection of these attitudes with the subject under discussion. If a plaintiff is allowed time to supply the deficiency in court-fee under Order VII, rule 11 (c) as a matter of course and obligation (because the rejection of plaint cannot take place without doing so) then in case he fails to do so, and asks for more time without some justification, it would amount to his being obstinate and stubborn in ignoring or defying the requirement and authority of law. The repetition of such a conduct would amount to contumacy. "
The Hon'ble Supreme Court thus concluded that (i) the decision in Mst. Walayat Khatoon's case PLD 1979 SC 821 cannot be assumed to have dissented from Supreme Court judgments in Muhammad Nawaz Khan's case PLD 1970 SC 37 and Shah Nawaz's case 1972 SCM R 179 and that the law laid down in the said two judgments continues to hold field and is the law declared, notwithstanding judgment in case of Mst. Walayat Khatoon PLD 1979 SC 821; and (ii) that no departure was ever made in any case from what was held in these two cases to the effect that it was obligatory to allow time for supply of 8 deficiency in court-fee before rejecting the plaint and regarding refusal of discretion under section 149, C.P.C.
8.The same view was followed in Muhammad Hussain and another v Mst. Bhoori (1994 SCM R 367).
9.Seen in this context, it cannot but be concluded that the learned lower Court while exercising its discretion afforded an opportunity to the appellant to make up deficiency in the court-fees up to 18-4-1973 and the requisite court-fees e was in fact deposited within the stipulated time i.e. On 17- 4-1973. The finding of the lower Appellate Court on Issue No.5-A being based on sound reasoning, therefore, cannot but be upheld and it is accordingly upheld.
The result is that this revision petition is without merit and it is accordingly dismissed. Parties are, however, left to bear their own costs throughout. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.