SAYED ZAHID HUSSAIN, J.- Through a sale-deed dated 8.12.1976 plot/house measuring 10 Marlas was purchased by the appellant. A suit for pre-empting the said sale was filed by the respondent claiming himself to be the cousin of the vendor and having superior right of pre-emption. He valued the suit for the purposes of Court-fee and jurisdiction at Rs. 1000/-and paid the Court fee accordingly pleading that the price stated in the sale-deed, i.e. Rs. 3300/- was fictitious to defeat the right of pre-emption. The suit was contested. The learned Trial Court framed the issues, including as to the correct value of the suit property and whether the suit was incorrectly valued for the purposes of Court-fee. On consideration of the evidence produced by the parties, the learned Trial Court found the respondent/plaintiff to have superior right of pre-emption. However, it came to the conclusion that the value of the suit property was Rs. 3300/-which had been paid by the vendee to the vendor and that the suit was not correctly valued nor proper Court-fee had been paid. He accordingly proceeded to dismiss the suit on 22.3.1981 for his view that since the proper Court-fee had not been paid, it was not a plaint in the eye of law therefore the suit was liable to be dismissed. On an appeal filed by the respondent/plaintiff, the learned District Judge, Gujrat, noted the circumstances in which the plaintiff had put the valuation in the plaint of the suit property as Rs. 1000/- and not as per mentioned in the sale-deed, and reversed the findings of the Trial Court on the relevant issue, i.e., issue No. 5, as also on issue No. 1 that the suit was not barred by time. He accepted the appeal, decreed the suit of the respondent/plaintiff on payment of Rs. 3300/-i This is now second appeal by the vendee/defendant against the judgment of the learned District Judge.
2. It is contended by the learned counsel for the appellant that in view of the price mentioned in the sale-deed itself affixation of valuation of the suit by the respondent/plaintiff less than that was deliberate and contumacious act therefore the approach of the Trial Court in dismissing the suit was justified by the facts and circumstances of the case. It is contended that throughout the proceedings before the Trial Court no application was made by the respondent/plaintiff for making up of the deficiency in the Court-fee, and that the learned District Judge has erred in law in up- setting the findings and the view taken by the learned Trial Court. Relies on Shah Nawaz and 6 others Vs. Muhammad Yousaf and 3 others (1972 SCM R 179) and Siddique Khan and 2 others Vs. Abdul Shakoor Khan and another (PLD 1984 SC 289) in support of his contentions.
3. On the other hand, the learned counsel for the respondent contends that the controversy of this nature stand absolutely set at rest by the judgment of Hon'ble Supreme Court in Siddique Khan and 2 others Vs. Abdul Shakoor Khan and another (PLD 1984 SC 289) and that the respondent/plaintiff could not he non-suited by the Trial Court simply for the reason that the suit was not properly valued or that the proper Court fee had not been paid, until and unless the correct valuation had been determined by the Court and the respondent/plaintiff had been directed to make up the deficiency. It is contended that no such direction was ever given by the Court which the respondent/plaintiff failed to comply with therefore there was no such contumacy on the part of the respondent/plaintiff as would have warranted in the dismissal of the suit.
4. In the sale-deed Exh.D/1 dated 8.12.1976, the price of the suit property was stated as Rs. 3300/- which comprised one room (Kham) on a piece of land measuring 10 Marlas. It was the case of the respondent/plaintiff that the value of the same was Rs. 1000/-, which, indeed, had been paid by the vendee to the vendor and its value shown in the sale-deed at Rs. 3300/- was fictitious. He accordingly valued the suit at Rs. 1000/- for the purpose of Court-fee and paid the Court-fee accordingly. When the plaint was presented it was noted by the Court-official that the Court-fee had been paid as per value of Rs. 1000/- and the deficiency in Court-fee will be made up when the price of the suit property was determined. In his written statement filed by the appellant/defendant, objection as to the valuation and payment of Court-fee was taken. A reapplication was filed by the respondent/plaintiff and it was averred that the market value of the property was Rs. 1000/-. However, he was prepared to make up the deficiency when its correct valuation is determined by the Court. In view of the pleadings of the parties issue No. 3 as to the actual price of the property, as also the correct valuation of the suit and payment of Court-fee, was framed. It was on 22.3.1981, when the learned rial Court rendered its judgment, recorded the finding that actual price of e property was Rs. 3300/- and that the plaintiff had not put correct aluation of the suit who under-assessed the same and evaded to pay the Court -fee. The suit was accordingly dismissed for the reason that it was no Taint in the eye of law, without giving any opportunity to the plaintiff to make up deficiency in the Court-fee. The learned District Judge, however, did not affirm the finding and the view taken by the Trial Court, and accepted the appeal of the respondent/plaintiff.
5. Due to cleavage of views, for some time if the legal position was somewhat obscure, it however, stood clarified and settled finally by the apex Court in Siddique Khan and 2 others Vs. Abdul Shakoor Khan and another (PLD 1984 SC 289). It was a case concerning a pre-emption matter in which Shah Nawaz case (1972 SCM R 179), Walayat Khatoon case (PLD 1979 SC 821) referred to by the learned counsel for the appellant and number of other cases on the subject were considered, the combined effect laid down by the Court was that:- "... In case 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 term would be separately explained hereinafter/or he commits positive act of mala fides the plaintiff could be held dis-entitled 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, orstubbornness. 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 recetion of such a conduct would amount o contumacy. Similar interpretation of this word in Sohara Vs. Rashid Ahmad (1) by Aftab Hussain, J., as he then was, is approved."
The principle stated by their Lordships and culled out is that unless there is a determination by the Court, of the correct valuation and a direction is issued to the party for making up of the deficiency, he cannot be straightway non-suited for deficient payment of Court-fee only. It is only when a party has been given an opportunity to make up deficiency and it fails to avail of such an opportunity or fails to comply with the !Direction of the Court that an element of obstinacy can be attributed to him.
6. In the present case, the respondent/plaintiff had put the valuation for the reasons stated in the plaint, but at the same time it was pleaded that whatever price is determined by the Court finally, he would be ready to pay the same and to pay the Court-fee accordingly. The note given by he Court-official at the time of scrutiny of the plaint also indicates the same. There was, therefore, no obstinacy or malafide on the part of the respondent/plaintiff as the Trial Court had at no stage after determination of the correct valuation allowed him an opportunity to make up the deficiency in Court-fee and had proceeded to dismiss the suit forthwith. The view and the judgment of the learned Trial Court was rightly interfered with and reversed by the learned District Judge in appeal.
For the reasons above stated, this appeal has no merit and is dismissed accordingly. No order as to costs.