' The respondents purchased the suit land from one Mst. Shamshad Begum for a consideration of Rs,1,48,000 vide registered sale-deed, dated 28-8-1975. On 1-9-1976 the appellant filed a suit for possession of the suit land by pre-emption claiming to be a co-sharer in the suit land. He also alleged that the land has in fact been sold for Rs,1,00,000 including Rs,62,000 payable to the mortgagee of the land. The respondents filed a written statement denying the said allegations of the appellant and also averring that the one-fifth of the sale price had not been paid in time. The following issues were framed by the learned trial Court on 21-12-1976:-- Issues
(1) Whether the plaintiff has waived his right of pre-emption, if any? OPD
(2) Whether Zar-e-Punjum has not been paid within time? OPD
(3) Whether the plaintiff has got superior right of pre-emption as against the vendee/defendant?
OPP
(4) Whether Rs,1,48,000 were fixed in good faith or actually paid as sale price? OPD
(5) What was the market value of the suit property at the time of sale? OPP
(6) Relief ' Evidence of the parties was recorded. The learned trial Court decreed the suit on payment of Rs,86,000 to the vendee/defendant and directed the appellant to pay mortgage money of Rs,62,000 to the mortgagee of the land vide a judgment and decree, dated 23-12-1978. Feeling aggrieved the respondents filed an appeal which was heard by learned District Judge, Vehari who reversed the findings of the learned trial Court on issue No,2 and observing that the deficiency in the court-fee was made up at a time when the limitation for filing the suit had expired, proceeded to accept the appeal and to dismiss the suit of the appellant vide a judgment and decree, dated 27-3-1982.
2. Learned counsel for the appellant contends that the respondents had not even raised the question of court-fee in the trial Court and that no issue to the said effect even was claimed and in any case the impugned judgment of the learned District Judge is violative of the law laid down in Siddique Khan's case PLD 1984 SC 289. According to the learned counsel, the findings recorded by the learned District Judge on issue No,2 are also contrary to law.
' Learned counsel for the respondents, on the other hand, has sought to support the impugned judgment and decree of the learned District Judge.
3. I have gone through the records of the learned trial Court.
' I have reproduced the issues framed in the suit above. It is but obvious that neither any objection was raised qua court-fee in the written statement nor any issue was claimed or framed by the learned trial Court to the said effect. The learned District Judge apparently undertook the exercise on his own as I find no such ground in the copy of memorandum of appeal appended with this R.S.A.
4. The records reveal that the suit came up before the learned Civil Judge on 2-9-1976 when he issued notice to the respondents for 15-10-1976 and also directed the appellant to deposit Rs,29,600 being one-fifth of the ostensible sale price before the said date. It was also directed that deficiency in court-fee be made up before the said date. A bare look on the said order would reveal that no conscious effort was made by the learned trial Court to determine as to whether the court-fee is deficient and if so, what is the amount of court-fee required to make up the deficiency. Thus, the matters were left in the hands of appellant which is not warranted by law. On 14-10-1976 the appellant filed two applications one praying for extension of time to pay the court-fee and the other to deposit the one-fifth. The learned trial Court directed the appellant to pay the court-fee and deposit the one-fifth before 6-11-1976. Record further shows that the deficiency in the court-fee was made up on 5-11-1976 and requisite court-fee stamps were filed in Court on the said date. On 5-11-1976 another application was filed by the appellant explaining that he is not in a position to pay cash because of a ruined crop and he be permitted to furnish security. The learned trial Court passed an order directing the appellant to furnish the security within 7 days. In the same order, the factum of filing of court-fee stamps was recorded. The said security was filed and accepted by the learned Judge on 11-11-1976 i,e, within the time granted by the learned Court for the purpose.
5. So far as the observations of the learned District Judge regarding court-fee are concerned, it is by now settled and consistent law pursuant to the judgment of the Supreme Court of Pakistan in the aforementioned Siddique Khan's case that once a suit is filed within the time prescribed by law then it cannot be held to be beyond time on the ground that the court-fee has been paid at a time when limitation for a pre-emption suit has expired. It has also been laid down in the said judgment that a Court is required first to determine whether there is any deficiency in the court-fee and then to work out the same in precise terms and only then a direction can be issued to the plaintiff in a suit in terms of Order VII, Rule 11, C.P.C. For making up deficiency in the court-fee. It is a violation of this order which results not in dismissal of suit but rejection of plaint. No such order was passed and it is nobody's case that the court-fee paid by the appellant on the plaint within the time allowed by the learned trial Court was not proper. In fact, in the present case, an occasion even to reject the plaint in terms of Order VII, Rule 11, C.P.C. Did not arise at all.
6. So far as the question of Zaf-e-Panjum is concerned, I have already noted above that issues in the suit were framed on 21-12-1976 whereas the order directing the appellant to furnish security was passed on 5-11-1976 and the security was furnished within the time stipulated in the said order.
Section 22 of the Punjab Pre-emption Act, 1913 does not spell out any fetters on the powers of the Court to extend the time. This precise question arose in the case of Ch. Zulfiqar Ali v. Mian Akhtar Islam and others PLD 1967 SC 418. In the said case, in the first instance, the learned trial Court directed the plaintiff to furnish security by 30-7-1959. On this date, a security bond was filed but an objection was raised that the bond was improperly stamped. The case was adjourned to 11-9-1959 for arguments. Before the said date, the plaintiff expressed his willingness to deposit the one-fifth in cash. He was permitted to do so and the amount was deposited on 2-9-1959. On the objection of the vendees the learned trial Court rejected the plaint. However, the plaintiff's appeal was allowed by the learned District Judge. Regular second appeal filed by the vendees was accepted by this Court. The Supreme Court while allowing the appeal observed as under:-- "The question which then arises is whether the trial Court was competent to vary its original order requiring security and to replace it by an order in the alternative form allowed by the law, viz., an order for deposit of one-fifth of the purchase price. At the date when the order of the 30th July, 1959, was made, issues had not yet been settled. In Zaman Mehdi Khan's case and that of Raja Khan, expressions have been used which indicate that in the view of the learned Judges of the Lahore High Court, such a power does exist, but it must be exercised before the settlement of issues, and it must be exercised expressly. That view is in our opinion, supportable upon a consideration of the wording of subsections (1) and (4) of section 22. There is nothing in subsection
(1) to indicate that the choice can be made only once in a suit. It is well-known that the requirement of a cash deposit or security contained in the subsection is intended to guard against vexatious and mala fide litigation, and thus, to guarantee a vendee against frivolous proceedings on the part of possible pre-emptors. The deposit is a token of good faith, and equally the security for the full amount of the purchase price constitutes a guarantee that plaintiff will meet whatever demand is made for money in case his suit succeeds. The furnishing of a guarantee in one or the other form is made obligatory by subsection (1), but the subsection contains no words to indicate that the choice between the two forms of guarantee can only be made once and so far as the safeguard of the interests of the vendee is concerned, the two guarantees are to be placed on a level. An indication that the law does not impose so strict a condition that form of guarantee once chosen cannot be altered by the trial Court within the time permitted is to be found in the wording of subsection (4) which reads as following:- ' If the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make the deposit or furnish the security mentioned in subsection (1) or (2) ... His plaint shall be rejected or his appeal dismissed as the case may be.'
' It seems to us that if the intention of the law were that the Court's first choice should be unalterable, there would have been no need to mention in subsection (4) both the alternatives, namely, the deposit as well as the security, and it would have been sufficient to say that the plaint should be rejected if the plaintiff should fail within the time fixed to comply with the order made by the Court in the relevant respect under section 22(1). A similar result might have been produced by adding the words ' as the case may be' after the words 'to make the deposit or furnish the security'.
The language used in subsection (4) appears to us to leave open to the Court under subsection
(4) the same choice as the Court could exercise at the earlier stage under subsection (1). In this case, the time for making a choice had not expired, so it could not be said that the option was no longer alterable. By an order in writing, the trial Court purported to vary the original order for security and replace it by the alternative order that the law allowed for the making of a deposit within a certain time, and a deposit was duly made. Accordingly, we are unable to accept the view of the learned Judge in the High Court, which is expressed in the following words:-- ' the Court having allowed the plaintiff to furnish security in the first instance, it was left with no power to direct him to make a deposit of one-fifth of the sale money' ."
Respectfully following the said dictum of the apex Court, I hold that the learned trial Court had expressly allowed the appellant to furnish the security instead of depositing cash amount and security was so furnished within the time allowed by the learned trial Court and that the trial Court was competent to pass the said order.
7. As a result of the above discussion, this regular second appeal is allowed. The judgment and decree, dated 27-3-1982 of the learned District Judge is set aside and that dated 23-12-1978 of the learned trial Court is restored. No order as to costs.