MUHAMMAD BASHIR JEHANGIRI, J.---The above appeal with the leave of the Court is directed against the judgment, dated 8-11-1994 passed by a learned Judge in Chambers of the Lahore High Court, Multan Bench, in R.S.A. No,443 of 1977.
2. The facts of the case, as narrated in the leave granting order, are that the appellants are successors-in-interest of Lal Khan vendee. The sale in favour of Lal Khan was sought to be pre- empted by Imdad Husain respondent. He had valued the suit for the purposes of court-fee and jurisdiction at Rs,1,000. This valuation was contested by the appellants and one of the issues formulated was whether the suit had not been properly valued for the purpose of court-fee and jurisdiction'. On 22-9-1973, however, Lal Khan made a statement admitting that the plaintiff had a superior right of pre-emption. By a subsequent statement, dated 27-5-1974, the plaintiff admitted the sale price to be Rs,6,000; he also agreed to pay Rs,1,000 on account of improvements. These two statements were accepted by Lal Khan pre-emptor/predecessor-in-interest of the appellants.
On the basis of those statements, the learned trial Judge who was exercising 3rd Class powers decreed the suit by his order, dated 22-7-1974 on payment of Rs,7,000; the learned trial Judge also directed the plaintiff to make up the deficiency in court-fee on Rs,6,000, which according to him, was the market value of the suit land. The suit was to stand dismissed, if the plaintiff failed to comply with those directions. Two days later, i,e, 24-7-1974 the plaintiff made an application under section 151 of the C.P.C. Praying therein that as the value of the suit had been determined to be Rs,6,000 and that was beyond the pecuniary jurisdiction of the learned trial Judge, the decree, dated 22-7-1974 was without jurisdiction. The learned trial Judge heard the parties and by order, dated 31-7-1974 returned the plaint to the plaintiff for its presentation to the competent Court. In this way what the party had by their statements, referred to above, agreed to do was allowed to be undone. In pursuance of the order, dated 31-7-1974, the plaintiff received the plaint on 2-9-1974 and filed it in the Court of the Civil Judge 1st Class at Muzaffargarh with an application under section 14 of the Limitation Act for condonation of delay. A fresh trial was held, the crucial issues tried at that trial being: "whether the suit was within time and whether the plaintiff was entitled to have the delay condoned in the institution of the suit in the Court of Civil Judge 1st Class, Muzaffargarh". The learned Civil Judge 1st Class decided these issues against the plaintiff and non- suited him. But on appeal, a learned Additional District Judge, decreed the suit by his judgment, dated 7-6-1977.
3. It is noteworthy that in the second appeal, the learned High Court held that the learned Civil Judge 3rd Class, "could not have directed the return of plaint without expressly recalling the decree" and that that Court had absolutely no jurisdiction at all to pass the order, dated 31-7-1974".
The question then was that if the decree, dated 22-7-1974 stood restored, whether the plaintiff was entitled to get time for the deposit of pre-emption money. Holding that the Civil Judge 3rd Class was not legally correct in treating Rs,6,000 as valuation for the purpose of jurisdiction; that the order, dated 31-7-1974 was invalid and also that it was not the plaintiff alone who had "contributed to the illegal proceedings" but the Court and the defendant "also participated unwillingly in the same", the learned Single Judge upheld the decree of the District Court and to grant the plaintiff time up to 31st December, 1994, "for deposit of the decretal amount under the decree and the balance of the court-fee".
4. Leave to appeal was ,w granted in this case, inter alia, to consider the following propositions:-
(i) Whether the plaintiff was legally entitled to have delay condoned when the decree, dated 22-7- 1974 was one of consent?
(ii) Whether plaintiff was not entitled to invoke the provisions of section 14 of the Limitation Act, 1908 when he had himself instituted a suit in the Court of Civil Judge, 3rd Class and then consented to the decree being passed?
(iii) Whether the suit stood automatically dismissed in view of the direction contained in the decree, dated 22-7-1974 to deposit the pre-emption money on 7-10-1974 and that direction had not been complied with.
5. Mr. Muhammad Khalid Alvi, learned A.S.C. Appearing on behalf of the appellants contended:--- Firstly that order, dated 31-7-1974 passed by the learned Civil Judge 3rd Class whereby the plaint was returned to the plaintiff was not warranted by law and, therefore, the entire superstructure built thereon was not sustainable. Secondly that the view taken by the learned Civil Judge 3rd Class that he was devoid of pecuniary, jurisdiction in the matter and also the order of the return of the plaint for its presentation before the competent Court of law were both without lawful authority. Thirdly that after passing the decree, dated 22-7-1974, the learned Civil Judge 3rd Class had become functus officio and was not possessed of any jurisdiction to pass the subsequent order of the return of the plaint for its presentation to a "competent Court of law". Fourthly that in the given circumstances the fresh time for deposit of preemption money granted to the pre-emptor by the learned High Court in Para.7 of the impugned judgment was not legally tenable. Fifthly that the plaintiff was not at fault to be misled by the conduct of the defenants-vendees as the latter had offered to accept the money adjudged as the sale price by the learned Civil Judge 3rd Class. Sixthly that the plaintiff-pre-emptor was required to have filed the appeal which course was not adopted as the judgment and decree passed by the learned Civil Judge 3rd Class had attained finality including the order for deposit of pre-emption money by 7-10-1974 and consequently none of the parties was capable of challenging the judgment and the decree. In support of the contentions that the limitation for filing the suit afresh in the Court of learned Civil Judge 1st Class, Muzaffargarh, was not warranted under section 14 of the Limitation Act (IX of 1908) reliance was placed on Mst. Zeba and 12 others v. Member-III, Board of Revenue, Balochistan and 2 others. (1986 CLC 233). The learned counsel further lent support from the law laid down in Maulvi Hamad Yar v. Mst. Hajran (PLD 1966 (W.P) BJ 1) for the proposition that extension of time under section 149 of the Civil Procedure Code, 1908, for making up deficiency in court-fee may be granted to a plaintiff for a good cause shown and that it is not to be done as a matter of course to cover negligent conduct and wilful default particularly in the cases brought for the exercise of pre- emption right.
6. Ch. Muzammal Khan, learned A.S.C. Representing the respondents, on the other hand, contended that the suit filed on 2-1-1971 and value for court-fee and jurisdiction tentatively fixed was well within the competence of the learned Civil Judge 3rd Class and, that, in any case, conceding for a while that it was not so, even then the assumption of the pecuniary jurisdiction in the matter by learned Civil Judge 3rd Class was not fatal to the trial as it was an irregularity not adversely affecting the trial of the suit at all. According to him if the court-fee was deficient, as was alleged by the appellant, the pre-emptor should have been directed by the Court to make good the deficiency. In this context Ch. Muzammal Khan, learned A.S.C. Pointed out that on 24-4-1971 the plaintiff-pre-emptor applied that the market value of the land was Rs,1,000 and that he should be allowed to make up the court-fee thereon; that no order even then was passed by the learned trial Judge. On 27-5-1974, according to the learned counsel, the plaintiff admitted the sale price which the respondent-appellant had offered and the latter had also admitted the superior right of pre- emption of the pre-emptor. Learned counsel further pointed out that the plaintiff also admitted Rs,5,000 as the compensation for improvements and ultimately on 27-7-1974 the suit was decreed by the learned Civil Judge 3rd Class requiring the plaintiff to deposit the balance of the pre- emption money by 7-10-1974. The matter was worst confounded when the learned Civil Judge 3rd Class entertained an application under section 151, C.P.C. Which was in essence one under Order XLVII, C.P.C. For review and which the High Court had also treated as an application for review. The pre-emptor then filed the plaint in the Court of Senior Civil Judge, Muzafargarh, accompanied by an application under section 14 of the Limitation Act, 1908. In this factual background, Ch. Muzammal Khan, learned A.S.C. Submitted that the concurrent findings of all the learned three Courts at the time of the institution of the suit was that, it was within the pecuniary jurisdiction of the leaned Civil Judge 3rd Class and that the valuation had increased only 27-5-1974 upon the admission of the pre-emptor himself admitting his superior right of pre-emption. The learned counsel in support of the contention that rejection of the plaint under Order VII, rule 11, C.P.0 was not warranted to non-suit the plaintiff invited our attention to the precedent in Mst. Karim Bibi and others v. Zubair and others (1993 SCMR 2039). He also cited Raja Muhammad Ayub and others v.
Muhammad Ijaz Khan and others (1982 SCMR 1105) to support his contention that order of the return of the plaint by the learned Civil Judge 3rd Class who had become functus officio being a bona fide mistake would fall within the purview of section 14 of the Limitation Act and, therefore, time spent in wrong forum was rightly excluded in the circumstances of the case.
7. The pre-emptor in the factual background narrated in the preceding paragraph attempted to highlight that the vital question to be addressed at this stage was whether the learned High Court could legally extend the time for deposit of pre-emption money. It is conceded by the parties that the order of the Civil Judge 3rd Class on the application of the vendee, predecessor-ininterest of the appellants to return the plaint to the pre-emptor for its presentation to a competent Court of law was not legally sustainable. Whatever later on transpired was built on the aforesaid erroneous order of the learned Civil Judge 3rd Class. The whole exercise subsequent to the order of the return of the plaint to the respondent was act of the Court. It would, thus, be noted in the peculiar circumstances of this case, it is noticed that the plaintiff-pre-emptor had acted according to the direction of the Civil Judge 3rd Class but the appellants had complied with this order. On the other side of the fence, the matter has gone up to the High Court where ultimately the pre-emptor- respondent was allowed to deposit the pre-emption money beyond the date fixed by the trial Court. It was merely the act of the Court of the first instance which runs through and through justifying the order of the learned High Court to extend time for deposit of pre-emption money. In almost similar circumstances, a learned Single Judge in the Lahore High court in Irshad Ahmad and 2 others v. Ghulam Muhammad and another (PLD 1978 Lahore 438) held that the pre-emption money had been paid within the time allowed by the order of the Supreme Court in Malik Barkat Ali Dogar v. Muhammad Shafi and others (PLD 1990 SC 60). This Court allowed three days after dismissal of the appeal and on this principle we feel that the respondent might have already availed the entire time yet the amount having been deposited within the period extended by the High Court, there was no default. We, therefore, approve the law laid down by the Lahore High Court in the case of Irshad Ahmad (supra) and later reiterated in the case of Muhammad Sanadi and 2 others v. Abdul Wali Shah (PLD 1979 Peshawar 17) wherein it was held that a party cannot suffer for the act of the Court in failing to deposit the amount ordered by it earlier. There is another authority of this Court in Aziz Ahmad and another v. Munir Ahmad and 2 others (1994 SCMR 2039). The facts of this case are that a suit was filed in the Court of Senior Civil Judge on 30-6-1977 and keeping in view the valuation of the suit as shown in the plaint, it was entrusted to Civil Judge 1st Class for trial.
Subsequently on basis of net profits the Court assessed the value of the suit for the purpose of court-fee and jurisdiction. Later on it transpired that suit was not triable by the Civil Judge 2nd Class and ultimately the plaint was returned on 5-6-1978 which was presented in the Court of competent jurisdiction the same day. Initially when the plaint was presented in the Court of learned Senior Civil Judge, it was within time and in such circumstances a mistake with regard to the entrustment of the case in the forum not having pecuniary jurisdiction was considered to be a mere technical error. In such circumstances. Time consumed in the forum not having pecuniary jurisdiction was condoned under section 14 of the Limitation Act, when the three learned Courts were satisfied that the defect of jurisdiction had occurred on account of technical mistake for which the plaintiffs were not to be blamed. Likewise it was held that there were concurrent findings of the three Courts below to the effect that the matter was beyond the pecuniary jurisdiction of the Civil Judge 2nd Class order passed by him for deposit of Zar-e-Panjam making good deficiency of the court-fee cannot result in the penal consequences of the rejection of the plaint. For the foregoing reasons, we are unable to find any flaw or legal infirmity of the kind warranting our interference in the judgment impugned in this appeal and the order of the High Court calls for no interference. The appeal having no merit is accordingly dismissed but we leave the parties to bear their own costs.