' MUNIR A. SHEIKH, J.---This appeal by leave of the Court is directed against the judgment dated 25- 6-1997 of the Lahore High Court through which revision petition filed by the appellants against the judgments and decrees of both the Courts below, has been dismissed.
2. This appeal has arisen from a pre-emption suit. The land in dispute measuring 135 Kanals, 11 Marlas was sold by Muhammad Hussain son of Jawaya Khan i.e,, brother of respondent No,1- Muhammad Hassan, deceased for an amount of Rs,40,000 to the appellants through Mutation No,3'09 dated 3-12-1973. On 30-11-1973, three days before the expiry of the period of limitation prescribed under the law for filing suit for pre-emption, deceased respondent No,1 filed suit to pre- empt it from which this appeal has arisen with a court-fee stamp of Rs,10. In paragraph 9 of the plaint, it was stated that the value of the suit for the purposes of court-fee and jurisdiction is fifteen times the amount of net profits accrued for the land in the last preceding year to ascertain which 'Jhar-Padawar' was required which was not available at the time of the institution of the suit as the same had not been supplied to him, therefore, the suit was being filed with a court-fee stamp of Rs,10 and on the availability of the ' Jhar-Padawar ' , the deficiency in the court-fee on such ascertained amount would be made good for which purpose an application had also independently been moved for permission to the plaintiff to make up the deficiency in the court- fee on the availability of the 'Jhar Padawar'. In the said application, also it was stated that the last date for filing the suit was 2-12-1973 and that day being Sunday was a closed day on account of weekly holiday, therefore, 'Jhar-Padawar' could not be prepared within such a short time, therefore, no amount could be ascertained as to the value of the suit for the purposes of court-fee and jurisdiction at present as a consequence of which proper court-fee could not be affixed, therefore, permission may be granted to the plaintiff to make up deficiency in the court-fee according to fifteen times of the net profits. The Court fixed the next date in the suit as 22-12-1973 with an order that before the said date, deficiency in the court-fee as prayed for by the plaintiff should be made good. From the record of the civil suit which is available, it transpires that ' Jhar-Padawar' was made available to the respondent on 6-12-1973. He filed additional court-fee stamp of the value of Rs,1,520 in the Court by filing of which according to him, the deficiency in the court-fee had been made good as directed by the Court on the last date of hearing on his own request. It was, however, admitted before us that according to the schedule of rates of the Court Fees Act applicable at the time of institution of the suit, there was still deficiency to the tune of Rs,383.50. On 9-12-1974, the appellants filed written statement in which it was again pointed out that the plaint was still deficient in the court-fee. They also on 28-2-1977 moved an application for passing an order of rejection of the plaint in these circumstances. This application was rejected/disposed of with the observation that the question as regards deficiency of the court-fee being subject-matter of the issues framed, the same would be decided at the stage of final decision of the case. It was, however, also observed that there appears to be no case of contumacy on the part of the respondent-plaintiff. Subsequently, however, on 4-3-1978, the respondent-plaintiff himself made an application for allowing him further time to make up deficiency in the court-fee alleging that the court-fee stamp of Rs,1,520 was affixed assuming as if the same was payable according to the rates mentioned in the un-amended schedule of the Court Fees Act whereas the same had been repealed through amendment made effective from 1-7-1973 by the Finance Ordinance. This application was opposed by the appellants.
3. The trial Court through judgment dated 24-5-1978 decreed the suit of the respondent on merits.
It was, however, held under Issue No,5 that the plaint was insufficiently stamped and the respondent-plaintiff was granted further time to make up deficiency in the court-fee before the fixed date.
4. The appeal filed by the appellants against the said judgment and decree was dismissed by the learned Additional District Judge through judgment dated 4-1-1982 and the revision petition filed by them before the High Court has also been dismissed through the impugned judgment dated 25-6-1997 against which this appeal by leave of the Court is directed.
5. The main burden of the argument of Mr. Aitzaz Ahsan, learned counsel for the appellants in support of this appeal was that it is a case where the plaintiff had failed to supply court-fee stamp of the value prescribed under the Court Fees Act at the time of institution of the suit for which time was granted to him on his own application to make up deficiency in the same after obtaining 'Jhar-Padawar' and it was his legal duty to himself calculate the amount of court-fee according to the law applicable at the time of institution of the suit which he failed to do, therefore, it was not a case in which the Court was obliged to determine as to exact amount at which the suit should have been valued for the purposes of court-fee and also the amount of deficiency of the court-fee as argued by the learned counsel for the respondent. In amplification of his arguments, he maintained that in every suit, initially it is the legal obligation of the plaintiff to have specified an amount at which he had valued the suit for the purposes of court-fee and jurisdiction and fix the court-fee stamp of the requisite value according to law in the process of calculation of which the Court is not involved as this exercise is to be undertaken by the plaintiff himself before the institution of the suit and present case is a case of failure of the plaintiff to discharge his this legal obligation for which no more opportunity except one granted to him by order dated 30-11-1973 could have been mechanically granted at the subsequent stages in particular when it was time and again pointed out that the plaint was insufficiently stamped even according to the amount which the plaintiff himself had provided to the Court as value of the suit for the purposes of court- fee based on Jhar-Padawar'. He further argued that the exercise of discretion for granting second opportunity to make up deficiency in the court-fee in the facts and circumstances of this case was not only whimsical but suffered from arbitrariness inasmuch as order was passed without taking into consideration the valuable rights accrued to the vendee to have the plaint rejected to defend and maintain their title validly acquired through purchase of the land which he could not on all the grounds available to him under the law.
6. Ch. Mushtaq Ahmad Khan, learned counsel for the respondent on the other hand submitted that the application of the appellants seeking rejection of the plaint was dismissed by the trial Court by interim order dated 13-11-1977 by observing that it was not a case of contumacy on the part of the respondent-plaintiff the legality of which could be challenged in appeal against the final judgment and decree of the trial Court under section 105, C.P.C. Which the appellants failed to do, therefore, the question of rejection of the plaint had become past and closed transaction which cannot now be agitated by the appellants at this stage in proceedings against the final judgment and decree of the trial Court.
7. Learned counsel for the respondent, however, relied upon the following judgments in support of his arguments that in every case of deficiency in the court-fee, the Court was required to specify the amount of deficiency which the plaintiff was required to make up as such, the initial order dated 30-11-1973 without such specification of the exact amount of deficiency granting time to the respondent to make up deficiency was a defective order as such, could not be used against the respondent in determining the question whether the discretion should have been exercised in his favour for granting him further time at the stage of final decision of the suit:--
(i) Muhammad Nawaz Khan and another v. Makhdoom Syed Ghulam Mujtaba Shah and another (PLD 1970 SC 37);
(ii) Muhammad Bashir and another v. Syed Altaf Hussain Shah through his Legal Heirs and 5 others (1990 SCMR 3);
(iii) Muhammad Iqbal and others v. Abdul Hamid (1991 SCMR 978);
(iv) Muhammad Siddique and 2 others v. Master Muhammad Ibrahim and 3 others (PLD 1981 Lahore 97);
(v) Yaqoob Khan v. Rasool Khan and others (1981 SCMR 155);
(vi) Noor Muhammad v. Hassan Muhammad (1986 SCMR 1345);
(vii) Sakhi Muhammad and 9 others v. Hakim Ali and 14 others (PLD 1992 SC 404) and (viii)Khan Shah Muhammad Khan v. Allah Diwaya and others (PLD 1961 (W.P.) Lahore 743.
' We have considered the arguments raised by the learned counsel for the parties in relation to the facts and circumstances of this case and the relevant law.
8. It may be mentioned here that under Order VII, Rule 1(i), C.P.C., the plaintiff is required to specify in the plaint an amount as to the value of the suit for the purposes of court-fee and jurisdiction. The value of the suit for the purposes of court-fee is to be fixed according to the provisions of the Court Fees Act which provides that in a suit of recovery of possession of immovable property like garden, land, etc., the value of the suit for the purposes of court-fee should be fixed according to the ,market value of the property which in the case of suit for possession of land through pre-emption was to be an amount equal to fifteen times the amount of the net profits which had accrued from the land in the preceding year, therefore, it was the legal obligation of the plaintiff before the institution of the suit to ascertain as to what was the value of the suit for the purposes of court-fee in terms of specific amount and affix the court-fee of the requisite value on the plaint prescribed under the law. In this exercise, neither the Court is involved nor the Court is required to determine the exact amount. The respondent-plaintiff in this case was aware of this requirement of law and came out with an application made under section 148, C.P.C. Alongwith the plaint by stating that 'Jhar-Padawar' having not been yet provided to him, therefore, he would determine and specify the amount of value of the suit for the purposes of court-fee and affix court-fee of the requisite value prescribed by law for which time may be granted to him. It was allowed to him through order dated 30-11-1973. He provided court-fee stamp of Rs,1,520 in addition to the court-fee stamp of Rs,10 which he had already affixed on the plaint and did not at any stage before doing that approached the Court expressing his difficulty as to how the amount of value of the suit for the purposes of court-fee should be determined and of what value the court-fee stamp was required to be affixed on the plaint. His case as is clear from the stand taken by him through application made on 4-7-1978 was that he did not supply the court-fee of the requisite value, for he did not come to know that new Schedule of the Court Fees Act had been enforced as such, he had affixed the court-fee stamp according to the unamended old Schedule which in legal terms amounted to a plea of ignorance of law. The question arises whether in these circumstances, the trial Court while granting second opportunity to the respondent-plaintiff to make up deficiency in the court-fee could be held to have exercised discretion and the power vested in it judicially and not whimsically and arbitrarily.
9. It is clear from the final judgment of the trial Court that the said Court mechanically proceeded to pass order for making up deficiency in the court-fee as if it was bound to do so under the law and it was not a case of granting second opportunity. It is also clear that relevant considerations were not taken note of and the discretion was exercised arbitrarily which had the effect of destroying valuable rights which had accrued to the appellants as vendee to defend their lawful title acquired through purchase of land by getting the plaint of the suit rejected. The argument of Ch. Mushtaq Ahmad Khan, learned counsel for the respondent based on interim order dated 13-11- 1977 through which application of the appellants for an order of rejection of the plaint was dismissed and that the same had not been challenged in the grounds of appeal against the finally judgment has no force for the following reasons:-
(a) The said interim order by its own terms had kept he matter as regards decision on the question of the insufficiency of the stamp on the plaint open on the ground that as issue had already been framed which shall be decided at the stage of final decision of the suit;
(b) that Issue No,5 framed in the suit which was to the following effect shows that the said matter remained an open question for decision:-- "(5) Whether the plaint has been insufficiently stamped? OPD."
10. The argument of Mr. Aitzaz Ahsan, Advocate Supreme Court, that the said interim order had merged into the final judgment and decree when Issue No,5 was decided in favour of the appellants that the plaint was insufficiently stamped, therefore, the appeal filed by the appellants against the said final judgment and decree in which the direction given by the trial Court in the said judgment and decree for making up deficiency in the Court had been challenged, therefore, the omission to mention order dated 13-11-1997 in the grounds of appeal separately was inconsequential and it could not be maintained that the said order remained unchallenged has force which is hereby sustained.
11. The question in the facts and circumstances of this case before the trial Court at the time of passing of the final judgment was whether discretion to grant second opportunity to the plaintiff to make up deficiency in the court-fee should be exercised he having failed to make up deficiency in the court-fee in pursuance of the previous opportunity granted to him and the plaint of the suit was liable to be rejected. According to well-established law, the discretion was required to be exercised judicially on application of mind to the facts and circumstances of the case keeping in view the relevant considerations and in particular the rights which the opposite-party i.e,, the defendant had acquired to have the plaint of the suit rejected to defend his lawful title acquired through valid contract of sale.
12. It is provided in Order VII, Rule 11, C.P.C. That if a plaintiff fails to make up deficiency in the court- fee after having been given opportunity by the Court to do so, his plaint shall be rejected. The manner in which the trial Court proceeded in mechanical way to grant second opportunity to the petitioner to make up deficiency in the court-fee at the time of passing final judgment, it appears that the Court assumed as if it was bound to grant them opportunity to do so being the first opportunity without granting which it could not reject the plaint and it was not conscious of the fact that it was a case of grant of second opportunity. It was also not taken into consideration that the plea on which the plaintiff wanted the exercise of discretion in his favour to grant second opportunity was of ignorance of law i.e, that he did not know that new Schedule of rates of the Court Fees Act had come into force and that deficiency in the court-fee had not been made good in spite of an opportunity given. According to his own showing, he was not in any manner in doubt that the value of the suit for the purposes of court-fee had been fixed by him according to the amount mentioned in the 'Jhar-Padawar' and it was a case where the plaintiff had failed to discharge his legal obligation to affix the court-fee of the requisite value on the amount which he himself had specified as the amount of value of the suit for the purposes of court-fee at the time of institution of the suit, therefore, in our considered view, he was not entitled to exercise of discretion in his favour in the matter, in particular when the appellants had acquired a valuable right to get the plaint rejected. In the peculiar facts and circumstances of this case, we are not in agreement with the learned counsel for the respondent that the Court was bound to specify the exact amount of deficiency in the court-fee in the order dated 30-11-1973.
13. For the foregoing reasons, this appeal is accepted, judgment and decree of the Courts below are set aside and the plaint of the suit from which this appeal has arisen is hereby rejected under Order VII, Rule 11, C.P.C.
12. There will, however, be no order as to costs.