Brief facts of the case are that one Abdul Wahid Khan sold land measuring 118 Kanals and 19 Marlas situated in village Karror Thal Kalan, Tehsil and District Layyah to respondents through registered sale-deed dated 3-6-1969 in consideration of Rs,16,000. This sale was sought to be preempted by the appellants alongwith one Hassan son of Muhammad Ramzan (who later on withdrew from his suit) by filing a suit on 27-5-1969. The suit was contested by the defendants- respondents. Various issues were framed by the learned Trial Court and after recording evidence of both the parties, the learned Trial Court vide judgment and decree dated 2-2-1971 decreed the suit in favour- of the plaintiffs-appellants. The same was assailed through an appeal, which was allowed by the learned District Judge vide judgment and decree dated 20-1-1972 and the suit of the appellants was dismissed.
2. Before the learned District Judge only Issues Nos.1, 5 and 6 were argued, which are as follows:--
(1) Whether the plaintiffs have a superior right of pre-emption?
(5) Whether the suit has been incorrectly valued for court-fee and jurisdiction?
(6) Whether the suit is barred by time?
3. On Issue No,1 it was held while confirming the findings of the learned Trial Court that the appellants had superior right of pre-emption against the defendants. However with respect to Issues Nos.5 and 6, it was held that since the appellants had failed to furnish the requisite court-fee within the prescribed period of limitation for filing the instant suit, therefore, their suit had become barred by time. Resultantly, it was dismissed.
4. Before the learned counsel for the appellants could open his arguments, learned counsel for the respondents has taken a preliminary objection that the instant appeal is barred by time. The relevant facts for his objection are that, although the. Appeal filed in this Court on 8-4-1972 was within limitation but it was returned on the same date with certain office objections, which was re- filed on 11-4-1972. However some other objections were also raised by the office on 22-4-1972. One of those objections was that the memorandum of appeal was not signed by the learned counsel for the appellants. The appeal was re-filed on 2-5-1972 after removing objections. It is thus concluded that by the time the appeal was re-filed on 2-5-1972, it had become barred by time. It is finally submitted. In this regard that under Order 41, Rule 1, C.P.C. The memorandum of appeal was compulsorily required to be signed by the appellants or their learned counsel. Since the same was signed by none of them, the same will be treated to have been filed on the day when it was finally re-filed on 2-5-1972. He relies on PLD 1972 Lahore 743, PLD 1996 Lahore 702 and 1991 CLC 269.
5. On the other hand, learned counsel for the respondents contends that when the appeal was returned either on 8-4-1972 or on 22-4-1972 no time was fixed by the office for its re-filing, therefore, the filing of the appeal by the appellants within reasonable time will not take the appeal beyond the period of limitation. He relies on 2000 SCMR 847, 2000 SCMR 847 and 1990 SCMR 859.
6. I have considered the respective contentions of the learned counsel for the parties with respect to the preliminary objection.
7. It is to be noted that office had not fixed any time frame for the re-filing of the appeal, therefore, since the appellants had not unnecessarily delayed in the re-filing, thus it cannot be said that the same had gone out of period of limitation. Once it was validly instituted on 8-4-1972 within the prescribed time of limitation. Mere technical office objection cannot take away the vested rights of the litigants. Learned counsel for the appellants has rightly placed reliance on the law declared by the Hon'ble Supreme Court, wherein it was held that once the appeal/petition is filed within period of limitation, later on due to certain office objections, if some delay occurs in re-filing the same, it will not take the appeal/petition out of period of limitation.
8. Resultantly,' for what has been stated above, the preliminary objection taken by the learned counsel for the respondents is repelled.
9. Learned counsel for the appellants contends that the only question involved in the instant case, on which the appellants had been non-suited is that their suit had become barred by time as they paid the required court-fee after the lapse of limitation period prescribed for the filing of the preemption suit. Relevant facts for the determination of this question are that the sale took place in the instant case on 3-6-1969 while the suit was filed on 27:5-1969 well within the prescribed period of limitation. The plaint for the first time was put up before the learned Trial Court on 27-5-1969, when it was ordered that the notice be issued to the defendants for 28-7-1969 while the plaintiff was required to deposit Rs,3,200 i,e, Zara Punjam till 26-7-1969 while they were directed to supply the revenue papers and court-fee, till the next date of hearing i,e, 28-7-1969. On 28-7-1969. The requisite court-fee and the Revenue papers were filed by the appellants before the learned trial Court, it is thus contended by the learned counsel for the appellants that the plaintiffs had deposited the requisite court-fee within the time permitted by the learned trial Court on the very first day, therefore, no contumacy can be attributed to their conduct. It is further submitted that, it was required from the learned trial Court, that specific amount of court-fee should have been determined and thereafter the plaintiffs could be directed to make good the deficiency of that specific amount. He relies on PLD 1984, 289, 1994 SCMR 367, 1986 SCMR 1005 and 1986 SCMR 1345.
10. On the other hand, learned counsel for the respondents contends that the appellants-plaintiffs never moved application under sections 148 and 149, C.P.C.The extension of time, therefore, the time granted by the learned trial Court on 27-5-1969 was not within the parameters of the law. As such the balance court-fee paid by the appellants on 28-7-1969 was beyond the period of limitation, therefore, the suit was rightly dismissed by the learned Appellate 'Court. It is further submitted that the case-law relied by the learned counsel for the appellants is not applicable in the instant case, because it was not available at the time when the impugned order was passed by the learned trial Court and the Appellate Court.
11. Admittedly the plaint was presented before the learned trial Court for the first time on 27-5-1969, when it was directed that the appellants-plaintiffs should submit the Revenue papers and the court-fee till 28-7-1969, which was compiled by the appellants in letter and spirit by the said date, therefore, no contumacy can be attributed to the conduct of the appellants.
12. Even otherwise, it is by now well-settled principle of law that if deficiency in court-fee is made good under the orders of the Court, even though beyond the period of limitation, it would not make the suit time-barred. According to the case-law relied by the learned counsel for the appellants it is also settled that the Court should "first determine the exact amount of court-fee leviable, then grant time to the plaintiff to make good the same. In the instant case no specific amount of court- fee leviable was determined by the trial Court, but still the plaintiff made good the same within the time allowed by the Court at the very first instance. It is also to be noted that the respondents never objected to the correctness of the amount of court-fee paid by the appellants on 28-7-1969.
13. Learned counsel for the appellants has put forward a noval proposition of law that the law declared by the superior Courts till the year 1969 was applicable in the instant case and the law declared thereafter would not be applicable. I am afraid that this proposition cannot be accepted.
It is well-settled principle of law that the latest interpretation of law would be applicable to cases under consideration.
14. Although, the issue of superior right of pre-emption was decided against the respondents holding that the appellants are equipped with the superior right against them, still they preferred out to file cross-objection with respect to that findings. However, keeping in view of the provisions of Order 41, Rule 33, C.P.C. I have heard the arguments on this issue as well. Learned counsel for the respondents contends that the appellants were required to prove their superior right at three crucial stages i,e, at the time of sale, institution of suit and passing of first decree. Since the appellants had filed only two documents in support of their case i,e, Jamabandi relating to the years 1946-47 and registered sale-deed dated 25-6-1963 in their favour, therefore, according to him both these documents relate to a period which is prior to the disputed sale, therefore, the three stages are not covered by submission of these two documents in evidence as such the appellants cannot be said to have superior right at the three relevant stages. It is next submitted that from the above-referred two documents Exh.P.I. And Exh.P.3., it cannot be ascertained that the land acquired by the appellants is a revenue paying land, therefore, it cannot be clothed with the status of agricultural land, which could vest superior right in the appellants. He relied on AIR 1933 Lahore 213 and 1987 CLC 101.
15. On the other hand, learned counsel for the appellants as right of reply contends that the appellants had purchased land measuring 98 Kanals and 11 Marlas through Exh.P.3. Situated in various rectangles in Chak No,98-ML. This big chunk of land by no means can be said to be non- agricultural land nor it can be said to have been acquired by them for residential purpose and that too falling in various rectangles in a village. It is further submitted that the respondents have neither pleaded nor proved that the appellants had by any means disposed of their land acquired through Exh.P.I. Aid ath.P.3, therefore, in the absence of any contrary evidence, it could be presumed that they were continuously enjoying the ownership of the said property till such time, it is otherwise proved.
16. It is not in the evidence of the respondents-defendants that the property owned by the appellants through Exh.P.1 and Exh.P.3. Was disposed of by them at any point of time before the final decree in the case was passed on 2-2-1971. In the absence of such evidence, it cannot-be said that the property acquired by the appellants-plaintiffs' through the above-referred two documents had seized to be in their names.
17. The fact that any particular land is a "land revenue paying" land or not is only one of the consideration to determine the status of the land i,e, whether it is agricultural or non-agricultural.
But certainly it cannot be said that this is the only consideration on which status of the land can be finally determined. There is a possibility that in some areas agricultural lands are exempted from land revenue under the provisions of Land Revenue Act, 1967. It would not mean that due to such exemption these lands have lost their agricultural status. To determine the status of land, other attending circumstances can also be looked into, for instance, in the instant case through Exh.P.3.
The appellants had acquired a big chunk of land measuring 98 Kanals and 11 Marlas in different rectangles in a village agricultural body, which by no means can be said to be a non-agricultural piece of land. Nor it has been established by the respondents by leading any evidence to show that the said land is being used by the appellants for any purpose other than the agricultural, therefore, this objection of the learned counsel for the respondents is also without any merit.
18. For what has been stated above, this appeal is allowed judgment and decree passed by the learned District Judge dated 20-1-1972 is set aside and that of the learned trial Court dated 2-2- 1971 is restored. No order as to costs.