' The respondents filed a suit for pre-empting a sale of 113 kanals of land in Chak No, 57/G. B., Tehsil Jaranwala, District Faisalabad on 26-11-1974. They valued the suit for the purpose of court-fee at a sum of Rs, 9,000 and paid the court-fee thereon. The petitioners objected to this valuation on which issue No, it was framed. The petitioners led their evidence on 25.6-1975 and proved the fard khalls munafa for the year preceding the suit as D. W. 4/1. According to this document the net profits amounted to Rs, 7,149.99 and the court-fee was payable at 15 times of that amount, i,e, Rs, 1,07,249.85. On 31-3.1976 this issue was conceded by the plaintiff-respondents and the trial Court directed them to make good the deficiency in the court-fee by the 9th April 1976. The petitioners had filed this revision petition to challenge the said order on 28-9-1976. For this however the court- fee stamps had been purchased by the fondants on 7-4-1976 and deposited in Court on 12-4-1976.
The petitioners an objection before the trial Court that since the court-fee had ,posited late, the plaint should be rejected under Order VII, rule 11, This objection was repelled by the learned trial Court on n the ground that 9-4-1976 was a closed holiday but since the been purchased on 7-4- 1976 and had been filed on the next date, viz. 12-4-1976, it could not be said to be a case of negligent default,
2. The petitioners could have challenged this order also in the revision petition but for reasons better known to them, they did not challenge it. It appears that they were not dissatisfied with this order which virtually amounted to an order -under section 149, C. P. C. Condoning the delay for the late deposit. However petitioner No, 1 submitted an application under 'Order VI, rule 17, C. P. C. On 21- 6-1977 for permission to challenge this order dated 2t-7-1976 also by amending the revision petition. I have heard the learned counsel against both the orders.
3. The learned counsel relied upon Jagat Ram v. Misar Kharaiti Ram and another, Muhammad Nawaz Khan and another v. Makhdoom Syed Ghulam Mujtaba, and Shalt Nawaz and 6 others v.
Muhammad Yousaf and 3 others, for the proposition that in a case where the plaintiff's conduct is contumacious in the deposit of Court-fee, he should not be allowed the facility of section 149, C. P.
C. Read with Order VII, rule 11, C. P. C.
4. These authorities go against the contention of the learned counsel. It is clear from them that a distinction was made between a case governed by Order VII, rule 11, and a case governed by section 149. Order VII, rule 11, C. P. C. Provides that a plaint shall be rejected inter cilia where the relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so. It was emphasised in the two Supreme Court cases that the Court has to give time to the plaintiff to make a deposit of the deficit Court-fee and once such deposit is made, it shall have the same force and effect as having been made on the date of institution of the suit. Section 149, therefore, will apply only to a case where on the date on which the Courts directs under Order VII, rule 11(b) to make good the deficiency in the Court-fee the plaintiff fails to do so. In that case if the Court finds that there were sufficient grounds for condonation of delay the period of deposit may be extended. The order dated 31-3-1976 was, therefore, an order which was required to be made under clause (b) of Order VII, rule 11, C. P. C. And hence no case on that ground was made out for extension. In fact the question of contumacy was irrelevant till such an order was passed. The revision petition as against the first order is without any merit.
5. It is clear from what has been stated above that though the court-fee had been deposited by the 12-4-1976 and the petitioner's objection as against that deposit had also been repelled by the Court on 21-7-1976, but that order was not challenged in this revision petition which was filed about two months later in the month of September 1976. I am of the view that the petitioners should be taken to have felt satisfied with that order. There is no ground for allowing C. M. 2502-C/77.
Assuming that this is not so, the petitioners have no case for exercise of revisional jurisdiction. The interference with the exercise of the discretion under section 149 would have been possible only if the discretion had been exercised arbitrarily and without taking into constitution the principles of law laid down for the exercise of such. In the present case it is however clear that the stamps had been by the plaintiffs on 7-4-1976, two days before the last date by which the deficiency in the Court-fee could be made good by them. It is also established that the deposit could not have been made on the 9th April 197 since it was a closed holiday. However, it could be made by the 10th April 1976. There is only a delay of two days in the deposit. In view of the fact that the court-fee stamps had already been purchased on the 7th April 1976, the exercise of the discretion under section 149, C. P. C. Was justified.
7. I find no force in this petition and dismiss it but I leave the parties to bear their own costs. AIR 1938 Lab. 361 PLD 197 1972 SC MR 179