NOOR MUHAMMAD AND Others vs Mst. NIZAM BIBI

ORDER

KARAM ELAHEE CHAUHAN, J.-This judgment will dispose of two petitions for special leave to appeal being Nos. 768/76 and 769/76 in the manner hereinafter mentioned.

2. These petitions arise out of two suits mentioned therein which were filed by the relevant plaintiff for pre-empting sale of the separate lots of land described more fully in the concerned plaint. The plaints were stamped with a very ridiculously low Court-fee-(On court-fee value of Rs. 50) and it was stated therein that deficiency of court-fee will be made good after getting the Naqsha Mall (which we are told by the learned counsel for the plaintiff meant 15 times the net profits of the preceding years), The suits were taken up by the learned Civil Judge on 19-11-1974 when he passed the following order :- "Present counsel for the plaintiff. Suit be registered. Summons for the settlement of the issue be issued to the defendants for 20-1-1975, on payment of process fee. They shall also be served through registered post A. D. Notice to the proposed guardian ad item of minor defendant No. 4 be issued on payment of process-fee. The sum of Rs. 26,555 the 1/5h of the ostensible sale price be deposited by 18-1-1975. The statement of the net profits be got prepared and the deficiency in court-fee in accordance with it be also made good before the next date of hearing. Process-fee, registered envelopes A.D put in within 3 days."

3. The suits were then taken up on 8-5-1975-(because in the mean--time the learned civil juese was transferred) but as despite grant of about two months time to make good the deficiency of court-fee before 20-1-1975 -(the date fixed in the above order)-the needful had not been done the suits were dismissed under Order VII, rule 11, C. P. C.

4. The plaintiff filed appeals-(one in each suit)-which were accep--ted by the learned District Judge by his order dated 5-5-1976 whereby he remanded the case directing that the trial court should first fix the specific amount of court-fee and thereafter give time to the plaintiff to pay the same or the deficiency in that respect.

5. The defendants vendees petitioner filed F. A. O. No. 110-C/76 and FAO 111-C/76 in the High Court but without any success as they were dismissed on 11/16-6-1976. Hence these two petitions for leave to appeal against the same have been filed by the petitioners/vendees in this court.

6. After hearing the learned counsel for the parties we are of the opinion that the learned District Judge was not justified in interfering with the order of the trial court dated 8-5-1975 wherein it had been stated that the plaintiff had neither made good the deficiency of the court-fee by 20-1-1975 nor had he applied for extension of time. We asked, the learned counsel for the caveators whether his clients had filed any application for extension of time. His answer was in the negative. In this state of affairs when the time granted had not been availed of there was no justification on the part of the learned District Judge to have interfered with his orders. The plea that any specific amount bad not yet been fixed, on the facts and peculiar circumstances of this case and the overall context was irrelevant when the plaintiff had taken upon them--selves to pay the court-fee on the basis of Fard Khalis Munafa which figure could be found out by them and which was implied in the order of the learned trial court dated 19-11-1974. Learned counsel for the caveators then submitted that actually Fard Khalis Munafa was not ready by that time, inasmuch as it had not been prepared and it was for this reason that court-fee was not paid such reason was advanced before the learned trial court and nor has it even been shown to us as to why was that document not ready and what was the difficulty of the plaintiff in that respect or what were the hurdles in their way. Similarly it has not been explained as to when had the petitioners applied for it and what was the ground for delay if any. In the absence of any such explanation before the learned trial court, the learned District Judge was not justified in finding fault in his order and similarly the High Court was also not justified in endorsing the order or the learned District Judge. It may be pointed out that as told to us by the learned counsel for the caveators, the court-fee on the plaints would be in the sum of Rs. 7,125 in one suit and Rs. 5,250 in the other suit as against the meager court-fee on valuation of Rs. 50 in each suit. The learned courts below did not attend to the question as to whether the plaintiff was not negligent in the matter of paying additional court-fee, and what explanation they had to offer before the trial Court where in fact they offered no explanation at all.

The courts below have given no justification as to how a vested right of limitation which due to the aforesaid negligent conduct of the plaintiff had accrued to the vendees had to be taken away so lightly. It may be mentioned that court-fee on the plaints has even uptill now not been paid and the orders of the court below which purport to still allow indefinite period to the plaintiffs cannot be maintained.

7. The result is that we convert these petitions into appeal. Accept the some, set aside the order of the High Court and the learned District Judge, and restored those of the trial court dated 8-5-1975 maintaining the rejection/dismissal of the suits. There shall be no order as to costs.