MUHAMMAD NASRULLAH Versus MUHAMMAD AYAZ

This appeal has been filed by the plaintiff‑appellant to challenge a decree passed by the learned trial Court on the 30th October 1972, for possession of land in dispute by pre‑emption on payment of Rs. 45,000 less 1/5th pre emption amount within a period of one month and also to pay court‑fee on a sum of Rs. 45,000 within the same period. It was further directed that in case of default in payment of pre‑emption money, the suit shall stand dismissed with costs and if the court‑fee is not paid within the time fixed, the plaint shall stand rejected. The appellant is aggrieved against the finding on issues Nos. 1, 6 and 7 regarding the valuation of the suit for the purposes of court‑fee and jurisdiction sale price and the market value.

2. According to the plaintiff‑appellant, the suit land was sold for a sum of Rs. 9,000 only and the ostensible value of Rs. 45,000 was fixed with a view to defeat the right of pre‑emption vested in the plaintiff. He based his superior right of pre‑emption on the ground of relationship with the vendor who is his son and co‑ownership in the khata. The suit was valued for the purposes of court‑fee and jurisdiction on 15 times and 30 times of the net profits in the preceding year amounting to Rs. 5,310 and Rs. 10,620 respec tively.

3. This suit was contested on a number. of grounds which gave rise to the following issues:‑

(1) Whether the suit is not properly valued for purposes of court‑fee and jurisdiction? O.P.D.

(2) Whether the suit land has not been properly described? If so, what is the correct description? O.P. D.

(3) Whether the suit land is governed by custom of pre‑emption? O.P.P.

(3‑A) If so, whether the custom of pre‑emption prevails in the locality where the land in suit is situated? O.P.P.

(4) Whether the plaintiff has waived his right of pre‑emption, if any? O.P.D.

(5) Whether the plaintiff has superior right qua the defendant 7 O. P. P.

(6) Whether the sale price of the suit land has been fixed in good faith and actually paid? O.P.D.

(7) What is the market value of the suit land? O. P. P.

(8) Relief.

Issues Nos. 2, 3, 3‑A and 4 were not pressed by the defendant. Issue No. 5 was found in favour of the plaintiff. Under issue No. 1, it was held that the suit land was entered as Baghicha Chahi Nehri in the Jamabandi Exh. P. 1, and the plaintiff was liable to pay court‑fee on the market value of the property i.e. a sum‑of Rs. 45,000. Issues Nos. 6 and 7 were dealt with together. It was held that the sum of Rs. 45,000 was paid by the vendee to the vendor. It was further found that the cost of the suit land in 1968 was about Rs. 57,000 and the price paid was not in excess of its market value. On the basis of these findings. the plaintiff was directed to deposit Rs. 45,000 as pre‑emption money and to pay court‑fee on the same amount.

4. The learned counsel for the appellant first challenged the finding of the learned trial Court that the property in dispute was a Bagicha. This point has no substance. Jamabandi Exh. P. 1 relating to the year 1965‑66 describes it as Baghicha Chahi Nehri. The said entry is there in Khasra Girdawari (Exh. P. 2) for Kharif 1967, Rabi 1968 and Kharif 1968. According to Muhammad Ayaz Khan respondent, this land was situated at Hazoori Bagh Road and had a mango garden. Muhammad Shafi Patwari appeared as P. W.

1. He also stated that there was a mango garden in this land. The plaintiff himself appearing as P. W. 3, admitted that there was a garden in this land. He further stated that it was also under cultivation. This evidence,, documentary as well as oral coupled with the admission of the plaintiff himself leaves no doubt that the property in dispute is a garden and the court‑fee for possession of it was payable on its market value.

5. The learned counsel contended that the Court should have determined the issue about valuation as a preliminary issue. He also argued that the order of rejection of the plaint can be made only if issue of valuation for' court‑fee is determined as a preliminary issue and not at any later stage. In support of this he relied upon Walaiti Ram v. Gopiram and others A I R 1935 Lah, 75 and Amir Ali v. Gul Muhammad P L D 190 Pesh,

100. He further argued that in any case, the deficit court‑fee cannot be recovered after the disposal of the suit. Reliance for this was placed on Bapu v. Yenkatachalapathi Iyar A I R 1933 Mad. 321, Sis Ram v. Sohan Lal A I R 1938 Lah. 311 and Kedar Nath v. Chandra Mauleshwar A I R 1932 Pat. 228. He further placed reliance upon Kumarswamiah v. A. Krishna Reddi A I R 1947 Mad. 84 in support of his argument that there can be no automatic rejection of the plaint since the order of rejection is required to be supported with reasons. Lastly, he pleaded that this was a fit case for extension of time for deposit of the court fee. He urged that the plaintiff had no information that he had to pay the court‑fee and for this reason he was not able to comply with the order although he had deposited the pre‑emption money on the 28th November 1972.

6. I agree that an issue about jurisdiction or court‑fee value should be treated as a preliminary issue but if it is not so treated it is merely: an irregularity and does not vitiate the proceedings. In Walaiti Ram v. Gopiram and others the procedure of making an order of payment of court‑fee at the end of the proceedings in the suit wag disapproved but there is nothing in this authority to show that this procedure vitiates the judgment. Moreover, that case is distinguishable since no decree was passed subject to deposit by the plaintiff of the court‑fee. That was a case in which the plaintiff's suit bad been dismissed and only a footnote was added to the effect that the plaintiff will make up the deficiency in court‑fee. This last portion of the order was set aside by the High Court as unwarranted. It was conceded before the Court that while dismissing the suit on merits the learned Judge could not have added a rider to the decree that the deficit court‑fee was to be realised from the plaintiff. This case was relied upon in Sis Ram v. Sohan Lai and others but in that case the plaintiff had not paid the proper court‑fee before the appellate Court also and it was held that

"Where the plaintiff having been misled by the wrong procedure adopted by the trial Court files the appeal with the same court‑fee with which he had stamped his plaint, the Appellate Court should exercise its discretion in his favour and extend time to allow him to make up the deficiency."

It may be stated that in this case also the suit of the plaintiff had been dismissed on merits by the learned trial Court. The case of Amir Alf v. Gul Muhammad is similarly distinguishable on facts. In that case also the plaintiff's suit for pre‑emption was dismissed but he was directed to make up the deficiency in the court‑fee within the time fixed by the Court. It was held that the direction given by the trial Court for making up the deficiency in the court‑fee after the disposal of the case was without jurisdiction since the Court became functus officio by passing the final judgment in the suit and it could not continue the process of adjudication in the procedural matters of the suit after that. A I R 1933 Mad. 321 and A I R 1932 Pat. 228 are also to the same effect. In the last‑mentioned case, it was held that

"After the judgment had been pronounced and it has been signed and sealed, no power is left in the Court to alter it or add to it or subs tract anything from it; and the judgment having been pronounced a decree must be prepared in accordance with it. Section 28, Court Fees Act, does not empower the Court to call upon the parties to pay the deficit court‑fee after judgment has been pronounced.

None of these dicta apply to the facts of the present case where a conditional decree bas been passed by the learned trial Court in favour of the plaintiff appellant. It is one thing to say that once a Court has become functus officio it cannot continue the process of recovery of court‑fee; it is however, altogether a different proposition whether the Court can make the decree conditional on payment of court‑fee. In the last‑mentioned case the Court does not continue the process of recovering the court‑fee or enforcing the order of its recovery. The effect of the decree of the Court is that it is operative only if the court‑fee is paid but in case of default, either the suit is dismissed or the plaint is rejected.

7. The learned counsel further argued in this connection that Order VII, rule 11, C. P. C. is not applicable to the stage of final decision of the suit and consequently this conditional order could not be passed. Rule 11 Inter alia provides that the plaint shall be rejected in a case where the relief claimed is under‑valued 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; or where the relief claimed is properly valued, but the plaint is written upon paper in sufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp‑paper within a time to be fixed by the Court, fails to do so. Rule 12 provides that where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order. The argument of the learned counsel is that the question of rejection of the plaint arises only if within a time to be fixed by the Court, the valuation is not corrected on the requisite stamp paper or a requisite stamp paper is not supplied. This order can, therefore, be passed only after the plaintiff has failed to comply with the orders of the Court to correct the valuation in the plaint or to supply the requisite stamp paper. The learned counsel tried to support his argument by reference to the provisions of rule 12 that where a plaint is rejected, the Judge shall record an order to that effect with the reasons for such order. The learned counsel relied upon Kumarswamiah v. Krishna Reddi, where it was held that there can be no automatic rejection since the rejection order has to be supported with reasons. That case is not relevant since no order of rejection of the plaint was passed there. The learned counsel also referred to Tombi Singh v. Neno Singh A I R 1961 Manipur 50 where it was held that "where a memorandum of appeal is insufficiently stamped and the Court makes an order granting time for payment of deficit court‑fee, such an order would be under section 149 of C. P. C. and on the analogy of Order VII, rules 11(c) and 12, the Court shall, consequent upon non‑payment of court‑fee within the given time take up the matter after the period is over and may reject the memorandum of appeal stating the reasons for such rejection as required by Order XLI, rule 3(2). But until such rejection, the provisions of section 148 would apply to the case and the Court will have power to extend the time for payment of deficient court‑fee".

8. I am not impressed by the argument of the learned counsel that the plaint could not be rejected except in a case where a preliminary issue covering clauses (b) and (c) of rule 11 is determined. Rule 11 can come into play even if either the plaint does not disclose any case of action or the suit is barred under any law. There might be cases where the Court determines at the fag‑end of the suit whether a suit is barred by some law. In that case the Court can pass an order only at the end. Rule 12 also does not warrant such interpretation as is canvassed by the learned counsel for the appellant. It only requires that at the time of rejection of the plaint reasons for such a rejection have to be given. This provision has been complied with as the order is supported by reason. It may be noticed that the rejection of the plaint itself is a termination of the suit, and such an order has, therefore, to be made at the time of the final decision of the suit.

9. The only point worth considering is whether the Court can pass a conditional order. The argument of the learned counsel is that clauses (b) and (c) of Order VII, rule 11 envisage two stages: at the first stage the plaintiff is required to be called upon to correct the valuation or make good the deficiency in court‑fee, while the plaint can be directed to be rejected at a subsequent date when the Court is satisfied about the default. A condi tional order which assimilates the two stages is not contemplated by the rule. In the Manipur case which is distinguishable on merits, there are observations in support of the contention of the learned counsel for the appellant, but those observations are really obiter. In that case reference was made to a number of judgments of the superior Courts reported in:

(1) Gaya Din v. Lalta Prasad A I R 1936 All. 477.

(2) Banshi Dewan v. Malabar Uddin A I R 1933 Cal. 83.

(3) Kehetra Mohan v. Cour Mohan A I R 1934 Cal. 21.

(4) Kumaraswamiah v. Krishana Reddi A I R 1947 Mad. 84.

(5) Jagannath v. Bishwa Rattan A I R 1936 Oudh 241, and

(6) Ramlakhan Pandey v. Triheri Das A I R 1962 Pat. 234. where it was laid down that section 148, C. P. C. will not apply to cases where time has been granted under a decree of the Court as the decree is a final adjudication. These cases were, however, distinguished on the ground that sections 148 and 149, C. P. C. do not give any power to the Court to pass any conditional order stating that the plaint or the memorandum of appeal shall stand dismissed on non‑payment of court‑fee within the given time: these two sections deal with only enlargement of time and not with the question of passing any conditional decree of rejection of the plaint on failure of the plaintiff to comply with the order of the Court under clause (b) and/or (c) of rule 11. It was also observed that Order VII, rule 11 (b) and (c) provides that in cases falling under these clauses, the Court must give time to the plaintiff to comply with the order of the Court.

Even this reasoning does not solve the problem. If it be permissible under rules to pass conditional order of rejection of the plaint on default of the plaintiff, sections 148 and 149, C. P. C. would not be attracted since the Court would be functus officio after passing of the order. One has, therefore, to look at the wording of Order VII, rule 11, C. P. C. only to find out whether it contemplates or allows the passing of a conditional order. No doubt clauses (b) and (c) impose a condition which must be complied with before a plaint is rejected. The opening portion of rule 11, says that the plaint shall be rejected in case of non‑compliance with clauses (b) and (c). The order of rejection of the plaint is therefore, conditional on non‑compliance with the direction under clauses (b) and (c). An analogous provision is in rules 9 and 13 of Order IX which provide for setting aside of a decree of dismissal of a suit in default, or an ex parte decree.

Rules 9 and 13 of Order IX, C. P. C. provide that an order of setting aside dismissal of suit in default or of an ex parte decree can be made upon such terms as to cost or otherwise, as the Court thinks fit. In that case also it is open to the Court to fix time for depositing of costs or fulfilment of other condition, and pass the order of rejection of the application for restoration of the suit on the next date. It is not, however, disputed that the Court can pass a conditional order that in case of non‑fulfilment of condition the application for restoration of suit shall stand dismissed.

On principle I do not find any ground to distinguish the conditions imposed in the impugned judgment with the condition that can be imposed under Order IX, rules 9 and 13. Nor do I find any warrant for holding that while the conditional order can be passed in cases covered by rules 9 and 13 of Order IX, but no such conditional order can be passed under Order VII, rule 11, C. P. C. In the Manipur case the emphasis is on the fact that such an order may render the provisions of sections 148 and 149 nugatory since the Court becomes functus officio to extend time. In my view this is no reason for restricting the scope of Order VII, rule 11, C. P. C. The mere fact that sections 148 and 149, C. P. C. authorise the Courts to enlarge or extend the time is not sufficient to hold that a conditional order cannot be passed. More over, it will not be correct to say that section 149 will become a dead letter in case a conditional order is passed. The provisions of Order VII, rule 11 and section 149, as held in Mohammad Nawaz Khan v. Makhdoom Syed Ghulam Mujtaba Shah P L D 1970 S C 37 are to be read together. The effect of section 149 is that compliance with the direction of payment of deficient court‑fee shall have the same force and effect as if such fee had been paid in the first instance. A conditional order also will, therefore, be sufficient compliance with the provisions of section 149, C. P. C. If the conditional order of restoration of suit subject to payment of costs can be passed under rules 9 and 13 of Order IX, C. P. C., there is no reason why such an order cannot be sufficient compliance with the provisions of Order VII, rules 11 and 12, C. P. C. if the Court gives reasons for calling upon the plaintiff to correct the valuation or make up the deficiency in the court‑fee. In my view the order of the learned Court was fully justified.

10. I am also not impressed by the argument that the appellant was directed at the time of announcement of the judgment to pay only Rs. 45,000 as the decretal amount and not the deficient court‑fee. This allegation is not believable since this direction is incorporated in the judgment itself and follows the direction about deposit of Rs. 45,0000 less 1/5th pre emption money and the consequences of default of payment of that amount. If this was announced, I see no reason why the other portion of the judgment was not announced. Moreover the appellant was represented by a counsel and must have seen the judgment. I find no ground for extending the period fixed by the Court for the deposit of the court‑fee.

11. Since the appellant did not comply with this order and I have rejected his plea for enlargement of time, this is sufficient for the disposal of this appeal. However, I would like to notice an argument of the learned counsel with regard to issue No. 6 that the respondent had not been able to prove that the consideration of Rs. 45,000 was fixed in good faith and actually paid. It is not the case of the appellant that any amount paid was returned by the vendee to the vendor. If, therefore, the amount has been paid, it must be taken to have been fixed in good faith. The registered sale -deed (Exh. D. 3) shows that the vendor had, on the 12th November 1968, admitted before the Sub‑Registrar having received the amount of considera tion. The consideration of Rs. 45,000 was paid by the vendee to the vendor by a cheque (a copy of which is Exh. D 2/A): This cheque was drawn on the United Bank Limited, Multan Cantonment (Account No. 701). This was a cross cheque and its amount could have been recovered by the drawee by depositing it in his account. Exh. P. 10 is the copy of Account No. 701 of the vendee. He deposited the amount of Rs. 45,000 in his account on the 11th November 1968, and on the same day it was withdrawn on the cheque issued in favour of Said Ullah Khan, Exh. P. 11 is the account of Said Ullah Khan in the same Branch of the Bank. A sum of Rs. 45,000 was transferred to his account from Account No. 701 of the vendee and this amount was withdrawn by the vendor the same day by a cheque bearing No. 627701' Exh. D. 1 is a certificate of the Bank about the payment of the cheque issued by the vendee to the vendor. The photostat copy of the cheque Exh D. 2/A was proved by D. W.

1. D. W. 3 Zaffar Ali further stated thata. cheque for a sum of Rs. 45,000 was given by the vendee to the vendor. The same is the evidence of Mohammad Hayat respondent. In his statement, Muhammad Nasrullah Khan did not deny that the vendor had an account in the Bank or that the cheque was deposited in that account and was with drawn. He merely stated that this deposit and withdrawal was Farzi. This evidence was admitted to be hearsay, in cross‑examination. There is thus no rebuttal of the evidence of the vendee about the payment of Rs. 45,000.

12. I also agree with the appreciation of the evidence by the learned trial Court that the market value of this property exceeded Rs. 45,000. There is no reason to doubt that the value of Rs. 45,000 was bona fide fixed and paid.

13. I find no merit in this appeal and dismiss it with costs.

K. B. A. Appeal dismissed.