RAHIM BAKHSH Versus MUHAMMAD BAKHSH

The facts of the case are that the respondents filed a suit for possession of the land in question through pre‑emption. They were directed by the learned trial Court by its order dated 21‑10‑1968 to make up the deficiency in the court‑fee till 3‑12‑1968. Later on the time in this behalf was extended upto 25‑1‑69, but the needful was not done and the deficiency was not made up. The record shows that the same was made up by the respondents on 2‑10‑1969. It was not brought to the notice of the learned trial Court that its order dated 3‑12‑1968 directing the respondents to make up the deficiency in the court‑fee till 25‑1‑1969 was not complied with. However, during the arguments, after the evidence had been completed, this fact was brought to the notice of the Court on 15‑2‑1973 when the impugned order was passed rejecting the plaint being incomplete, under Order V11, rule 11, C. P. C. This judgment was challenged by the respondents in appeal before the learned Additional District Judge, Multan, who accepted the same by his order, dated 12‑4‑1974 mainly on the ground that since the court‑fee making up the deficiency was accepted on 2‑10‑1969 by the learned trial Court therefore, the deficiency, if any, was made up and the time in this behalf should be deemed to have been extended impliedly. The defendants appellants have now come up to the High Court and have challenged the validity of the impugned order.

2. It has been contended on behalf of the respondents that once a Court exercises discretion under section 149, C. P. C. and accepts court‑fee after the time at which it should have been filed, it cannot itself say that the court‑fee has not been properly filed. It is contended that question of limitation is not involved in such cases unless the order passed by the learned trial Court accepting the court‑fee making up the deficiency has been set aside in review at the instance of the opposite‑party. It is further contended that discretion in order to extend time under section 149 should be exercised where bona fide mistake is found in not making up th‑t deficiency within time. According to the learned counsel for the respondents, the High Court has got wide po rver in this behalf even though the time has been refused to be extended under the relevant provision of law. Reliance in this respect has been placed upon Faiz M. Khan v. Maula Dad Khan and others ( A I R 1929 P C 147 ). Saeed Ahmad and others v. Karam Singh ( P L D 1949 Lah. 380 ), Karim Bakhsh v. Qadir Bakhsn (P L D 1954 Lah. 228), Shad Muhammad Khan v. Abdullah Jan and others ( P L D 1962 Pesh. 142 ), Muhammad Shafi v. Firm Haji Fazal Rahi Noor llahi ( P L D 1964 Pesh. 182 ) and Abdul Hakim and others v. Asabud Din ( P L D 1970 Dacca 53. ).

3. The facts of the first case as reported in A I R 1929 P C are that in a suit for accounts and settlement of the sums due thereon in connection with a partnersh.p of a firm of contractors the plaintiffs valued their suit at Rs. 3,000 for the purposes of court‑fee and asked for rendering of accounts a decree for Rs. 3,000. The defendants however, asked for Rs 29,000 in their favour in their written statement and pleaded that nothing was due from them as claimed by the plaintiffs. The learned trial Court passed decree for Rs. 19,991 in favour of the defendants and no sum was found to be due to the plaintiffs, so far as their claim for Rs. 3,000 was concerned. Both the parties went into appeal against the said judgment. The plaintiffs in their appeal challenged the decree passed against them for over Rs. 19,000 and claimed that decree in their favour should be passed for Rs. 3,000. The appeal was, however, valued by them for the purposes of court‑fee at Rs. 19,991 and court‑fee of Rs. 975 was paid accordingly. It was held that the valuation, so far as the subject‑matter of the appeal was concerned, applied to whole of the claim i.e. both for the purpose of reversing the decree passed against the appellants and for grant of decree in their favour. As such, it was found that it was a bona fide mistake on the part of the plaintiffs‑appellants to pay the said amount of court‑fee. Time accor dingly was given to the plaintiffs‑appellants for making up the deficiency.

4. It has been held in P L D 1949 Lah. that civil Court under sections 158 and 149, C. P. C. has undoubtedly discretion to enlarge time for the doing of any act allowed by the Court even after the expiry of the period originally fixed for the purpose, but it cannot be said that where the plaintiff has been so very negligent and has moreover completely failed to provide any excuse for his default then such discretion has been properly exercised. It has further been observed, that statutory law of pre‑emption constitutes a draw‑back on freedom of contract and security of title and its provisions, therefore, must be construed and applied strictly against the claims of pre‑emptors and the discretionary power given to the trial Court by section 149 needs to be exercised with the greatest care.

The facts of the case are that at the time when the plaint with regard to pre‑emption matter was instituted on 6‑12‑1940 time was allowed by the learned trial Court for making up the deficiency in the court‑fee without even asking the plaintiff or hit counsel as to what was the cause for not paying the full court‑fee within time. It has been observed that the ground put forth in the plaint for failure to pay the full court‑fee was most flimsy one. The next date fixed in that case for paying the court‑fee was 10‑t2‑1940 and every on that date in the absence of court‑fee having been paid further time was granted merely on the statement of the learned counsel in that case, that court‑fee stamp was not obtainable. It was held that extension of time in the circumstances without any justification and reasonable cause and the discretion exercised by the learned trial Court in that way could not be held to have been exercised judicially. The appeal filed by the vendees defendants was accepted.

5. So far as the facts of the case as. reported in P L D 1954 Lah. are concerned, the plaint was filed on 31‑8‑1951. After due scrutiny it was put up before the learned trial Court on 1‑10‑1951 and the plaintiff was directed to file Fard‑Khatis‑Manufa, which was not attached with the file. This direction was made in view of the fact that the land in dispute in that case was subject to fluctuating assessment and the court‑fee, therefore, was to be paid fifteen times the net profits of the preceding year. The needful in this behalf was to be done by 18‑10‑1951, but since the said date was declared as holiday, therefore, the case was adjourned to 22‑10‑1951. According to the order of the learned trial Court, Fard‑Khalis Manafa bad not been filed by that date and the plaintiff was, therefore, d;rected to do so by 27‑10‑1975. Again the case was adjourned to 16‑11‑1951 with a direction that the Fard should be got prepared and the court‑fee should be paid accordingly. On the said date it was reported by the Sadar Qanoongo that because of his various engagements he could not prepare the said Fard. In view of this as well as of the fact that the learned Judge was also absent on the said date the case was adjourned by the Reader of the Court to 13‑12‑1951. On the said date of hearing the Fard was filed and the plaintiff was directed by the Court to pay necessary court‑fee by 5‑1‑1952. Again on the said date of hearing the Court was on leave and the Reader fixed the case for 19‑1‑1952. The order passed on the said date of hearing shows the court‑fee having been paid. Actually the plaintiff had deposited the cash amount on 5‑1‑1952 for the purchase of court‑fee stamps in the treasury, but received the same on 8‑1‑1952 and filed the same in the Court on 19‑1‑1957, the next date of hearing fixed by the Court.

Since the deficiency in the payment of court‑fee was to be made up by 5‑1‑1952, therefore, the learned trial Court came to the qonvlusion that filing of the stamps in the Court on 19‑1‑1952, after the due date, was without any reasonable cause. It was observed that though the Presiding Officer was on leave yet the civil Court was open and the plaintiff could easily put in the court‑fee. In view of these facts time already granted to make up the deficiency was nut extended and the suit being barred by time was dismissed. This judgment was, however, reversed by Me learned District Judge on the ground that since the cash amount for purchase of court‑fee stamps was deposited in the treasury on 5‑1‑1952 and the same were not made available to him on the said date, therefore, there was no negligence on his part The time, therefore, was extended and the suit was deemed to be within time. The matter ultimately came up before the High Court as reported in P L D 1954 Lah. 228. So far as the findings of the learned lower appellate Court were concerned, they were upheld by the learned Single Judge mainly on the ground that the conduct of the plaintiff in pursuing the matter was not contumacious. It was observed that contumacy involves obstinate resistance to authority which element was missing in the conduct of the plaintiff in that case who deposited the cash amount on 5‑1‑1952 for the purchase of court‑fee stamps but the treasury failed to provide the same till 8‑1‑1952. It was further observed that since the next date of hearing was fixed as 19‑1‑52, therefore, the plaintiff under a bona fide impression that the court‑fee would be submitted on that date did not do the needful before that date. 'The case reported as Saeed Ahmad and others v. Karam Singh, as referred to above, was also referred to by the learned Single Judge to his judgment and it was found that that case fell under Order VII, rule 11(b) and it was only after the plaintif had failed to make up the deficiency in the payment of the court‑fee that the plaint could be rejected.

6. In the next case reported in P L D 1962 Peshawar, relied upon by the learned counsel for the respondents, it has been held that a bona fide mistake in the matter of evaluation should be condoned and the High Court will interfere where the lower Courts have not exercised their discretion in a proper manner or in accordance with the correct principles. In that case the deficient court‑fee was paid in appeal by the appellants under a bona fide mistake resulting from the fact that the heading of the decree sheet showed value of court‑fee as Rs.

10. It was submitted by the learned counsel appearing on behalf of the appellants that since he did not represent his clients in the trial Court, therefore, he did not know that separate valuation had been fixed for relief of injunction on the reverse side of the decree sheet and in that case he would have asked his clients to pay the proper court‑fee. He further submitted that deficient court‑fee was paid under a bona fide mistake. This plea was accepted by the learned Judges mainly relying upon Jagat Ram v. Messrs Aherati Ram and another ( A I R 1938 Lah. 361 ) holding that discretion conferred on the Court by section 149, C. P. C. is normally expected to be exercised in favour of the litigant, except in cases of contumacy or positive mala fides or reasons of a similar kind. Many other authorities were relied upon before the learned Judges by the learned counsel for the respondents in that case, but they weie not considered favourably on the ground that matter with regard to bona fide mistake or otherwise was not involved therein. It was held by their Lordships that sine the mistake was bona f ide, as mentioned above, there, time for making up the deficiency in the payment of the court‑fee should have been extended.

7. Similar view was also taken in Muhammad Shafi v. Firm Haji Fazal llahi Noor Iluhi. In that case civil revision was treated to be an appeal under the law and since proper court‑fee had not been paid, therefore, a request was made by the learned counsel for the appellant to give time under section 149, C. P. C. to do the needful in this behalf. This request was opposed by the learned counsel for the respondent on the ground that since the appellant had been negligent in filing the revision petition instead of appeal, therefore, no indulgence could be shown to him and the discretion vested in the Court under section 149 should not be exercised. This conten tion was repelled on the ground that deficient court‑fee was paid on account of bona fide mistake, therefore, necessary discretion under the relevant provision was liable to be exercised.

8. In the case reported to P L D 1970 Dacca, relied upon by the learned counsel for the respondents, it was held that High Court is not precluded from exercising its jurisdiction in granting time and condoning delay under section 149, C. P. C. provided there exists, proper case for that purpose, even though the prayer under the said provision has been rejected and extension of time for payment of the remaining court‑fee has been refused. This was held in context of the facts of the case where the petitioners were found to have acted expeditiously and bona fide throughout and as soon as the information about the rejection of their petition for extension of time was brought to their knowledge they took every step in this behalf and made good the deficient court‑fee in about three weeks' time. It was held that such indulgence was liable to be shown to the petitioners who could not be considered to have been negligent in the circumstances of the case.

9. The above discussion would show that if a party, particularly plaintiff in a pre‑emption suit, acts negligently and his conduct is contumacious having put in obstinate resistance to the authority, and the payment of deficient court‑fee is not due to any bona fide mistake, then no indulgence can be shown in his favour in extending time under section 149. In the present case suit of pre‑emption was filed on 28‑9‑1968. The respondents‑plaintiffs were directed to make up the deficiency, on 21‑10‑1968, by 3‑12‑1968 which admittedly was not done by them. Again time was extended for making up the deficiency in the court‑fee till 25‑1‑1969. No .step was taken by they respondents to make good the deficiency which wis ultimately made up on 2‑10‑1969. It is contended on the basis of P L D 1954 Lail. referred tol above, that once a Court exercises discretion under section 149 and accepts court‑fee after the time at which it should have been filed, it cannot itself say that the same has not been filed properly. It is also contended that in such a case question of limitation would not arise, unless the Court reviews its own order on the application of the other party.

1 am afraid, the said observation was made by the learned Single Judge in that case in context of the circumstances of that case which have been discussed above in detail. It was found that the plaintiff had been quite diligent in pursuing the matter and had actually deposited the cash amount for the purchase of court‑fee stamp on the due date but for no fault of his the stamp was not provided on that date. The said observations have been made in that context and not otherwise. In the present case, there is no doubt that the deficiency in the payment of court‑fee was made on 2‑10‑19691 and the stamps placed on record were entertained by the learned trial Court but that does not mean that the delay in making up the deficiency, committed C on account of negligence and obstinacy on the part of the plaintiffs, would be deemed to have been condoned. The record of the case shows that it was observed by the Reader on 1‑10‑1968, after the plaint was filed that since fard‑khans‑manafa was not filed by the plaintiffs, therefore, it was not possible for him to know whether full court‑fee had been paid or not. When the plaintiffs appeared thereafter in the Court, on 21‑10‑1968, they were directed to file the Fard and make up the deficiency in the court‑fee before the next date of hearing being 3‑12‑1968. Again on the said date they were directed to do the needful. The learned counsel for the respondents made statement on 25‑1‑1969 that the deficiency had been made up whereas actually it was not so. The record shows that court‑fee stamps worth Rs. 12 and 12 annas were filed on 25‑1‑1969 whereas actually the deficiency was made up on 2‑10‑1969 by filing court‑fee stamps worth Rs.

189. There is nothing on record to show that the fard was not made available to the plaintiffs by the Revenue Staff in spite of their best efforts, as the case was in P L D 1954 Lab. where the plaintiff had made strenuous efforts to procure the fard and ultimately when the same was not made available within time he filed the report made by Sadar Qanoongo that the same could not be, made available to him on account of his (Qanoongo's) various engagements. In view of that the learned trial Court extended the time by exercising its discretion.

In the present case no such step appears to have been taken by the plaintiffs. They failed to explain as to why fail court‑fee stamps were not tiled within time and fard‑khalts‑manafa was not made available to them within that period. In this view of the matter, I am of the view that the learned trial Court was right in not extending time in favour of the respondents for making good the deficiency in the payment of court‑fee, as' in such cases the main question to be seen is whether there is sufficient cause on the record for showing such indulgence to a party to enable it to make up the deficiency. In the case in hand, the mutation of sale was effected, as admitted in the plaint, on 29‑9‑1967 whereas the pre‑emption suit was filed on 2n‑9‑1968, meaning thereby that it was filed on the last day, the limitation being one year in such cases. If it was so, then there was sufficient time available to the plaintiff‑respondents to get the fard ‑khalis manofa prepared in order to 'pay the entire court‑fee at the time of the institution of the suit. It is admitted in the pldint that the parties belong to the same family. The plea for not filing the suit earlier as taken up by the plaintiffs is that since the defendant was asked to sell the property in their favour against the consideration money which he had paid and since he had been putting off the matter and ultimately refused to do so, therefore, the suit was filed. This would show that it was well within the knowledge of the plaintiff‑respondents, right from the beginning, that the land had been sold away on 29‑9‑1967, but they did not take any step during the whole period of one year to get the farl‑ khalis‑manafa prepared so that the court‑fee might be paid in full at the time of the institution of the suit.

10. This aspect of the case has been discussed in P L D1949 Lab. The revenue plapers which were necessary for the determination of the value of the suit were not obtained within time and the ground taken in this behalf by the plaintiff was found to be flimsy by the High Court. The discretion exercised by the learned trial Court for extending the time to make good the deficiency of the court‑fee was held to be not justified. The same point was involved in Moulvi Ahmad Yar v. Mst. Hajiran ( PLD1969SC167

). In that case the suit for pre‑emption was filed: on the date when the limitation was to run out. Court‑fee stamp of the value of Rs. 20 was axed on the plaint and application was moved under section 149, C. P. C. for grant of time to make good the deficiency in the court‑fee, as the plaintiff could not secure the requisite copies of the revenue papers to prepare the chart of the net profits. The suit was filed on 15‑8‑1956 while the limitation was to expire on 17/ 18th August of the year. In view of the .plea raised by the plaintiff the learned trial Court granted him time for making up the deficiency till 2‑10‑1957. The plaintiff, however, could not do the needful by the said date and sought another extension which was again allowed to him for a period of 12 days with a direction that the court‑fee was to be paid on 12‑10‑1956. The plaintiff again defaulted in the payment of court‑fee and moved yet another application for extension of time on the ground that fard khalts‑manafa had not yet been prepared. His request was again accepted and the learned trial Court allowed him four days' time to pay the court‑fee which was ultimately paid on 12‑10‑1956. It was held on review of the entire circumstances of the case that no case was made out by the plaintiff appellant for grant of extension of time to make up the deficiency in the paymeia of court‑fee and the discretion exercised in his favour by the learned trial Court did not conform to the judicial standards laid down for the exercise of the discretion to such matters requiring a careful examination of the reasons for the default and the basis for the request of grant of time. It was observed, while discussing the circumstances of the case, that the plaintiff had learnt about the sale of the property about two months before the institution of the suit but did not apply to the Revenue Officer concerned for making copies of the relevant revenue papers availahle to him within time. He had filed copy of jamabandi with. his plaint but had alleged that copies of khasra‑girdawari for the year 1955‑56 and ford‑khalis‑rnanafa etc. were yet to be obtained in order to determine the amount of the court‑fee to be paid. It was observed by the learned Judges that they were, at a loss, to know as to why the plaintiff did not apply for those documents within the period of one month preceding the institution of the suit. No explanation whatsoever was furnished by the plaintiff in that behalf. This being the position, as mentioned above, no indulgence was shown to the plaintiff and the suit was found to have been rightly rejected by the learned trial Court.

11. In the present case, as mentioned above, it is clear that fard khalis‑manafa was not filed alongwith the plaint nor any effort was made by the respondent to get the same prepared much before the institution of the suit so as to enable him to pay the entire court‑fee at the time of its institution. The right of pre‑emption allowed by the Statute is predatory right. It ccnstitutes a draw back on the recognised principle of freedom of contract and as such it is necessary that its exercise should be strictly in exercise of the legal requirements, however technical they may appear to be. I am of the view that where a pre‑emptor does not show sufficient care and indulgence in presenting his case quite complete, no indulgence can be shown to him under the law. The right of pre‑emption being Medatory it is incumbent upon the pre‑emptor to take all necessary steps before the institution of the suit so as to enable him to present his case complete inl all respects. Why indulgence by way of extension of time should be shown C to a pre‑emptor who has not been careful even to get information with, regard to determination of court‑fee to be paid by him. It is clear that inl the absence of full court‑fee having been paid there is no proper plaint before the Court and when a pre‑emptor has b‑,en negligent in paying the court‑fee stamps. his suit cannot be deemed to be within time: So far as the entertain ment of court‑fee stamps after due date is concerned, it appears to have been done in the cases reported in P L D 1949 Lah. as well as P L D 1.966 B J. but in spite of that since the pre‑emptor was found to be negligent in pursuing his case, therefore, indulgence by way of extension of time was refused.

12. As discussed above, in the present case the suit was filed on the last day of limitation when even copy of fard‑khalls‑manafa had not been got prepared by the respondents, though it was well within their knowledge right from the beginning that the land in question had been sold away, but in spite of that they were not careful in getting the full information with regard to the value of the court‑fee to be paid by them. Their conduct being contumacious and negligent in this behalf they are not entitled to any concession by way of extension of time.

13. Even otherwise the court‑fee stamps filed by the respondents were entertained by the learned trial Court on 2‑10‑1969 without applying its mind as to whether its entertainment at that time would amount to making b up of the deficiency in the p ayment of court‑fee stamps. It appears to be a sort of mechanical order to the effect that the court‑fee stamp for making of the deficiency may be placed on the file. It does not show the Court to have condoned the delay in filing the Fame by extending the time under the relevant provision of law. Since limitation was involved on account of filing the court‑fee stamps after due date, therefore, mere order to the effect that the court‑fee stamp may be placed on tie file would not auTomaiically extend the time unless such order was passed by the Court being fully conscious that the court‑fre stamp was filed after due time. The said order also does not show that the Court applied its mind to the question of limitation before passing the order. This view gains strength from Ahsan Ali and another v. District Judge and others (1). It has been held in that case that it is the duty of the Court to notice the point of limitation irrespee‑1 tive of the fact whether the plea of limitati )n is raised or not. A waiver of the question of limitation is not permissible even where the period o f limitation is prescribed by a special or local law. Mere disposal of the case; on merits is not sufficient to lead to the inference that the delay must have p been condoned. It has been further held that there must be something in the order or judgment itself to show that the C aurt concerned was conscious of the fact that the proceed ngs were out of time and had applied its mind to the question of limitation before dealing with the proceedings on merits.

14. For the aforesaid reasons the impugned judgment passed by the learned Additional District Judge, Multan, is hereby set aside, and the appeal is accepted with costs. s. A. H. Appeal accepted.