Mst. MANZOOR ZOHRA Versus MUHAMMAD MANSHA

SAAD SAOOD JAN, J.‑‑ This order will dispose of Regular First Appeal No.102 of 1983 and Civil Revision No. 1382 of 1983. .

2. By a registered deed dated 5‑8‑1980 one Muhammad Afzal Shah sold 437 Kanals and 2 Marlas of agricultural land situate in village Rajuha of Tehsil Chiniot in favour of Muhammad Mansha and nine others, vendees, for an ostensible consideration of Rs.6,55,500. This.sale gave rise to two pre‑emption suits: one was filed by Mst. Manzoor Zohra who based her superior right on the assertion that'she was related to the vendor in the third degree and the other was filed by Sh. Ahmad Nawaz, main respondent in the civil revision, who founded his preferential claim on the assertion that he was co‑sharer in the Khata as well as an owner in the estate. Both suits were filed on 1‑9‑1981. It so happened that the suits were initially entrusted to two different Courts for disposal.

3. Mst. Manzoor Zohra tentatively valued her suit for the purposes of court‑fee at Rs.1,000. As suits upto the valuation of Rs.25,000 were exempt from the levy of court‑fee she did not pay any court‑fee at all. However, she stated in her plaint:‑

Together with the: plaint she filed an application under sections 148 and 149 of the Code of Civil Procedure praying for extension in time for the payment of court fee. In the application she stated that as the local Patwari was busy in official work she had n(a been able to obtain copies of the jamabandis and the Khasra Girdawaris or g‑,t the statement of net profits prepared. This application was supported by an affidavit. The learned trial Court did not make any order on this application but .Directed that statement of net profits should be filed before the next date of hearing which was fixed as 15‑12‑1981. On this date the learned Presiding Officer was on leave. Nevertheless, Mst. Manzoor Zohra did file the statement of yet profits on this date together with stamp papers bearing the requisite amount of court‑fee,

4. Even rough her earlier application for the extension in time for the payment of court ‑fee was still lying un-disposed of she made another application to the same fact on 19‑1‑1982. This application was resisted both by the vendees and the rival pre‑ emptor, Sh. Ahmad Nawaz. In their replies the vendees as well Sh. Ahmad Nawaz took up the position that Mst. Manzoor Zohra had purposely not obtained the statement of net profits before filing the suit.

5. The learned trial Judge held that Mst. Manzoor Zohra was grossly negligent and hail shown contumacy in not paying court‑fee within time. Accordingly, he dismissed the application for extension of time and rejected the plaint under Rule 11 of Order VII of the Code of Civil Procedure. This order has given rise to regular ;:first appeal by Mst. Manzoor Zohra.

6. Like Mst. Manzoor Zohra, the rival pre‑emptor Sh. Ahmad Nawaz had also not initially paid any court‑fee and had valued his suit for the said purpose at Rs.65. He too had stated in his plaint that he would pay the court‑fee after the statement of net profits had become available. He also made an application under sections 148 and 149 of the Code of Civil Procedure for extension in time for paying the court‑fee. The learned Judge seized of his suit, directed him to file the statement of net profits and make up the deficiency by 29‑10‑1981. He riled the statement of net profits on 29‑10‑1981 and made another application under sections 148 and 149 ibid for further extension for paying the requisite amount of court‑fee. This application was allowed and he was permitted to make up the deficiency upto 15‑12‑1981. This he did on 14‑12‑1981.

7. The vendees opposed the application for extension of time but the learned trial Judge thought that Sh. Ahmad Nawaz had neither been negligent nor his conduct been contumacious. Accordingly, he extended the time and turned down the request of the vendees for the rejection of his plaint under Rule 11 of Order VII of the Code of Civil Procedure. The vendees have challenged the order of the learned trial Court through a civil revision.

8. It will thus be noticed that on substantially the same material facts two different orders have been made by the. trial Court in the two suits pre‑empting the same sale: in one, the plaintiff has been granted extension for paying the court-fee in the other, the same benefit has been denied to the rival pre‑emptor. Perhaps the only distinguishing feature between the two suits is that whereas in one immediately upon its institution, time was extended, while in the other, the application made in this regard remained unattended; but this feature can hardly he regarded as a sufficient justification for making a discriminatory order.

9. In the regular first appeal it is contended on behalf of Mst. Manzoor Zohra that the learned trial Judge was not competent to reject the plaint under Rule 11 of Order VII of the Code of Civil Procedure unless he had first given her an opportunity to make up the deficiency. In support of this contention reliance has been placed upon three judgments of the Supreme Court reported as Muhammad Nawaz Khan v. Makhdoom Syed Ghulam Mujtaba Shah P I.. D 1970 S C 37, Shah Nawaz v. Muhammad Yousaf 1972 S C M R 179 and Parveen v. Jamsheda Begum P L D 1983 S C 227. In Muhammad Nawaz Khan v. Makhdoom Syed Ghulam Mujtaba Shah a suit for pre‑emption was contested inter alia on the ground that it was under‑valued and the plaint was insufficiently stamped. The trial Court framed preliminary issues to examine these objections and found that the suit was in fact under‑valued. On this finding it dismissed the suit holding that although ample opportunities had been afforded to the pre emptor to re‑value the suit and to make up the deficiency he had chosen to contest the issues and thereby allowed the period of limitation to expire. 011;r appeal the High Court set aside the decision of the trial Court and observed that under the provisions of section 149 and Rule 11 of Order VII of the Code of Civil Procedure the trial Court was required to allow the pre‑emptor an opportunity to correct the value of the suit and to pay the deficient court‑fee. The vendees challenged the view taken by the High Court in the Supreme Court. While dismissing the vendees' appeal the Supreme Court observed:‑‑

"Apart from these weighty judgments it would. indeed, be anomalous if limitation is not saved in cases in which law requires the Court to allow the plaintiff to correct the valuation of the relief claimed in the suit which must necessarily entail making up deficiency it the stamp paper affixed on the plaint, but time should automatically be enlarged in cases in which the Court has the discretion to grant time to pay the whole or part of the court‑fee prescribed. This will offend against the rule of harmonious r. construction. The provisions of Order VII, Rule 11 and section 149 are, therefore, to be read together. Consequently where the plaintiff is required to correct the valuation of the relief claimed in the suit, he shall further be required to supply the requisite stamp paper and on compliance it shall have the same force and effect as if such fee had been paid in the first instance." in Shah Nawaz v. Muhammad Yousaf the Supreme Court was dealing with another suit for pre‑emption. Here the respondents had filed the suit on 18‑11 1968 to pre‑empt a sale effected on 9‑11‑1967. They had valued the suit for purpose of court‑fee at Rs.287.80 and for purpose of jurisdiction at Rs.863.40. Subsequently, the respondents filed an application for amendment of the plaint and for making up deficiency in the court‑fee. After a contest by the vendees the trial Court allowed the application holding that the failure of the pre‑emptor to pay proper court‑‑ fee was on account of a bona fide mistake. The decision of the trial Court was upheld by the High Court in revision and the vendees went in appeal before the Supreme Court. Following the rule laid down in Muhammad Nawaz Khan v. Makhdoom Syed Ghulam Mujtaba Shah the Supreme Court further observed:

"It is thus evident that unless the plaintiff is guilty of contumacy off: positive mala tides in putting in deficient court‑fees alongwith his plaint, the Court could in its discretion allow time to the plaintiff to put in the deficient court‑fee. In the facts and circumstances of the case it could not' be said that the plaintiffs had been plainly very negligent, and had moreover, completely failed to provide any excuse for their default. They have offered to pay the deferent court‑fee and the Civil Judge has permitted them to do so.

Furthermore, under Order VII, rule 1.1 of the Code of Civil Procedure, the plaint can only be rejected in a case 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 she Court, fails to do so."

The case reported as Parveen v. Jamsheda Begurn was also about the exercise of the; right of pre‑emption. The pre‑emptors had valued their suit for purposes of court‑fee at Rs.25,(Y() and for that reason had paid no court‑fee at all. An objection with regard to undervaluation of the suit was taken and after inquiry it was found by the trial Court that the proper value was Rs.91,(K)0. The pre emptors made up the deficiency in the court‑fee. Before the Supreme Court it was contended on behalf of the vendees that despite knowledge the pre‑emptors had purposely under‑valued the relief at Rs.25,(X)O so as to avoid payment of proper court‑fee; that being so the trial Court ought not to have allowed the pre emptors to pay the court‑fee after the period of limitation had expired. The Supreme Court rejected the contention holding:‑‑

"It may also be observed that the learned trial Judge could not have rejected the plaint under Order V11, Rule 11, C P.C., on the mere discovery that the claim was under valued, unless under clause (b) of Rule 11, the plaintiffs having been required by the Court to correct the valuation within a time specified by the Court, had failed to do so. Similarly regarding insufficiency of court‑fee, the plaint could be rejected under clause (c) of Rule 11, if the plaintiffs, on being required by the Court to supply the requisite stamp‑paper within a time to be fixed by the Court, failed to do so."

With respect I may mention that the observations of the Supreme Court in the above noted cases are in consonance with tire view taken by a Full Bench of the Lahore High Court in Jagat Ram v. Kharaiti Ram A I R 1938 Lah. 361. In this case a suit for the enforcement of the mortgage was filed on tire last date of limitation with a court‑fee ;tamp of Rs.100 whereas the proper amount of court- fee payable was Rs.210. The subordinate Judge seized of the suit dismissed it inter alia on the ground that the plaintiff's conduct in not paying the proper amount of court‑fee was not bona fide. On appeal the District Judge took a different view and held the suit to be within time. In second appeal to the High Court a learned Single Judge upheld the decision of the District Judge. In the Letters Patent Appal the Full Bcnch observed as follows:‑‑

...........the discretion conferred on the Court by section 149, Civil Procedure Code 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. The question of bona fides in this connection should be construed in the sense that the word is used in the General Clauses Act and not as used in the Limitation Act. A thing should be presumed to be done bona fide, if it is done honestly whether it is done negligently or not for the purposes of judging whether the discretion under section 149 should or should not be exercised in favour of the litigant."

10. The finding of the Learned Trial Court that Mst. Manzoor Zohra was guilty of gross‑negligence and contumacy in undervaluing her suit in not paying the proper court‑fee has no foundation whatsoever. Computation of the proper amount of court‑fee payable was dependent upon the preparation of a statement of net profits by the‑local revenue staff. While filing the suit she stated that the local Patwari had not furnished her with the relevant documents. She supported her assertion with‑an affidavit. It is also to be noticed that the rival pre‑emptor Sh. Ahmad Nawaz had advanced the same ground for not paying the proper amount of court‑fee on his plaint. His explanation was accepted by the learned trial Court. Now in bola cases it was the same Patwari and the statements of net profits were required to be prepared in respect of the same land. If the Court was prepared to accept the explanation of Sh. Ahmad Nawaz there is no reason why the same explanation of Mst. Manzoor Zohra should have been rejected particularly in view of the fact that she was a woman and could not be expected to run after the Patwari as vigorously as the rival pre‑emptor who suffered from no such disadvantage. It is also to be noticed that the learned trial Court seized of her suit did not make any order on her application for extension in time but merely fixed the next date in the suit as 15‑12‑198t. She filed the statement of net profits and also purchased the stamp papers of the requisite amount on 15 12‑1981. It is, therefore, difficult to agree with the learned trial Court that the conduct of Mst. Manzoor Zohra was contumacious or grossly negligent. We should, therefore, think that this is a 6t case where learned trial Court ought to have granted her application for extension in time for the payment of proper amount of court‑fee. We do that now. Accordingly we set aside the order whereby the plaint of Mst. Manzoor Zohra was rejected and remand the suit back to the learned trial Court for disposal in accordance with law. She shall be entitled to the round of the court‑fee on the memorandum of appeal in this Court.

11. As regards the civil revision filed by the vendees in the rival pre‑emptor s suit we may once again mention that there is a finding by the learned trial Court that Sh. Ahmed Nawaz was neither negligent nor his conduct contumacious in not filing the proper amount of court‑fee at the time of the institution of the suit. We find no basis for interfering with this finding. We would accordingly dismiss the civil revision with costs.

M.Y.H./2708/L Order accordingly.