MUHAMMAD BASHIR Versus Syed ALTAF HUSSAIN SHAH

AKHTAR HASSAN, J.-- This R.F.A. arises from the judgment/decree dated 25-5-1982 whereby the learned Senior Civil Judge, Gujrat allowed the plaintiffs-respondents' suit for pre-emption of the land in dispute on payment of Rs. 2,15,000 including the Zar-i-Panjam. They were directed to deposit it by or before the 24th of July, 1982, failing which their suit was to stand dismissed with costs.

2. The appellants-vendees have challenged the decree only on two points. According to them the trial Court failed to pass any order in terms of Section 22(1) of the Punjab Pre-emption Act directing the respondents-plaintiffs either to make deposit of 1/5th of the probable value of the land or to file security to its satisfaction for the payment of a sum not exceeding the probable value, and yet it received-security vide order dated 17-5-1976. It was stressed that without an express order directing the filing of security, its receipt subsequently on the part of the Court had the effect of vitiating the entire proceedings. Secondly, it was urged that the respondents-plaintiffs had failed to pay the proper court-fee in time and that making good the deficiency after the lapse of limitation, was not helpful to them, in that due to their contumacious conduct in failing to file the statement of net profits for the year preceding the sale and also miscalculating the valuation had, rendered their suit barred by time.

3. The record shows that the trial Court failed to pass an appropriate order under section 22(1) of the Punjab Pre-emption. Act in directing the respondents- plaintiffs either to deposit Zar-i-Panjam or to furnish security. Notwithstanding this omission the order dated 17-5-1976 reveals that security was in fact received from them. Apparently, receiving security at a later date without having asked for it previously, was quite unusual and indeed not contemplated by the provisions of Section 22 ibid. A specific order had to be passed for doing so before framing the issues. The record does not support if this formality was observed. Its receipt subsequently was for obvious reasons of no consequence and could not adversely affect the main suit itself. It appears to be a case of omission on the part of the Court of which the respondents may not take any undue advantage. In Balmokand and others v. Mst. Lachhman Bai and others (A I R 1921 Lahore 392, 671 C 796) the Court had omitted to fix time before which the pre-emptor could make deposit of the Zar-i-Panjam. It was held that the omission could not be utilized to penalize the pre-emptor. For analogical reasons, in this case too, the omission to pass a relevant order would not be allowed to be used as a lever to penalize the respondents/pre-emptors. They could be visited with a penalty only if they had failed to obey a specific order passed in that behalf. Learned counsel could not cite any authority to support his contention that such an omission on the part of the trial Judge would have the effect of vitiating the whole proceedings. The object of the section is to guarantee the vendees against frivolous proceedings on the part of the possible pre-emptors. The deposit is a token of good faith, and once the pre-emptor has obtained a decree, the need for a deposit or for that matter furnishing security no longer exists so far as the trial Court is concerned. Sanwal Das v. Jaigo Mal and others (A I R 1924 Lahore 68) and Shah Wali v. Ghulam Din alias Gaman and another (P L D 1966 S C 983) provide so. Further the deposit or the security bond are taken to satisfy the Court itself that the plaintiffs will ultimately pay the costs, if any, and this satisfaction is entirely subjective with the ;Court so that it may, be varied without using it as a vehicle of oppression against the plaintiffs or jeopardizing substantial rights of the defendants. Mst. Resham Jan v. Khan Nawab Khan and others (P L D 1970 Azad J & IC 66) rcfers. Since inA.he present case the Court accepted the security bond as a sufficient guarantee for payment of costs etc., legally speaking there may be no objection to the subjective satisfaction of the Court. Secondly the final decree has already been passed by the trial Court and is not being assailed on any substantial ground whatsoever. Even the entire pre-emptions amount has already been deposited, and the same supported the plea of the respondents/pre-emptors that they were exercising their right quite genuinely. One of the reasons directing deposit or furnishing security bond was to see that no frivolous suit is brought. But in case where pre-emptor pays up the entire pre-emption amount, such an impression is obviously misplaced. The purport of the provision is adequately met. We have no hesitation to repel his objection.

4. The other ground equally seems to fail, for, despite indulgence shown to the respondents/pre-emptors in making good the deficiency in Court-fee beyond the period prescribed for the suit, they could not be said to have been negligent, contumacious or recusant in the context so as to dismiss their suit for want of proper Court-fee. The trial Court showed them indulgence pointing out that in either obtaining the statement of net profits of wrong period or miscalculating the valuation, there was nothing deliberate on their part. Learned counsel stressed, citing some of the authorities referred to in the impugned judgment itself that failing to file the correct statement of net profits or omitting to compute rightly the valuation for court-fee were such acts which did not justify leniency, and that instead the same reflected a course of conduct bordering more on contumacy than oversight.

5. We have considered the objection, but the law on the point has undergone a considerable change. There was some confusion about it earlier but the same has been lately set at rest in Siddique Khan etc. v. Abdul Shakur Khan etc. (P L D 1984 S.C. 289) wherein two conditions precedent have been laid down before rejecting a plaint under Order VII Rule 11, C.P.C. for want of proper court-fee. The first is that the Court should itself determine the deficient portion of the valuation, and the second is to give at least one adjournment to the plaintiff as a matter of obligation to make good the deficiency. All subsequent adjournments, as they would fall under Section 148/149, C.P.C. were in the discretion of the Court, but one could not do without giving the plaintiff a compulsory adjournment in terms both of Section 10, Court Fees Act, and also Order VII, Rule 11, C.P.C. to enable him to pay up the deficient portion of the court-fee. If, however, he fails to pay it within the time so allowed, it will be for the Court to see if he could be shown indulgence in extending the time under Sections 148/149 C.P.C. or refuse the same on the ground of contumacy. The rule impinges upon determining the deficient portion of the court-fee, and then adjourning the hearing as a matter of compulsion for its payment. Contumacy would come thereafter. 1n this case, learned counsel could not point out if these formalities were really observed by the trial Court and indeed in their absence one could not insist for rejection of the suit. Even under the old view, the Court could extend time. The trial Court did so. But validity of its order can now be gauged on the strength of the rule enunciated above. On this view of the matter it could not be said that receiving court-fee beyond limitation had the effect of annihilating or vitiating the suit.

6. However, there is some controversy about payment of court-fee on the cost of a house and a tubewell built upon the suit land. The house was found to be worth Rs. 28,400 as per expert opinion Exh. D. 4 while the tubewell was worth Rs. 1,09,100. The respondents-plaintiffs showed willingness to pay court-fee on the cost of these two items. Thus the need to see if these were subservient to agriculture or not did not arise. Total valuation of these two items comes to Rs. 1,37,500 and the court-fee thereon comes to Rs. 10,312.50. In a way this is the deficiency in the payment of court-fee and the same shall be removed by the respondents by or before 5-7-1988. It may be paid before the trial Court.

7. With the above modification as to payment of deficient court-fee, the R.F.A. is dismissed leaving the parties to bear their own costs.

S.S.O./M-797/L

Appeal dismissed.