MUHAMMAD NAWAZ KHAN AND Another vs MAKHDOOM SYED GHULAM

ORDER

1. MUHAMMAD YAQUB ALI, J.-The petitioners are vendees of agricultural land situated in mauza Matoi, district Muzaffargarh. A suit for pre-empting the sale was filed by the respondent No. 1 which the petitioner contested inter alia on the grounds that it was undervalued and the plaint was insufficiently stamped. The trial Judge framed preliminary issues covering these objections and found the suit undervalued as five out of the eight khatas were not assessed to land revenue and the plaintiff had omitted to compute the value of the rest of the khatas in accordance with the relevant provisions of the Court Fees Act.

2. Instead of requiring the respondent No. I to re-value the plaint and pay the Additional court-fee as required by Order VII, rule 11, C. P. C. The trial Judge, however, proceeded to dismiss the suit on the view that although ample opportunity was afforded to the respondent No. I by the petitioner to re- value the suit and pay the deficient court-fee, he had on the contrary chosen to contest these issues and thereby allowed the period of limitation to expire.

3. The High Court on a first appeal by the respondent No. 1 found the order of the trial Judge contrary to the provisions of section 149 and Order VII, rule 11, C. P. C. Under which he was required to allow the plaintiff an opportunity to correct the value of the suit and pay deficient court-fee which shall have the same force and effect as if such fee had been paid in the first instance. The order dismissing the suit was accordingly set aside and the suit remanded to the High Court for allowing the plaintiff to make good the deficiency in the court-fee.

4. Sh. Muhammad Shafi, appearing in support of the petition for leave to appeal emphasised that cases of under valuation of relief are excluded from the purview of Order VII, rule 11 (c) and that under section 149 it was within the discretion of the trial Judge to refuse an opportunity to make good the deficiency in the court-fee after the limitation had expired. Rule l t provides:- "11. The plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action ;

(b) 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 the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently 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; According to the learned counsel only those cases fall under clause (c) in which the relief claimed is correctly valued in the first instance. In other words if the relief claimed is undervalued and as would necessarily happen in every case the plaint is written on a paper insufficiently stamped then neither clause (a) nor clause (b) would be attracted and the case will fall within the ambit of section 149 under which the Court has the discretion to refuse an opportunity to supply the requisite stamp paper.

5. We are unable to accept the interpretation placed by the learned counsel on the provisions of section 149 and Order VII, rule 11, C. P. C. There is not a single precedent case which supports this view while the contrary view is supported by the Full Bench decision of the Lahore High Court reported in Jagat Ram v. Misar Kharaiti Ram and another (AIR 1938 Lah. 361) and a number of other judgments delivered by various High Courts in the sub--continent including a judgment of the Peshawar Bench of the High Court of West Pakistan.

6. 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 in 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 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.

7. The petition is dismissed.