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Civil Revision No. 36 of 1953 decided on 12th June 1954, against the order of the Senior Sub‑Judge, Bahawalpur, dated the 12th November 1953.

S. 149‑Deficient Court fee‑Pre‑emption suit‑Discretion to extend time must be exercised judicially and with greater caution in a pre‑emption suit.

In a pre‑emption suit, discretion to extend time for making up deficient Court fee must be exercised with caution especially when extension would result in extending limitation.

Where order of extension passed on 16th August 1952 allowed time till 12th October 1952 and again till 9th Novem ber 1952 when the Court happened to be closed on account of a local holiday and the Court fee was not made up on the following day, time having again been extended to 12th December 1952, when the fee was made up.

Held, that discretion to extend time had not been exer cised judicially. The plaint was consequently rejected under O. VII, r. 11 C.P.C.

Saeed Ahmad v. Karam Singh P L D 1949 Lah. 380 ref.

Mustafa Khan, for Petitioners.

Muhammad Saleem Aslam for Respondents.

‑This revision petition has arisen in the following circumstances:‑

One Qadir Bakhsh instituted a suit for possession by preemption against the defendant petitioner in the Court of Senior Sub‑Judge, Bahawalpur. The suit was not properly stamped and accordingly an application under section 149 of C P C was presented to the Senior Sub‑Judge praying for extension of time to make good the deficiency of Court fee stamp. The learned Senior Sub‑Judge acceded to the request of the plaintiff and by his order dated 16th August 1952, allowed the plaintiff, time to make good the deficiency' of the Court fee up to the 12th October 1952, but on that date the Court fee was not paid and the Court again made an order allowing the Court fee to be filed up to 9th November 1952. It transpires from the record that on the 9th, November, 1952 Courts remained closed due to some local holiday and the case was put up before the learned Senior Sub‑Judge on the following date i.e. 10th November 1952 and as the plaintiff was absent on that date, it was adjourned to 12th December 1952. It was on the latter, date that the plaintiff appeared in the Court and paid up the balance of Court fees stamp.. The defendants petitioners, on appearance, pleaded before the trial Court that as the plaintiff failed to make good the deficiency of Court fees on 12th October 1952 as well as on 10th November 1952 the Court should not have allowed him to make good the deficiency of Court fee at any subsequent date after the time fixed for its payment had expired. It was consequently prayed that the plaint should have been rejected under Order VII Rule 11. On the pleadings of the parties the trial Court framed as many as six issues but the parties, were first directed to argue on the following issue :‑‑

Whether the plaintiff did not make good the deficiency of Court fee stamp within the time allowed by the Court and therefore the suit is barred by limitation".

The trial judge eventually decided the issue in favour of the plaintiff, holding that the deficit Court fees was made good within the period allowed by the Court. Against this order the defendants respondents have come on revision.

It is strenuously urged by the defendants petitioners' counsel that the learned trial judge enlarged time and that the plaintiff 'had, failed to make good the deficiency of Court fees on 12th October 1952 without any rhyme or reason. Again it is urged that the Court allowed the plain tiff to make up the deficient Court fees up to the 9th November 1952 and as on the latter date the Court remained closed due to some local holiday; it was the bounden duty of the plaintiff to have paid up, the balance of Court fees stamp on the following date. i.e. 10th November 1952. It was also urged that the order of the learned Senior Sub- Judge dated the 10th November 1952 did not show that he had allowed the plaintiff any' further time to make good the deficiency of Court fees. I am afraid that the contentions of the learned counsel are well founded. It is correct that ordinarily, where a Court accepts deficit Court fees after the time is fixed for its payment and the plaint is registered, it may infer that the Court condones the delay and grants extension as it has discretion to do under section 148 or section 149 of the C. P. C. For, .if wanted the Court might have rejected the plaint under Order VII Rule 11, (See 1925 Patna, 299,) but the position is different when the Courts are dealing with pre‑emption cases. Refer ence in this connection may be made to a Division Bench ruling of the Lahore High Court reported as Saeed Ahmad v. Karam Chand (P L D 1949 Lah. 380) where it was observed that " It must be held that, specially where the suit is not for pre‑emption, the discretion conferred by section 149, C. P. C. needs to be exercised with the greatest care, where‑extension of limitation is also involved".

The perusal of the record in the present case shows that the plaintiff was allowed about two months' period for making up the deficiency of Court fees vide order of the learned Senior Sub‑Judge dated 16th September 1952. He however did not avail of the opportunity and asked for more time. Again the time was extended from 12th October 1952 to 9th November 1952 As 9th November 1952 was a holi day it was incumbent on the part of the plaintiff to have made up the deficient Court fee by the following date i.e. 10th November 1952. The plaintiff was negligent and failed to pay up the deficit Court fees and there seems to be no plausible excuse for his default. I am therefore of the opinion that the learned Senior Sub‑Judge was not correct in exercising his discretion to enlarge time for making good the deficiency of Court fees. Again the observations made in the Division Bench ruling of the Lahore High Court referred to above may be cited with advantage :‑

"The Civil law leans always in favour of freedom of contract, and security of title. The statutory law of pre emption constituted a drawback on both these principles and its provisions must, therefore, be construed and applied strictly against the claims of pre‑emption. The discretionary power given to the trial Court by section, 149, C. P. C. as it fell to be exercised in the circumstances of the present case, was in effect a power to extend limitation."

I find myself in respectful agreement with the above ruling and I am of the opinion that the discretion conferred on the Court by section 149 of the C. P. C. was not cor rectly exercised in favour of the plaintiff respondent by the learned Senior Sub‑Judge. I have already noted that the plaintiff failed to make good the deficiency of the Court fees within the time allowed by .the Court and therefore the trial judge should have rejected the plaint under Order VII Rule 11 of the Civil Procedure Code.

In my view the learned Senior Sub‑Judge Bahawalpur did not exercise his discretion in this case judicially and with proper care and caution.

For the foregoing reasons I vacate the order of the learned. Senior Sub‑Judge complained of in the petition and reject the plant under Order VII, Rule 11. As this revision petition has succeeded on a law point, I order the parties to bear‑their own costs.

Announced.

A. H. Petition accepted,

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