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Regular Second Appeal No. 133 and Civil Miscellaneous No. 923/C of 1979, decided on 17th February, 1979.

-- S. 12 read with Civil Procedure Code (V of 1908), O. VII, r. 11 Court-fees, determination of-Default in depositing deficient court-fee, effect of--Deficiency in court-fee made up with 2 days' delay but no exception taken to it by appellant nor Court made any adverse order against plaintiff though fully cognizant of such default-Court deemed to have condoned default in deposit of court-fee by implication-Case, held, not fit one for rejection of plaint in circumstances.-[Court-fee].

O VII, r. 11 read with r. 26-Plaint, rejection of-Argument that plaintiff failed to file a "list of his legal representatives as required by r. 26 of O. V1I not raised before Courts below-Such list, held, not a legal necessity nor plaint, could be rejected on that ground alone. [Plaint-Legal Representatives].

Hakam Qureshi for Appellant.

This regular second appeal has arisen out of a suit brought by respon dent No. 1, Muhammad Hanif against the appellant, GhuIam Muhammad and respondent No. 2, Mst. Umrawan for possession of a piece of land, through pre-emption. This land had been sold by respondent No. 2 in favour of the appellant.. The suit was decreed by the trial Court. The appellant, therefore, firstly went in appeal before an Additional District Judge but as it was dismissed, he has come up in second appeal to this Court.

2. One of the pleas raised by the appellant (vendee) in defence of the suit was that respondent No. I (pre-emptor), hereinafter referred to as the respondent, had waived his right of pre-emption. On the issue involving that plea, the two Courts below have recorded a concurrent finding against the appellant. His learned counsel contended that the lower Courts had misread the appellant's evidence while deciding the said issue. He read out to me, from his brief, the parties, evidence on the issue under consideration. The appellant produced three witnesses to prove the issue. Appearing as D. W. 1, the appellant stated that one Master Ghulam Rasul had told him that the respondent had no objection to the purchase of land by him (appellant). When cross-examined, he conceded that the plaintiff did not himself permit him (appellant) to do so. He did rcpt examine Master Ghulan-i Rasul to support his testimony. Therefore, the appellant's statement is of no consequence. The second witness produced by him was Saee Muhammad (P. W. 2). He is a cousin of the appellant. As he was an interested witness, his statement was not relied upon by the Court,, below. -The third and the last witness produced by the appellant was Mubarik Ali (F'. W. 3). He deposed that he was not present when the bargain was struck, Thus, his statement has no bearing on the issue in band. In the circumstances, the two

Courts below were justified in holding that the appellant bad not been able to ,substantiate his plea of waiver.

3. The next contention raised by the learned counsel for the appellant was that the court-fee originally paid by the plaintiff-respondent was deficient and he was required to make up deficiency in the court-fee before 16th January, 1977, but he did the needful a play later, that is, an the 17th January, 1977. It has been conceded key the learned counsel for the appellant that on the 15th January 137'' the plaintiff had made an application stating that he could not obtain court fee stamps from the Treasury. He therefore, asked for- another four days' time to place the said stamps on the file. This, he was allowed to do subject to all just and legal exceptions. The requisite stamps were, actually;'- placed on the record on the 17th January 1977. Subsequently, no exception was taken by the appellant to the said two days' delay on the part of the plaintiff in depositing the deficient amount of court fee. The trial Court, while deciding the suit, took notice of the said delay but did not make any adverse order against the plaintiff. Thus, by implica tion, the learned Civil Judge had condoned two days' delay in the deposit of court-fee. Even if he had not done so, it is not a fit case for rejection of plain A by this Court when the delay is of a couple of days only and that too has been adequately explained. I would, therefore, not reject the plaint due to the above delay in the deposit of court-fee.

4. Another ground pressed by the learned counsel for the appellant for seeking rejection of the plaint was that the plaintiff had not filed a list or his legal represent actives as required by rule 26 of Order VII of the Code of Civil Procedure. This point has not been discussed by the trial Court of. the first appellate Court, which shows that it was not raised before them. I asked the learned counsel for the appellant to cite any provision of law or authority in support of the proposition that if the list in question is not submitted by the plaintiff, his plaint can be rejected on that ground alone; but he was unable to do so. The provisions relating to the rejection of plaint are contained in rule 11 of Order VII of the said Code but it has not been laid down therein that a plaint can be rejected if it is not accompanied by the list of the legal representatives of the plaintiff. Therefore, even if the plaintiffs in the present case had" not appended the said list to his plaintiff this lapse on his part does not warrant the rejection of his plaint. 5. No other point was canvassed by the learned counsel.

6. As there is no substance in this appeal, it is dismissed in limine.

S. G. D. Appeal dismissed.

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