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First Appeal from Original Order No. 241 of 1980, decided on 3rd March, 1981.

‑‑‑ S. 28 and Civil Procedure Code (V of 1908), O. VII, r. 11 and Punjab Pre‑emption Act (I of 1913), S. 4‑Deficiency in court‑fee‑Pre‑emption suit ‑ Respondents negligent in finding out amount of court‑fee payable basing their original estimate on mere guess work‑Estimate made on guess work could turn out to be very much off mark‑Respondents, held, required to ascertain correct amount of court‑fee as soon as plaint filed and make up deficiency at earliest opportunity irrespective of fact whether Court issued specific direction in such regard or not‑Trial Court accepting valuation subject to objection from opposite side‑Order of trial Court not final order‑Contention that such order had effect of absolving respondents of all responsibility of finding out correct amount of court‑fee, held further, not acceptable and finding of trial Court as to respondents being guilty of gross negligence justified.‑[Court‑fee].

Jan Muhammad v. Shukaruddin 1980 C L C 186; Muhammad Jamil v. Muhammad Sarwar 1979 C L C 470 ; Muhammad Sharif Khan v. Ghulam Farid 1980 C L C 545 ; Muhammad Nawaz Khan v. Makhdoom Syed Ghulam Mujtaba Shah P L D 1970 S C 37 and Shah Nawaz v. Muhammad Yousaf 19 / 2 S C M R 179 ref.

Malik Allah Yar Khan for Appellant.

M. M. Saeed Beg for Respondent.

Dates of hearing: 9th, 10th and 28th February, 1981,

This first appeal is from an order, dated 28‑6‑1980 of District Judge Sargodha which set aside the order, dated 3‑2‑1980 of Civil Judge Bhalwal with regard to the rejection of the plaint of the respondents on the ground that the deficiency in the court‑fee had not been made up within time.

2. On 1‑10‑1975 the respondents brought a suit to pre‑empt a sale of agricultural land. The plaint bore Court‑fee stamps worth Rg.376. The office of the Civil Judge reported that prima fade the plaint was insufficiently stamped. Upon this on 4‑10‑1975 the learned Civil Judge made the follow ing order :‑

On 6‑11‑1975 the respondents moved an application seeking extension in time for filing the statement of net profits and making up the deficiency in court‑fee. The learned Civil Judge directed that the application should be put up on the following day when the main suit was to come for hearing. On the following day the learned Civil Judge did not attend the Court. Consequently the reader of the Court postponed the proceedings to the follow ing day. On 8‑11‑1975 the learned Civil Judge made the following order :‑

After that the respondents made no efforts to procure the statement of net profits or to make up the deficiency in court‑fee.

3. On 16‑12‑1979 the appellants moved an application for the rejection of the plaint on the ground that court‑fee affixed thereon was insufficient and that the respondents had not cared either to get a statement of net profits prepared or to make up the deficiency. Together with their application they filed a statement of net profits which showed that the court‑fee payable on the plaint was Rs.1,410. This application was opposed by the respondents on the main plea that by its order; dated 8‑11‑1975 the Court had accepted as correct the valuation which they had placed on the plaint for the purpose of court‑fee subject to such objections as may be taken by the appellants.

Consequently, they were absolved of the responsibility of either filing a statement of net profits or making up the deficiency till an order to the contrary was made by the Court. ‑ This plea did not find favour with the trial Court. It then rejected the plaint holding that the respondents had been grossly negligent in not making up the deficiency in the court‑fee.

4. From the decision of the trial Court the respondents preferred an appeal before the District Judge. The learned District Judge accepted the appeal on the ground that before rejecting the plaint it was the duty of the trial Court to fix the precise extent of deficiency and give an opportunity to the respondents to make up the same within a specified period. In coming to this view he relied upon a decision of this Court reported as Jan Muhammad v. Shukaruddin (1980 C, L C 186). He also thought that the suit was beyond the pecuniary jurisdiction of the trial Court and for that reason it was not competent to reject the plaint. Accordingly, he set aside the order of the trial Court and remanded the suit for a fresh decision. The appellants have come to this Court to challenge the order of the learned District Judge.

5. It is no longer disputed by the parties that the trial Court had the pecuniary jurisdiction to try the suit. Thus, in so far as this aspect of the matter is concerned I am unable to support the finding of the learned District Judge.

6. Admittedly, the plaint of the respondents was insufficiently stamped ; whereas on the basis of the net profits the court‑fee payable was Rs.1,410, the respondents had paid court‑fee of Rs.376 on their plaint. When I inquired from the learned counsel for the respondents how they had initially affixed stamps worth Rs.376 only the reply given was that it was merely on the basis of guess‑work. This being their position, it was required for the to ascertain the correct amount of court‑fee as soon as they had filed their plaint and to make up deficiency at the earliest opportunity. This was' their responsibility and they had to discharge it irrespective of the fact whether the Court issued any specific direction in this regard or not. An estimate made on guess‑work could turn out to be very much off the mark as in fact did happen in this case. It is also to be noticed that the office of the Civil Judge and the Civil Judge himself did point out to the respondents that the plaint prima facie appeared to be insufficiently stamped. If nothing else these observations should have put them on their guard. Despite this position for more than four years they took no steps whatsoever to discharge their obligation to correctly value their plaint and to pay the proper amount of court‑fee thereon. No doubt by its order, dated 8‑11‑1975 the Court did accept the valuation that they had placed on the plaint but this was not the final order of the Court. The order itself specifically state that the acceptance of the valuation was subject to objection from the opposite side. I am, therefore, unable to accept their contention that it had the effect of absolving them of all responsibility of finding out the correct amount of court‑fee particularly when filing the plaint they had relied entirely upon guess‑work. I should, therefore, think that they had no satisfactory explanation to offer for not taking any steps in making up the deficiency for period of four years till their plaint was rejected. Thus the finding of trial Court that the respondents were guilty of gross negligence seems justified.

7. The reference made by the learned District Judge to the case of Jan Muhammad v. Shaukaruddin, is inapt. It was a case where two rival pre‑emptor s had filed two conflicting statements of net profits in respect of (1) the same land. The trial Court accepted one statement in preference to the other without holding any inquiry as to which statement was more accurate. It was in these circumstances that a Division Bench of this Court thought that before accepting one statement and rejecting the other the trial Court ought to have held an inquiry under sections 9 and 10 of the Court Fees Act. Apart from that the Division Bench also found that the pre‑emptors had not been lax in obtaining statements of net profits from the revenue authorities. This case is easily distinguishable from the facts before me. For here as already pointed out the respondents were negligent in finding out the amount of court‑fee payable even though their original estimate was based on mere guess‑work.

8. To support the order of the learned District Judge learned counsel for the respondents relied upon Muhammad Jamil v. Muhammad Sarwar (1979 C L C 470), Muhammad Sharif Khan v. Ghulam Farid (1980 C L C 545), Muhammad Nawaz Khan v. Makhdoom Syed Ghulam Mujtaba Shah (P L D1970 S C 37) and Shah Nawaz v. Muhammad Yousaf (1972 S C M R 179). In none of these cases the pre‑emptor was found to be negligent in ascertaining the amount of court‑fee that was payable on his plaint. As such these authorities do not assist the learned counsel.

9. For the reasons stated above I accept this appeal, set aside the order of the learned District Judge and restore that of the trial Court with costs.

M. Y. H. Appeal accepted.