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Regular Second Appeal No. 475 of 1979, decided on 11th January, 1982.

‑‑ Ss. 148 & 149 read with Court Fees Act (VII of 1870), S. 28 ‑ Plaint under-stamped by mistake ‑ Extension of time- Effect‑In suit for pre‑emption of land court‑fee of Rs. 22.50 paid, valuing suit at Rs. 150‑Court ordering on 19th July, 1975 payment of 1/5th pre‑emption money and making up of deficiency on or before 20th September, 1975‑Presiding Officer being on leave on 20th September, 1975 case adjourned, to 27th October, 1975‑Court again allowing plaintiffs to make up deficiency on or before 24th November, 1975‑In compliance' with Court's order' plaintiffs depositing sum of Rs 4,565 under different head by mistake‑Court‑fee stamp not made available, amount withdrawn on 9th February, 1976 and court‑fee stamp purchased on 13th February, 1976 and deficiency made good on 17th February, 1976‑Court however not passing order on application for extension of time‑Held, such mistake not wilful but accidental and default for reasons beyond control and not to deprive plaintiffs of privilege of extension of time in‑--making good deficiency‑Held further, in circumstances plaint' and every proceeding relative thereto as valid as properly stamped in first instance.

----‑ O. XL1, r. 1 & O. XIV, r. 1 read with Evidence Act (I of 1872), S. 115‑Issue not pressed‑Agitation in appeal ‑In suit for pre‑emption issue relating to valuation of suit left out as not pressed‑Held, such issue could not be agitated in appeal nor could be made ground for dismissal of suit. ‑[Pre‑emption].

Ch. Muhammad Ashraf for Appellants.

Mian Iqbal Khalid for Respondents.

Dates of hearing :13th June ; 6th and 8th December, 1981.

This is a second appeal from the judgment and decree dated 31st May, 1979, whereby the learned Additional District Judge, Shikhupura set aside the decree of the trial Court and dismissed the appellants' suit for pre‑emption.

2. In their suit for pre‑emption the plaintiffs‑appellants on the basis of being the sons of the vendor claimed the land on payment of Rs. 33,000 instead of Rs. 40,000 as shown in the sale‑deed dated 8th August, 1974. The suit filed on 17th July, 1975 was valued at Rs. 150 on payment of court‑fee of Rs. 22.50 with an assurance that the deficiency would be made up after obtaining the Jhar Pedawar. The suit came upon 19th July, 1975, for scrutiny and the Court ordered payment of 1/5th pre‑emption money by 20th September, 1975 and required the appellants to make up the deficiency within the date fixed after getting the necessary papers. The deficiency was however made good on 17th February, 1976, although court‑fee stamps were purchased on 13th February, 1976.

2‑A. It was contended inter alia in the written statement that the suit was barred by time because the vendees had taken possession much earlier. The suit was consequently decreed on payment of Rs. 40,000 as disclosed in the sale‑.deed, but in appeal the suit was dismissed because, accor ding to the learned Additional District Judge, court‑fee was not paid within the period of limitation, and the trial Court had not accorded extension to the late payment.

3. Calculating the period of limitation from the date of the sale,. the suit instituted on 17th July, 1975 was well within time, but since the plaintiffs‑appellants had no means to calculate the not profits, they fixed the value of the suit at Rs. 150 and paid Court‑fee valuing Rs. 22.50. They however indicated exressly that deficiency would be made up as and when the Jhar Pedawar was available. The trial Court on 19th July, 1975 directed the plaintiffs‑appellants to procure the Jhar Pedawar and make up the deficiency on or before 20th September, 1975. It appears that the Presiding Officer was on leave on that day and the Reader of the Court adjourned the case to 27th October, 1975.. On that day the trial Court again allowed the plaintiffs‑appellants to make up the deficiency on or before 24th November, 1975. It is contended by the learned counsel that the plaintiffs‑appellants had in compliance of the order of the Court deposited a sum of Rs. 4,565 in the Bank for purchase of the court' fee, but the same having been deposited by mistake under a different head of account, court‑fee stamps were not made available. It transpires from the order of the Court dated 7th February, 1976, found in the record of the case that refund .of the amount was ordered by the Court on the voucher, the amount was withdrawn on 9th February, 1976 and court‑fee was purchased on 13th February, 1976, and that the plain tiffs‑appellants made an application for extension of time, but no order appears to have been passed by the Court. That being the state of affairs, it cannot be said that no prayer was made by the plaintiffs for extension of time. As a matter of fact the Court allowed the plaintiffs to make up the deficiency, once upto 20th September, 1975, and then upto 24th November, 1975, in compliance of which they deposited the amount of court‑fee, although by mistake under a wrong head of account. Such a mistake was definitely not wilful, but accidental, and therefore the default was for reasons beyond their control. They thus did not contumaciously so as to deprive them of the privilege of extension of time in making good the deficiency. The learned Additional District) Judge was, therefore, wrong in holding otherwise. The plaintiffs had made an application, apparently under section 149, C. P. C. for exten sion of time explaining how they were constrained not to get the court‑fee in time, but unfortunately the trial Court did not pass any order in that respect, and for such a default the plaintiffs‑appellants cannot be made to suffer. In view of the provisions of section 28 of the Court Fees Act (VII of 1870) I consider that on its being stamped accordingly the plaint and every proceeding relative thereto is as valid as if it had been properly stamped, in the first instance.

4. Even otherwise, the question of agitating the deficiency of court fee could not have been made the basis of rejection of the plaint or the dismissal of the suit. Burden of proof of issue No. 2 relating to valuation lay on the defendants‑respondents but they did not discharge it by producing any evidence. It was instead left out as not pressed. The issue, having once been abandoned. could not be agitated in appeal, nor could it be made a ground for dismissal of the suit. Limitation did not how ever arise from default in making up the deficiency, but was based on delivery of possession alleged to be made much before registration of the document. The question whether the vendees had taken under the sale physical possession of the whole of the land prior to the execu tion and registration of the sale‑deed is one of fact, and having abandoned it, the same could not be agitated subsequently, particu larly on a plea not taken up earlier.

For the foregoing reasons the appeal is allowed with costs, the judgment and decree of the learned Additional District Judge, are set aside and the decree of the trial Court is maintained.

K.M.A. Appeal accepted.

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