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Regular Second Appeal No. 80 of 1981, decided on14th November, 1981.

--‑S. 100 and Court Fees Act (VII of 1870), S 7‑Appeai‑Deficiency ‑in court‑fee‑Case of appellant/plaintiff that plaint not sufficiently stamped‑To say that plaint not insufficiently stamped, held, does not lie in mouth of appellant,‑[Plaint].

‑Ss. 9 and 10 and Punjab Pre‑emption Act (I of 1913), S. 15 Court‑fee‑Suit for pre‑emption‑Ordering investigation for ascertaining market value or net profit‑Not incumbent upon Court‑No investigation under S. 9 ordered provision of S. 10, held, not attracted.

‑‑S. 28, Punjab Pre‑emption Act (I of 1913), S. 15 and Civil Procedure Code (V of 1908), S. 100‑Deficient court‑fee‑Suit for pre‑emption Appellant/plaintiff getting net profits prepared at appeal stage to justify his contumacious act in failing to make good deficiency court‑fee‑Act of appellant, held too late.

‑‑S. 100, O. VII, r. 11 and Punjab Pre‑emption Act (I of 1913), S. 15 read with Court Fees Act (VII of 1870), S. 28‑Appeal‑Suit for pre‑emption‑ Determination of valuation of suit for purposes of court‑fee‑Appellant/plaintiff admitting filing of plaint on insufficient stamp and make up deficiency later on ‑Appellant neither submitting net profit and requisite court‑fee within period fixed by trial Court nor seeking extension in time but contending in appeal plaint being not insufficiently stamped‑Held Act of plaintiff' negligent and contu macious‑Order directing plaintiff to make up deficiency‑Clearly an order under O. VII, r. 11‑Trial Court, rightly rejected plaint. [Plaint].

Malik Nasim Muhammad for Appellant.

Khan Sadiq Muhammad Ahsan for Respondent.

Date of hearing : 14th November, 1981.

This regular second appeal arises from the decree and judgment of the learned Additional District Judge, Multan, whereby he on 4‑5‑1981 dismissed the appeal filed by Malik Muhammad Waryam Khan, appellant be rein, against the judgment and decree of the learned Civil Judge, Multan, rejecting the plaint in the suit for possession through pre‑emption filed by Malik Muhammad Waryam Khan against Mst. Shahnaz Masood, respondent/defendant.

2. The facts giving rise to this appeal are that Mst. Shahnaz Masood, through registered deed purchased the suit land from Muhammad Ramzan and others on 21‑3‑1978 for ostensible sale price of Rs. 32,000. On 20‑3‑1979, the present appellant filed a suit for possession through pre‑emption and averred that an amount of Rs. 5,000 was bona fide fixed and actually paid as a sale price of the suit land and to defeat the Pre‑emptor the fictitious sale price i. e. Rs. 32,000 was' shown in the deed. He claimed his superior right on the basis of co‑sharer in the property and ownership in the estate.

3. The suit was instituted on 20‑3‑1979 on a court‑fee of Rs. 12 only the valuation for the purposes of court‑fees was tentatively fixed as 15 x 10 equal to Rs. 150 In para. 2 of the plaint it was stated :

On 21‑3‑1979, the learned. trial Court directed the appellant/plaintiff to make up the deficiency in the court‑fees before 30‑4‑1979. Neither the petitioner made the payment nor did he apply for the extension of time for that purpose. It is to be noted that the appellant never applied for the extension of time and has not made up the deficiency in the court fees at all.

4. The respondent/defendant filed written statement, raised preliminary objections and denied the averments of the plaint. The pleadings created the following issues :‑

(1) Whether this suit has been properly valued for the purposes of court‑fee and jurisdiction 7 If so its effect

(2) Whether the defendant vendee is entitled to recover special costs under section 35‑A, C. P. C. If so, to %bat and with what effect

(3) Whether the plaintiff is estopped from bringing this suit

(4) Whether the plaintiff has failed to make up the deficiency in court‑fee in accordance with the order of this Court If so, its effect

(5) Whether the plaintiff has superior right of pre‑emption as against the defendant‑ vendee

(6) Whether Rs. 32,000 were fixed in good faith of paid by the defend ant/vendee to the vendors

(7) What was the market value of the suit property at the time of its sale in favour of the defend ant/vendee

(8) Whether the suit property is residential in nature If so, its effect

(9) Relief.

5. On 15‑10‑1979, i.e. on the date of hearing, the respondent/ defendant moved an application for the rejection of the plaint under Order VII, rule 11, C. P. C. on the ground of the failure of the plaintiff to make up the deficiency and under‑valuation of the suit as required by the learned trial Court vide its order dated 21‑3‑1979. The appellant/ plaintiff in reply stated that the issues Nos. 1 and 4 having been fram ed on similar objections it would be premature to decide the application and that according to the plaintiff the sale price being Rs. 5,000 the same was exempted from the payment of Court‑fee. The learned trial Court was requested to determine the value of the suit land under sections 9 and 10 of the Court Fees Act. An application to this effect was submitted on 23‑2‑1980 by the appellant. The trial Court vide its order dated 16‑3‑1980 accepted the application of the respondent/defendant and rejected the plaint under Order VII, rule 11, C. P. C.

Feeling dissatisfied, the plaintiff filed an appeal, which too, was dismissed by the learned Additional District Judge, Multan on 4‑5‑1981. Hence this appeal.

6. Learned counsel for the appellant has urged before me‑

(i) that according to the plaintiff suit property was sold for Rs. 5,000 and an amount of Rs. 32,000. was shown fictitiously to defeat the pre‑emptor. According to the learned counsel Rs. 5,000 was value for the purposes of the Court‑fee which was exempted from payment of the Court‑fee as such the plaint was not insufficiently stamped : .

(ii) that it was incumbent upon the trial Court to issue a commission to make investigation for determining the value of the property for the purposes of court‑fee as required by sections 9 and 10 of the Court Fees Act, but the learned Additional District Judge, has ignored this aspect of the matter ;

(iii) that during the pendency of the appeal, plaintiff got prepared net profits from Sadar Qanungo which shows that the valuation for the purposes of the court‑fee was Rs. 2,145 and the same is exempted from the payment of court‑fee.

7. On the other hand, the learned counsel for the respondents contends that the conduct of the plaintiff/ appellant being contumacious, the plaint was rightly rejected.

8. After hearing the learned counsel and going through the mate rial placed before me I find that so far as the first point is concerned, in para. No. 8 of the plaint, it is the case of the appellant that the suit was not filed on a sufficiently stamped plaint. It, therefore, does not lie in the mouth of the appellant to say, that the plaint was not in sufficiently stamped.

So far as the second point is concerned, it would be proper to reproduce sections 9 and 10 of the Court Fees Act :‑

The trend of these sections indicates that it is not incumbent upon the Court to order investigation for ascertaining the nett profits or the market value of the property because such investigation may not be required in certain cases and that section 10 makes a reference to the investigation to be held under section 9 of the Court Fees Act. It follow that where no investigation had been ordered under section 9 the provisions of section 10 would not be attracted at all. It is to be noted that in the instant case the learned trial Court had not acted under section 9 of the Court Fees Act. The arguments of the learned counsel, therefore, are misconceived.

So far as the third point is concerned. I am of the opinion that the nett profits was got prepared at the stage of the appeal to justify the contumacious act in failing to make good the deficit court‑fee for a pretty long time and it was too late to produce the nett profits for determining the valuation of the suit for the purposes of Court‑fee.

In the instant case 1 find that the suit was instituted after about one year of the sale on a court‑fee of Rs. 12 only. In the plaint the appellant admitted that he has filed the plaint on an insufficient stamp and stated that he would make up the deficiency in the court‑fee later on. On 21‑3‑1979 the learned trial Court required the appellant/plaintiff to file nett profits and to supply the requisite stamp‑paper before 30‑3‑1979. The appellant/ plaintiff failed to comply with the order. Neither he submitted the nett profits nor he supplied the requisite stamp‑paper so much so that he did not apply for the extension of time for that purpose and thereafter during the trial n6ver made good the deficiency and he now contends that the plaint was not insufficiently stamped. I am of the opinion that he did not make up the deficiency for a pretty long time without any justification and that the order dated 21‑3‑1974 directing the plaintiff to make up the deficiency was clearly an order under Order VII, rule 11. C.P.C. and the failure of the appellant plaintiff to comply with it was sufficient to reject the plaint. I find that the appellant/ plaintiff was negligent and contumacious to not bothering to comply with the order dated 21‑3‑1979 and to make up the deficiency. Moreover, he never applied for the extension of the time for this purpose. The learned trial Court was, therefore, justified in rejecting the plaint and no exception can be taken to the judgment and decree of the learned appellate Court.

As a result of the above discussion the appeal has no force and is consequently dismissed in limine with no order as to costs.

M. Y. H. Appeal dismissed.

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