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Regular Second Appeal No. 40 of 1981, decided on 27th November, 1982.

‑‑ Ss. 28, 9 & 10 ‑ Punjab Pre‑emption Act (I of 1913), S. 4 Court‑fees‑Deficiency‑ Evaluation for purpose of court‑fee Power and discretion of trial court‑Subjected to law and sound judicial principles in light of judgment of Supreme Court if any on point‑Determination of case, held, will not turn on power under S. 28 read with Ss. 9 and 10 but on manner in which power has been exercised in a case which would become barred by time if no such order was passed.

Mst. Walayat Khatoon v. Khalil Khan P L D 1979 S C 821 rel.

Allah Yar v. Muhammad Riaz P L D 1981 S C 489 ; Hassan Muhammad v. Abdul Hameed P L D 1982 C S 159 ; Yaqoob Khan v. Rasool Khan 1981 S C M R 155 and Jan Muhammad v. Shukaruddin 1980 C L C 186 ref. ,

‑ Ss. 28, 9 & 10‑Punjab Pre‑emption Act (I of 1913), S. 4 Civil Procedure Code (V of 1908), O. VII, r. 11 Court‑fee ‑ Deficiency ‑ Evaluation ‑‑ Discretion of trial Court‑Lower appellate Court knowing that there was no evidence on record to show material available before trial Court to see if non‑payment of proper court‑fee at relevant time contumacious and whether discretion exercised in a proper and judicious manner. Lower appellate Court instead of dismissing suit passing order of remand which though nearer to cause of justice on face of it yet detrimental to interest of appellant and not respondent‑Remand order, held, thus being partly for benefit of appellant could not have been bona fide challenged in High Court.

Jan Muhammad v. Shukaruddin 1980 C L C 186 and Saeed Ahmad. v. Karam Singh P L D 1949 Lah. 380 ref.

‑‑ S. 4‑Pre‑emption suit ‑ Trial Court allowing respondent to cross‑examine witnesses to elicit if he was shown as a tenant in revenue record and appellant not objecting to same‑Record also showing that some of witnesses appearing on occasion in pursuance of summons issued on payment of process‑fee‑No blame for their non‑examination, held, could be placed on respondent and rather there is no valid reason given for not allowing their examination Order of trial Court shutting out his evidence thus quite arbitrary.

‑‑ S. 4‑Civil Procedure Code (V of 1908); S. 100‑Pre6emption suit‑Dismissal.‑Lower appellate Court remanding case to trial Court‑Issue whether respondent a tenant and having a superior right‑Trial Court finding revenue record tampered with ‑ Further evidence necessary to settle controversy to go to very root‑ Held: If respondent adjudged to be a tenant at relevant time appellant would not be able to claim a better right and case likely to be decided on merits which is very purpose of law ‑ Discretion having been exercised in interest of justice‑No interference by High Court, held, called for in circumstances.

‑‑ S. 3‑Suit valuation Rules, r. 1(h) ‑Court Fees Act (VII of 1870), S. 28‑Punjab Pre‑emption Act (I of 1913), S. 4‑Suit valuation for purpose of court‑fee and jurisdiction‑Value for purpose of court‑fees governed by r. I (b), framed under Suits Valuation Act, 1887, S. 3 ‑ Value of court‑fees thirty times of land revenue.

Jan Muhammad v. Abdul Ghafoor P L D 1966 S C 461; Ghulam Hussain Shah v. Hidayatullah Khan P L D 1981 S C (A J & K) 55 ; Maz Begum v. Zuligar Ali P L D 1960 Lah. 1088 ; Muparrab Khan v. Muha tmad Altaf Khan P L D 1964 Pesh. 228 and Noor Muhammad v. Kaniz Fatima P L D 1980 Lah. 471 rel.

Bashir Ahmad Ansari for Appellant.

Gulzarin Kayani for Respondent.

Date of hearing : 27th November, 1982.

The appellant challenges the order dated 2nd February, 1981, passed by the learned Additional District Judge, Rawalpindi, by which he reman ded the case back to the trial Court, after framing two issues.

2. Briefly, the facts of this case are that the appellant filed a suit for possession, through pre‑emption, of land measuring 809 kanals II marlas, as described in the plaint, situate in village Miana Potha, Tehsil Gujar Khan, District Rawalpindi. The land was sold by Ziauddin son of Najib Ali, Jehangir and Alamgir sons of Liauddin and Mst. Shafia Begum wife of Ziauddin for a consideration of Rs. 99,000.

3. The vendors are son, grandsons and daughter‑in‑law of the plaintiff‑pre‑emptor. She stated in the plaint that though the considera tion actually paid was Rs. 99,000 the ostensible sale price was shown as Rs. 1,50,000, in the registered sale‑deed dated 19th May, 1975. She evalu ated the land for the purposes of court‑fee at Rs. 400 and paid the due court‑fee thereon. There were two other suits also by rival pre‑emptors but as they were dismissed, it is not necessary to go into the same,

4. The defendant‑respondent denied the plaintiff's superior right and stated that he, being a tenant, had to be given preference. Objection was taken to the valuation of the suit for the purpose of court‑fee and juris diction also. The trial Court framed 5 issues. It fixed the value of the suit land at Rs. ‑58,000 and directed under Order VII, rule 11, C. P. C., to make up the deficiency in court‑fee. The plaintiff, in this case, complied with the order but the other two rival pre‑emptors did not. Their suits were consequently dismissed. The trial Court also found the appellant to have superior right of pre‑emption and decreed the suit on payment of Rs. 1,50,000.

5. Feeling aggrieved the respondent filed an appeal. It was stated therein that as the trial Court found that the plaint was not sufficiently stamped, the suit became barred by time and it should have been dismissed as such. The exercise of discretion by the trial Court was also assailed for the reason that it was done mechanically and without applying judicial mind. A right to be given a notice and hearing on this aspect was also claimed. An exception was also taken to the order of the trial Court closing respondent's evidence, particularly, when he had been depositing the necessary process fee. The lower appellate Court, after hearing the parties, as said above, remanded the case.

6. It is contended by the learned counsel that as the trial Court had the power under section 28 of the Court‑fees Act, as well as under section 149 read with Order VII, rule 11 of the C. P. C., to fix the proper court‑fee and allow time for its payment, the lower appellate Court should not have interfered with its order, without a sufficient cause being shown. He contended that the judgment in Walayat Khatoon's case (P L D 1979 S C 821), cannot be said to be a judgment of the Supreme Court, as it had not been delivered by at least two Judges. He then went on to say that the trial Court had exercised its discretion properly and validly and, therefore, it should not have been interfered with.

7. It is correct that a trial Court is empowered to do all what has been said but undoubtedly, the same has to be done in accordance wit'‑1 law, in compliance with the sound judicial principles and in the light o a judgment of the Supreme Court, if there is one on the point. The determination of the case thus would turn, not on the power under section 28 read with sections 9 and 10 of the Court Fees Act, as argued, but on manner in which power had been exercised, in a case which would become Barred by time, if no such order was passed.

8. The learned Judges of the Supreme Court did consider the effect of section 149 as well as Order VII, rule 11, C. P. C., in a similar situation in the case of Walayat Khatoon referred as above. It is a judgment of two learned Judges who are not on variance. Their views are rather complimentary to each other. They held that in case the Court‑fee could be made up within the limitation period, Order VII, rule 11, C. P. C., would apply but in other cases the Court has to act under section 149 C.P.C., and the discretion must be exercised on sufficient cause shown and in accordance with the well‑known principles governing exercise of discretion, The reason given is that as a right had already accrued to a third party, on the ground that the suit would ordinarily be barred by time, it must not be lightly deprived of the same.

9. It may also be noted that the judgment of the Supreme Court in Walayat Khatoon's case has been noticed or view followed in a number of other cases. It was held in Allah Yar v. Muhammad Riaz (P L D 1981 S C 489) that no doubt time for making up the deficiency in the Court‑fee can extended by the trial Court as well as by the appellate Court but as held by this Court in Mst. Walayat Khatoon v. Khalil Khan the discretion has to be exer cised very carefully and the Court has to strike a balance between prejudice likely to be caused to each party. It should not be unduly harsh on the plaintiff in giving him an opportunity to make up the deficiency. At the same time it should not be harsh on the defendants by easily taking away the valuable right of limitation from them.

10. In Hassan Muhammad v. Abdul Hameed (PLD1982SC 159) the Court observed that it is not the case that the plaintiff had failed to make up the defi ciency within the time allowed by the Court, nor had any of the Courts below held the plaintiff to be guilty of contumacy in this regard. The learned Judges distinguished and not dissented with the case of Walayat Khatoon. In Yaqoob Khan v. Rasool Khan (1981SCMR155), the High Court in respect of a suit for a declaration, permitted the plaintiffs to amend the plaint to seek further relief of possession of the suit property. The plain tiffs paid Rs. 15 as court‑fee instead of Rs. 376.13. The suit was dis missed but appeal allowed.

11. In Regular Second Appeal the defendants succeeded and the case was remanded to consider the question of deficiency in Court‑fee on memo randum of appeal. The Additional District Judge allowed to the plaintiff to make up deficiency and it was done before the given date. Both the High Court and the Supreme Court upheld the order on the ground that the discretion had been validly exercised and observed that normally the Court would not, interfere with such exercise unless there is some extra ordinary reason.

12. It may be noted that the judgment in Hassan Muhammad's case was delivered by three learned Judges. They expressly noted the case of Walayat Khatoon and did not say that the law laid down therein was not good. In this view of the matter, the question arising for determi nation before the lower appellate Court was whether there was sufficient material to know if the non‑payment of proper Court‑fee at the relevant time was contumacious and whether the discretion had been exercised in a proper judicious manner Undoubtedly, there is no such evidence o record to show as to why the proper Court‑fee was not paid at the relevant time. The lower appellate Court could proceed to dismiss the suit as the trial Court had no material before it to exercise its discretion. It has rather taken the other alternative and passed an order which, though nearer to the cause of justice, is on the face of it, detrimental to the interest of the appellant and not the respondent. The remand order thus would be partly, for the benefit of the appellant and hence it could not have been. bona fide challenged in this Court.

13. The learned counsel for the respondent relied on Jan Muhammad v. Shukaruddin (1980 G L C 184.) to say that the Courts have considered and decided as to what act is contumacious. He also relied on Saeed Ahmad v. Karam Singh (P L D 1949 Lab. 380) to say that the discretion exercised by the trial Court is not sacrosanct and can be upset if it is found that it has not been exercised properly. He, therefore, argued that the order so far as the issue No. 4‑A is concerned, benefits the appellant as welt and she will be in a position to bring on record such material as may help her to prove her bona fides and controvert any plea of contumacy. As there was neither material before the trial Court to extend time nor did it give any opportunity to the parties to produce evidence, it prima facie acted without any sound basis. The order of the lower appellate Court thus advances the cause of justice and is rather more C beneficial to the appellant.

14. As regards the second issue, the learned counsel for the appellant assails it on the ground that Muhammad Iqbal Girdawar (P W 4) and the Patwari (P W 1) having been cross‑examined by the respondent on the issue whether he was a tenant or not, the lower appellate Court should not have remanded the case on that basis. According to him, the order amounts to permitting the respondent to fill in the lacuna in his case, which is not permitted by law. It is to be noted that the respondent was permitted by the Court to cross‑examine witnesses to elicit if he (respon dent) was shown a tenant in the revenue record. Despite that position the appellant did not object when the respondent was allowed to summon them and other witnesses to prove the same point. Not only that, it is also borne out from the record that some of those witnesses had been appear ing on, occasions in pursuance to the summons issued, on the necessary process paid. In this view of the matter no blame for their non‑examina tion could be placed on the respondent. Rather, there is no valid reason given for not allowing their examination. . The order of the trial Court shutting out his evidence thus was quite arbitrary.

15. The case may be looked at from another angle also. 1t has been found by the trial Court that certain entries in the revenue record had been tampered with. There is no evidence to show as to whether it was done authorisedly or otherwise. It is not shown as to who did so an with what motive. In this view of the matter, further evidence was necessary even for the Court to settle that controversy, which undoubtedly would go to the very root of the case. If the respondent is adjudged to be a tenant at the relevant time, the appellant would not be able to claim a better right. Further, what the witnesses would be deposing on remand, may not be oral and can be restricted only to the documentary E evidence. They will either produce the record or depose on its basis. No prejudice, therefore, would be caused to the case of the appellant. At the most the case would be decided on its merit, which is the very purpose of law, In the circumstances, I do not find any illegality with regard to second issue also. The discretion has thus been exercised in the interest of justice and I do not think it is desirable that the same be interfered with. Reference be made to Yaqoob Khan v. Rasool Khan.

16. The learned counsel for the appellant then submitted that as the trial Court had fixed a sum of Rs. 58,000 as the valuation for the purpose of Court‑fee as well as jurisdiction, no appeal could have been filed the District Court. He, however, agreed that the valuation for the pur poses of Court‑fee is governed by rule 1 (b) framed under section 3 of the Suits Valuation Act. According to it the value for the purposes of Court F fee is 30 times the land revenue. If that be taken as the basis, it is not disputed that the appeal had been properly filed. It is also admitted that the entire land was included in one khata and was assessed to land revenue. The learned counsel has relied on Jan Muhammad v. Abdul Ghafoor (PLD1966SC461), Ghulaml Hussain Shah v. Hidayatullah Khan (PLD1981SC(AJ&K)55), Mumtaz Begum v. Zulfiqar Ali (P L D 1960 Lah. 1088), Muqarrab Khan v. Muhammad Anwar Khan (P L D 1964 Pesh. 228) and Noor Muhammad v. Kaniz Fatima (P L D 1980 Lah. 471) to say that the value for the purpose of court‑fee and jurisdic tion is 30 times the land revenue. This contention has force. The order of the trial Court saying, that value for purposes of jurisdiction is Rs. 58,000, thus can at the most be said to be erroneous. In this view of the matter, I do not find any merit in this submission either.

For the reasons given above, this appeal has no merit and is dismissed. The parties are, however, left to bear their own costs.

M. Y. H. Appeal dismissed.

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