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Writ Petition No. 554;1 of 1980, decided on 17th March, 19133.

--Art. 9--Writ petition--Competency of--Plea not raised at earlier stage, _held, could not be agitated first time in writ petition.

--S. 21--Court Fees Act (VII of 1870), S. 7(v)(vi)--Provisional Constitution Order (1 of 1981), Art. 9--Pre--emption suit--Deficiency it court-fee--Some tampering alleged in Register Khasra Girdawari- Appellate Court not holding pre-emptors responsible for copy of such Khasra Girdawari supplied by Revenue Officials--Without placing responsibility of preparation of such Khasra Girdnwari on pre-emptors, it could not be held that there was deliberate effort on part of pre-emptors to pay insufficient court-fee--Party could not be held responsible for act of officers of Court or of any act or omission for which it could not be held responsible.

---Art. 1--Civil Procedure Code (V of 1908), S. 149--Court-fee, deficiency of--Making good of--Act of plaintiff neither contumacious nor negligent--Appellate Court, held justified in directing trial Court to provide opportunity to plaintiffs to make good deficiency in court -fee.--[court-fee] .

Iftikhar Ali Shaikh for Petitioner.

Ch. Imtiaz Ahmad for Respondent.

Date of hearing: 17th March, 1984.

This constitutional petition is directed against judgment dated 12th of March, 1980, passed by the learned Additional District judge under section 115, C.P.C. i.e. the revisional jurisdiction.

2. The facts necessary for the disposal of this petition are that a suit for possession through pre-emption was filed by the respondent, on 1-6-1977 to pre-empt the sale of land made vide registered sale-deed dated 3-6-1976. A court-fee of Rs. 6.1)0 was affixed on the plaint as it was averred that the value for the purposes of court-fee and jurisdiction was Rs. 75.00. The trial Court vide order dated 1-6-1977 directed that proper court-fee be paid before 24--7-1977. It is the case of the petitioner that a schedule of assessment was filed and on the basis thereof court-fee of Rs. 615.00 in all was paid. The petitioners thereafter filed an application for rejection of the plaint under Order V11, rule 11, C . P. C . alleging that the sum of Rs. 615.00 paid was not proper as the land was Banjar Qadim and that the schedule of assessment relied upon, on the basis of' which the court-fee had been paid, was forged and fictitious one and did not represent the correct position obtaining on the spot. This application was resisted by the respondents and the learned trial Court vide order dated 3-11-1979 dismissed the application by holding that there existed no reasonable cause for rejecting the plaint under Order V11, rule 11, C.P.C. The petitioners then filed an appeal challenging the order dated 3-11-1979 and the learned Additional District Judge, Sheikhupura, treating the said appeal as revision, dismissed the same. The respondent-plaintiffs were, however, directed to pay the court-fee in accordance with the market value of the suit land. It was further observed that the learned trial Court will give one opportunity to the plaintiffs to make up the deficiency in the court-fee. The petitioners then filed civil revision No. 601 of 1980 in this Court but the same was dismissed as incompetent vide order dated 7-5-1980 in view of the order of the learned Additional District Judge passed in revision under section 115, C.P.C flee petitioners thereafter assailed the order of the learned trial Court dated 3-11-1979 as well as the order dated 12-3-1980 by filing this constitutional petition. It was further prayed that the learned trial Court be directed to dismiss the suit with costs.

3. In support of this petition learned counsel argued that the suit initially filed was admittedly deficiently stamped and despite the order dated 1-6-1977 to pay the proper court-fee, the respondents failed to pay the proper court-fee and acting contumaciously and negligently paid a court-fee of Rs. 615.00 only by relying on a fictitious and forged statement of assessment. It was argued that the respondents manoeuvred to obtain a fictitious statement of net profits with the connivance of the Revenue Officials and the insistence of the respondents that they had paid correct court-fee and that the statement of net profits procured and filed in Court was correct establishes their contumacy, obstinacy as well as the deliberate effort to pay insufficient court-fee. It was argued that the respondents were in possession of the land in dispute and as they were aware of the actual position obtaining at the spot, still they insisted that the statement of the net profits reflects the actual position. This stand was found to be incorrect as the learned Additional District Judge eventually held that the land was Banjar Qadim and court-fee should be paid according to market value. Learned counsel on the above premises argued that the respondents had failed to comply with the order dated 1-6-1977 and, as such, further opportunity in exercise of discretionary powers of the Court could not legally be granted to them.

4. I have heard the learned counsel for the parties and have also gone through the documents on record. I find that a case for interference in exercise of constitutional jurisdiction is not made out. The aforenoted plea, it may tie stated, has been raised for the first time in this constitutional petition. In the application filed by the petitioners seeking rejection of the plaint under Order Vii rule 11, C.P.C., the plea that initial court-fee paid was deficient and that by payment of Rs. 615 it A cannot be taken that the order dated 1-6-1977 stood complied with and obeyed was not taken. In fact, the plea was that the suit land was Banjar Qadim and the copy of the Khasra Girdawari was obtained showing the land partly under cultivation with the connivance of the Patwari and tt at such a manipulated Khasra Girdawari could not be relied) upon. In this respect, the finding of the learned trial Court was &gains, the respondents as the learned Additional District Judge observed that though there, is some tampering in the Register Khasra Girdawari and both the parties blamed each other, but it is difficult at this stage to find out the party which connived with the Patwari. Learned Additional District Judge as such hits not held the respondents to he responsible for the copy of the Khasra Girdawari supplied by them. It will, therefore, be seen that without placing the responsibility of the preparation of such a Khasru Girdawari on the respondents, it cannot be held that there was a deliberate effort on the part of the respondents to pay insufficient court-fee . It is well-settled that a party cannot be held responsible for the act of the officers of the Court or for any act or omission for which it cannot be held responsible. III view of this finding on record, it cannot be urged with success that the act of the respondents was contumacious or negligent. In these circumstances, the Additional District Judge acted justifiably in directing the trial Court to provide one opportunity to the plaintiffs to make good the ' deficiency. The exercise of discretion, as such, cannot be called arbitrary or illegal. In these circumstances the question whether constitutional jurisdiction can be invoked in the facts and Circumstances of the case, need not be gone into. This petition for above stated reasons fair and is dismissed. Parties are left to bear their own costs.

N.B.T. Writ dismissed,

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