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Civil Petitions for Leave to Appeals Nos. 320 and 321 of 1985, decided on 8th February, 1986.

(On appeal from the judgment of Lahore High Court, dated 25‑3‑1985 in Civil Revision No. 591 of 1985 and No. 592 of 1985).

‑‑Art. 185(3)‑‑Court Fees Act (VII of 1870), S. 7(vi)‑‑Civil Procedure Code (V of 1908), Ss. 148, 149 and O.VII r.11(d)‑‑Court‑fee---Deficiency‑‑Plaintiffs directed by trial Court to make good deficiency in court‑fee on or before a specific date and also furnish statement of net profits by said date‑‑Plaintiffs failing to comply with order but trial Judge on a subsequent date, being totally oblivious of his previous order, passing a fresh order directing plaintiffs to make up deficiency by a specific date and furnish statement of net profits by that date without mentioning specific amount required to be paid by way of deficiency in court‑fee‑‑Plaint, held, was not liable to be rejected under O.VII, r.11(d), Civil Procedure Code, unless Court had first made an order calling upon plaintiffs to make up deficiency in court‑fee by specifying amount thereof‑‑Plaint was still before trial Court on date of subsequent order and Court was amply empowered to extend time for doing needful as earlier ordered or even pass a fresh order to same effect by a specified future date.

‑‑‑Ss. 148, 149 & O. VII, r. 11‑‑Court Fees Act (VII of 1870), S.7‑ Court‑fee‑‑Deficiency‑‑Power vested in Court under 5.148, Civil Procedure Code, can be exercised successfully and even after time under previous such order has expired and nothing turned on fact that there was a gap between period covered by two orders.

‑‑‑S. 149‑‑Court Fees Act (VII of 1870), S.7‑‑Court‑fee‑‑Deficiency‑ Limitation‑‑First appellate Court applying its mind and coming to conclusion that plaintiffs in suit were entitled to grant of time in circumstances of case‑‑Order being a discretionary order, there was, held, nothing to hold that discretion was perversely exercised‑‑Courts below acting upon rule laid down by Supreme Court and no legal infirmity found in their orders‑‑Interference declined by Supreme Court.

Siddique Khan v. Abdul Shakur Khan P L D 1984 S C 289 rel.

Muhammad Rashid Chughtai, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Petitioners (in both Petitions).

Nemo for Respondents.

Date of hearing: 8th February, 1986.

‑These petitions for leave to appeal are directed against identical orders, dated 25th March, 1985, by a learned Single Judge of the Lahore High Court dismissing two revision petitions filed by the petitioners in limine.

2. Petitioners are vendees who purchased about 398 Kanals of agricultural land for a consideration of Rs.2,00,000 through a registered sale‑deed, dated 7th May, 1974. In respect of the said sale, two suits for possession through pre‑emption were filed, one by Khuda Bux and others and another by Tufail Muhammad and others who are respondents in these two petitions, respectively. The said respondents set up in each suit a rival claim to pre‑emption being co‑owners in the estate. The plaints in the two suits were affixed with deficient court‑fee, namely, of Rs.382.50 and Rs.394.00, respectively.

2. When the two plaints were placed before the learned Civil Judge on 7th May, 1975, he passed identical orders in the two suits, directing the plaintiffs to make good the deficiency in the court‑fees on or before a specified date and also furnish the statement of net profits by the said date. The two suits were consolidated by the learned Civil Judge and adjourned for filing written statement. In the events that happened the plaintiffs (respondents herein), in both suits did not make up the deficiency in the court‑fee nor filed a statement of net profits as directed by the Court within the stipulated time. It, however, appears that on a subsequent. date, i.e. 24th July, 1.975, the learned Civil Judge being totally oblivious of the previous order, dated 7th May, 1975, passed a fresh order directing the plaintiffs (respondents) in both suits to make up the deficiency by 8th September, 1975 and also furnish the statement of net profits by that date. It is the case of the petitioners that the plaintiffs applied for obtaining the statement of net profits for the first time on 29th July, 1975, which was supplied to them on the basis of which they supplied the deficiency in the court‑fees in both suit on 6th September, 1975. Therefore, as regards the second order passed by the learned Civil Judge there was no default of compliance on the part of the plaintiffs (respondents).

3. The learned Civil Judge thereafter framed consolidated issues in the two suits including the following issue‑

"Whether‑the plaints in both the suits are insufficiently valued . and as such the suits have become barred O.P.D. (Vendees)."

On the aforesaid issue the learned Civil Judge gave a finding that the plaints in both suits were properly valued and stamped. On the merits he came to the conclusion that both sets of rival pre‑emptors had superior pre‑emption rights qua the vendees (petitioners herein). Accordingly the two suits were decreed in favour of the respondents to the extent of. 158 Kanals and 240 Kanals, respectively, vide judgment, dated 26th September, 1979.

4. Being aggrieved the petitioners filed two separate appeals before the learned District Judge, inter alia, .challenging the finding on the issue with regard to insufficiency of valuation and court‑fees. The learned District Judge held that as the plaintiffs in the two suits had failed to make up the deficiency in the court‑fees by the prescribed date in terms of the first order passed by the Court, and no extension of time was sought, with the result that there was a break between the expiry of the prescribed period under 'the first order and the fresh order allowing time to make up the deficiency, the subsequent order was illegal and the suits were barred by limitation. The learned District Judge, therefore, allowed the appeals of the petitioners and set aside the decrees passed against them.

5. The respondents thereupon filed two regular second appeals which were disposed of by the learned Single Judge of the Lahore High Court, whereby the cases were remanded to the first appellate Court with a direction to rehear the appeals after deciding the question whether the respondents were entitled to the exercise of discretion vested in the Court to extend time for making up deficiency in court‑fees under section 149, C.P.C. This judgment was challenged before this Court by means of petitions for leave to appeal which were however, dismissed.

6. The learned first appellate Court on remand heard the parties and by separate orders allowed the applications on behalf of the respondents under section 149, C . P. C . holding that they were entitled to the benefit of extension of time for making up deficiency in court‑fees. On re‑examining the merits of the case, the learned first appellate Court dismissed the appeals filed by the petitioners, vide judgment, dated 11th March, 1985. Against this judgment revision petitions were filed by the petitioners which were dismissed in limine by the impugned order as stated earlier.

7. The main contention in support of these petitions urged by the learned counsel is that the second order prescribing time for making up deficiency of court‑fees and filing the statement of net profits, was passed without application of mind and ignorance of the orders passed earlier under which the time allowed had already expired. In other words the submission was that upon expiry of the period earlier fixed as the plaintiffs had failed to comply therewith the plaints were liable to be rejected under Order VII. rule 11(d), C.P.C. It was further urged that the conduct of the plaintiffs in not complying with the first order by making up a proper application to the revenue authority for obtaining the statement of net profits the plaintiffs were guilty of contumacy and negligence and accordingly were not entitled to the exercise of discretion in their favour extending the time. The power of the Court to pass a fresh order after the expiry of the period prescribed under the first order was also challenged. We have carefully considered these contentions and find no substance therein. The plaints were not liable to be rejected under Order VII, rule l I (d) , C . P . C . unless the Court had first made an order calling upon the plaintiffs to make up the deficiency in court‑fees by specifying the amount thereof. In this case no such order was passed directing the plaintiffs to pay a specific amount by way of deficiency in the court‑fees. In the circumstances the plaints originally filed by the plaintiffs were still before the Court' on the date of the subsequent order and the Court was amply empowered to extend the time for doing the needful as earlier ordered or even pass a fresh order to the same effect by a specified future date. It is well‑settled that the power vesting in the Court under section 148, C.P.C. can be exercised successively and even after the time under previous such order has expired. Therefore, nothing turns on the fact that there was a gap between the period covered by the two orders. So far as the justification for extension of time under section 149. C.P.C., the first appellate Court applied its mind and came to the conclusion that the plaintiffs in the two suits were entitled to the grant of time in the circumstances of the case. This is a discretionary order and there is nothing to hold that the discretion was perversely exercised. The Courts below have acted upon the rule laid down by this Court in Siddique Khan v. Abdul Shakur Khan P L D 1984 S C 289 and there is no legal infirmity in the impugned orders in these two petitions. Both petitions are accordingly dismissed.

M . Y . H . Petitions dismissed.

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