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Writ Petitions Nos. 3781 and 5713 of 1984, heard on 21st October, 1986.

‑‑‑0. VII, R. 11‑‑Court Fees Act (VII of 1870), Ss. 9, 10 & 28 Rejection of plaint‑‑Requirement‑‑Before a plaint could be rejected for non‑payment of court‑fees, Trial Court, held, would be required to determine, amount of court‑fee payable on plaint, direct plaintiff to make good deficiency thereof within specified time, failing which if Court found no grounds for further extension of time, then only such plaint could be rejected‑ Where Court had not determined with exactitude amount of court‑fee exigible on plaint, non‑compliance thereof, would not entail rejection of plaint.

Limbaji v . Ahmed Bin Sayeed and another A I R 1956 Hyd. 49; Malik Jan Muhammad v . Shukar‑ud‑Din and 6 others 1980 C L C 186; Mst. Parveen v . Mst. Jamsheda Begum and another P L D 1983 S C 227; Shahna Khan v. Aulia Khan and others P L D 1984 S C 157; Siddiq Khan and 2 others v. Abdul Shakoor Khan and another P L D 1984 S C 289 and Ilam Din and another v. Abdul Majid and 2 others 1986 S C M R 1439 ref.

Malik Jan Muhammad's case 1980 C L C 186 for.

(b) Civil Procedure Code (V of 1908)‑‑

‑‑‑0. VII, R. 11‑‑Court Fees Act (VII of 1870), Ss. 9, 10 & 28‑‑Valuation for purposes of court‑fee and jurisdiction‑‑Statement of valuation, omission of‑‑Plaintiff, held, has to state valuation for purposes of court‑fee and jurisdiction‑‑Where such statement as to valuation had been omitted, same could be permitted to be inserted in plaint by way 'of amendment‑‑Court was obliged, first to have valuation corrected and then call on plaintiff to pay additional court‑fee on corrected valuation.

‑‑‑S. 22(4)‑‑Civil Procedure Code (V of 1908), S. 148‑‑Non‑furnishing of deposit or security within time‑‑Effect‑‑Where plaintiff failed within time fixed by Court or within such further time as allowed by Court to make deposit or furnish security, his plaint, held, could be rejected‑ Court, however, would be competent in its ‑discretion to extend time either on application oral or written where justice so demanded.

Abdul Ghani v. Vishunath A I R 1957 Allah. 337 and Gian Chand v. Hem Raj and another A I R 1927 Lah. 776(2) ref.

‑‑‑S. 22(4)‑‑Limitation Act (IX of 1908), S. 5‑‑Deposit of Zar‑i‑Panjam‑‑Condonation of delay‑‑Extension of time‑‑Where minor had sued through next friend for pre‑emption of land, averment of serious illness of such next friend through affidavit, held, was rightly taken as correct statement of facts by Trial Court and constituted sufficient cause for extension of time for deposit of Zar‑i‑Panjam.

Devaralinga Gowda and another v. Puttaswamy Gowda and others A I R 1955 Mys. 133 ref.

‑‑‑Ss. 115 & 148‑‑Revisional jurisdiction, exercise of‑‑Exercise of discretion unless arbitrary or perverse, held, would not be interfered with in exercise of revisional jurisdiction by High Court‑‑Where however, discretion exercised by Trial Court in extending time was neither fanciful, arbitrary or capricious, rejection of plaint by appellate Court on wholly untenable grounds would entail exercise of revisional jurisdiction by High Court‑‑Order of Appellate Court whereby plain was rejected was set aside in revisional jurisdiction while that of Tria Court maintained.

Malik Allah Yar Khan for Petitioner.

Ch. A . Waheed Saleem for Respondents.

Date of hearing: 21st October, 1986.

Writ Petitions Nos. 3781 of 1984 and 5713 of 1984, which raise common issues of facts and law and arise out of a suit for pre‑emption are proposed to be disposed of by a single order.

Facts are:‑‑Through a deed of sale registered, on 11‑12‑1985 one Fazal Hussain sold 174 Kanals 10 Marlas of land situate at Mau2 Dhrema, District Sargodha,. to Ahmad Khan son of Muzaffar 1/2, Ghula Raza, Ghulam Jafar sons of Muhammad Khan remaining 1/2, f( Rs.6,00,000. Qadir Bakhsh as owner of the estate pre‑empted the sa and brought a suit, on 10‑12‑1983, in the Court of Civil Judgi Sargodha. As the pre‑emptor was minor, he sued through Maula Bakhsl his father, who acted as his next friend in the civil suit. From tl order recorded on the order sheet on 11‑12‑1983, it appears that Court ordered that the suit be registered, summonses be issued to defendants for 12‑2‑1984, directed the pre‑emptor to deposit Rs.1,20,0 as 1 / 5th of the probable sale price (Zar‑e‑Pan jum) till 11‑2‑1984 al also observed that the statement of annual net profits be obtained al deficit court‑fee be made up before the next date of hearing vi 12‑2‑1984. On 12‑2‑1984, the Presiding Officer was on leave and case file was placed before Senior Civil Judge, Sargodha, who not that Zar‑e‑Panjum had not been deposited and that an application seek extension of time was put in and postponed the suit for fourth proceedings to 13‑2‑1984. On 13‑2‑1984, copy of the application seek extension of time was given to the opponents and the suit was adjourn to 15‑2‑1984 for receiving reply and hearing arguments. On this date the Court accepted the application and extended the time for deposit Zar‑e‑Panjum till 16‑2‑1984 and postponed the suit to the aforesaid date for compliance. On extension, learned Civil Judge observed:‑‑

"The petitioner is admittedly a minor and has sued through father, who is conducting the proceedings on his behalf. It made on the basis of affidavit that his father became ill, he could not get the price of sugarcane so he could not deposit the Zar‑e‑Panjum before 12‑2‑1984. He immediately moved the Court for extension of time. The copy of the application was given to the respondents, who filed their written reply and they also have been heard through their counsel. The extension of time for depositing Zar‑e‑Panjum is the discretion of the Court and no doubt it is to be exercised judiciously. In the instant case the petitioner being minor and due to illness of his father could not deposit the Zar‑e‑Panjum within due date. I found it a fit case for extension of time for depositing the Zar‑e‑Panjum. The application is, therefore, accepted subject to payment of Rs.100 as costs and the petitioner is directed to deposit the Zar‑e‑Pa6jum by tomorrow."

It is not in dispute that Zar‑e‑Panjum viz. Rs.1,20,000 was put in deposit within the extended time by the petitioner. Treasury challan is on the fire of the trial Court.

On 18‑2‑1984, Ahmad Khan defendant, through his counsel, put in an application under Order VII, Rule 11, C.P.C. and prayed that as the requisite amount of court‑fee had not been paid as ordered by the Court, the plaint in the pre‑emption suit be rejected. The Court ,entertained the application, received reply from the pre‑emptor and I vide order, dated 5‑3‑1984 did not accept the plea of the defendant I and rejected his application. The Court observed:‑‑

"Arguments heard. The contention of the defendant that the plaintiff has paid the court‑fee of Rs.15,000 on 18‑2‑1984 instead of 12‑2‑1984, as such his plaint should be rejected is not sustainable as full amount of court‑fee was paid by the plaintiff on 18‑2‑1984 i.e. only six days after the date fixed by the Court, because of non‑availability of the Naqsha Jhar Pedawar. There seems no mala fide or contumacy on the part of the plaintiff. The application filed by the defendant is, therefore, rejected. The delay of 6 days for late filing of the court‑fee by the plaintiff is condoned."

and adjourned the suit to 27‑3‑1984 for filing written statement by the defendants. It may be noticed that in opposition to the application for rejection of plaint plaintiff had averred that after obtaining statement of net profits, Rs.15,000 the amount of court‑fee payable on the plaint, was deposited in the treasury, on 15‑2‑1984 (Challan shows 16‑2‑1984) and court‑fee stamps were provided to him, on 18‑2‑1984, and, were, accordingly, filed in Court on the same day.

Vendees took exceptions to the aforenoted two orders of the trial Court, canvassed their correctness in two separate Civil Revisions Nos. 26 and 27 of 1984, and succeeded to have the plaint rejected under the orders of learned District Judge passed on 23‑5‑1984. Aggrieved of the orders passed in revisional jurisdiction, rejecting the plaint by learned District Judge, petitioner, who was plaintiff before the trial Court, has preferred two applications in constitutional jurisdiction.

Counsel have been heard and with their assistance record has been examined. It was contended for the petitioner that in the absence of a proper determination of the court‑fee payable and a direction from the Court to make good the deficit court‑fee within a given time plaint could not have been rejected under Order VII, Rule 11, clauses (b), (c), Civil Procedure Code. In the instant case, counsel argued, the order made was that the statement of net profits be obtained and the deficit court‑fee paid in accordance therewith., On the basis of such a composite order, learned counsel urged, penalty for rejection of the plaint was not earned by the petitioner. Referred to Limbaji v. Ahmed Bin Sayeed and another A I R 1956 Hyd. 49, Malik Jan Muhammad v. Shukar‑ud‑Din and 6 others 1980 C L C 186, Mst. Parveen v. Mst. Jamsheda Begum and another P L D 1983 S C 227, Shahna Khan v. Aulia Khan and others P L D 1984 S C 157, Siddiq Khan and 2 others v. Abdul Shakoor Khan and another P L D 1984 S C 289, Ilam Din and another v. Abdul Majid and 2 others 1986 S C M R 1439. Relying on the aforenoticed decisions, counsel contended, that the order of learned District Judge holding that non‑payment of court‑fee in time entailed rejection of the plaint was wholly illegal. As for Zar‑e‑Panjum and extension of time, Malik Allah Yar Khan argued that the matter rested in the discretion of trial Court and that having been properly exercised was not revisable by District Court under section 115(2) of the Civil Procedure Code.

Ch. A. Waheed Saleem, learned counsel for the respondents, spoke in defence of the impugned orders and argued that the pre‑emptor failed to pay the court‑fee in accordance with the direction of the trial Court and in the absence of a proper explanation for the late deposit of the court‑fee, learned District Judge was right in ordering rejection of the plaint. As for the extension of time for deposit of Zar‑e‑Panjum, learned counsel urged that though the grant of time was in the discretion of the Court yet the discretion was neither naked nor arbitrary and the Court while considering the issue is obliged to apply its mind to the ground advanced and then find whether it constituted a sufficient cause within the contemplation of section 22(4) of Punjab Pre‑emption Act, 1913. Also urged that extension is not to be granted in the routine and mechanically. It was also argued that the minority of the pre‑emptor in itself was hardly a good ground to give him extension of time. To support the contentions, learned counsel referred to number of decisions both on issue of court‑fee and the extension of time.

Two points arise for consideration, first is as to the non‑payment of court‑fee in time and the second is whether extension of time in the circumstances alleged could be granted to the pre‑emptor and the discretion exercised was revisable. I propose to take up the issue of court‑fee first. Admittedly, while issuing a direction to obtain statement of annual net profits and paying the deficient court‑fee in accordance therewith, the Court had not determined with exactitude the amount of court‑fee exigible on the plaint. The matter for calculation of court‑fee was left to the pre‑emptor. The course adopted was obviously incorrect as found by this Court in Malik Jan Muhammad's case 1980 C L C 186, a Division Bench authority, which is clearly binding on me. Such a composite order, in my opinion, could not have been passed, non compliance whereof could entail the penalty of rejection of plaint. It is an established principle of law admitting of no doubt now that before a plaint is rejected on this score Court is obliged to determine the amount of court‑fee payable on the plaint, direct the plaintiff to make good the deficit within a given time, failing which if the Court finds no grounds for further extension of time, then only the plaint could be rejected. View taken by me receives ample strength from the decisions of supreme court, relied upon by the counsel for the petitioner impugned order has not been taken notice of the latest pronouncements of Supreme Court on the question of court‑fee and when a Court fee act in accordance with the decisions of the superior Courts its judgment is certainly illegal and without lawful authority. It is not disputed that the sum of Rs.15,000 the amount of court‑fee payable in accordance with the schedule of profits, was deposited in the Government Treasury, on 16‑2‑1984. Stamps from the treasury were provide to the petitioner, on 18‑2‑1984 and the same day these were filed be; trial. Court. Plaint has been rejected under Order VII, Rule C.P.C. for late payment of court‑fee in disregard of the order of 4.rial Court. In para. 8 of the plaint, valuation for purposes of court and jurisdiction both were postponed to a date after the statement. ,annual net profits was available. Plaintiff had affixed only two rupees court‑fee stamps on the plaint. However, after the schedule of net profits was obtained by the plaintiff, he filed an amended plaint on court‑fee stamps of Rs.15,000. Under Order VII, Rule 1, C.P.C., the plaintiff has to state the valuation for purposes of court‑fee and jurisdiction. Where statement as to the valuation, which is an important; part of the plaint, has been omitted or the proposed valuation note' given in the plaint, it may be permitted to be inserted in the plaint by Way of its amendment. In such circumstances, the Court was obliged first to have the valuation corrected in the plaint and call on the plaintiff to pay additional court‑fee on the corrected valuation. Requiring. plaintiff to pay court‑fee in accordance with the schedule of net profits are two distinct orders entailing different legal consequences rising out of their not being complied with. Proper procedure in the case was, therefore, to call on the plaintiff to correct the valuation with in a given time pay court-fee in accordance therewith and in default apply order VII Rule II C.P.C to the case. If the Court found that the court-fee paid was still deficient direction for payment of additional court-fee could have been made after its proper determination. Composite order of the nature passed by the trial Judge could not provide a proper legal basis for invoking Order VII Rule II C.P.C. to reject the plaint. In somewhat similar circumstances Allahabad High Court in Abdul Ghani v. Vishunath AIR 1957 ALL. 337 remarked that a composite order requiring the valuation of the subject-matter in the plaint to be corrected and additional court-fee to be paid on the corrected valuation could not be made. Learned Judges on this aspect has thus to say:-

"The learned Munsif ought not to have passed a composite order requiring the valuation of the subject‑matter in the plaint to be corrected and additional court‑fee to be paid on the corrected valuation. Requiring a plaintiff to increase the valuation and requiring him to pay additional court‑fee are two distinct orders with different consequences arising out of their being not complied with and must be kept separate and should never be passed simultaneously. An order requiring additional court‑fee to be paid can be passed only if the valuation is increased in compliance with the other order; on the valuation originally stated on the plaint the court‑fee is (presumably) sufficient. If the valuation is not increased as directed by the Court the plaint must be rejected; vide Order VII, Rule 11(b), C.P.C., and the Court has no occasion to pass the other order. It is only when the valuation is increased in compliance with the order that the question of paying additional court‑fee can arise, the proper procedure in such a case is to call for a report from the office about additional court‑fee payable, if any, on the increased valuation, and to pass an order requiring the plaintiff to pay additional court‑fee specifying its amount. A vague order like 'the plaintiff shall pay additional court‑fee within days' is not a good order, the plaintiff has right to be informed of the exact amount of the additional court‑fee to be paid by him. The words used in Order VII, Rule 11(c) are, 'to supply the requisite stamp paper'. If the additional court‑fee is not paid within time allowed, the plaint must be rejected under this rule. The opening words of the rule are highly significant; 'where the relief claimed is properly valued but the plaint is written upon a paper insufficiently stamped' means that the plaintiff can be ordered to pay the additional court‑fee only after he has increased the valuation."

Therefore, learned District Judge was clearly erroneous in proceeding to order rejection of plaint on the basis of a composite order referred to in the earlier paragraph of the judgment, and I have no hesitation to say that learned District Judge acted totally against settled law in I applying Order VII, Rule 11, C.P.C., against the plaintiff. However, this does not end the matter and there is yet another issue as to the extension of time, which needs consideration.

Suit was instituted on 10‑12‑1983. On 11‑12‑1983, the Court directed the plaintiff to deposit Zar‑e‑Panjum (Rs.1,20,000) till 11‑2‑1984. Admittedly, the amount was not deposited within the time fixed by the Court. Instead, an application for extension of time was made on 12‑2‑1984. In it, it was averred that the father of the pre‑emptor, who was also his next friend, fell seriously ill and the amount for deposit could not be arranged. Defendants objected to the extension and prayed that in the non‑deposit of Zar‑e‑Panjum in time, plaintiff had earned the penalty of rejection of plaint under section 22(4) of the Punjab Pre‑emption Act, 1913. Learned Judge of the trial Court accepted the plea of the pre‑emptor and extended the time till 16‑2‑1984 and the necessary amount, as stated above, was deposited within time. It is seen from the trial Court's record that application for extension of time was also supported by affidavit of Maula Bakhsh, father and next friend of the minor plaintiff. On record, there appears to be no counter‑affidavit from the opponents to controvert what was said in the affidavit of Maula Bakhsh. Mr. Saleem argued that inability to arrange for funds or illness of the next friend do not constitute sufficient cause for extension of time. Section 22 of Punjab Pre‑emption Act so far as it is relevant provides:‑‑

...... the Court shall at, or at any time before, the settlement of issues require the plaintiff to deposit in Court such sum as does not, in the opinion of the Court, exceed one‑fifth of the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for the payment, if required, of a sum not exceeding such probable value within such time as the Court may fix in such order."

Subsection (4) provides that if the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow tog make the deposit or furnish the security, his plaint shall be rejected.

Undisputedly, the extension of time is in the discretion of the Court and on a proper case made out the Court is competent to extend time either on application oral or written or even suo Motu, where the justice so demands. Jurisdiction to extend time, therefore, exists, but it is only for a sufficient cause that a time for making the deposit can be extended. What is the sufficient cause is not susceptible of exact definition capable of being applied to all sets of circumstances. Each case, therefore, depends on its own facts and circumstances. In Gian Chand v. Hem Raj and another A I R 1927 Lah. 776(2), Addison, J. relying on two earlier decisions of this Court, took the view that the minority in itself was no reason for allowing extension of time. Speaking with respects, this is the correct statement of law. But the decision proceeds on distinguishable facts also. However, while dealing with minors, who are placed under disability in the matters of suing and being sued except with the assistance of the next friends or the guardians‑ad‑litem, as the case may be, the Courts are prone to be less rigid in enforcing rigours of law and somewhat liberal in exercising powers to condone the delay. In Devaralinga Gowda and another v. Puttaswamy Gowda and others A I R 1955 Mys. 133 Venkataramaiya, C.J. on section 5 of the Limitation Act had thus to say "It is, however, necessary to bear in mind that when the delay affects the minors the penalty imposed is vicarious as the person in default is not the sufferer but the consequences of default is inflicted on the minors. For this reason Courts are less rigid in enforcing the bar of limitation and somewhat liberal in exercising power to condone delay when interests of minors are involved. This does not mean that such cases are exempt from the operation of law of limitation but does indicate the need to make a difference in considering delay which affects minors and adults." In the aforenoted observations, the Court was considering whether minority was a sufficient cause for the condonation of delay under section 5 of the Limitation Act yet these observations help the decision for extension of time for deposit of Zar‑e‑Panjum also and I have no hesitation to rely on these observations to hold that the trial Judge had properly exercised his discretion in allowing the extension. Plaintiff F was a minor and sued through his next friend. Averment as to serious illness was supported by the affidavit of his next friend. There is no rebuttal, and necessary consequence is that was stated in the application supported, as it was, by an affidavit, was rightly taken as correct statement of facts and this, in my opinion, did constitute sufficient cause.

The next question, which arises is whether the discretion exercised by the trial Judge was revisable. In Malik Hidayatullah and 2 others v. Murad Ali Khan P L D 1972 S C 69 their Lordships of the Supreme Court observed:‑‑

"In the circumstances, we are clearly of the view that the High Court grievously erred in holding that the Civil Judge had no jurisdiction at all to grant the extension of time. At worst, all that could be said was that perhaps the Civil Judge had not exercised his discretion in a proper manner in granting the extension but then the matter would not have been revisable by the High Court under section 115 of the Civil Procedure Code. Before the High Court could interfere under this latter section, it had to be satisfied that the Court below had acted illegally or with material irregularity in the exercise of its jurisdiction or exercised a jurisdiction not vested in it by law or failed to exercise a jurisdiction so vested.

Obviously, the learned Judge in the High Court was conscious of this difficulty and hence it appears to us, unnecessarily went out of his way to hold that in the present case the Civil Judge had no jurisdiction to extend the time, notwithstanding the provisions of subsection (4) of section 22 of the Punjab Pre‑emption Act."

Exercise of discretion unless arbitrary or perverse is not ordinarily interfered in revisionary jurisdiction. In my view, when the facts of the case are examined in their correct and true perspective, it can be safely held that the discretion exercised by the trial Court in extending the time for a couple of days was neither fanciful, arbitrary or capricious, and, therefore, could not have been revised so as to order rejection of the plaint in revision leaving the plaintiff without the remedy of appeal etc. Learned District Judge, to speak with respects to him, had proceeded on wholly untenable grounds in ordering rejection of the plaint for non‑payment of court‑fee in time as also finding fault

with the extension of time for deposit of Zar‑e‑Panjum. I confess, I am unable to endorse his view.

For the foregoing reasons I would accept the petitions, set aside the impugned orders and declare them to have been passed without lawful authority. Obvious consequence of the declaration is that the pre‑emption suit shall proceed to its trial on its merits in accordance with law. Costs to be borne as incurred.

Records summoned from the Courts below be returned to them.

A.A. Petitions accepted.

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