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Regular First Appeal No.105 of 1985/BWP, decided on 26th October, 1986.

---S.30--Civil Procedure Code (V of 1908), S.149 & O.VII, R.11- Pre-emption suit--Deficiency in court-fee--Effect--Deficiency it payment of court-fee at time of filing of pre-emption suit would neither render such suit to be dismissed as barred by time nor plaint could be rejected under O.VII, R.11, C.P.C. without requiring plaintiff to, make up such deficiency--Where pre-emption suit was presented before the Court in time, same could not be dismissed as barred by time on account of deficiency in payment of court-fee without requiring him to make good such deficiency within specified time on his failure to comply with such order, even though conduct of plaintiff right by mala fide and grossly negligent--Plaint of such suit, held, could no, be rejected under O.VII, R.11 either.

PLD 1993 SC 227 rel.

P L D 1984 S C 157 and P L D 1984 S C 289 ref.

--S.96--Court Fees Act (VII of 1870), S.13--Dismissal of suit as time-barred and rejection of plaint on erroneous view of law--Effect--Where suit of pre-emptor was dismissed on account of deficiency of court-fee without requiring plaintiff to make up same within specified time, such suit was restored by High Court in appellate jurisdiction and case was sent back to Trial Court for adjudication in accordance with law.

Ch. Abdul Sattar for Appellant.

Asghar Ali Bhatti for Respondent.

Date of hearing: 26th October, 1986.

--Muhammad Arshad and 8 others, the respondents purchased suit land measuring 200 kanals situated in Chak No.6/1-R, Tehsil Haroonabad, District Bahawalnagar for ostensible sale price of Rs.6,25,000 from Asghar Arshad and others vide registered sale-deed, dated 25-7-1983. On 24-7-1984 Haji Muhammad Shafi appellant instituted suit for possession by pre-emption against Muhammad Arshad and 8 others, the vendees, before Civil Judge Ist Class, Haroonabad on the strength of his superior right of pre-emption as YAKJADDI of the vendors and co-sharer in the khata. It was also averred in the plaint that the suit land was in fact purchased for Rs.4,50,000 but to defeat the suit for pre-emption, the sale price was fictitiously shown as Rs.6,25,000 in the sale-deed. The court-fee stamp of Rs.15 only was affixed on the plaint. Alongwith the suit, the appellant moved application under section 149 -C . P . C . for the extension of time for making up the deficiency in the court-fee. The suit was resisted by raising preliminary objections and denying averments made in the plaint. One of the preliminary objections was to the effect that the suit was not properly valued for the purpose of court-fees and jurisdiction. The trial Court framed 7 issues including following issue No.3:

"Whether the suit has not been properly valued for the purpose of court-fee and jurisdiction

The case was adjourned to 17-9-1985 for recording evidence of the plaintiff. It may be noted that by that time no order allowing or refusing extension of time for making up the deficiency in the application, dated 24-7-1985, which was filed alongwith the suit, was passed. It so happened that on 24-7-1985 Haji Muhammad Shafi appellant/plaintiff moved application for permission to make up the deficiency in court-fee of the value of Rs.15,000. This application came up before the trial Court alongwith the suit on 17-9-1985. The respondents/ defendants resisted the application on various grounds including that of mala fide. After hearing the arguments of the learned counsel for the parties, the trial Court not only rejected this application but also dismissed the suit of the plaintiff /appellant as barred by time. In the concluding para. of its judgment, the trial Court stated:-

"In view of the above discussion I hold that the conduct of the plaintiff is mala fide and he has acted with gross negligence and now the defendants have got a valuable right and there is no cogent reason to allow the plaintiff to make good the deficiency of court-fee. His application is, therefore turned down and it is-held that no proper plaint has been presence before this Court and thus the suit of the Pre-emption has, become barred by limitation and as such this suit is dismisses with no order as to costs."

hence this first appeal.

2. Learned counsel for the appellant relied upon cases 'Mst. Parveen v. Mst. Jamsheda Begum & another' reported as P L D 1983 S C 227, 'Shana Khan v. Aulia Khan & others' reported as P L D 1984 S C 157 and 'Siddiq Khan and others v. Abdul Shakir Khan and another' reported as P L D 1984 S C 289, to contend that the suit filed by the appellant/ plaintiff although not sufficiently stamped at the time of its institution within time, could not have subsequently been dismissed as barred by time on account of non-payment or deficiency in payment of the Court-fee. On the other hand, the learned counsel for the respondents has supported the judgment of the trial Court. He maintained that the conduct of the appellant plaintiff was mala fide inasmuch as the statement of net profits was with the counsel of the plaintiff and he did not produce the same although asked by the trial Court; that had the appellant produced those documents before the trial Court it would have been cleared that the same had actually been prepared much earlier; that in view of the plea taken by the respondents/ defendants in their reply to the application of the plaintiff that the latter had been demanding money for withdrawing the suit, the conduct of the plaintiff /appellant was not such that he .should have been allowed time to make up the deficiency in Court-fee and that since the plaint was not properly stamped, therefore, it was not a valid plaint.

3. We have considered the submissions made by the learned counsel for the parties with care. We feel persuaded to agree with the learned counsel for the appellant. It is, by now, well settled that on account of non-payment or deficiency in payment of the Court-fee at the time of the filing of the suit, neither the suit can be dismissed as barred by time nor the plaint can be rejected under Order VII Rule 11 C. P. C. without requiring the plaintiff to make up the deficiency. The following observation made by the Honourable Supreme Court in case 'Mst. Parveen v. Mst. Jamsheda Begum & another' may be reproduced advantageously:-

"The learned trial Judge was fully competent to grant time under section 149 C.P.C. to the plaintiffs for supplying the court-fee. Once having done so and the respondents having complied with the order passed under section 149 C.P.C., the plaint, it is provided in the said section, shall be deemed to have the same force and effect as if such fee had been paid in the first instance. Thus the question of the bar of limitation would not at all arise. The argument of the learned counsel thus has no force. It may also be observed that the learned trial Judge could not have rejected the plaint under Order VII, Rule 11, C.P.C. on the mere discovery that the claim was undervalued, unless under clause (b) of rule 11, the plaintiffs having been required by the Court to correct the valuation within a time specified by the Court, had failed to do so. Similarly regarding insufficiency of Court-fee, the plaint could be rejected under clause (e) of rule 11, if the plaintiffs, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, failed to do so. In both these eventualities, the plaint could have been rejected under Order VII, Rule 11, C.P.C. and it would not have been proper, without recourse to this provision, to dismiss the suit as time-barred. It could not be said that if the suit was within time on the day the plaint was duly presented, it became time-barred simply because the plaint could be rejected under clause (b) or (c) or for that matter clause (a) or (d) of rule 11 (after the period of limitation) .for the reasons mentioned in the said clauses; the suit could not be dismissed on the ground of limitation merely because the plaint when originally otherwise duly presented in a Court, was not correctly stamped. Section 3 of the Limitation Act, whereunder a suit can be dismissed applies only if it is instituted after the period of limitation. It is not the case of the appellant that as visualised by the explanation to section 3 of the Limitation Act, the plaint was presented not to the proper Officer, or after the expiry of limitation. And if it was presented properly before a proper Officer prior to the expiry of period of limitation then the relevant provisions for consideration would be Order VII, rule 11, section 149, and in some cases section 148, C.P.C.; as also, section 10(ii) of the Court Fees Act, whereunder a suit can be dismissed for non-compliance with the order of the Court for supply of the requisite fee and not on the ground that for the same reasons it had become time -barred. The two considerations would be totally different."

It is thus very much obvious that the present suit which was undisputedly presented before the court in time, could not have been dismissed by the trial Court as barred by limitation on account of supply of deficient Court-fee although the conduct of plaintiff may be mala fide or he may have acted with gross negligence. Since the learned trial Court had not required the appellant/ plaintiff to supply the requisite stamp-paper within time to be fixed by it, therefore, the plaint can also not be rejected under Order VII, Rule 11, C.P.C. The submissions made by the learned counsel for the respondents/ defendants do not hold any water.

4. For what has been said above, the appeal is accepted. The judgment and decree passed by the trial Court is set aside and the case is sent back to the trial Court for proceeding in accordance with law.

5. Since there has been no real trial of the main issues involved in the case and the trial Court, had disposed of the suit upon a preliminary point and the decree has been reversed by us, the appellant is, therefore, entitled under section 13 of the Court Fees Act to refund of Court-fee paid by him on the memorandum of appeal. So, a certificate is granted to the appellant authorizing him to receive back from the Collector concerned the full amount of fee paid on the memorandum of appeal. The parties are left to bear their own costs.

A.A./M-135/L Appeal allowed.

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